[Senate Hearing 106-980]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 106-980

              SUPERFUND PROGRAM: STATUS OF CLEANUP EFFORTS

=======================================================================

                                HEARING

                               BEFORE THE

                       SUBCOMMITTEE ON SUPERFUND,
                   WASTE CONTROL, AND RISK ASSESSMENT

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 21, 2000

                               __________

  Printed for the use of the Committee on Environment and Public Works

                               ----------

                   U.S. GOVERNMENT PRINTING OFFICE
68-413                     WASHINGTON : 2001


_______________________________________________________________________
            For sale by the U.S. Government Printing Office
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                                 20402

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
               one hundred sixth congress, second session
                   BOB SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma            DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming                FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri        HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio            BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho              JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah              BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas          RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
                      Dave Conover, Staff Director
                  Tom Sliter, Minority Staff Director
                                 ------                                

     Subcommittee on Superfund, Waste Control, and Risk Assessment

                 LINCOLN CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia             FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma            DANIEL PATRICK MOYNIHAN, New York
MICHAEL D. CRAPO, Idaho              BARBARA BOXER, California


                            C O N T E N T S

                              ----------                              
                                                                   Page

                             MARCH 21, 2000
                           OPENING STATEMENTS

Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island     1
Crapo, Hon. Michael D., U.S. Senator from the State of Indiana...     4
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................     3
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire....    27

                               WITNESSES

Bollwage, J. Christian, Mayor, on behalf of the U.S. Conference 
  of Mayors......................................................    21
    Prepared statement...........................................    61
    Responses to additional questions from:
        Senator Lautenberg.......................................    66
        Senator Smith............................................    65
Fields, Tim, Jr., Assistant Administrator for Solid Waste and 
  Emergency Response, Environmental Protection Agency............     6
    Prepared statement...........................................    39
    Responses to additional questions from Senator Boxer.........    47
Gray, Terrence, assistant director, Air, Waste, and Compliance, 
  Rhode Island Department of Environmental Management............    33
    Prepared statement...........................................    78
    Responses to additional questions from:
        Senator Lautenberg.......................................    81
        Senator Smith............................................    81
Jones, R.B., city councilman, East Palo Alto, CA, on behalf of 
  the National Association of Local Government Environmental 
  Professionals (NALGEP).........................................    22
    Prepared statement...........................................    67
Martin-Leff, Eugene, assistant attorney general, Office of the 
  New York State Attorney General, on behalf of the National 
  Association of Attorneys General...............................    35
    Prepared statement...........................................    82
    Responses to additional questions from Senator Smith.........    84
Schiffer, Lois J., Assistant Attorney General, Environment and 
  Natural Resources, Department of Justice.......................     8
    Prepared statement...........................................    49
    Responses to additional questions from:
        Senator Boxer............................................    60
        Senator Lautenberg.......................................    57
        Senator Smith............................................    56
Varney, Bob, commissioner, New Hampshire Department of 
  Environmental Services, on behalf of the Environmental Council 
  of States......................................................    32
    Prepared statement...........................................    72
    Responses to additional questions from:
        Senator Lautenberg.......................................    77
        Senator Smith............................................    76

                          ADDITIONAL MATERIAL

Letter, National Association of Attorneys........................    88
Minutes, National Association of Attorneys General, summer 
  meeting........................................................    86
Statements:
    Association of State and Territorial Solid Waste Management 
      Officials (ASTSWMO)........................................   105
    Department of Defense, Deputy Undersecretary for 
      Environmental Security, Sherri W. Goodman..................89-105

 
              SUPERFUND PROGRAM: STATUS OF CLEANUP EFFORTS

                              ----------                              


                        TUESDAY, MARCH 21, 2000

                             U.S. Senate,  
       Committee on Environment and Public Works,  
            Subcommittee on Superfund, Waste Control, and  
                                           Risk Assessment,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:05 p.m. in 
room 406, Dirksen Senate Office Building, Hon. Lincoln Chafee 
(chairman of the subcommittee) presiding.
    Present: Senators Chafee, Crapo, Lautenberg, and Smith [ex 
officio].

           OPENING STATEMENT OF HON. LINCOLN CHAFEE, 
                 U.S. SENATOR FROM RHODE ISLAND

    Senator Chafee. Today the subcommittee will hear testimony 
on the current status of cleanup activities under the Superfund 
program. This is my first hearing as chairman of the 
Subcommittee on Superfund, Waste Control, and Risk Assessment. 
I'm honored to chair this committee, which has jurisdiction 
over many of the nation's laws that regulate hazardous and 
solid waste.
    A lofty standard has been set by the Senators who have 
chaired this subcommittee in the past. The distinguished 
chairman of the full committee, Senator Bob Smith, led this 
subcommittee for 5 years during a critical period in the 
program and is a tireless advocate for fairness and efficiency 
in Superfund.
    The current ranking minority member of this subcommittee, 
Senator Frank Lautenberg, was chairman from 1987 until 1995 and 
has been a fierce advocate for our laws governing toxic waste.
    The Environment and Public Works Committee has achieved 
significant progress because its members have always worked in 
a bipartisan manner. Out of this cooperative spirit, Congress 
enacted the Comprehensive Environmental Response Compensation 
and Reliability Act of 1980. This landmark statue was enacted 
only because members of this committee had the foresight to 
reach across the aisle and forge bipartisan solutions to the 
startling environmental problems that faced this Nation. They 
knew that partisanship would be no excuse for ignoring the 
discovery of toxic waste sites, such as Love Canal in New York 
and the Valley of Drums in Kentucky.
    Indeed, the original Senate Superfund bill was a bipartisan 
effort from the beginning. The bill was cosponsored by the 
chairman and ranking minority members of the full committee and 
the two subcommittees with jurisdiction, including Senators 
John Culver of Iowa, Ed Muskie of Maine, Robert Stafford of 
Vermont, Jennings Randolph of West Virginia, Daniel Patrick 
Moynihan of New York, and my father, Senator John Chafee of 
Rhode Island. Four of these original cosponsors chaired the 
full committee at one point in time.
    As the Superfund program began to develop, we discovered 
that it created incentives for litigation and it was too costly 
and time-consuming.
    Since 1994, this committee has debated proposals to reform 
the inadequacies of Superfund. During this debate, EPA also 
undertook a wide variety of administrative reforms within the 
constraints of the existing statute to make the program more 
efficient, more fair, and less costly.
    The reforms, which I believe EPA Assistant Administrator 
Tim Fields will discuss in part today, are one reason why the 
nature of the debate has changed. While the program is far from 
perfect, it is, frankly, a better program than the one that 
existed in 1994.
    Since becoming chairman of this subcommittee, I have been 
visiting Rhode Island's 13 National Priority List sites to see 
firsthand how the Superfund program works on the ground. Rhode 
Island's NPL sites represent a good cross-section of the types 
of sites found around the country. Each of Rhode Island's sites 
include highly emotional issues, such as sites with 
contaminated groundwater, sites with contaminated river 
sediments, sites with municipal liability issues, and sites 
with dioxin-contaminated soil in residential areas.
    At each site I visit, I ask local officials, residents, and 
responsible parties how the Federal Superfund program is 
working. I must be honest: time after time I hear that EPA is 
doing an outstanding job--and that is the truth. That's what 
I'm hearing as I tour Rhode Island sites. I have been told that 
EPA has been responsive to the concerns of local communities 
and has worked hard to enhance fairness and the pace of 
cleanup.
    Acknowledging that today's Superfund program is different, 
I would like to take a fresh look at Superfund to identify the 
current status of cleanup activities, the accomplishments 
achieved so far, and what improvements can be made to enhance 
cleanups. In essence, I would like a snapshot of the current 
program so we can make informed decisions on the course of 
action to pursue.
    We have two questions before us: where are we today, and 
where do we go from here?
    The Federal Superfund program has made significant progress 
in cleaning up the Nation's worst hazardous waste sites. 
According to EPA, more than 90 percent of the cleanup decisions 
have been made, and more than half of all remedy construction 
is deemed complete.
    Potentially-responsible parties and taxpayers have spent 
tens of billions of dollars cleaning up sites across our 
Nation. While Superfund was originally enacted to address the 
Nation's worst hazardous waste sites, today's situation is 
different. Companies have made large advances in waste 
management and remediation technology. State and local 
governments have developed mature cleanup programs, and the 
public is more involved in Superfund decisions that affect 
their communities.
    From here, we must focus on the parts of the program that 
can be agreed on, to a certain extent, so that, in a bipartisan 
basis, we can assure the worst sites are cleaned up quickly, 
safely, and fairly.
    It has been my experience and the experience of this 
committee that progress can be made if we reach across the 
aisle to craft solutions that benefit everyone. I would like to 
inject that type of cooperation into the Superfund debate. I 
don't believe we can succeed without it.
    I look forward to working with Senator Lautenberg and all 
members of this subcommittee to find solutions to the remaining 
problems.
    I'd like now to turn to the ranking member of the 
subcommittee, Senator Lautenberg, for his opening statement.

        OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, 
           U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Lautenberg. Thank you, Mr. Chairman. I congratulate 
you for kicking off this hearing today. This has been a 
lingering problem, an opportunity for us dealing with 
Superfund, and I must say that your father was a great leader 
of this subcommittee and the committee and we worked 
cooperatively together. I thank you for mentioning my tenure as 
chairman. I look back longingly at those days.
    [Laughter.]
    Senator Lautenberg. I have since that time, and almost all 
of my service in the Senate, I have been very involved in many 
proposals for Superfund legislation, going back to the 
successful reauthorization of the program in 1986 and the 
legislation in the 103d Congress which came very close to 
passing.
    I've also been watching the program, itself, and am pleased 
at the progress it has made, as you noted. Just about half of 
the Superfund sites still named on the national priorities list 
are completely cleaned up, and final cleanup plans have been 
approved for more than 1,000 other sites. Over 90 percent of 
the sites on the National Priorities List have cleanups 
underway or completed. Superfund has been particularly 
effective in moving quickly to eliminate the most dangerous 
threats to the public. The program has performed about 6,000 
emergency removals of hazardous waste sites, each one potential 
serious health risk.
    I daresay there have been advances in getting settlements 
to have the responsible parties perform the work and reducing 
litigation.
    In this era of the declining Federal expenditures, it has 
been more important than ever that those responsible for the 
contamination pay for the cleaning up and stretch Superfund 
dollars to cover as many abandoned sites as possible.
    Since 1992, 70 percent of all cleanups have been performed 
by responsible parties. Those are really encouraging advances, 
and I'm looking forward to hearing what today's witnesses will 
have to say on the progress that has been made cleaning up 
specific sites in their areas.
    Now that Superfund is really hitting its stride, we need to 
keep that momentum going, and I want to encourage suggestions 
on how we can accomplish that.
    One area that I am very interested in taking action on is 
brownfields, and I particularly look forward to hearing from 
our witnesses on their views of brownfields and whether they 
feel that it is a helpful program or could be energized.
    I also want to note that this is a significant occasion, 
Senator Chafee's first hearing as chairman of this 
subcommittee. It is quite appropriate, again, considering the 
history of the Chafee family in the environmental issues, and I 
look forward to working with him and other members of the 
subcommittee.
    I have been very encouraged by Senator Chafee's interest in 
working toward legislation which could be enacted into law and 
hope that this hearing is just the first step in a productive 
year working together on bipartisan projects.
    I'm looking forward to hearing from our distinguished 
witnesses today and note that they include a mayor from my home 
State, the mayor of Elizabeth, NJ, Mayor Bollwage. He's in his 
seventh year as mayor of Elizabeth, the fourth-largest city in 
New Jersey. It is a city, also, that I frequented as a small 
child. Mayor Bollwage has been very involved in projects that 
reuse contaminated land very successfully, including a mega-
mall being built on the site of a former municipal landfill.
    Mayor Bollwage was also cochair of the Conference of 
Mayors' Brownfields Task Force last year, and he has worked 
with other cities to encourage the development of abandoned, 
contaminated properties across the country, properties that 
will become a major source of new jobs and new life for our 
inner cities, thanks to his vision and people like himself.
    So I welcome all of you to this hearing. This is probably 
the last of my tenure as U.S. Senator, and certainly it is 
important for me to be able to hear from these witnesses, many 
of whom have become friends because we've worked together over 
the years, and to know that it is still possible for a lame 
duck to fly. We want to get something done.
    Thank you very much, Mr. Chairman.
    Senator Chafee. Thank you, Senator Lautenberg.
    Senator Michael Crapo.

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
             U.S. SENATOR FROM THE STATE OF INDIANA

    Senator Crapo. Thank you, Mr. Chairman. I also appreciate 
your taking the time and focusing your energy on this and 
holding this hearing today.
    You indicated you wanted to take a fresh look at Superfund, 
and I think that that would be a very helpful thing for us on 
the committee.
    I have been working on this issue since I first was elected 
to the House of Representatives about 7\1/2\ years ago, and it 
has been interesting to listen to the dialog on Superfund. At 
that time, I don't think there was anybody--at least in 
Congress, maybe not throughout most of America--who disagreed 
that Superfund was a failed statute and that it was not 
working. I don't know if I can speak for everybody, because I 
haven't talked with Senator Lautenberg about his perspective 
back there 6, 7, or 8 years ago, but we had pretty significant 
consensus across the board that we needed comprehensive reform 
of the Superfund statute at that point in time. Yet we're not 
able to find, as has been the case with so many other statutes, 
like the Endangered Species Act and others, that solution that 
could get bipartisan support and get the signature of the 
President.
    Since that time, I know there have been efforts to focus on 
Superfund to try to administratively solve some of the 
problems, but, frankly, as I look at it now, 7\1/2\ years later 
from when it started with me here on Capitol Hill, I still see 
the significant need for reform in all the major parts of the 
statute--the remedy, the liability, and, as probably most of 
those here know from me, the natural resource damages aspect of 
the Superfund issue.
    I appreciate the chance to try to create a snapshot of what 
is happening under the Superfund statute, but as we create that 
snapshot I hope that we try to do so as accurately as we can to 
identify those areas where we think we can find agreement to 
move forward. Those areas of easily achieved reforms should not 
replace the more vigorous efforts to reform the statute.
    In that context, I'm confident that we can identify the 
areas of work to be done on Superfund. We've done a lot of work 
on that. What will remain to be seen is whether we can identify 
the consensus and create an opportunity to move forward with a 
comprehensive reform.
    Natural resource damages is, as I said, a very important 
aspect of the entire issue, which I know is one of the most 
difficult, if not the most difficult, aspect of the issue to 
find consensus on. But, nevertheless, I remain convinced that 
if we do not find consensus there we will not be able to craft 
a bill that will necessarily bring us to the kinds of reforms 
that are necessary in this area.
    So I appreciate once again the chairman's emphasis on this 
issue and his early attention to it. It is going to take early 
and strong attention to all of these issues if we are to craft 
legislation that will move into law.
    Thank you.
    Senator Chafee. Thank you, Senator Crapo.
    Our first panel includes representatives from the Federal 
Government. Testifying today on behalf of the Administration is 
Mr. Tim Fields, Assistant Administrator of EPA's Office of 
Solid Waste and Emergency Response; and Ms. Lois Schiffer, 
Assistant Attorney General for Environment and Natural 
Resources.
    I would ask that each limit their testimony to 5 minutes. 
Without objection, your entire written statements will be 
included in the hearing record.
    I would like to hold questions until each witness has 
provided their testimony, after which each committee member 
will have 5 minutes to question the panel.
    Welcome, Mr. Fields. Would you like to kick off?

STATEMENT OF TIM FIELDS, JR., ASSISTANT ADMINISTRATOR FOR SOLID 
 WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY

    Mr. Fields. Thank you, Mr. Chairman.
    We are very pleased to be here this afternoon. I'm pleased 
to be here with Lois Schiffer, the assistant attorney general 
for the Department of Justice. We hope to communicate to you 
about the progress in the program and where we would like to 
work with this committee on target legislative reform.
    We are very pleased to hear about the progress of the 
Superfund program in Rhode Island, and we welcome you, Mr. 
Chairman, to your role, a very important role in the 
legislative agenda around Superfund, brownfields, and other 
legislative arenas surrounding the environment. We look forward 
to working with you and this subcommittee this year.
    I want to thank you for inviting us to talk about the 
status of the Superfund program, and also for scheduling this 
hearing in a way that would accommodate our travel schedules.
    I'm pleased to say the Superfund program has become in many 
States a real success story, as you indicated in Rhode Island, 
and we've seen that success replicated in many other parts of 
the country. More than three times as many Superfund sites have 
achieved construction and completion in the past 7 years than 
in the first 12 years of the program combined. By the end of 
the 106th Congress, this Congress we are in now, we will have 
completed construction of more than 60 percent of the non-
Federal Superfund sites on the list. More than 92 percent of 
the sites, therefore, are in construction or have had 
construction completed. We think that is a major success story, 
along with the emergency response activities and the removal of 
many sites from the Superfund inventory over the last 7 years.
    Also over the last 7 years we have worked diligently to 
make administrative reforms to make this program work better. 
As a result, the cost of cleanup has been reduced by 20 
percent, and the time it takes to go through the process has 
been reduced by 20 percent.
    More than 3 years ago, we were doing, on the average, 65 
construction completions a year. For the last 3 years, we've 
done 85 or more construction completions, and that's because of 
the administrative reforms which allow us to do things faster 
and more efficiently.
    We've also done tremendous work in the enforcement and 
fairness arena, removing many thousands of small parties 
through de minimis settlements, offering often share funding, 
and having an aggressive enforcement program, where 70 percent 
of the cleanups are being done by responsible parties.
    Also, I want to mention briefly the brownfields initiative, 
which was announced about 5 years ago. Through that initiative, 
we have been involved in the assessment of more than 1,600 
sites. We have cleaned up more than 150 properties, and we have 
redeveloped more than 150 others. That initiative has also 
resulted in the awarding of more than 300 grants to cities 
across America, the creation of almost 6,000 jobs, and 
leveraged redevelopment and cleanup dollars in excess of $1.8 
billion. We think that's a major success story, as well.
    I want to close my brief remarks by touching upon an area 
that we think is particularly important for all of us who have 
been involved in this debate for more than 7 years. We spent 
many hours with this committee, with your staff, and members of 
the Administration working on developing some consensus around 
Superfund legislation. The Administration strongly believes 
that the Superfund program has been fundamentally improved 
through the administrative reforms that we have all talked 
about. Not only does today's program not need comprehensive 
reform, but enacting widespread changes to how cleanups are 
chosen and constructed and implementing widespread changes to 
how 70 percent of the cleanups are being done by responsible 
parties through the current liability system would surely 
result in cleanup delays and generate new waves, we believe, of 
costly litigation.
    I suggest that we work together on issues that have 
generated broad bipartisan consensus. I believe we share the 
same goal: to promote the cleanup and economic redevelopment of 
many thousands of brownfield properties throughout this Nation.
    I was encouraged to hear February 23, at our budget 
hearing, that Chairman Smith has indicated his support for 
brownfields legislation, as well. The Administration would 
welcome the opportunity to work with this subcommittee and 
committee members across the Senate EPW to pass bipartisan 
brownfields legislation this year. We believe that legislation 
should include provisions that provide funding for brownfields 
grants and revolving loans, liability protection for 
prospective purchases, contiguous property owners and innocent 
landowners, and support for effective voluntary cleanup 
programs. However, we believe strongly that the Federal safety 
net must be preserved to address circumstances which may 
present an imminent and substantial endangerment.
    Some, if not all, of these provisions have been embodied in 
legislative proposals in the past couple of years, such as 
Senate bill 20 and House bill 1750. In the first session of 
this Congress in an effort to get brownfields legislation 
enacted, we backed a last-minute compromise supported by the 
National Association of Homebuilders.
    Whatever the legislative proposals, we are willing to work 
with this subcommittee and you, Mr. Chairman, and other 
interests to develop targeted bipartisan brownfields 
legislation that meets our mutual goals. We believe the major 
brownfields legislative proposals being discussed are 
sufficiently similar to provide the basis for a consensus bill 
that can be enacted this year.
    I thank you, Mr. Chairman, and this subcommittee for 
providing the opportunity to discuss the current status of the 
Superfund program and the current status of the Brownfields 
program. We look forward to working with you on appropriate 
legislative proposals to further these improvements through 
joint action of this Congress and the Administration.
    Thank you all very much.
    Senator Chafee. Thank you, Mr. Fields.
    Ms. Schiffer, welcome.

  STATEMENT OF LOIS J. SCHIFFER, ASSISTANT ATTORNEY GENERAL, 
    ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF JUSTICE

    Ms. Schiffer. Thank you, Senator Chafee, Senator 
Lautenberg, Senator Crapo. Thank you for giving me the 
opportunity to testify today about the Superfund program. It is 
an honor to be here for Senator Chafee's first hearing and 
Senator Lautenberg's last hearing, and I appreciate the 
bipartisan approach, Senator Chafee, that you are taking to 
this.
    The Superfund program today is vastly improved and is 
working effectively to clean up sites and, in many cases, 
return them to productive use, as well as to deter new 
contamination. Today, I will focus on three points about the 
program.
    First, the administrative reforms put in place over the 
past 6 years by EPA and the Department of Justice have worked 
to clean up sites and resolve liability issues in a fairer, 
faster, more efficient manner.
    Second, on the enforcement side, the program has been 
predominantly a settlement program, and alternative dispute 
resolution has been a strong tool in our kit to make that 
happen.
    Third, brownfields redevelopment, so important to assure 
the productive reuse and community renewal in our inner cities, 
is making dramatic forward strides in this program.
    First, administrative reforms--you've heard from Assistant 
Administrator Fields, with whom I am pleased to share the 
panel, about a number of these reforms on the program side. In 
enforcement, where we seek to have liable companies and 
individuals who contribute to the pollution either clean up or 
pay for cleanup, we've used administrative reforms, as well, 
with the goal of encouraging quick resolution and settlements. 
These include enhanced small contributor settlements, which we 
call de micromis and de minimis settlements; use of more 
Federal money, including so-called ``orphan share'' money, 
mixed funding settlements and mixed work settlements to 
facilitate resolution of cases; municipal waste settlement 
policy implementation; and vigorously pursuing non-settlers so 
that settlers are actually rewarded.
    What are some examples?
    De micromis parties have contributed minuscule amounts of 
waste to a site. They should not be brought into the Superfund 
system, and our approach has been to announce that clearly, to 
take steps to discourage other PRPs from suing de micromis 
contributors, and when they do get sued, to settle with them 
quickly for no money so they will have protection from other 
suits.
    The plan has worked effectively to discourage companies 
from using a phone book to decide whom to sue.
    An example is the Petrochem/Ekotek site in Utah, where the 
major PRPs threatened to sue hundreds of de micromis parties if 
they did not accept the majors' settlement terms.
    EPA took out radio and newspaper advertisements to 
discourage de micromis PRPs from taking the majors' demands, 
and the Justice Department sought a hearing before the district 
court so he could discourage the majors from their course. It 
worked, and the majors withdrew their demand against the de 
micromis parties.
    At the Bypass 601 Superfund site in North Carolina, we gave 
contribution protection for no money to 2,400 tiny contributors 
so they would be out of the system.
    The mere fact that we will protect de micromis parties has 
deterred most contributors from seeking to sue them.
    On the money side, we have used not only EPA's orphan share 
policy and mixed work and mixed funding policies to achieve a 
fair allocation of cost at a site, but, where appropriate, our 
own Department of Justice settlement authority to assure that, 
under all the facts and circumstances of a case, a party pays a 
fair allocation of costs. This approach has helped assure that 
we resolve liability and allocation issues by settlement, at 
the same time reducing litigation and litigation costs 
substantially.
    Also, when we settle with some parties at a site, we 
actively pursue the non-settlers, so in the next case down the 
road PRPs understand they are better off settling than hanging 
out.
    Two examples of companies that paid far more because they 
did not settle first are Shell at the Fike Artel site in West 
Virginia and Hercules and Uniroyal Chemical of Canada at the 
Vertac site in Arkansas.
    Second, we are pressing settlements through appropriate use 
of alternative dispute resolution, predominantly with well-
trained and experienced mediators. This is part of a commitment 
by Attorney General Janet Reno and me and the Department of 
Justice to use ADR when appropriate to settle instead of 
litigate, though I always hasten to add that we get settlements 
because we have the ability, will, and talent to litigate, if 
necessary.
    We have mediated a good resolution at the Landfill and 
Resource Recovery Superfund site in Rhode Island, with the help 
of a Federal district court judge as mediator, and just this 
past month a superb settlement at the Auburn Road Landfill 
Superfund site in Londonderry, NH.
    Third, brownfields--cleaning up and recycling these old 
industrial and contaminated areas for reuse is a major step to 
reinvigorating our cities and communities. Our work furthers 
brownfields redevelopment in a number of ways--and I'll get 
quickly to the end.
    For example, a number of our regular Superfund cleanups are 
in inner cities. We also obtain brownfields supplemental 
environmental projects when we enforce the other pollution 
statutes.
    Using our Department of Justice settlement authority, we 
also work with EPA to enter into prospective purchaser 
agreements to provide those who purchase all or parts of sites 
of Federal interest for redevelopment and who had no prior 
involvement with the contamination, with assurance we will not 
pursue them for past contamination.
    Using this authority, we've had a number of successes at 
getting former inner city sites recycled.
    What about legislation to speed brownfields developments? 
This is my last point. In February, the U.S. Conference of 
Mayors issued a report stressing that lack of funds is the No. 
1 obstacle to cleanup and reuse of brownfields sites. We urge 
you to appropriate the money EPA requests for its brownfields 
program to address that.
    We also note that several years ago people complained that 
lenders were not lending in these areas, and we supported the 
passage of the lender liability provisions of the Act to remove 
that problem, and that provision is in place.
    If there is further legislation, it should include four key 
provisions: first, liability relief for qualified prospective 
purchasers, innocent landowners, and contiguous property 
owners; second, ensuring that State cleanup programs to which 
deference is given are well-qualified, with adequate remedy 
selection and good opportunity for public participation; third, 
inclusion only of non-NPL-caliber sites; and, fourth, 
guaranteeing a Federal safety net through assuring Federal 
authority to respond to imminent and substantial endangerment 
to public health and the environment.
    Thank you for the opportunity to speak today.
    Senator Chafee. Thank you very much, Ms. Schiffer.
    I guess I'll ask the first question.
    We've heard much praise for the administrative reforms that 
EPA has undertaken, and I personally can say that, even from 
responsible parties, I met with one national entity that has 
done $500 million worth of Superfund cleanups across the 
country, some at Thoms River in New Jersey and all over the 
United States, $500 million, and they had praise for EPA. I 
asked them, ``What do you think of how the process is 
working?'' And yes, they said it was difficult in the beginning 
with lawsuits and litigation, but now everybody understands 
their role and is undertaking it, and they do give credit to 
EPA.
    It was interesting. I would tell you if I heard 
differently.
    However, of course, I think Senator Crapo was talking about 
the more controversial elements that still exist, and I'd like 
to ask, Mr. Fields, can you make the same administrative 
reforms in the natural resources damages area of the Superfund 
that you have in other parts of the legislation that would take 
out some of the more-controversial elements of the bill?
    Mr. Fields. I understand Senator Crapo's point, Mr. 
Chairman, about wanting to address other areas. What I would 
suggest is that we work in the 106th Congress with the time we 
have remaining, which is a precious amount of time we do have 
remaining, and try to reach consensus on those things we can 
agree on.
    I think we can achieve bipartisan agreement on brownfields 
provisions along the areas that Ms. Schiffer and I just 
mentioned, around liability relief, brownfields funding, and a 
State infrastructure that retains a Federal safety net. I think 
those are elements that we are going to have Republican and 
Democratic agreement on.
    I think that some other issues that people want to engage 
in dialog about in the legislative arena, like natural resource 
damages or remedy reform, are things that we will not be able 
to get bipartisan agreement on and be able to get enacted in 
the 106th Congress.
    So I think that is not going to be a very fruitful--I think 
that is something that could be taken up in subsequent 
Congresses, but not this Congress. I think we should try to 
reach agreement now and move forward on an area that we can 
reach agreement on, which is the brownfields arena.
    I do agree, and we have been trying to work within the 
Administration to look at what reforms we might make to natural 
resource damages to make the process work better. We've had an 
inter-agency group looking at how we can better coordinate 
response activities and natural resource damage activities at a 
site so they are better coordinated. We avoid the perception of 
two bites at the apple. That effort is going on to look at what 
reforms we can make, what improvements we can make in terms of 
how natural resource damages are administered.
    So we will be happy to explore that. I don't know, until we 
have further dialog, whether any reforms are going to be able 
to adequately address, you know, the concerns that Senator 
Crapo or others may have about natural resource damages, but I 
don't think that is an area that we can reach consensus on 
legislatively in this Congress. We are always willing to 
explore and consider additional administrative reforms that we 
can make to help improve the program in that area, as well.
    Senator Chafee. Thank you, Mr. Fields.
    Ms. Schiffer, maybe speak, if you could, to specifics of 
the administrative reforms you might undertake in the NRD area.
    Ms. Schiffer. I would be pleased to, Senator Chafee, 
because actually some administrative reforms have been 
undertaken in the natural resource damages area.
    As I'm sure the committee is aware, the lead agencies in 
natural resource damages are really the Departments of Interior 
and NOAA, which is part of the Commerce Department, as well as 
other land management agencies, like the Department of 
Agriculture and the Department of Defense that have the 
resources that may well get damaged.
    We've worked closely with those agencies. For example, the 
Department of the Interior and NOAA have come out with new 
natural resource damages regulations which are essentially 
focused on restoration and what it takes to restore the 
resource, rather than a very complicated economic analysis. 
That has gone a long way toward helping make damage assessments 
and approaches on damages an easier thing.
    In addition, in a number of cases, particularly ones where 
natural resource damages aren't the biggest element of the 
cleanup, we've tried to work with the natural resource damages 
agencies to see if we can't settle out the natural resource 
damages issues and amounts at the same time as we settle out 
the cleanup part of the case. So there have been steps.
    In addition, all of these agencies are now working much 
more cooperatively together, including with EPA, as Mr. Fields 
indicated, and that's very helpful to coordinating the natural 
resource damages component and the cleanup component.
    I can probably give you one example that is a very good 
one, and that is a case I actually worked on myself. The 
Housatonic River that runs through western Massachusetts and 
Connecticut, was a river that had been heavily contaminated 
with PCBs, in part because there was a General Electric 
manufacturing facility at Pittsfield. We recently entered into 
a very substantial settlement with General Electric which 
includes both the Superfund part of the cleanup and payments 
for natural resource damages, which will be used in a series of 
projects by the Federal agencies and the State of Massachusetts 
and the State of Connecticut resource agencies to help address 
the natural resource damages matters, as well as the cleanup.
    So a number of administrative reforms have been undertaken, 
and, of course, we are pleased to look to see if there are 
further ones, as well.
    Senator Chafee. Very good. Thank you again.
    Senator Lautenberg.
    Senator Lautenberg. Thanks, Mr. Chairman.
    It is good to hear the reports from our witnesses, who are 
both very knowledgeable, each person very knowledgeable and has 
worked with Superfund and these programs for a long time.
    I would ask Mr. Fields, Senator Crapo mentioned that a view 
of Superfund some years ago was quite different than that which 
I expressed today if we go back to 1993, and now the program is 
fundamentally different.
    What would you say was the principal reason for the 
improvements in the program, whether they be administrative or 
functional reforms that have taken place?
    Mr. Fields. I think that when the President came in, as you 
know, he expressed a view that Superfund was broken, that it 
needed to be fixed, and----
    Senator Lautenberg. I heard it.
    Mr. Fields [continuing]. That was in one of his very first 
State of the Union Addresses, as you know.
    We were all given a mandate to aggressively look at what we 
could do under current law to fix this program.
    The complaints were numerous, as you know: it takes too 
long, too costly, not fair. And so we looked into all those 
areas of concern being expressed by various stakeholders in the 
program, including Members of Congress, and we aggressively 
began three rounds of reforms in 1993 and two more in 1995 in 
February, and then October, 1995, and the Superfund 
redevelopment initiative last year. We are continually trying 
to find ways we can reform the program.
    I think, as the chairman said earlier, even members of 
industry who were making some of the same complaints are 
acknowledging that the reforms have had an impact, we have 
substantially reduced the cost. The updating remedies reform 
has saved $1.4 billion in the cost of remedies over the last 4 
years. We have, through the Remedy Review Board, saved more 
than $70 million in looking at more than 30 remedies, how we 
could do it more efficiently and use new science and 
technology.
    So I think there has been an aggressive effort to look at, 
in the current statute, how we can save dollars, how we can 
work faster, how we can be more fair to all the parties 
involved in this program, yet do an effective and aggressive 
job of cleanup.
    That mandate has come from the Administration. It has been, 
obviously, encouraged by Members of Congress, who have made 
clear that they wanted the program to be improved, as well as 
many other stakeholders. I think, working together with 
Department of Justice and others, we have made some substantial 
improvements, but I think we were very clearly given marching 
orders in 1993 that Superfund was a high priority for focus, 
aggressive change, and I think the Administration has stepped 
up to the plate and taken that effort seriously.
    Senator Lautenberg. What part of the improvement do you 
think came as a result of a clear understanding by the 
responsible parties, by industry, generally, that this was not 
simply a ``pick on business'' program; that this was a program 
that we encouraged resolution for?
    And I would have to say--Ms. Schiffer you were in the 
middle of so many of these things, and so active in those days. 
What percentage improvement, if one could gauge--how much money 
do you think was saved as a result of the fact that we got down 
to serious settlement discussions? You said 70 percent of the 
cleanups were paid for by responsible parties. Do you have some 
estimate as to what it is that got this pace so rapid and so 
satisfactory that people from industry are saying, ``Hey, 
they're not bad after all''?
    Mr. Fields. I'll let Ms. Schiffer address the reasons why. 
I can tell you, overall, that $16 billion in settlements has 
been achieved, through $13 billion plus in settlements from 
responsible parties, $2.5 billion in cost recoveries have been 
achieved. That's $16 billion that the taxpayers are not paying, 
and that is, obviously, telling us that responsible parties 
recognize that they are a major player in Superfund and want to 
be a contributor to the cost of this program. That's a major 
investment and I think is reflective of the fact that, like 
you're saying, responsible parties see a need and are willing 
to aggressively and more effectively participate in cleanups 
across the country.
    Ms. Schiffer. I think it was no one silver bullet, Senator 
Lautenberg. I think it was the commitment that Mr. Fields has 
underscored to try to make the program actually work in an 
effective manner, and then a whole series of different steps, 
each of them really worked on and carried out in an effective 
way, that gave industry some assurance that they were going to 
be treated fairly, that there was going to be an effort to 
settle rather than to chew up their money in litigation costs, 
and that there would be some consistency in the approaches that 
we were taking, that we would use the money we had to encourage 
settlements and to encourage them fairly, and that we really 
meant it about the fact that the so-called ``enforcement 
first''--that is, getting industry to do the cleanups--was an 
effective way to do it.
    I think there was pretty universal agreement that if 
industry could do the cleanups they could do them faster and 
cheaper, and that that was a worthwhile approach.
    But I think it was the whole collection of different steps 
that we took that really helped to move this program along 
effectively.
    Senator Lautenberg. Mr. Chairman, if I might, I would ask 
one more question. There are questions for the record I'd like 
to submit.
    Very briefly, under EPA's current brownfields initiative, 
there are some almost 1,700 properties that have been assessed, 
116 have been cleaned up, 150 of them redeveloped, and almost 
600 properties were found not to need additional cleanup.
    So this is really good news, and I'd like to see more of 
this, more of the cleanup and reuse.
    What do you think we might do legislatively to help you at 
these types of sites? Is it more funding? What is it that is 
needed to really get this program to the place that we'd like 
to see it?
    Mr. Fields. I think that the brownfields initiative and the 
improvements that are being achieved over the last 5 years have 
been primarily through policy changes, working with the 
Department of Justice and ourselves on new guidance on 
prospective purchaser agreements, and comfort status letters. 
That has provided some clarity and has encouraged people to get 
involved in brownfields transactions.
    But I think that Congress can really help us by passing 
legislation that provides liability relief for these parties--
innocent landowners, contiguous property owners, prospective 
purchasers--and avoid and make more clear than policies could 
that those people have liability relief, provide a clear 
statutory mandate for funding of brownfields assessment grants, 
for revolving loan funds. Those kind of legislative changes we 
believe would allow the brownfields program to work even more 
effectively, and we could do an even more effective job with a 
clearer congressional mandate than we could with the current 
situation where we are operating under Government policies.
    Senator Lautenberg. Thank you.
    Thanks, Mr. Chairman.
    Senator Chafee. Thank you, Senator Lautenberg.
    Senator Crapo.
    Senator Crapo. Thank you, Mr. Chairman.
    Will we have just one round of questions for this panel?
    Senator Chafee. I'm willing to have as many as you'd like.
    Senator Crapo. OK. Thank you.
    First of all, Mr. Fields, following up on your answer to 
the questions you've already been asked with regard to finding 
consensus on whether we can move forward this year, you 
indicated, if I understood your answer with regard to NRD 
correctly, basically, you have stated that you do not believe 
we can find consensus this year and that further dialog may be 
possible, but that there would be no consensus on NRD reforms 
this year; is that right?
    Mr. Fields. I believe that is correct. I believe this is an 
area that we can have further dialog on. We should talk about 
it as much as this subcommittee wants to discuss this topic. I 
don't believe that's an area that we're going to be able to 
achieve a consensus on and get done in the year 2000.
    Senator Crapo. And you've identified brownfields as one 
area where perhaps consensus could be found?
    Mr. Fields. Yes, sir.
    Senator Crapo. Are there any other areas where consensus 
could be found?
    Mr. Fields. Well, we think that the--well, another area the 
Administration has supported is liability relief for small 
municipal generators and transporters--you know, generators and 
transporters of trash and garbage. That is an area that we've 
also said that we believe there could be some bipartisan 
agreement on and we would support, so that's another area that 
we would--it's not a brownfields directly, but it does benefit 
small businesses and others through that type of liability 
relief. That is another area that we would throw in there.
    Senator Crapo. Any others that you are aware of?
    Mr. Fields. Nothing else--well, no, nothing else comes 
immediately to mind. Obviously, the President has requested for 
the last 3 years now that we would love to have the Superfund 
taxes reinstated.
    Senator Crapo. I was going to get to that.
    Mr. Fields. OK.
    Senator Crapo. So, basically, if I understand your----
    Mr. Fields. I'm sure Ms. Schiffer has other areas that 
she----
    Senator Crapo. I'll get there, but let me follow this up 
for a minute.
    Mr. Fields. Right.
    Senator Crapo. If I understand your answer correctly, then, 
the two areas you identified may be something that the 
Administration would be willing to explore as areas where 
piecemeal legislation could move this year, but other areas, 
other than taxes, no?
    Mr. Fields. Right. I think there are other areas we could 
discuss, whether it be natural resource damages, remedy, but I 
don't think those areas are going to achieve a bipartisan 
consensus.
    There are many other areas in Superfund, obviously, that 
you can have a dialog about, but I'm trying to identify those 
that I believe a bipartisan consensus could be achieved and we 
can move forward with getting something that the President 
could sign this year.
    Senator Crapo. Do you believe that if we were to go ahead 
with the plan you just proposed, or the approach you just 
proposed, and pass the couple of reforms that you said we might 
be able to find consensus on, do you think if you were here 
before me next year that you would say we could find consensus 
on NRD?
    Mr. Fields. I would not--what I would be saying would be--
and I would presume that, as Chairman Chafee said, there are 
areas that a dialog could begin on this year, including NRD or 
other areas that this subcommittee may choose. I don't know. It 
depends, Senator Crapo, on what sort of progress was made 
during that dialog and what particularly you wanted to be 
modified regarding NRD and whether or not there could be some 
consensus among a variety of stakeholders on those changes.
    I know we cannot achieve consensus this year. Whether we 
can achieve consensus during the 107th Congress during a 2-year 
stretch of time where there is some aggressive dialog on a 
particular topic, that might be possible. But right now I'm 
just giving you my honest view regarding what we can achieve 
this year. Obviously, concerning NRD there can be some dialog 
beginning this year to tee up some issues for the 107th 
Congress to discuss further.
    Senator Crapo. You've talked about a limited carve-out of 
liability for certain trash disposal functions and so forth. 
Would you support any broader carve-outs of liability for any 
other groups?
    Mr. Fields. Nothing else comes immediately to mind. 
Obviously, last year, as you know, Congress enacted recycling 
legislation. As Ms. Schiffer indicated, a few years back lender 
liability legislation was enacted, so obviously piecemeal 
legislation has been enacted in the past, but----
    Senator Crapo. Well, at what point is the Administration 
going to say, if you keep carving out or adding piecemeal 
legislation into the reforms, that we need to get the taxes 
involved?
    Mr. Fields. Well, I think that--your last part of the 
question, I'll come back to that one--but we believe that 
Congress ought to move forward with the Administration on those 
things that we can reach agreement on. We recognize there are 
other issues in Superfund where there is not agreement. I 
believe we should continue to have dialog about those issues 
with Members of Congress and see if there could be some 
bipartisan consensus achieved on those areas, as well. But 
right now we think we have a golden opportunity where 
brownfields is an area that we believe that there can be 
bipartisan consensus with the Congress and the Administration 
and enact some legislation that could help the cities, the 
mayors, developers, and many other parties across America.
    Senator Crapo. Well, Mr. Fields, I guess the----
    Senator Chafee. Senator Crapo, could we have one more round 
and come back?
    Senator Crapo. Sure. All right. I'll come back.
    Senator Chafee. Remember your question.
    Senator Crapo. OK.
    Senator Chafee. OK. From my perspective, having seen that 
50 percent of the NPL sites are construction complete, one of 
the issues I'm sure is that wouldn't it be unfair to change the 
parameters for those responsible parties this late in the game? 
Ms. Schiffer talked about Husatonic River and the involvement 
there of natural resource damages and what has been 
accomplished on the existing legislation. Would it then be fair 
to change it?
    But I'll yield the rest of my time to Ms. Schiffer to 
answer some of Senator Crapo's concerns.
    Ms. Schiffer. Thank you, Senator Chafee.
    I do think, Senator Crapo, that the questions that you 
raise really have to be looked at in the context of where the 
program is now, and we think that the program is working pretty 
well. As Senator Chafee said, when he went home and talked to 
his constituents, they seemed to think the program was working 
pretty well. So this Administration certainly no longer 
supports comprehensive reform to this program.
    One of the reasons, in addition to the fact that the 
program is working pretty well, is the reason Senator Chafee 
gave--there has come to be a set of expectations. Many 
companies have now stepped up to the plate and undertaken 
cleanups.
    To say, in effect, to those companies, ``Well, it wasn't 
such a smart thing for you to step up to the plate and 
undertake cleanups, because these people who didn't do so now 
may be given some liability relief,'' we don't think is a very 
effective way to run a program and certainly isn't a very 
effective way to say to the companies that have done a good 
job, ``You've done a good job.''
    So we really look at the questions about what other pieces 
of legislation there should be in the context of the fact that 
we don't think the program needs comprehensive reform any more.
    I think Mr. Fields has accurately stated the areas where 
the Administration might look at liability relief. They are 
very narrow and tailored. Really, the municipal policies that 
he is talking about would be a codification of the municipal 
solid waste policy that we adopted. That was a policy where we 
saw that there was a problem in the program, there was concern 
about municipal solid waste. We worked with those groups that 
were knowledgeable about it, a series of organizations. We came 
up with a policy we thought was fair and effective and we put 
it into place. That was the kind of way that we were trying to 
undertake administrative reforms.
    But, in terms of comprehensive reform at this point, 
including a lot of additional liability carve-outs, we really 
think that that would make the program less fair, not more 
fair.
    In terms of the tax, we think the tax is ready for 
reauthorization now, not that it should be pegged to other 
changes in the program. Really, what we have is a circumstance 
where, since the tax lapsed 4 years ago, almost 5 years ago, we 
have had companies who would have been paying tax under the 
petrochemical tax and other tax components basically getting a 
windfall. They aren't paying taxes to fund this program any 
more. And it really is a hit on the American taxpayer that is 
more appropriately born by those people who should be paying 
the tax.
    Senator Chafee. Senator Lautenberg.
    Senator Lautenberg. Yes. One of the things that I think 
Senator Crapo's questions bring us to is the fact--and he has 
long experience with this, with Superfund, and has a particular 
perspective on it, and I respect his inquiry and the answers 
that you've given. In terms of what direction the outcomes 
might be for passing legislation, etc., I respectfully suggest 
that those answers have to come from this side of the table, 
not from that side of the table.
    Mr. Field, don't walk too far into that mine field because 
we are--among us, we will establish some dialog, and so forth.
    I know EPA and Justice Department are always ready to 
answer questions, to participate in the dialog or discussion as 
to why a program is or isn't working, so I think that the 
answers that you gave are those responsible.
    It is obvious that we want to have something that meets the 
bipartisan test. It is possible. We want to have something that 
continues the best parts of the program without getting into a 
discussion that might degrade what it is that we are about to 
do.
    So I think it has been very positive. The tax question is 
one that would take a lot of debate. The taxpayers have picked 
up what the polluters used to pay, or that the potential 
polluters used to pay. The possibility that that could be 
removed kept us from coming, very often, to a conclusion with 
positive programming or reprogramming, as the case may be.
    So program A has been successful, B ought to be reviewed to 
see if there are any improvements that we can make, and C, not 
lay down any conditions that we can ask EPA or representatives 
to really make judgments upon unless we discuss them here at 
hearings and so forth, or even in closed discussions.
    So I think, Mr. Chairman, it has been very positive, and 
I'm pleased that our witnesses were able to be with us today.
    Senator Chafee. Thank you.
    I'll allow Senator Crapo one more round, to be fair.
    Senator Crapo. Thank you, Mr. Chairman.
    I can't get through even close to all my questions in one 
more round, but I'll try to do what I can.
    Senator Chafee. We have another panel, also.
    Senator Lautenberg. I thought in your part of the country 
roundups are quick and easy.
    Senator Crapo. They're tough and dirty.
    [Laughter.]
    Senator Crapo. I think, though, that on the question that I 
was getting at, that Ms. Schiffer gave an answer as to what was 
my understanding, basically, of the Administration's position; 
namely, that the Administration, I have understood, did not 
support comprehensive reform of the Superfund statute and has 
not for some time, except for some of the targeted reforms that 
you've described here as narrow and tailored reforms that would 
be supported.
    My point there is that, even though it is correct that we 
pass the laws here, I learned a long time ago that, as we try 
to pass laws that are going to get signed into law, it is 
helpful to work with the Administration and to find out what 
the Administration is going to recommend the President sign.
    I think that it is pretty important for us to understand 
that process, as it has evolved in the Superfund.
    In that context, I just have one other question on this 
line, and that is, with regard to the issue of taxes, is it the 
intention of the Administration to push for a reauthorization 
of the taxes this year?
    Mr. Fields. Well, the President has expressed his 
preference for the taxes to be reinstated, both the corporate 
environmental as well as the taxes on petroleum and chemical 
feed stocks. However, we recognize that Congress has not 
approved that request for the last 3 years.
    Right now, the current tax fund trust fund balance will 
expire or it will have $200 million left in it at the end of 
fiscal year 2001, and so, obviously, that is going to be a 
major issue in fiscal year 2002.
    The current balance will carry us through this year and 
next year.
    Senator Crapo. So will there be a request this year or a 
push this year?
    Mr. Fields. Well, there is a request in the President's 
budget. The President's budget that came up to Congress in 
February did request that the taxes be reinstated. Yes, sir.
    Senator Crapo. Would the reinstatement of taxes possibly be 
attached as a condition to brownfields legislation?
    Mr. Fields. We have not discussed that internally. That's 
not something we have been pushing. You know, the President has 
a request up here outstanding. We have been suggesting, and, 
obviously, as Senator Lautenberg reminds us, Senators and 
Members of the House of Representatives will have to decide 
what the scope of that legislation will be. We will review 
that, and we, obviously, will respond accordingly. We have not 
yet decided how we tie tax reinstatement to a possible 
agreement on brownfields. That's something we would look at in 
the context of what legislation is introduced.
    Senator Crapo. Well, let me try to get specific. I'm 
changing subjects now, but I want to go, with my remaining 
time, to just one other line of questioning that is more 
specific to Idaho, and it relates to the issue of how well the 
administrative reforms have worked, because I have to say that, 
even though there has been a lot of talk here today about how 
well the administrative reforms have worked, I don't think that 
my constituents would agree with that.
    The Administration of the Superfund statute in north Idaho 
has caused, in my opinion, significant trauma to community 
after community, to the point that people are universally 
frustrated with the way the act is implemented and the progress 
that is being made, or lack of progress and then, what seems to 
be a continuous rehashing of the issues.
    One of the issues that we are going through again now is 
whether, at this point, after years of working under the 
Superfund statute, there is going to be a new listing and a new 
designation for the NPL list.
    As you know, Administrator Fields, the EPA has agreed to a 
6-month hiatus, in which time the State of Idaho has been given 
an opportunity to try to bring about a settlement.
    The question I have is very specific there. It is my 
understanding that 6 months runs in June, if I am correct, and 
we are already hearing that, if there is no settlement, that 
the process will be kicked right back into gear in June, they 
will be starting to review in April, and if the State does not 
come up with something by June, then the EPA is going to go 
right back into its process of potential listing. Is that 
correct?
    Mr. Fields. Yes. If you give me 1 minute, I'll quickly 
respond to your questions.
    I do want to point out that, you know, Idaho--there has 
been substantial progress at many of the sites in Idaho. You've 
got nine sites on the list in Idaho. Four are construction 
complete, and the other five constructions are underway. I 
think that does reflect that there is a lot of good work going 
on at the Superfund sites in Idaho, and substantial progress 
has been made at those sites.
    Senator Crapo. I might add there that the cost--you 
probably are aware of some of the studies that just came out of 
the cost that has been paid for that progress, and so there is 
a disagreement about how well it is working, but go ahead.
    Mr. Fields. All right. And then, regarding the specific 
site you are mentioning, which is a candidate for the NPL, the 
sites around the whole area around the Coeur d'Alene basin, 
we're currently working aggressively. EPA, the Department of 
Justice, and the State are aggressively trying to reach an 
agreement in principle with the mining companies and 
responsible parties around a cleanup agreement in the Coeur 
d'Alene basin. We have agreed to defer any listing of the 
contamination on the National Priorities List until the 
conclusion of that discussion, which is about another 3 months 
away, 3-plus months away.
    We hope that we are successful. We have done many cleanups 
at sites across the country without invoking NPL listing. We 
see the NPL as a tool, among other tools, for effectuating 
cleanup.
    We will see how this negotiation proceeds. We hope that an 
agreement can be struck and that we can proceed in a 
cooperative fashion with the mining companies to effectuate 
cleanup, and then we have said that, based on that review, 
after that negotiation is over, we then will take up the issue 
of whether or not a proposed NPL listing is necessary to bring 
the parties together and effectuate cleanup at that site.
    The end of June is the deadline.
    Senator Crapo. Thank you, Mr. Chairman, for your 
indulgence. I would just say I hope that, if the deadline is 
not met--and, as you know, these are hard deadlines to meet--
that the EPA would continue to show some forbearance and allow 
the people of Idaho to help deal with this problem without 
having a solution imposed such as the proposed listing would 
cause.
    Ms. Schiffer. If I may just add one item on that Coeur 
d'Alene basin site, we have had success in a settlement there 
with the Union Pacific Railroad recently, and I think it is 
worth mentioning, because it really shows that the program can 
work and have effective settlements. That company was a 
railroad, so its contamination was all up and down a road. It 
is sometimes a hard thing to deal with. In fact, the Union 
Pacific--we worked together, we got a very effective settlement 
where they are going to be responsible for that contamination, 
and really make progress.
    I think it is worth noting that, even in the midst of the 
contentiousness of the Coeur d'Alene basin kinds of sites, we 
can have a settlement like the Union Pacific settlement that 
we've recently had.
    Senator Chafee. Thank you, Ms. Schiffer. Thank you, Mr. 
Fields, very much for your time this afternoon.
    Mr. Fields. Thank you, Mr. Chairman.
    Ms. Schiffer. Thank you.
    Senator Chafee. And, Senator Crapo, I'm sure you know you 
can submit any further questions in writing.
    Senator Crapo. Thank you.
    Senator Chafee. At this time I would like to invite the 
second panel to come to the table. The second panel includes 
local elected officials: J. Christian Bollwage, mayor of 
Elizabeth, NJ, who will testify on behalf of the U.S. 
Conference of Mayors; and East Palo Alto, CA, City Councilman 
R.B. Jones, who will present testimony on behalf of the 
National Association of Local Government Environment 
Professionals.
    Your written statements will be included in the hearing 
record, and we would ask that you will take 5 minutes to 
summarize your remarks.
    Mayor Bollwage.
    Senator Lautenberg. While Mr. Bollwage is taking his seat, 
Mr. Chairman, I want to note that he missed a glowing 
testimonial that I gave to him before he arrived in the room. 
You know, around here we don't do it twice. He'll have to read 
the record.
    [Laughter.]
    Mr. Bollwage. Well, thank you very much, Mr. Senator. I 
appreciate it.

 STATEMENT OF HON. J. CHRISTIAN BOLLWAGE, MAYOR OF ELIZABETH, 
         NJ, ON BEHALF OF THE U.S. CONFERENCE OF MAYORS

    Mr. Bollwage. Mr. Chairman, my name is Chris Bollwage, the 
mayor of the city of Elizabeth. Members of the committee, I am 
pleased today to appear on behalf of the Conference of Mayors, 
which represents more than a 1,050 cities of population of 
30,000 or more. My oral statement on brownfields specifically 
talks about our recent survey, which you may have a copy of.
    First, Mr. Chairman, let me congratulate you on your 
chairmanship. It is always great to see former mayors sitting 
on your side of the dias. We do appreciate that.
    I'd also like to recognize Senator Frank Lautenberg, who, 
during his tenure, has done so much for my city in Elizabeth 
and many others throughout our State.
    Senator you have been a leader on brownfield issues in our 
State, and we appreciate your leadership. On behalf of the 
Nation's mayors, I would like to thank you for all of your 
efforts.
    Mr. Chairman, none of us anticipated how Superfund's 
liability would further fuel the phenomenon that we now call 
``brownfields.'' Superfund sent a very strong signal that 
contamination of our land will not be tolerated, but it also 
thoroughly frightened innocent parties, like developers and 
others, who would like to reuse, or, as we say, like to 
``recycle'' land.
    To learn more about the brownfields problem, we have been 
conducting surveys with the Nation's mayors, and we also wanted 
to learn what mayors need to reclaim these sites.
    Our survey shows that brownfields is a problem of 
significant proportion. First, our survey shows that there is a 
consistent view of obstacles to redevelopment. The No. 1 
obstacle was the need for cleanup funds. The second, more-
common impediment was dealing with the issue of liability. And 
third is the need for more environmental assessments to 
determine this type and extent of contamination.
    About 178 cities estimated that the reuse of brownfields 
would generate about $902 million to $2.4 billion in annual tax 
revenues. We will be creating more jobs--190 cities estimate 
that they would create 587,000 jobs.
    A very interesting finding of the survey was that 118 
cities estimated they could support an additional 5.8 million 
people.
    When we think about sprawl, this data suggests that 
brownfields redevelopment and incentives to encourage in-fill 
development can help with this issue.
    Mr. Chairman, you have our specific recommendations on 
brownfields, and you also have a copy of the full testimony 
that I am giving here orally.
    I would like to spend just a few minutes talking about what 
we have accomplished in our city, in Elizabeth, and to 
underscore to the committee why it is important to take steps 
to help communities recycle these sites.
    In Elizabeth, I have seen what is possible by reusing these 
sites. In October of last year, we officially celebrated the 
opening of the Jersey Gardens Mall, the largest outlet mall on 
the east coast. It is located on a 170-acre former municipal 
landfill that was closed in 1972. In excess of 200 stores, 
providing more than 3,000 current jobs, growing to 5,000 jobs, 
it totals 1.7-million square feet, and it will generate $6.5 
million annually to the revenue to the city of Elizabeth in the 
redevelopers' agreement.
    Additional stores will open this fall. As a result of this 
project, we see additional private investment flowing to the 
immediate area. We have announced a major in door sports 
complex called ``Rex-Plex,'' which will open in June and have 
soccer fields, indoor/outdoor soccer fields. We've been working 
with Marriott for an announcement on two Marriott hotels, an 
office building of about 400,000 square feet, and currently 
Senator Lautenberg has been working with us on ferry service 
permits to New York City.
    We have also had other successes in our city. We have taken 
a former plastics factory on three acres of land, with not only 
city bonding money but green acres funding, have converted into 
two new state-of-the-art Little League fields.
    Next month we open up on another brownfield site two new 
soccer fields, olympic size, for the numerous soccer population 
that we have in our city.
    We are fortunate that the city of Elizabeth is ideally 
situated to leverage a substantial economic and population base 
of northern New Jersey extending to Manhattan.
    I'm not suggesting that this is the most characteristic of 
what cities can accomplish in redeveloping brownfields; 
however, it does underscore the need for Federal policy to 
support communities to generate their own successes and, as you 
now see on a relatively modest scale, across the entire 
country.
    The Nation's mayors believe that the time has come for 
bipartisan action on brownfields, and, wherever possible, 
selected Superfund reforms. In moving bipartisan legislation 
forward, you can count on the support of the Nation's mayors in 
this regard.
    Just on one final note, Mr. Chairman, we are home to 
Chemical Control, one of the top 25 Superfund sites in the 
Nation. The Superfund law was responsible for the cleanup of 
that site. It cost $50 million to clean up that site. Superfund 
worked in cleaning up the site, but there is nothing on that 
site today. Brownfields--not only can we clean it up, but we 
can put something on that site that generates economic 
development, jobs, tax ratables for our citizens.
    So, on behalf of the U.S. Conference of Mayors, we 
appreciate the opportunity to share the view of the Nation's 
mayors on these very important issues.
    Thank you, Mr. Chairman.
    Senator Chafee. Thank you, Mayor.
    The U.S. Conference of Mayors has been a dynamic force in 
the advocacy for brownfields legislation. As the spokesperson 
for the U.S. Conference of Mayors, you have been most eloquent.
    Mr. Bollwage. Thank you, Mr. Chairman.
    Senator Chafee. Councilman.

 STATEMENT OF R.B. JONES, CITY COUNCILMAN, EAST PALO ALTO, CA, 
   ON BEHALF OF THE NATIONAL ASSOCIATION OF LOCAL GOVERNMENT 
                  ENVIRONMENTAL PROFESSIONALS

    Mr. Jones. Mr. Chairman and distinguished members of the 
subcommittee, my name is R.B. Jones, and I am here as an 
escapee from the mayor's position back to city council. I had 
the opportunity to serve for roughly 4 years as mayor, and was 
mayor when brownfields were first introduced to our city.
    I am also extremely proud today to testify on behalf of the 
National Association of Local Government Environmental 
Professionals, or NALGEP.
    You have before you, as well, a written testimony that 
provides details on the range of Federal incentives needed to 
promote brownfields revitalization. Let me just add that words 
in this short time would not be able to fully express what 
brownfields has meant to East Palo Alto, in particular.
    With a community that consists of roughly 14 different 
ethnic varieties, so to speak, and many people who come from 
either foreign countries, nations, or from States in the south, 
people coming from situations where there was little or no 
government, people coming from situations where there was 
little or no respect for government in terms of how government 
served them, and brownfields has really been one of the keys as 
to how folks who have not had these great opportunities can 
actually sit at the table and participate in an environment 
that speaks to how their future is impacted.
    With the immigration laws and the anti-immigration 
sentiment of California being in place, there is a dire need 
for folks to feel a part of being at the table. And so, without 
asking for green cards, without asking for who is from 
Mississippi or who is from Texas, who is from Mexico, who is 
from Latin America, and how you got to the table, people 
actually get a chance to come to the table, unbiased, and sit 
and discuss what this land, what 132 acres of property in East 
Palo Alto will look like in the years to come, how all of us 
will be affected by that.
    So we are very, very proud of brownfields in terms of what 
it can do for our community.
    At some other date, as well, we would love to talk to you 
about the front door concept that brownfields has created in 
the city of East Palo Alto, and we are very proud of that 
concept and very interested in talking about it.
    But, in my verbal testimony, I plan to focus on the single 
most valuable thing Congress can do for East Palo Alto and 
local governments across the country working on brownfields, 
and that is to provide increased funding for brownfield site 
assessments and cleanup.
    The cost of site assessments and remediation can provide a 
significant initial barrier to brownfield reuse. It is 
important that we underscore the word ``reuse'' there.
    The city of East Palo Alto, for example, is a small 
community of a little over 25,000 people, and we have not 
enjoyed the economic prosperity of our neighboring communities 
in Silicon Valley. We have the highest level of unemployment 
and poverty and the lowest median income in San Mateo County, 
and San Mateo County being the richest county in the United 
States.
    The city has struggled hard to significantly reduce its 
crime rate, which was one of the highest in the Nation in the 
early 1990's.
    In addition, East Palo Alto has suffered the effects of 
toxic contamination, abandoned chemical factories, and other 
pollution that has turned much of our community into idle 
brownfields.
    In 1992, the city of East Palo Alto was dubbed the ``Murder 
Capital of the USA.'' There were 46 murders in our community. 
Last year, there were two murders. And two is too many of our 
constituents to lose, but we are very proud of the efforts that 
have been made to turn our city around and to make it a viable 
place where all of us can live.
    Nevertheless, the city is successfully moving forward to 
revitalize our community and our brownfields. Our focus is on 
the Ravenswood industrial area that includes 130 acres in an 
area that historically has had mixed uses, including 
agricultural, commercial, industrial, and some residential.
    The property is affected by a multitude of toxic 
substances, including arsenic, chromium, pesticides, 
herbicides, chlorinated solvents, and petroleum contamination. 
The city partnered with EPA region 9 and the San Francisco Bay 
Regional Water Quality Control Board to assess its sites and 
estimate the cleanup to be between $2 million and $5 million.
    The city has developed a strategic plan and design to 
redevelop the Ravenswood area into a mixed use development and 
employment center, with up to 2-million square feet of 
commercial and high-technology offices and light manufacturing. 
New medium-
density housing is also planned nearby.
    The city expects that the redevelopment of the Ravenswood 
industrial area would create roughly 4,000 new jobs and 
generate more than $1 million a year in taxes.
    However, revitalizing this area would not be easy. Our 
biggest challenge will be to obtain the $2 million to $5 
million required to clean up the site. It is unlikely that a 
private developer would take on this project with such 
significant cleanup costs.
    Currently, there are few available sources to fill this 
gap. Consequently, East Palo Alto's last remaining developable 
area remains under-utilized.
    The Federal Government, particularly the EPA, has played an 
important role in helping East Palo Alto get started in the 
brownfields area. Specifically, the Federal Government has 
provided critical funding and staff, technical assistance, 
public education, and connections with other Federal, State, 
and private agencies that can support our revitalization.
    To close, there are some specifics that I would just like 
to suggest Congress could help us, and that is: increasing 
grants for the site assessment and investigation; provide new 
grants for cleanup of the brownfields sites; increasing grants 
to capitalize brownfield cleanup revolving loan funds; and 
structuring the program to meet local needs, which we think is 
very important; and increasing funding for our other Federal 
agencies to support brownfields revitalization.
    The most important thing Congress can do to put more 
brownfield revitalization is to increase and broaden the 
Federal funding for brownfields.
    Thank you.
    Senator Chafee. Thank you, sir. We'll submit the entire 
statement for the record.
    Mr. Jones. Yes.
    Senator Chafee. The chairman of the committee is here, 
Chairman Smith, and I will yield, if you'd like, at this time.
    Senator Smith. Just go ahead, Mr. Chairman.
    Senator Chafee. No, his time was up.
    Senator Smith. You go ahead, and I'll join the questioning 
in a moment.
    Senator Chafee. Thank you, again, Mayor and Councilman.
    As you said, the impediment at this time to the cleanups in 
your community is the money, and in that you agree with the 
Environmental Protection Agency testimony we heard prior to 
your testimony and Ms. Schiffer's urging Congress to include 
the funding for brownfields cleanup--made a very important 
point on that. So we are now hearing from you, who have to 
implement these cleanups, that that is an important aspect, as 
so often it is.
    Would you like to ask any questions, Senator Lautenberg?
    Senator Lautenberg. Yes. Thank you very much, Mr. Chairman.
    I, too, welcome our committee chairman here. Senator Smith 
and I have worked on a lot of things, some we've agreed upon, 
some we've disagreed upon, but we've always been able to 
maintain a dialog, and that is a very important characteristic, 
I think, for good committee chairmanship, and I believe that 
will continue.
    I'm sorry that I won't be able to be here to nag him in the 
years ahead, but I'll try to leave a permanent impression.
    I want to say to Mayor Bollwage, who represents one of 
America's great older cities, not only in New Jersey but in the 
country--the home of Singer Sewing Machine. I lived there for a 
short while as a child and saw what the paradox was.
    When Elizabeth was doing well, on a relative basis, it was 
during the Depression years. It was during the lean years. And 
once the industrial revolution as we knew it kind of passed by 
and the trades and the businesses changed in character, it was 
a very hard adaptation, because with that glorious industrial 
past was left a string of contaminated sites that were there as 
a result of our building our country, and the transition was a 
tough one.
    I thought that Mayor Bollwage's testimony was particularly 
poignant. I have been to the mall that he describes there. To 
see the people coming and working there and this whole 
upgrading of attitude has meant so much in the city, and other 
sites.
    Mayor, if you remember, I took the tour of the soccer 
fields and the other places that were being built, and I think 
it is fitting that we make this kind of effort to expand the 
brownfields program and to try and deal with the Superfund 
sites, because that is a problem that every one of us faces, 
some States more than others, like New Jersey, but I know that 
New Hampshire and Rhode Island and Idaho also have signs of the 
past within their boundaries that bring with them some serious 
warnings, as well as opportunities.
    It is so good to see what happens, and I've seen it in 
other cities in New Jersey--Hackensack, NJ, had a fallow site 
along the Passaic River--again, very familiar territory to me 
because as a child I lived in a lot of places in New Jersey. My 
father struggled to make a living. The rivers that we swam in 
as children now you could walk on almost because of the heavy 
pollution.
    But when you see sites converted like the one in 
Hackensack--a big, positive discount store came in, and people 
were able to shop there and work there, and it was a world of 
change, so we want to try to be of help.
    Mayor, what do you think we could do, speaking as a 
representative of the Conference of Mayors? And I looked at 
this report, which is an excellent recap of what the problems 
are, and the interest by so many people, so many cities across 
the country. What might we do, as you see it, to further 
expedite the process? It has worked well in your area and 
surrounding communities. A Union I notice is on there, and 
other places.
    Mr. Bollwage. Senator, the one thing we need is a 
bipartisan approach to legislation in dealing with brownfields. 
The city of Elizabeth and other surrounding cities in New 
Jersey have implemented brownfields legislation in the State. 
We worked in a 
bipartisan effort with Governor Whitman, as well as the State 
Legislature, in creating legislation such as the franchise fee, 
which generated the revenue for the city of Elizabeth to get 
money from the mall as the property taxes were pledged to pay 
back the bonds in the infrastructure.
    Brownfields legislation here from the Congress will go a 
long way in having cities assess the cost of cleanup. What is 
it exactly needed in order for these cities to take these 
properties and convert them to use?
    Oftentimes, these properties have a negative value, where 
the cost of the cleanup is more than the property is actually 
worth.
    We are currently working with New Jersey Transit on one 
such property, a former bus garage that New Jersey Transit has 
torn down. The property is not worth much because the cleanup 
comes to about $700,000 to $800,000. We're figuring out a way 
to bridge that cleanup, as we are doing our environmental test. 
If we had brownfields legislation and we could access grant 
money, that site would have been cleaned up already and there 
would be some type of housing/retail development on that site 
by now. But, because of the funding issue, that is the primary 
issue that mayors are concerned with.
    Senator Lautenberg. Are there lots of private investors 
around who would be interested in sites? Do you find active 
pursuit of these sites by those who say, ``Give us some help in 
getting them started,'' and, ``Make sure that we don't walk 
into a liability situation that we couldn't deal with''?
    Mr. Bollwage. Brownfield legislation, Senator, is probably 
the No. 1 issue to stop suburban sprawl and create the ability 
for developers to reinvest in municipalities.
    Brownfield legislation would be the issue that developers 
would be looking for to not only recreate urban lands into much 
more developable property, but developers want to develop in 
urban areas. After all, the city of Elizabeth--as you know, the 
demographics are the seaport, the light rail, the rail, the 
airport. It is all there for a developer to make a big success 
story.
    And it is also sometimes cheaper for a developer to develop 
on urban lands, if, in fact, they have the ability and the 
political will of a community to recreate land that has lain 
fallow for many years to create a tax ratable out of it.
    Senator Lautenberg. Mr. Jones, you know, when all of us--
I'll speak for myself. When I hear about California, I think 
that everything is just green and beautiful, a little air 
pollution here and there, but, frankly, because of the newness 
of the State we don't think in terms of polluted sites and 
things like that. But, as I read and listen to what you have to 
say, I hear you calling for help, particularly in the 
brownfields area, because you think there is opportunity within 
your city boundaries that could be maximized if we had the 
right kind of program.
    What do you think we ought to do to help you along there?
    Mr. Jones. I certainly agree, Mr. Lautenberg, with the 
whole notion of the money, but included in our proposal, as 
well, and included in our support for brownfields is the 
structural changes, much to what Mayor Bollwage talked about, 
about the freedom to allow local municipalities to participate 
in the process.
    Matching funds to a community like ours is pretty much a 
hardship that we can't afford. There's no new land being made 
in California. We have the land and we have the 132 acres 
there. It is prime for development. Developers are there, they 
just are chomping at the bits wanting to get in there. We need 
room for housing, as well. But there's a concern about the 
cleanup. There's concern about the liability of it. There's a 
concern as to--72 percent of our budget right now goes to 
public safety. If we cannot maintain that high standard of 
public safety, based on what perception of our community, then 
developers won't come, so we can't afford to go light on one 
end to make heavy on the other end.
    So we need structural changes in brownfields so that we can 
get those developers in there with a sense of not the heavy 
liability in cleaning the properties up and make it productive.
    Senator Lautenberg. Well, we appreciate hearing from you.
    Mr. Bollwage. Thank you, Senator.
    Senator Chafee. As you probably know, brownfields is one 
section of the entire Superfund legislation, and there is 
bipartisan support for most of the remedies for brownfields, 
whether it is the liabilities associated with contiguous 
ownership or prospective buyers. The question more is: can we 
separate out this area in which there is broad bipartisan 
support for improvements? That's how we'll proceed as to 
whether we can separate brownfields out.
    I know Chairman Smith has been a public advocate of doing 
that this year.
    Chairman Smith.

  OPENING STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE 
                     STATE OF NEW HAMPSHIRE

    Senator Smith. Thank you very much, Mr. Chairman. I want to 
thank you, first of all, for holding the hearing, and welcome 
you as your first subcommittee hearing, I believe, for this 
year.
    I enjoyed an especially close relationship with your Dad, 
as you know, as we all did on this committee, so we look 
forward to working with you, as well.
    Superfund has not become any easier over the last several 
years. I've spent 10 years on it in the Senate and still 
haven't been able to come up with an answer. It seems as if 
there's a lot of feeling on both sides of this.
    Senator Lautenberg and I have spent many an hour together 
trying to work out things, but didn't seem to come to fruition.
    I think essentially the difference right now is that the 
Administration believes that comprehensive reauthorization is 
not warranted because of the strides that they have made at the 
EPA, but there are many in the business community, and I think 
many on this committee, who would not agree with that. I think 
we should codify some of these changes, and I think they should 
be comprehensive codification.
    The issue of brownfields is an issue that some of us have 
some differences on. We're trying to work it out as to whether 
or not a brownfield would be necessarily a part of Superfund. 
I, personally, believe that we could, as the chairman said, 
move brownfields separately, but that has to be something that 
is worked out with the committee members before we could move 
forward on that.
    My role, of course, has changed since last year, now as the 
chairman of the full committee, and I am trying to have an open 
mind on the issue of brownfields, as well as the issue of 
Superfund, in general.
    I know that some of the Superfund program is working well, 
but I also know that a lot of money has gone to lawyers and 
administrative costs over the years that didn't go to cleanup, 
which doesn't really help the issue that we're trying to do, 
which is to clean up toxic waste.
    In New Hampshire, we have a very important removal action 
right now, as Commissioner Varney knows, who is here 
somewhere--we'll see you in the next panel, Bob. But there is a 
removal action there at the Surrette America Battery site in 
Northfield, which the staff director visited last week. And I 
do appreciate the cooperation of EPA on that project. They have 
been very helpful in region one. Last week they allocated an 
additional $750,000 to this removal action, and this is going 
to help tremendously. It has the potential, as Commissioner 
Varney knows, to be a Superfund site.
    So there are good things occurring. There's no question 
about that. But we can do a lot more.
    So I am looking at two prongs--first, to continue to 
explore any legislative solution, but the second is oversight. 
I think that the story at Surrette is becoming a positive 
story. That's good. The EPA should be able to withstand good, 
comprehensive overview to find out just what it is they're 
doing right, what it is they're doing wrong.
    So let me just ask one question, Mr. Chairman, and a couple 
of quick questions of the panel, and then we can move on.
    Mr. Jones--well, actually I could direct the question to 
both of you because you both mentioned several times in your 
testimony that further liability clarification is needed to 
encourage the private sector to step forward and revitalize 
more sites. We're talking now about brownfields. I would agree 
with that.
    Let me ask you specifically, what type of liability 
clarification would best encourage the private sector to do it? 
Have either one of you come to a specific conclusion on that?
    Mr. Bollwage. Mr. Chairman, Senator Smith, first of all, I 
want to recognize your Jersey roots. You were born in Trenton, 
so you're always welcome to come back and take a look at what 
we're doing in New Jersey, Senator.
    Senator Smith. I've been to your city a few times.
    Mr. Bollwage. I appreciate that, Senator.
    Some of the sites will not attract private investment until 
the site is assessed and cleaned up and it's posted with a 
sign, basically, that says, ``This site is ready to go.''
    One of the things that we can do is that we can use public 
money to make that happen. We can make the site assessment, we 
can say to the private developer, ``This site is ready to go. 
There's no further action.''
    And it is important to know that development in America 
today is basically not the same as it used to be. Businesses 
are operating in much tighter timeframes. And if they see a 
location and the location is available for development, I 
believe that, if there were dollars that assessed the damages 
and it were cleaned up quickly, the developer would then move 
and develop that property.
    Senator Smith. One thing that you say--I'll just speak to 
you for a second, mayor, and then I'll come to you, Mayor 
Jones.
    You say the second, more-common impediment issue is dealing 
with the issue of liability, followed by the need for more 
environmental assessments to determine the type and the extent 
of the contamination. Those are interesting phrases, but let's 
go right down to the core here. What about State finality? Does 
the State need the finality to be able to make a decision and 
not have the Federal Government step back in and reopen the 
case?
    Mr. Bollwage. In the mall site that we developed that I 
talked about, there were 20 major permits that were needed in 
order for that site to be remediated. The Regional Plan 
Association of New York, Connecticut, and New Jersey worked 
with the city and the State in shepherding those 20 permits 
through the process, and when those 20 permits were filed and 
completed, the State said it was ready to redevelop that mall 
site, and so therefore the State moved on the permits, the 
permits were opened, filed, closed, construction began.
    Senator Smith. So do you support State finality, the State 
having the last say?
    Mr. Bollwage. There needs to be some type of compromise on 
the State issue, finality issue. There has to be a definition 
of the word ``final.'' I mean, when is final ``final?'' As far 
as I'm concerned, if the State says it is final, then the 
developer should be able to move on it.
    Senator Smith. OK. So if the State says it is final, but 
that is not what is happening. As the law is now, the Feds can 
move back in there. Of course, if there is some huge issue that 
develops later in the site, then, of course, the Federal 
Government may have to, EPA may have to. We understand that. 
But what we're really talking about here now is giving the 
States a finality that would be able to say to a developer, 
``Look, you're OK. Go ahead. Move forward. We're set on this. 
Nothing is going to come back at you.''
    Without that, I don't think you're going to get to the 
results that you are talking about here in your statement.
    Mr. Bollwage. Senator, I can only talk on what worked for 
our benefit in Elizabeth, and it was 20 permits that the State 
said that the permits are in order, you can move toward 
construction, and it was a landfill. I don't know how much 
more--it's not a Superfund site, but it was a landfill. It had 
its problems environmentally. The State signed off on the 20 
permits and construction began, and said it was final, and we 
then built the project with a private developer.
    Somebody has to say it is final. Being a mayor, we look to 
the State DEP for finality, and the State says it is final. We 
then built the project.
    Senator Smith. Mayor Jones, do you feel the same way?
    Mr. Jones. In some of the areas, at least.
    Let me just read to you our posture on the liability part 
of it. In our write-up we say,

    Congress can enhance these liability reforms by further 
clarifying in legislation that Superfund liability does not 
apply to non-responsible parties, such as innocent landowners, 
prospective purchasers, and contiguous property owners.

    Let me say to the second part of that, that East Palo Alto 
is roughly 27 or 30 miles from San Francisco, and right on the 
borderline in San Mateo County is a small city, Pacifica. They 
have just found that, even though the State had cleaned up, 
even though the land had been cleaned up to the State's 
standards, there is very clear evidence that has been admitted 
by everyone of high incidents of cancer, blindness, low-birth 
weight, and the whole bit.
    So yes, I believe that the Federal Government should always 
be there.
    Let me say, as well, Senator, that I'm originally from 
Mississippi, and my first involvement with Government was with 
the Southern Christian Leadership Conference, and in that 
environment, coming from Mississippi, thank God the Federal 
Government was there.
    So, whereas I believe that States have a great 
responsibility and I respect that authority, I personally have 
an allegiance to the Federal Government being there, if 
necessary and if needed.
    Senator Smith. Let me just clarify that with one further 
point here.
    When you talk about prospective purchaser agreements--you 
both have talked about those--innocent landowner protection, 
and all that, I mean, that's fine, but you have to encourage 
the seller--and, frankly, the buyer--but the seller, when he 
offers his or her property, if they fear liability, if they 
feel somebody is going to come back, then how can they sell it? 
They are not--you've got other parties that are going to come 
in. The purchaser is going to come in, the seller. If there is 
still liability hanging out over their heads, or some 
responsibility for cleanup, and EPA reserves its right to 
reopen, you're never going to get finality. That's one of the 
reasons why these sites are not being totally taken care of as 
they should be.
    That's the issue. Somebody has to make a final decision, 
and without that final decision you are going to reduce the 
opportunity for people to come in or to clean it up or have 
somebody sell the property to clean it up, or whatever the case 
may be.
    Mr. Jones. Some of these sites have been owned by 
individuals for a long, long time, and the case may be that it 
is more costly to assess and clean up than what the property is 
worth. The unfortunate part about that in a city like East Palo 
Alto is that the folks there would just leave it there, leave 
it alone and walk away from it, so it just exists in your 
community.
    We are in a housing crunch. We are trying to get rid of our 
unemployment ratio. So we need the land to be developed, to be 
user-friendly for that matter. And if there is no money coming 
in from the buyer because the seller doesn't want to sell 
because they can't make any money and can't raise the money, 
even if they have been ordered to sell the property, we need 
something to say to the buyer, ``Buy this land, back the money 
out of escrow, work out whatever deal.''
    If the land costs $200,000 and it costs $200,000 to assess 
it and clean it up, we need a force to say, ``You work whatever 
deal may be where you sell it for $1, the land gets cleaned up 
to some standards by somebody who is credible--'' and that's 
the EPA, probably--``and we can go on then and deal within the 
site.''
    But folks say to us that they are afraid that 10 years from 
now it would be like a Ron Pallock site that exists in our 
community where arsenic shows up, and everybody who has cancer 
sues the city for granting the permits and sues the new buyer 
for owning the land for 10 years.
    Senator Smith. Thank you.
    Thank you, Mayor Bollwage. He's got a 4 o'clock train.
    Senator Chafee. Apparently he had to leave.
    Senator Smith. Senator Crapo, did you get a shot at him?
    You're all alone, Councilman.
    Senator Crapo. No, I didn't have any questions, Mr. 
Chairman.
    Senator Chafee. Senator Lautenberg.
    Senator Lautenberg. If Mayor Bollwage were here, I would 
ask him if New Jersey didn't have a great environmental 
Senator, but I can't ask him.
    [Laughter.]
    Senator Lautenberg. He had signaled me that he had a time 
problem, and he did agree with the staff person that used to 
work for me that any questions he would be happy to answer, 
both as mayor and as the representative of the Conference of 
Mayors.
    Senator Chafee. We're both train advocates, and he's taking 
the train back to Elizabeth.
    Senator Lautenberg. I guess. See, if we had high-speed 
train he could spend a little more time with us.
    [Laughter.]
    Senator Chafee. Thank you for coming all the way from the 
west coast, Councilman Jones. We much appreciate your 
testimony. Good luck in East Palo Alto.
    Mr. Jones. Thank you very much.
    Senator Chafee. I know you're working hard to return that 
city to its glory.
    Mr. Jones. Thank you very much.
    Senator Chafee. And the third panel, I would invite Mr. Bob 
Varney, commissioner of the New Hampshire Department of 
Environmental Services, on behalf of the Environmental Council 
of States; Mr. Terry Gray, assistant director for Air, Waste, 
and Compliance for the Rhode Island Department of Environmental 
Management, who has visited many of the sites in Rhode Island 
with me over the past number of weeks; and Mr. Eugene Martin-
Leff, assistant attorney general of New York, on behalf of the 
National Association of Attorneys General.
    Welcome, gentleman. Please limit your statements to 5 
minutes, and if there are any additional statements you'd like 
to submit to the record, we would accept that.
    Commissioner Varney, may we begin with your testimony?

STATEMENT OF BOB VARNEY, COMMISSIONER, NEW HAMPSHIRE DEPARTMENT 
   OF ENVIRONMENTAL SERVICES, ON BEHALF OF THE ENVIRONMENTAL 
                       COUNCIL OF STATES

    Mr. Varney. Thank you, Mr. Chairman and members of the 
committee. My name is Bob Varney. I am commissioner of the New 
Hampshire Department of Environmental Services.
    I want to say what a pleasure it is to be here with Senator 
Smith from New Hampshire. I greatly appreciate the efforts that 
he has made in New Hampshire and across the country to improve 
the Superfund program.
    And I want to thank Senator Chafee for taking on the 
challenge of this committee. When Senator Smith became chairman 
of this committee, I frequently at meetings reminded people 
that this was probably one of the most challenging and 
difficult assignments in the U.S. Senate, and applaud your 
willingness to take on the challenge.
    I have experienced the Superfund program for almost 11 
years as the State environmental commissioner under three 
different Governors of both political parties. I also have 
served as president of the Environmental Council of the States 
having just recently finished my term as president and I 
currently serve as past-president.
    The Environmental Council of the States is the national 
organization of State environmental agency heads.
    As you all know, States are responsible for the vast 
majority of hazardous waste cleanups across the country. In the 
small State of New Hampshire, we have approximately 3,000 
petroleum sites, and about 600 hazardous waste sites, including 
18 NPL sites. I believe we have the dubious distinction of 
having the most Superfund sites per capita of any State in the 
country, and just recently Governor Shaheen sent a letter to 
Carol Browner asking that another site in Nashua be put on the 
NPL.
    We have resolved over half of the hazardous waste sites and 
petroleum-contaminated sites in our State, and I think that is 
very important. Early on, when I came before this committee on 
behalf of the National Governors Association, we were in a much 
different situation. States were relatively new in taking over 
the petroleum cleanup program across the country and were 
delegated that program by EPA. It has worked very, very well.
    In terms of hazardous waste sites, States are dealing with 
and resolving more and more hazardous waste sites through 
enforcement action, through voluntary cleanups, and through the 
brownfields programs, and I think we have a lot to be proud of.
    I think, as we look to the future in terms of reform, we 
have to be very mindful of the fact that 97 to 99 percent of 
the cleanups are handled by the State, and whatever we do at 
that Federal level could have significant impacts on the State 
cleanup programs.
    In our State we've also seen a shift from arguments about 
remedy selection and settlements and who is going to pay and 
how much each party will pay to having most of our sites in the 
remedial action phase.
    As we look at the administrative improvements that EPA has 
made--and we commend EPA for the administrative improvements 
that they've made--I think we also have to recognize the 
element of time and the fact that when we have parties in the 
process of trying to settle and the process of trying to argue 
about remedy selection, which has big dollars attached, there 
is likely to be a lot of criticism about the program.
    But as you move into the remedial action phase, it is 
interesting how the volume gets turned down significantly in 
terms of those criticisms.
    The program truly has matured, but that's not the case in 
all of the States. There are some States in the country that 
still have significant settlement discussions, and a 
significant number of sites that have not reached their 
remedial action phase. The issue of Superfund and Superfund 
reform is likely to be more contentious in those States.
    We also want to stress the importance of funding and fully 
funding the Federal Superfund program. It is very much needed 
by States that don't have much capacity or limited resources 
or, in some cases, even very little interest in handling 
Federal Superfund sites, and there needs to be a presence 
there.
    But even sophisticated, well-funded, and experienced States 
rely on Superfund to achieve their goals, either through 
resources or the ``gorilla-in-the-closet'' kind of concern that 
exists relating to liability and cost allocation.
    The key issue, as we see it, in terms of Superfund is 
looking at the issue of orphan sites, sites where there is no 
readily apparent PRP with resources to achieve cleanup.
    In a recent GAO report entitled, ``Hazardous Waste: 
Unaddressed Risk at Many Potential Superfund Sites,'' 232 sites 
on EPA's inventory of potentially contaminated sites that 
either States or EPA believe should go on the NPL were 
identified, again underscoring the need for a fully funded 
Federal Superfund program, particularly focusing on those 
orphaned sites that are high risk and need to be addressed and 
where there are limited resources to address the problem.
    Senator Chafee. Mr. Varney, thank you.
    Mr. Varney. Thank you.
    Senator Chafee. We'll orphan the rest of your testimony on 
that paragraph.
    Mr. Varney. Thank you.
    Senator Chafee. In respect for time.
    We'll go in order of who came the furthest. Now from Rhode 
Island, Terry Gray.

STATEMENT OF TERRENCE GRAY, ASSISTANT DIRECTOR, AIR, WASTE, AND 
COMPLIANCE, RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

    Mr. Gray. Good afternoon, Mr. Chairman. Thank you very much 
for the opportunity to come down and share some of the Rhode 
Island perspectives with you and other members of the Committee 
on Superfund, and also with the cleanup of contaminated sites 
overall.
    I am here again to share the Rhode Island perspective, but 
I am also an active member of the Association of State and 
Territorial Waste Management Officials. That association has a 
national perspective on some of the things that they'd like to 
see improved in the Superfund program, and I would like to 
respectfully offer their written statement into the record for 
this hearing.
    In Rhode Island, our State efforts on cleanup have evolved 
from sole reliance on the Federal Superfund and RCRA program in 
1991 to a comprehensive cleanup program that we have today. 
That cleanup program includes voluntary cleanup aspects, 
enforcement programs, as well as a very aggressive brownfields 
program.
    Over that same time period, Superfund has also changed, as 
you've heard from a number of witnesses today, from a 
duplicative, inefficient, and often inflexible program to a 
more-cooperative, responsible, responsive, and streamlined 
program. Those improvements have been recognized and applauded 
by many people in Rhode Island, as you've heard.
    One clear point that I'd like to make in my testimony today 
is there is much more to the cleanup of contaminated sites than 
just Superfund and the National Priorities List. We have 
clearly seen, in our experience over the past 10 years, that 
Superfund, our State program, our voluntary cleanup program, 
and our brownfields program collectively provide a broad range 
of tools and flexibility to address the many types of sites 
that we've seen in Rhode Island.
    We are just beginning to see the next generation of sites, 
as well. There are several new sites that are uncovered as a 
result of more aggressive work in urban communities, several 
smart growth initiatives that are occurring throughout the 
country, and investigations in support of total maximum daily 
load limits for our State waters.
    In developing our State program elements, we have also 
evaluated what other States have done, and we have seen some 
true innovations, particularly with respect to licensing site 
professionals and stimulating the growth of cleanup and getting 
more sites cleaned up, overall.
    We've also seen that the backbone of virtually all cleanup 
programs, including Rhode Island, is the Superfund liability 
scheme. Based on our experiences in all these cleanup programs, 
I'd like to offer some of Rhode Island's recommendations that 
you may take into account when considering Superfund 
reauthorization or other statutory reforms.
    First, we feel that the statute should recognize and 
support all these cleanup programs that I've mentioned, 
including State programs, voluntary cleanup programs, and, 
obviously, the brownfields program.
    Innovation at the State level should also be recognized and 
supported. When looking at the State role, please try and avoid 
the establishment of prescriptive Federal standards for what is 
an acceptable State program, because there are many different 
models out there that I think work very effectively.
    I think the issue of finality of State programs should also 
be addressed. We really need to avoid the potential double 
jeopardy that I think is perceived by many developers and 
performing parties that are out there cleaning up our sites.
    I think we should exercise care and caution when changing 
the liability system. We concur with the concept of liability 
relief to some parties--clearly, the brownfields parties, such 
as prospective purchasers and also neighboring property owners 
and down-
gradient receptors. We also think there is room for liability 
relief for municipalities, as well. But I think a full 
evaluation of the impacts of these liability changes have to be 
evaluated, including their potential impacts on State programs.
    Finally, I think brownfields projects should be de-coupled 
from the strict requirements of the national contingency plan. 
This puts an unrealistic burden on municipalities and some of 
the developers that are trying to bring these sites back to 
reuse.
    Funding assistance should also be made available to support 
the remediation of brownfields sites for the future uses for 
nonprofit or public purposes, such as open space, greenways, 
bike paths, and perhaps even schools, as we have seen along the 
Wanaskatucket River in Providence.
    Once again, thank you for the opportunity to testify. I 
would be happy to answer any questions.
    Senator Chafee. Thank you, Mr. Gray, very much.
    Mr. Martin-Leff, welcome, from New York.

 STATEMENT OF EUGENE MARTIN-LEFF, ASSISTANT ATTORNEY GENERAL, 
   NEW YORK STATE ATTORNEYS GENERAL OFFICE, ON BEHALF OF THE 
           NATIONAL ASSOCIATION OF ATTORNEYS GENERAL

    Mr. Martin-Leff. Thank you, Mr. Chairman.
    I'm appearing today on behalf of Attorney General Eliot 
Spitzer of New York and on behalf of the National Association 
of Attorneys General.
    I have been working in litigation under CERCLA since 1983 
in the courtroom, and during the past year I represented 
Attorney General Spitzer in Governor Pataki's State Superfund 
and Brownfields Working Group, where we are addressing some of 
the same issues that are being raised here today.
    The National Association of Attorneys General has been 
deeply involved in Superfund reauthorization for many years. In 
1997, this group of attorneys general from the entire country, 
both parties, were able to agree on a resolution touching on 
many of the key issues, and that resolution has been 
distributed to the subcommittee today.
    In the resolution, the association stressed the critical 
importance of the Superfund program in ensuring protection of 
public health and the environment.
    I would like to comment first today on the importance of 
clear liability standards. The ability to recover costs under 
CERCLA is crucial to our cleanup program in New York. About 10 
percent of the State registry of inactive disposal sites are 
National Priority List sites, federally funded.
    Even though these sites are typically more expensive than 
others, Federal money constitutes only about 13 percent of all 
the cleanup funding in New York. On the other hand, private 
money through settlement primarily constitutes 66 percent. 
State funding accounts for about 20 percent.
    So the ability to obtain settlements from private parties 
is what is driving the cleanup program in New York State, and 
it is the ability to use these CERCLA liability provisions that 
enables us to achieve this voluntary agreement to settle these 
cleanup cases.
    Potentially responsible parties know where they stand under 
current liability principles. This connection between 
enforcement and the generation of cleanup funds is vital.
    Congress has done more than make money available in the 
Superfund program. What it has done is to leverage the Federal 
money into far-greater matching private dollars by creating and 
preserving liability for cost recovery.
    On the other hand, every change that is made in liability 
standards carries with it a potential loss of predictability, 
and there could be significant cleanup funding consequences.
    CERCLA enforcement has another crucial role in New York and 
other States. In our State, there is no right under State 
statutory law to cleanup cost recovery without first going 
through an administrative hearing. Our administrative process, 
with a full evidentiary hearing, is rarely used, so we and 
other States depend on our express right to sue in Federal 
court under CERCLA.
    Attorney General Spitzer is participating actively in the 
public debate on brownfields within New York State, and in that 
context everyone agrees that certain reforms are needed to 
facilitate brownfields revitalization. Future use of 
contaminated sites certainly must be considered, and 
institutional controls must supplement remedies such as 
excavation. However, the devil, as they say, is in the details. 
Cleanup levels must not be set simplistically based on the 
current use of a site or on a developer's projected use. As 
required currently by EPA, future use must be carefully 
determined by examining current use, projected use, and not 
only zoning laws and formal municipal plans, but also the 
proximity of a site to residential areas, developmental trends 
in the area, local community views, environmental justice 
concerns, and other relevant information.
    Similarly, institutional controls must not be seen as a 
panacea. Some of these controls are not as reliable as others. 
It must be carefully examined whether the particular control is 
likely to be enforced in the future.
    EPA and State environmental agencies should consider the 
long-term effectiveness of the institutional controls and the 
cleanup, along with the cost and other relevant factors, and 
choose the remedy that best meets all the appropriate cleanup 
criteria.
    Senator Chafee. Mr. Martin-Leff, thank you very much, sir. 
The time has expired.
    Mr. Martin-Leff. Thank you.
    Senator Chafee. We have a vote called, and we have a brief 
time to ask questions before I have to conclude the hearing.
    Senator Lautenberg.
    Senator Lautenberg. Thanks very much, Mr. Chairman. We'll 
try to move along here.
    I would ask for Mr. Gray or Mr. Varney--we welcome you 
here--wouldn't you agree that even if we decide to constrain 
EPA's ability to respond to sites where States want to take the 
lead, that it would be appropriate to tie this restraint on EPA 
to the State program, meeting with some basic criteria?
    Mr. Gray. I think the devil is in the details on that 
issue, Senator, and I think there are certain minimum standards 
that people would expect in a State program; however, those 
standards should be set in a manner that clearly does not tie 
the State's hands or dampen innovations or any type of new 
approach that a State would want to have.
    Senator Lautenberg. But suppose--and let's not look at our 
own States for the moment, but suppose a State has inadequate 
standard for the safety and well-being of the people in the 
area. Should EPA be there? Should there be a Federal standard 
that has to be met that says--by the way, I must say that, to 
my knowledge--and I stand ready to be corrected--there has 
never been a reopening or a reentry of the EPA after a site has 
been dealt with at the State and cleaned up.
    So, you know, shouldn't there be that safety net out there?
    Mr. Gray. I think the safety net will always exist with 
respect to emergency actions. If there is an emergency 
situation, either the State or EPA would take action on those 
type of things.
    Although I don't have any information about the EPA 
aggressively over-filing on issues, there is still a perception 
out there that I have experienced in the regulated community 
that there is a fear of this duplication of authorities.
    EPA region one, in particular, has been very aggressive 
with comfort letters, and we have also signed a memorandum of 
understanding on our voluntary cleanup program, but there is 
still that fear in the regulated community about when is 
finality truly final.
    Senator Lautenberg. Because, Mr. Gray, in your testimony 
you do say, ``We believe that the continuing threat of listing 
a Superfund program, coupled with our own enforcement actions, 
provide the impetus for cooperation.'' So being aware of the 
fact that there is a chance that the question could be raised, 
an action could be taken, gets the parties, I think, to sit 
down and negotiate in good faith and understand what the 
parameters are.
    Mr. Chairman, in order to be fair to everybody, I will 
submit questions.
    Senator Lautenberg. I have a question that Senator Boxer 
asked us to submit to Ms. Schiffer from the Department of 
Justice, and I would ask unanimous consent that we accept that 
question and ask for a prompt response from Ms. Schiffer, and 
would reserve the right to submit questions to our friends that 
are at the table here, and I thank them for their excellent 
testimony.
    Senator Chafee. Thank you, Senator Lautenberg.
    Mr. Martin-Leff, if I read your testimony accurately, you 
were sounding a cautionary note on relaxing any liability 
standards, and in previous testimony we heard from EPA that, on 
the brownfields legislation, it is generally accepted that some 
areas of liability could be relaxed, particularly innocent 
landowners, contiguous property owners, and prospective buyers.
    Could you comment on whether I read your testimony 
accurately? And would you agree with EPA's direction?
    Mr. Martin-Leff. You certainly did, Mr. Chairman. The 
particular modifications that you mentioned, however, are, 
indeed, modest. Certainly, prospective purchasers who are not 
responsible for disposing of waste at the site don't face 
liability at all under the current rules, so giving them 
protection is entirely consistent with the thrust of our 
cautionary note.
    Senator Chafee. OK. Thank you, gentlemen, very much.
    Senator Smith.
    Senator Smith. Thank you, Mr. Chairman.
    Let me welcome my friend and colleague from New Hampshire, 
Bob Varney. We have worked together for about 10 or 12 years, I 
guess, on these sites, or longer than that, on Superfund sites 
in New Hampshire.
    I am delighted to have you here, and welcome the other 
witnesses, as well.
    We are running low on time here because we have a recorded 
vote and only a few minutes left.
    I would just like to say, Mr. Gray and Mr. Varney, both of 
you have given pretty strong statements on State finality, and 
you use the term in your statements. I might just commend you 
for that, because I don't see how we can move forward without 
some degree of finality. I mean, you see these cases where you 
have the--was it the South Dakota or North Dakota? I have it 
here somewhere. In any case----
    Mr. Varney. South Dakota.
    Senator Smith. South Dakota. Yes. In any case, you have a 
situation where EPA is not giving finality. They are still 
reserving the right to come back in. I think that makes it very 
difficult for any conclusion to these sites.
    So I think you've made your positions pretty clear, and I 
commend you for that. I might be interested in knowing what 
NAAG's position is on that, Mr. Martin-Leff, because you are 
the legal guys, and it would seem to me that if you want to get 
these things resolved you have to have somebody with some 
finality here.
    We all recognize that there is a Federal Government here in 
the event that there is an emergency, but to say that the 
Federal Government can come back in and hold somebody liable 
where you've made decisions on cleanup, you're going to--maybe 
that's why the lawyers like it. You're going to stay in court.
    But it just seems to me that you've got to--I'd like to see 
your organization come out in strong support of finality, 
because I think that is how we get this stuff done.
    You are essentially in the same position as a 
representative of the State as an attorney general.
    There's my challenge for you for the day.
    Mr. Martin-Leff. The Association of Attorneys General has, 
indeed, taken a position on this point, and the phrase that we 
have used is ``give appropriate legal finality to qualified 
State voluntary cleanup programs.''
    If I may comment on what that finality means, it is not 
absolute. When we settle lawsuits, obviously defendants are 
looking for finality in any case, and certainly prospective 
purchasers are looking for finality in brownfield sites.
    We never settle a case without a reopener provision, so 
finality is never treated as absolute, yet companies have 
enough security that they have put their exposure behind them 
unless something unusual happens.
    Although the Association has not specifically----
    Senator Smith. Well, why hold them accountable for the 
unusual that happens? That's the point. You could expedite this 
process tremendously. I mean, why would anybody want to go into 
a situation like that, not knowing 10 years from now, 20 years 
from now, I could be responsible for millions more.
    We're never going to get there. We've got all these sites 
laying out there--brownfields and Superfund sites, brownfields 
especially, that could be developed like that or cleaned up, as 
we have done. Many have done it in spite of this lack of 
finality, but it has been tough.
    We are in a situation where we just literally have to run 
out of here to go vote, so I don't want to delay. I might have 
a couple of follow-up questions. And I apologize to the other 
witnesses for not having a chance to ask a question.
    Senator Chafee. Yes. Thank you for coming all the way down 
here to Washington today and helping us as we try to make 
improvements in this legislation.
    Ladies and gentlemen, thank you, also.
    [Whereupon, at 4:10 p.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]

  STATEMENT OF TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR FOR SOLID 
     WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY

                              INTRODUCTION

    Good afternoon Mr. Chairman, and Members of the Subcommittee. I am 
pleased to have this opportunity to appear before you to discuss the 
Agency's record of accomplishments over the past 7 years in 
fundamentally improving the Superfund program, and Superfund's 
necessary role in cleaning up our nation's most contaminated 
properties. Further, I will discuss the important role we play in 
helping states, local governments, the private sector, and communities 
address the problem of brownfields.
    First, I believe we must recognize Superfund's important mission. 
Superfund is dedicated to protecting public health and the environment 
for citizens, no matter where they live in the country, through 
targeted cleanups of our nation's hazardous waste sites, including 
those caused by the Federal Government. These sites pose a very real 
problem. Studies by the Agency for Toxic Substances and Disease 
Registry (ATSDR) show a variety of health effects that are associated 
with Superfund sites, including birth defects, reductions in birth 
weight, changes in pulmonary function, changes in neurobehavorial 
function, infertility, and changes in blood cells that are associated 
with chronic lymphocytic leukemia. EPA works closely with ATSDR to 
evaluate the impacts of contaminated sites on public health. EPA also 
works with other Federal agencies to assess the significant adverse 
impacts Superfund sites have had on natural resources and the 
environment.

Superfund Progress
    The Superfund program is making significant progress in cleaning up 
hazardous waste sites on the National Priorities List (NPL). The Agency 
has increased Superfund productivity--from cleaning up 65 sites per 
year to cleaning up at least 85 sites per year in each of the past 3 
years. As of September 30, 1999, 92 percent of the sites on the NPL are 
either undergoing cleanup construction (remedial or removal) or are 
completed:
     680 Superfund sites have reached construction completion
     442 Superfund sites have cleanup construction underway
     More than 1000 NPL sites have final cleanup plans approved
     An additional 204 sites have had or are undergoing a 
removal cleanup action.
    By the end of the 106th Congress, EPA will have completed cleanup 
construction at approximately 60 percent of all non-Federal sites 
currently on the NPL.
    In addition, more than 6,000 removal actions have been taken at 
hazardous waste sites to stabilize dangerous situations and immediately 
reduce the threat to public health and the environment. Close to 32,000 
sites have been removed from the Superfund inventory of potentially 
hazardous waste sites (CERCLIS) to help promote the economic 
redevelopment of these properties.
    Through three rounds of Administrative Reforms, EPA has made 
Superfund a fairer, more effective, and more efficient program. EPA has 
implemented reforms in seven major program categories: cleanup, 
enforcement, risk assessment, public participation and environmental 
justice, economic redevelopment, innovative technology, and State and 
Tribal empowerment. EPA is fully committed to continuing to implement 
these reforms and integrate them into base program operations.

Increasing the Pace of Site Cleanups
    The Superfund program is making significant progress in 
accelerating the pace of cleanup, while ensuring protection of public 
health and the environment. The accelerated pace of completing cleanups 
is demonstrable. More than three times as many Superfund sites have had 
construction completed in the past 7 years than in all of the prior 12 
years of the program combined. In the past 3 years, FY 1997-FY 1999, 
EPA completed construction at 260 sites--far more than during the first 
12 years of the program (155 sites). EPA is on track to achieve the 
President's goal of completing cleanup construction at 970 Superfund 
sites by the end of fiscal year 2002.
Private Party Funding of Cleanups
    EPA's ``Enforcement First'' strategy has resulted in responsible 
parties performing or paying for more than 70 percent of long-term 
cleanups since 1991, thereby conserving the Superfund Trust Fund for 
sites for which there are no viable or liable responsible parties. This 
approach has saved taxpayers more than $16 billion to date--more than 
$13 billion in response settlements, and nearly $2.5 billion in cost 
recovery settlements.

Protecting Human Health and the Environment
    The Superfund program's accomplishments are significant in reducing 
both human health and ecological risks posed by dangerous chemicals in 
the air, soil, and water. The Superfund program has cleaned over 232 
million cubic yards of hazardous soil, solid waste, and sediment and 
over 349 billion gallons of hazardous liquid-based waste, groundwater, 
and surface water. In addition, the program has supplied over 431,000 
people at NPL and non-NPL sites with alternative water supplies in 
order to protect them from contaminated groundwater and surface water. 
Over 22,900 people at NPL and non-NPL sites have been relocated in 
instances where contamination posed the most severe immediate threats.

                         ADMINISTRATIVE REFORMS

    Stakeholders inform us that EPA's Superfund Reforms have already 
addressed the primary areas of the program that they believe needed 
improvement. EPA remains committed to fully implementing the 
Administrative Reforms and refining or improving them where necessary. 
Below are Superfund performance highlights through fiscal year 1999.

Remedy Review Board
    EPA's National Remedy Review Board (the Board) is continuing its 
targeted review of complex and high-cost cleanup plans, prior to final 
remedy selection, without delaying the overall pace of cleanup. Since 
the Board's inception in October 1995, it has reviewed a total of 43 
site cleanup decisions, resulting in estimated cost savings of 
approximately $70 million.

Updating Remedy Decisions
    In addition to the work of the Board, EPA has achieved great 
success in updating cleanup decisions made in the early years of the 
Superfund program to accommodate changing science and technology. In 
fact, the Updating Remedy Decisions reform is one of EPA's most 
successful reforms, based on its frequent use and the amount of money 
saved. After 4 years of activity, more than $1.4 billion in future cost 
reductions are estimated as a result of the Agency's review and update 
of 300 remedies. It is important to stress that the future cost 
reductions described above can be achieved without sacrificing the 
protection of public health and the current pace of the program.

Remedy Selection
    Under the current statutory framework, providing for a preference 
for treatment of waste and permanent solutions to the maximum extent 
practicable, the Superfund program is focusing on treatment of toxic 
hot spots and requiring treatment in fewer instances when selecting 
remedies. Costs of cleanups are decreasing dramatically because of a 
number of factors, including: the use of presumptive remedies; the use 
of reasonably anticipated future land use determinations, which allow 
cleanups to be tailored to specific sites; and the use of a phased 
approach to defining objectives and methods for ground water cleanups. 
As a result of these factors, EPA has reduced the cost of cleanup by 
approximately 20 percent.

Promoting Fairness Through Settlements
    EPA has addressed concerns of stakeholders regarding the fairness 
of the liability system by discouraging private party lawsuits against 
small volume waste contributors that have limited responsibility for 
pollution at a site. EPA has protected over 21,000 small volume 
contributors (about two-thirds of these in the last 4 years) from 
expensive private contribution suits through the negotiation of more 
than 430 de minimis settlements. EPA continues to prevent the big 
polluters from dragging untold numbers of the smallest ``de micromis'' 
contributors of waste into contribution litigation by publicly offering 
to any de micromis party $0 (i.e., no-cost) settlements that would 
provide protection from lawsuits by other potentially responsible 
parties (PRPs).

Orphan Share Compensation and Special Accounts
    Since fiscal year 1996, EPA has offered orphan share compensation 
for past costs and future oversight costs or approximately $175 million 
at 98 sites to responsible parties willing to negotiate long-term 
cleanup settlements. EPA will continue the process at every eligible 
site. Through 1999, EPA has collected and placed $486 million in 133 
interest bearing special accounts for site specific future work. In 
addition, over $85 million in interest has accrued in these accounts. 
This reform ensures that monies recovered in certain settlements are 
directed to work at a particular site. At a number of sites, this money 
can make a great difference in making settlements work. In fiscal year 
1998, EPA set aside and then spent more than $40 million of Superfund 
response money in new settlements for mixed work or mixed funding.

                OTHER SUPERFUND PROGRAM ACCOMPLISHMENTS

States
    EPA continues to work with States and Indian tribes as key partners 
in the cleanup of Superfund hazardous waste sites. During the last 2 
years, fiscal year 1998 and fiscal year 1999. EPA provided close to 
$225 million to States sharing in the management of response activities 
at sites. EPA is increasing the number of sites where States and Tribes 
are taking a lead role in assessment and cleanup, using the appropriate 
mechanisms under the current law. With the May 1998 release of the 
``Plan to Enhance the Role of States and Tribes in the Superfund 
Program,'' the Superfund program is expanding opportunities for 
increased State and Tribal involvement in the program. Seventeen pilot 
projects with States and Tribes have been initiated through this plan.
    In addition, over the last 5 to 6 years, States, Tribes, and EPA 
have developed ways under existing statutory authorities of dividing 
contaminated site work in a manner that fits the needs of the sites and 
the interests and abilities of each regulatory agency--reducing overlap 
and duplication in favor of more complementary, mutually supportive 
arrangements. The Administration believes that this partnership is 
working to achieve a dramatic number of cleanups across the country. 
Today's State, Federal and Tribal programs comprehensively address the 
scope of the hazardous waste contamination problem.

Community Involvement
    The Superfund program is committed to an open decisionmaking 
process that fully involves citizens in site cleanup by providing the 
community with timely information and by improving the community's 
understanding of the potential health risks at a site. Superfund 
accomplishes this involvement through outreach efforts, such as public 
meetings and site-specific fact sheets. EPA has enhanced community 
involvement through the successful implementation of reforms such as: 
the EPA Regional Ombudsmen, who continue to serve as a direct point of 
contact for stakeholders to address their concerns at Superfund sites; 
the Internet pages, which continue to provide information to our varied 
stakeholders on issues related to both cleanup and enforcement; and the 
Technical Assistance Grants (TAGs), Community Advisory Groups (CAGs), 
Restoration Advisory Boards (RABs) and Site-specific Advisory Boards 
(SSABs).
    The TAG program provides eligible community groups with financial 
assistance to procure technical consultants to assist them in 
understanding the contamination problems and their potential solutions. 
This understanding helps them participate in decisions made at sites. 
EPA has awarded 220 TAGs (valued at over $16 million) to various groups 
since the program's inception in 1988. The Agency plans to publish 
revisions to the TAG regulation by the summer of 2000 to simplify the 
TAG program further.
    The CAG program enables representatives of diverse community 
interests to present and discuss their needs and concerns related to a 
Superfund site with Federal, State, Tribal and local government 
officials. The number of sites with CAGs increased by over 50 percent 
before the CAG program was officially taken out of the pilot stage. 
CAGs have been created at 51 non-Federal facility sites.

Community Involvement at Federal Facilities
    The Superfund Federal facilities response program also recognizes 
that various stakeholder groups need the capacity to participate 
effectively in the cleanup process. The program has entered into 
partnerships and awarded cooperative agreement grants to State, Tribal, 
and local associations, and to community-based organizations. The 
grants focus on training for affected communities, participation of 
citizens on advisory boards, access to information, and implementation 
of the Federal Facility Environmental Restoration Dialogue Committee 
(FFERDC) principles. These grants offer the opportunity to leverage 
valuable resources, build trust, and reach a wider audience.
    The Superfund Federal facilities response program is a strong 
proponent of involving communities in the restoration decisionmaking 
process and recognizes that input from Restoration Advisory Boards 
(RAB) and Site-Specific Advisory Boards (SSAB) has been essential to 
making response decisions and, in some cases, reducing costs. 
Increasing community involvement, Restoration Advisory Board/Site-
Specific Advisory Board support (RAB/SSAB), and partnering with States, 
Tribes and other stakeholders are high priority activities for EPA. 
There are over 300 RABs and 12 SSABs throughout the country.

                      REVITALIZING AMERICA'S LAND

Brownfields
    Through its brownfields program, EPA helps communities clean up and 
develop less contaminated brownfields sites. Brownfields are abandoned, 
idled, or under-used industrial and commercial properties where 
expansion or redevelopment is complicated by real or perceived 
contamination. The Brownfields Initiative plays a key role in the 
Administration's goal of building strong and healthy communities for 
the 21st century. The Initiative represents a comprehensive approach to 
empowering States, local governments, communities, and other 
stakeholders interested in environmental cleanup and economic 
redevelopment to work together to prevent, assess, safely clean up, and 
reuse brownfields. The Administration believes strongly that 
environmental protection and economic progress are inextricably linked. 
Rather than separate the challenges facing our communities, the 
Brownfields Initiative seeks to bring all parties to the table--and to 
provide a framework that enables them to seek common ground on the 
range of challenges: environmental, economic, legal and financial. The 
EPA brownfields pilot programs form the basis for new and more 
effective partnerships. In many cases, local government environmental 
specialists are sitting down together with the city's economic 
development experts for the first time. Others are joining in--
businesses, local residents, and community activists.
    The Brownfields Assessment Pilots have formed a major component of 
the Brownfields Initiative since its announcement a little more than 5 
years ago. The Agency has awarded 307 Brownfields Site Assessment 
Demonstration Pilots, funded at up to $200,000 each, to States, Tribes, 
and communities. In fiscal year 2000, the Agency will fund as many as 
50 additional assessment pilots of at up to $200,000 each and 50 
existing Brownfields Site Assessment Demonstration Pilots for up to 
$150,000 each, in order to enable continuation and expansion of their 
brownfields efforts. For fiscal year 2001, the Administration has 
requested $8 million to provide funding and technical support for 40 
assessment pilots at up to $200,000 each. Selected through a 
competitive process, these pilots help communities to demonstrate the 
economic and environmental benefits of reclaiming brownfields 
properties, to explore ways of leveraging financial resources, and to 
model strategies for the organization of public and private sector 
support. Small towns and large cities both have been recipients of the 
grants. Combined with the Agency's property assessment efforts, these 
pilots have resulted in the assessment of 1687 brownfield properties, 
cleanup of 116 properties, redevelopment of 151 properties, and a 
determination that 590 properties did not need additional cleanup. To 
date, over 5,800 jobs have been generated as a result of the program. 
Pilot communities have reported a leveraged economic impact of over 
$1.8 billion.
    As EPA works to implement a comprehensive brownfields strategy, the 
Agency has developed a ``second-stage'' type of brownfields pilot 
program. Those pilots, known as the Brownfields Cleanup Revolving Loan 
Fund (BCRLF) Pilots are designed to enable eligible States, Tribes, and 
political subdivisions to capitalize revolving loan funds for use in 
the cleanup and sustainable reuse of brownfields. EPA's goal for these 
pilots is to develop revolving loan fund models that can be used by 
communities to promote coordinated public and private partnerships for 
the cleanup and reuse of brownfields. Eligible applicants for BCRLF 
pilots are entities previously awarded brownfield assessment pilots. In 
addition, coalitions formed among these entities and political 
subdivisions with jurisdiction over sites that have been the subject of 
a targeted brownfield pilot are eligible for BCRLF awards.
    To date, 68 BCRLF pilots have been awarded. These pilots represent 
88 communities, and include pilot awards to individual eligible 
entities and to coalitions. Three BCRLF loans have been made. The 
Stamford, CT, pilot has issued two loans. The first loan, for $250,000, 
will be used to clean up property that is part of a larger waterfront 
redevelopment project. This loan is expected to leverage $50 million of 
private redevelopment funds and generate 200 construction jobs and 12 
full-time permanent jobs. The Las Vegas, NV, BCRLF pilot has made a 
$50,000 loan to clean up the property of a former National Guard armory 
site. This cleanup has already been completed. EPA is in the process of 
reviewing fiscal year 2000 BCRLF pilot applications representing more 
than 60 communities. Among other requirements, pilot applicants are 
being asked to demonstrate an ability to manage a revolving loan fund 
and environmental cleanups. The Agency anticipates announcements in May 
of new pilot awards of up to $500,000 each and has requested funding to 
support BCRLFs in fiscal year 2001 as well.
    The Brownfields National Partnership continues to support 
brownfields reuse through work with a variety of stakeholders. It 
represents a multi-faceted partnership among Federal agencies to 
demonstrate the benefits of coordinated and collaborative activity on 
brownfields. To date, the partners estimate spending more than $385 
million for brownfields work, with another $141 million in loan 
guarantees. The centerpiece of the National Partnership was designation 
of 16 Brownfields Showcase Communities in 1998. These Showcase 
Communities are distributed across the country and vary in size, 
resources, and community type. The Federal partners plan to designate 
10 new Showcase Communities in fiscal year 2001.
    To help local citizens take advantage of the new jobs created by 
assessment and cleanup of brownfields, EPA began its Brownfields Job 
Training and Development Demonstration Pilot program in 1998. To date, 
EPA has awarded 21 pilots to applicants located within or near 
brownfield communities. Colleges, universities, nonprofit training 
centers, and community job training organizations, as well as States, 
Tribes, and communities, were eligible to apply for these pilots. In 
both fiscal year 2000 and fiscal year 2001, EPA plans to fund 10 
additional job training pilots at up to $200,000 each. In addition, EPA 
will continue to provide $3 million to the National Institute for 
Environmental Health Sciences to support worker training at brownfields 
sites.

Superfund Redevelopment Initiative
    The Brownfields Initiative foreshadowed an increased interest in 
the reuse of Superfund sites. Now that the Agency has analyzed and 
documented reuse that already is occurring at certain Superfund sites, 
the Superfund Redevelopment Initiative (SRI) has been formed to 
document these successes and to explore additional opportunities at 
other sites engaged in the selection of Superfund remedies and designs. 
Through a program of pilots, policies, and promotion, EPA and its 
partners are working to ``recycle'' sites into productive use that once 
were thought to be unusable, without sacrificing Superfund cleanup 
principles. EPA has selected 10 pilot sites already and, by the end of 
fiscal year 2000, plans to complete a competitive process to choose 40 
additional pilot sites. Eligible local governments receive direct 
financial assistance of up to $100,000 to undertake reuse assessments 
and undertake public outreach. EPA will offer facilitation service to 
communities to support reuse efforts and has established a peer 
matching program to enable local governments to share their experiences 
about successful Superfund reuse projects.
    Successful Superfund site reuse is being demonstrated at the 
Industriplex site, in Woburn, Massachusetts. Through a private/public 
partnership, this site will become a regional transportation center 
with over 200,000 square feet of retail space and potentially over 
750,000 square feet of hotel and office space. An open land and 
wetlands preserve will also be created as a part of the ``recycling'' 
of this site. Another example of reuse at Superfund sites is the 
Anaconda Smelter NPL site, in Anaconda, Montana, which has become a 
world-class Jack Nicklaus golf course. At other Superfund sites, major 
national corporations, including Netscape, Target stores, Home Depot 
stores, and McDonalds, have established businesses. Sites have been 
redeveloped into residences, libraries, athletic fields, community 
parks, wetlands, and habitat preserves. Over 150 sites are in actual or 
planned reuse. At these sites, more than 13,000 acres are now in 
ecological or recreational reuse. Approximately 11,000 jobs, 
representing $225 million in annual income, are located onsites that 
have been recycled for commercial use.

Removing Barriers to Reuse
    At some sites, the potential threat of CERCLA liability may in some 
circumstances be a barrier to the reuse of the property. EPA is 
continuing its efforts to negotiate prospective purchaser agreements 
and issue comfort/status letters in order to clarify CERCLA liability 
at sites and facilitate reuse of contaminated properties. EPA has 
entered into more than 120 Prospective Purchaser Agreements (PPAs) to 
facilitate beneficial reuse and has also issued over 500 comfort/status 
letters in order to clarify Federal Superfund interest in sites.
    In the summer and fall of 1998, EPA undertook a survey effort to 
gather information on the impacts of the PPA process. Survey data (for 
PPAs completed through June 1998) indicate that redevelopment projects 
cover over 1500 acres, or 80 percent of the property secured through 
PPAs. EPA regional personnel estimate that nearly 1700 short-term jobs 
(e.g., construction) and over 1700 permanent jobs have resulted from 
redevelopment projects associated with PPAs. An estimated $2.6 million 
in local tax revenue for communities nationwide have resulted from 
these projects. In addition, EPA regional staff estimate that PPAs have 
spurred redevelopment of hundreds of thousands of acres of property.

Federal Facility Redevelopment
    Through EPA's Base Realignment and Closure (BRAC) program, over 850 
base closure documents have been reviewed at 108 major closing military 
bases. These BRAC documents articulate the environmental suitability of 
the property for lease or transfer.
    Wurtsmith Air Force Base, located on more than 5,000 acres in 
northeast Michigan, stood ready for more than 70 years to support 
strategic bombing operations worldwide. When the decision was made in 
1993 to close Wurtsmith Air Force Base, a Base Closure Team (BCT) 
consisting of representatives from EPA, the Air Force, and the Michigan 
Department of Environmental Quality, was formed to clean up 
environmental contamination at the site. The BCT used an innovative 
cleanup technology to cut the cost of cleanup by a third and reduce the 
planned cleanup time by 40 percent. To enhance economic redevelopment, 
the BCT worked with the Northeast Michigan Community Service Agency to 
use base structures for approximately 150 low-income families as a 
replacement for substandard housing in six counties. The BCT earned 
national recognition for this unique reuse plan. As a result of EPA's 
involvement in the BRAC program, cost savings in excess of $275 million 
have been documented.

                       SUPERFUND REAUTHORIZATION

    As the result of the progress made in cleaning up Superfund sites 
in recent years, and the program improvements resulting from EPA's 
Administrative Reforms, there is not a need for comprehensive 
legislation. Comprehensive legislative proposals seriously could 
undermine the current progress of the program and weaken current law by 
creating barriers to cleanup, carving out overbroad liability 
exemptions, and undermining the Federal safety net. Comprehensive 
legislation could actually delay cleanups by creating uncertainty and 
litigation.
    The Administration would support targeted liability relief for 
qualified parties that builds upon the current success of the Superfund 
program. We believe that targeted legislation to clarify liability 
provisions in the statute enjoys broad bipartisan support and would be 
useful in speeding the cleanup of brownfields, including;
     prospective purchasers of contaminated property;
     innocent landowners; and
     contiguous property owners.
    This legislation should also provide funding for brownfield 
assessment and cleanup through grants and loans. Further, the 
legislation should provide support for effective State Voluntary 
Cleanup Programs, however, the Federal safety net must be preserved to 
address circumstances which may present an imminent and substantial 
endangerment. The Administration also supports targeted legislation 
that addresses the liability of small municipal waste generators and 
transporters.
    In addition, legislation to support the President's Budget is also 
needed to reinstate the Superfund taxes, and to provide EPA with access 
to mandatory spending. The Superfund tax authority expired December 31, 
1995. The President's fiscal year (FY) 2001 Budget requests 
reinstatement of all Superfund taxes (including excise taxes on 
petroleum and chemicals, and a corporate environmental tax). The Trust 
Fund balance (unappropriated balance) was roughly $1.5 billion at the 
end of fiscal year 1999. The Trust Fund balance will be approximately 
$200 million at the end of fiscal year 2001.
    In the absence of the taxes, we estimate a windfall of 
approximately $4 million per day for those parties that would normally 
pay the tax. To date, the Trust Fund has lost approximately $5 billion 
as a result of the failure of Congress to reinstate the taxes. This $5 
billion windfall has been passed on to those that would normally be 
funding cleanups, and the need for appropriations from general revenue 
in order to fund cleanups mean that the burden of these costs is 
shifted to the tax-paying public.

                     FUTURE SITE CLEANUP CHALLENGES

    EPA has made a great deal of progress, but the job is not done. 
Environmental contamination continues to be a concern at a large number 
of properties across the United States. Brownfields, which are 
abandoned and contaminated properties once used for industrial and 
commercial purposes, generally pose a low risk to human health and the 
environment and best are addressed through local, State, or Tribal 
authorities. EPA's job at brownfields sites principally is to provide 
technical and financial assistance to these authorities in order to 
build the capacity of their brownfields programs. A much smaller number 
of higher-risk sites, however, pose a more serious threat to public 
health and the environment and would qualify under EPA's Hazard Ranking 
System (HRS) for placement on the NPL for cleanup. A mix of approaches 
will need to be employed in the future to address these problems, 
including tools that were not available 20 years ago when Congress 
enacted CERCLA. Although alternatives involving Federal, State, and 
other authorities exist for managing the cleanup of these sites, in 
some cases the best alternative will be listing these sites on the NPL.
    EPA, State, and local authorities must work together with private 
parties and community interests to ensure that the most appropriate 
approach is taken in each case to address any property with real or 
suspected environmental contamination. EPA long has recognized that the 
assessment and cleanup of properties with potential or actual 
environmental contamination is a shared responsibility. What matters 
most is that these sites are addressed as efficiently and as 
effectively as possible.
    EPA will face three central challenges in the future as it 
continues its work to address our nation's site contamination problems. 
A primary focus of the Superfund program is to continue the cleanup of 
NPL sites, as well as to continue to address contamination problems 
through removal actions at sites across the country. Second, through 
grants and technical assistance, EPA will continue to serve as a 
catalyst to promote brownfields cleanup and redevelopment. Third, new 
sites posing serious threats to human health and the environment will 
be identified, and EPA has a shared responsibility with the States and 
other authorities to work with potentially responsible parties (PRPs) 
and the community through a variety of means to get these sites cleaned 
up.

Current Sites on the NPL
    Superfund's immediate priority is the cleanup of sites on the 
current NPL. The Agency will continue to emphasize the completion of 
construction at NPL sites, and, as in the last several years, EPA will 
maintain its current construction completion goal of 85 sites for 
fiscal year 2000. The program is on target to achieve the President's 
goal of 900 construction completions by the end of fiscal year 2002. At 
the same time, we will continue to employ the Superfund Administrative 
Reforms to ensure fairness, effectiveness, and efficiency in the way 
cleanups are conducted. We will work closely with PRPs to leverage 
resources whenever possible to get the job done. By working with 
communities to ensure the selection of appropriate remedies at sites, 
EPA will strive to foster productive reuse of Superfund properties that 
are cleaned up.
    In addition to the high priority EPA places on construction 
completion at NPL sites, the Agency will continue its efforts to ensure 
that remedies in place remain protective over the long term. It is 
important to understand that the job of cleanup does not end when a 
site achieves construction completion, and that Federal oversight is 
necessary to ensure the cleanup's long-term protectiveness. In the case 
of groundwater contamination, for example, treatment technologies in 
place may require 10 years or more to achieve cleanup goals, and 
groundwater must be monitored thereafter. CERCLA requires that EPA 
conduct a 5-year review at each Superfund site where wastes remain in 
place to make sure that the remedy remains effective and that the 
community is protected. This statutory requirement and other 
responsibilities associated with the Agency's role in ensuring the 
protectiveness of cleanups over the long term, such as oversight of 
operation and maintenance activities, underscore the need for 
continuing Agency resources for these purposes.

Brownfields
    A second EPA priority is to continue to promote brownfield 
assessments and cleanups. Brownfields, found in almost every community, 
represent by far the largest number of properties affected by concerns 
related to environmental contamination. In 1995, the General Accounting 
Office (GAO) estimated that approximately 450,000 brownfields exist in 
this country. These sites typically do not pose the type of risk 
addressed by Superfund NPL cleanups.
    Through pilots, and in partnership with a wide range of 
stakeholders, EPA continues to provide technical assistance and seed 
money to local, State, and Tribal entities engaged in the 
revitalization of brownfields properties in order to build the capacity 
of brownfields programs. EPA's role is to empower these government 
authorities, community groups, and others to achieve the assessment, 
safe cleanup, and successful reuse of brownfields. To date, EPA has 
entered into Memoranda of Agreement (MOAs) with 14 States to facilitate 
the cleanup of contaminated sites that generally pose lower risks than 
sites EPA would consider listing on the NPL. In fiscal year 2000, EPA 
is providing States and Tribes with $10 million to support the 
development and enhancement of effective State Voluntary Cleanup 
Programs (VCPs).

Sites Brought to the Attention of Superfund
    Third, EPA will ensure that sites not presently being addressed and 
that present serious threats to human health and the environment are 
cleaned up. Through identification by States, private citizens, and 
others, EPA has catalogued almost 43,000 sites nationally in its 
CERCLIS data base. EPA has performed preliminary assessments at 41,000 
of these CERCLIS sites and more detailed investigations at 20,000. The 
Agency has archived close to 32,000 of the 43,000 sites for which no 
further action under Superfund is necessary. EPA either is in the 
process of investigating the remaining sites or considering their 
listing on the NPL. In 1998, the GAO estimated that, 232 sites were 
likely candidates to be placed on the NPL in the future out of a 
universe of nearly 1,800 CERCLIS sites awaiting a listing decision. It 
is important to be aware that these figures do not include the 
approximately 500 new sites added to the CERCLIS inventory each year, 
most of which have been pre-screened. Since the GAO analysis, we know 
that only about a quarter of the sites EPA has proposed for listing 
were among the 232 sites identified in the GAO report in 1998. Others 
include more recently identified sites or sites for which Governors 
have specifically requested a proposed NPL listing. The Agency has 
averaged 28 listings per year for the past 7 years.
    The decision how to address the cleanup of sites brought to EPA's 
attention through CERCLIS depends on a range of technical, policy and 
resource considerations, as well as other site-specific factors. Many 
of these sites can be addressed under State VCPs and State Superfund 
programs. In other cases, PRPs may clean up sites of potential Federal 
interest either before or after proposal to the NPL, and EPA will 
continue to use its enforcement authorities to oversee the cleanup. In 
still other cases, EPA may determine that NPL listing is the most 
appropriate way to clean up a site, such as sites which present 
complicated intergovernmental or stakeholder issues or sites where a 
State requests a listing. The Agency continues to support a cooperative 
approach with the States on NPL listing and will continue to request a 
Governor's concurrence prior to any proposed or final NPL listing 
decision. Listing on the NPL would be necessary for more sites were it 
not for the availability of these alternative approaches to site 
cleanup.

Conclusion
    With the success of EPA's Administrative Reforms, the Superfund 
program now is fairer, faster, and more efficient. The significant 
progress achieved during the Clinton administration in cleaning up 
hazardous waste sites has made comprehensive Superfund reform 
unnecessary. However, the Administration believes that an agreement can 
be reached with Congress on bipartisan targeted brownfields legislation 
this year. We look forward to building upon the success of our 
Administrative reforms and in partnership with State and local 
governments, communities, and the private sector, to ensure the 
protection of human health and the environment through the cleanup of 
our Nation's hazardous waste sites.
                                 ______
                                 
    RESPONSES BY TIMOTHY FIELDS, JR., TO ADDITIONAL QUESTIONS FROM 
                             SENATOR BOXER

                          REMEDIATION SCHEDULE

    Question 1. There appears to be no incentive for the Navy to meet 
its timeliness for the Hunters Point Shipyard cleanup, since every new 
Federal Facilities Agreement (FFA) schedule shows the same CERCLA 
milestones occurring farther out in time. What options are available to 
EPA under CERCLA to enforce these schedules? Specifically, what steps 
will EPA take to ensure that the Navy completes remediation of the 
Shipyard in timely manner?
    Response. EPA is committed to ensuring that the Navy maintains the 
project schedules as outlined in the FFA in order to complete 
remediation and transfer of the Hunters Point Shipyard in a timely 
manner. EPA has diligently enforced provisions in the FFA to ensure 
that any extension requests submitted by the Navy are necessary and 
justifiable under the FFA. Per the FFA, schedules shall be extended 
upon receipt of a timely request for extension and when good cause 
exists for the requested extension. If the Navy fails to provide good 
cause for the extension, then EPA may deny the request and the Navy may 
invoke the dispute resolution procedures of the FFA. Further, EPA may 
assess a stipulated penalty against the Navy if it fails to comply with 
any terms of the FFA.

              REMEDIATION TO THE REDEVELOPMENT REUSE PLAN

    Question 2. What is the EPA's policy regarding remediation of 
closed military bases to the approved local Reuse Plan? Where else in 
the country has the EPA supported such efforts? Will EPA support a 
cleanup at Hunters Point Shipyard that allows for the full 
implementation of the Reuse Plan?
    Response. EPA works closely with its state and military service 
counterparts to expedite cleanup and promote reuse of closed and 
closing military bases. As a member of the Base Closure Team (BCT), EPA 
provides technical assistance on human health and environmental issues 
related to cleanup and reuse plans. This assistance is provided to the 
Navy and state counterparts, as well as the Restoration Advisory Board, 
local government, the Local Reuse Authority and the community at large. 
Since the military services are the lead cleanup agencies, it is 
ultimately their responsibility to come to agreement with local reuse 
authorities on reuse plans. Federal legislation has established a 
process to reach these decisions. There are many examples throughout 
the country of EPA's support of, and cooperation on, reuse plans. Three 
site-specific examples are mentioned below. These examples illustrate 
both EPA's and the services' commitment to meeting reuse needs of the 
community.
     At Fort Devens, MA, the Base Closure Team (BCT) was 
successful in integrating many of the investigations of the site, 
eliminating an estimated 4 years of environmental study and saving 
approximately $5 million. The BCT also worked closely with the Local 
Reuse Authority and surrounding communities during the investigation 
and cleanup to address local concerns and ensure that cleanup was 
consistent with future uses of the property. By the time Fort Devens 
closed in 1996, the former Army installation had begun its 
transformation into a site for public and private use.
     Bergstrom Air Force Base, TX, was placed on a fast-track 
cleanup schedule so it could house the Austin-Bergstrom International 
Airport by 1999, less than 5 years after cleanup and construction 
activities began. A team of city and state agencies, EPA and the Air 
Force Base Conversion Agency expedited site investigation and cleanup 
plans to meet the airport opening's deadline. In particular, the BCT 
agreed to reduce review times for documents, incorporated flexibility 
into the cleanup process and kept lines of communication open to ensure 
that the cleanup met community needs. Relocating Austin's airport to 
Bergstrom saved the city an estimated $200 million it would have spent 
to build a new airport, and eased noise problems at the old site.
     The Base Closure Team at Naval Air Station Cecil Field, 
FL, cut 5 years from the cleanup schedule and avoided more than $17 
million in costs. The BCT streamlined the assessment of more than 270 
sites by targeting sampling and selected the most cost-effective 
cleanup techniques that met environmental requirements. The team also 
developed an approach for reviewing data as they were collected in the 
field and collaboratively choosing their next step. As a result, work 
plans were approved in hours, instead of days, and field crews could 
move quickly to the next phase of investigation. The BCT's cooperation 
and pursuit of innovative solutions resulted in tremendous time and 
cost savings, and expedited the creation of new jobs, transportation 
and recreation opportunities for the Jacksonville community.
    EPA supports cleanup at Hunters Point Shipyard that allows for the 
full implementation of the local reuse plan. Decisions for remediation 
at Hunters Point Shipyard should be based on the most reasonably 
anticipated reuse for specific parcels of the Shipyard, as specified in 
the approved City of San Francisco reuse plan and in accordance with 
the process described in the National Contingency Plan (40 CFR 300). 
EPA will continue to support a CERCLA cleanup at Hunters Point Shipyard 
that is compatible with the reuse scenarios currently outlined in the 
reuse plan.

                    IMPOSITION OF LAND USE CONTROLS

    Question 3. When making the decision whether to accept such 
restrictions at the Shipyard, how is Community Acceptance, the ninth 
criteria in the National Contingency Plan (NCP), taken into 
consideration?
    Response. Community acceptance is one of the nine criteria 
considered during the evaluation of feasibility study (FS) 
alternatives, as specified in the National Contingency Plan. Community 
acceptance is considered a modifying criteria. That is, it is assessed 
primarily following public comment on the remedial investigation (RI) 
and FS report and the Proposed Plan, because information on community 
acceptance may be limited prior to the public comment period.
    It is EPA's position that the Bayview Hunters Point community 
should be continually informed about and involved in the cleanup 
process at Hunters Point Shipyard. To achieve this, representatives of 
the Bayview Hunters Point Community and the City of San Francisco have 
been invited to participate in project meetings and to review project 
documents throughout the RI/FS process. Further, EPA has funded a 
Technical Assistance Grant (TAG) for the Hunters Point Shipyard 
Superfund site. The TAG enabled a Bayview Hunters Point community group 
to hire an independent technical advisor to help the local community 
members understand and comment onsite-related information, and thus 
better participate in cleanup decisions. The TAG technical advisor 
reviews and comments on Hunters Point Shipyard project documents and 
regularly participates in project team meetings.
    In addition, the Navy has established a Restoration Advisory Board 
(RAB) for the site. The RAB is an advisory group that the Navy consults 
for input on the investigation and cleanup of Hunters Point Shipyard. 
The RAB is composed of representatives of residents, businesses and 
community groups of the Bayview Hunters Point neighborhood which 
surrounds the shipyard. Representative of the City of San Francisco are 
also members of the RAB. RAB meetings are held monthly in the Bayview 
Hunters Point neighborhood. At the RAB meetings, the Navy provides 
updates on the status of the cleanup and responds to requests for 
information from RAB members. EPA attends and actively participates in 
the monthly RAB meetings, to ensure that community concerns are 
adequately understood and addressed.

    Question 4. In EPA's analysis of such restrictions, does it 
consider whether the up-front cost savings to the Navy of such 
restrictions outweighs the long-term cost to the City of maintaining 
them in perpetuity? Furthermore, does EPA consider what effect such 
controls would have on the City's ability to implement its Reuse Plan?
    Response. During the feasibility study (FS) phase of the project, 
cleanup alternatives will be developed to address contamination at 
Hunters Point Shipyard. These FS alternatives are subjected to a nine 
criteria analysis, as required by the Superfund statute. These nine 
criteria include an evaluation of overall protection of human health 
and the environment, reduction of toxicity, mobility and volume, long 
term effectiveness, short term effectiveness, cost and community 
acceptance. The nine criteria analysis is conducted to ensure that the 
FS alternatives are protective, cost effective and that they address 
the concerns of the community, including those of the City of San 
Francisco.
    Although it is still early in the RI/FS process for Parcels C, D, E 
and F at Hunters Point Shipyard, EPA intends to ensure that the Navy 
considers both capital and operation and maintenance costs of FS 
alternatives that both include and do not include institutional 
controls so that a comparative analysis of the impact of institutional 
controls on protectiveness, cost and other criteria can be evaluated, 
particularly in light of the reasonably anticipated future reuse. In 
addition, EPA supports response actions that will facilitate 
implementation of the Reuse Plan for the site.

                 CONSIDERATION OF ENVIRONMENTAL JUSTICE

    Question 5. Does EPA believe that the Shipyard cleanup has met the 
goals of Executive Order 12898 (Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations) in terms of both the selected cleanup remedies as well as 
prioritization for Federal cleanup funds?
    Response. If the Navy agrees to select and implement cleanup 
remedies for Hunters Point Shipyard in accordance with the City of San 
Francisco's Reuse Plan, which was developed with input from the Bayview 
Hunters Point community, EPA believes the overall goals of Executive 
Order 12898 largely will be addressed.
                               __________

STATEMENT OF LOIS J. SCHIFFER, ASSISTANT ATTORNEY GENERAL, ENVIRONMENT 
          AND NATURAL RESOURCE DIVISION, DEPARTMENT OF JUSTICE

                              INTRODUCTION

    Good afternoon Mr. Chairman, and Members of the Subcommittee. I am 
pleased to have this opportunity to talk to you this afternoon about 
the current status of the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA), or more commonly known as 
Superfund. As the Assistant Attorney General for the Environment and 
Natural Resources Division, I am responsible, together with EPA, for 
Federal enforcement of this country's environmental laws, including 
Superfund.
    You have just heard from Tim Fields about our great progress in 
making the Superfund program fairer, faster and more efficient. I would 
like to focus on the enforcement side of the program. The 
``enforcement'' side of the Superfund program refers to EPA's and the 
Department of Justice's actions to assure that the parties responsible 
for creating Superfund sites (know as potentially responsible parties, 
or ``PRPs''), clean up these sites. During the 20-year history of 
Superfund, the enforcement program has evolved from one that focused on 
litigation to a program in which most PRPs enter into settlements or 
voluntarily comply with administrative orders, rather than litigating 
with the government. In order to understand the current status of 
enforcement efforts under the program it is useful to understand this 
evolution. The Superfund program you will hear about today is not the 
program that existed throughout the 1980's and even in the early 
1990's.
    The Superfund program was enacted in 1980 in response to a public 
outcry over environmental contamination and human health hazards 
discovered at such notorious hazardous waste disposal sites as Love 
Canal and Valley of the Drums. Decades of careless dumping and improper 
disposal led to a proliferation of dangerous hazardous waste sites 
across the country. These sites were contaminating soil and 
groundwater, fouling our drinking water sources, and threatening the 
health of our communities.
    CERCLA was enacted to provide the Federal Government with the 
authority and funding to clean these sites up. Congress also decided 
that the parties that created these environmental hazards should pay 
for the cleanup. This ``polluter pays'' principle is implemented 
through the liability and enforcement provisions of the statute.
    In the early years after CERCLA's enactment in 1980, the Federal 
Government sought to enforce the liability provisions of the statute 
through lawsuits brought in Federal court seeking injunctive relief 
under section 106 of the statute. As with any new statute, many legal 
issues had to be resolved, and litigation proceeded slowly. Moreover, 
courts were called upon to resolve complicated technical issues 
regarding what would be an appropriate remedy. Given their inexperience 
in this area and the lack of precedent, the courts were understandably 
slow in resolving these issues. Thus, the 1980's were marked by 
extensive litigation and a relatively slow pace of cleanups.
    In 1989, in a desire to accelerate the pace of cleanups, EPA and 
the Department reviewed their approach to enforcing Superfund liability 
and decided that litigating liability issues first was not the fastest 
way to get many sites addressed. As a consequence EPA and the 
Department developed the ``Enforcement First'' policy under which we 
operate today. Under this revised approach, the Federal Government 
first looks to responsible parties--either under a settlement 
agreement, or, where settlement cannot be reached, through the issuance 
of an administrative order--to clean up a site, rather than undertaking 
the cleanup itself and then suing the responsible parties to recover 
the costs. This approach allows Federal dollars to be focused more 
quickly and efficiently onsites where there are not viable responsible 
parties, and more effectively combines public and private resources to 
get cleanups started.
    In addition to this ``Enforcement First'' policy, EPA and the 
Department have adopted and implemented a series of administrative 
reforms over the past 6 years that address stakeholder concerns about 
the fairness of the liability system. We have recognized the need to 
address some of the past concerns raised about Superfund and have taken 
significant steps to reduce litigation, to promote earlier settlements, 
and to optimize fairness concerns in the application of Superfund's 
liability scheme. By streamlining the process by which we resolve our 
claims at Superfund sites, we are accelerating the cleanups themselves 
and increasing the pace at which contaminated properties can be moved 
back into viable economic use--the critical first step toward many 
brownfields development projects.

De Minimis and De Micromis Settlements
    One of the most important of these reforms involves the 
Administration's efforts to identify and resolve the liability of small 
volume contributors, leading to what we call de minimis and de micromis 
settlements. EPA guidance defines these terms, but basically, a de 
micromis party is one whose contribution of waste at a site is truly 
small, and whose costs in hiring a lawyer, and negotiating a 
settlement, would dwarf any amount the party could reasonably be 
expected to contribute to cleanup costs. By contrast, a de minimis 
party is one whose contribution of waste, while more significant than a 
de micromis party's, is relatively minor, considering both volume and 
toxicity of the waste, in comparison to that of a ``major'' party at 
the site, and from whom we would seek a cash settlement, rather than 
performance of work. Some of our de minimis settlements, at sites with 
a large number of parties, have yielded over $1 million in proceeds. 
These proceeds inure to the benefit of the major contributors doing the 
cleanup work.
    I am particularly pleased to tell you about the successes we have 
realized as a result of our de micromis policy. If a party is a truly 
tiny contributor, our policy is to deter other parties from suing de 
micromis parties and, if they do, then settling with those parties for 
little or no payment.
    For example, at the Petrochem/Ekotek Site in Utah, we knew that the 
parties we had sued had threatened to sue hundreds of de micromis 
parties if they did not accept their settlement. To prevent this, EPA 
took out advertisements in Salt Lake City area newspapers and on the 
radio urging de micromis parties to refuse that offer. The United 
States also sought, and received, a hearing before the District Court 
Judge, and argued that the settlement demand was inappropriate. As a 
result, the defendants agreed to withdraw their demand against the de 
micromis parties.
    In addition, we have taken steps to discourage the joinder of de 
micromis parties in the first instance. For example, a settlement 
involving the Bypass 601 Superfund Site, a former battery recycling 
facility in North Carolina, gave contribution protection to some 2400 
parties who contributed less than 319 pounds of lead-bearing materials, 
but imposed no payment obligation upon them. Rather, the decree 
requires that the major contributors, who are the owner/operator 
defendants and 450 large-volume generator defendants, pay EPA's past 
costs of $4 million, implement a remedy estimated to cost between $40.5 
and $100 million, and agree not to assert any claims at all against 
persons meeting de micromis criteria, whether or not those persons are 
parties to the decree.
    We think that our policy protecting de micromis parties is being 
taken seriously by the regulated community, and that has deterred 
efforts to add de micromis parties at Superfund sites. Moreover, just 
this past summer in the Keystone case in Pennsylvania, over the 
objection of several of the main owner/operator and generator 
defendants, Federal District Court Chief Judge Sylvia Rambo approved 
200 proposed de micromis settlements, finding that they were fair, 
reasonable and in accordance with CERCLA's objective.
    With respect to de minimis parties, we have placed a priority on 
achieving quick, efficient resolutions of the liability of these small 
volume contributors to protect these contributors from burdensome 
contribution litigation. Through model settlement decrees and 
guidances, we have been successful at getting these contributors out of 
the system quickly. As of a year ago, we and EPA had achieved over 430 
settlements with over 21,000 small-volume contributors, protecting 
these parties from expensive private party litigation. Nearly two-
thirds of these de minimis settlements were reached in the last 4 
years.

Orphan Share Policy
    The Department often exercises its enforcement discretion to 
compromise claims in order to achieve comprehensive settlements with 
responsible parties, taking into account numerous equitable 
considerations. Through this enforcement discretion we have moved 
Federal dollars into promoting cleanups. We also cooperate with EPA in 
implementing the orphan share policy, another reform that has increased 
the fairness of Superfund settlements. At many Superfund sites, parties 
that individually or collectively were responsible for a share of the 
waste disposed at a site may no longer exist or are bankrupt. In order 
to promote fairness and achieve settlements, EPA and the Department of 
Justice developed the ``orphan share'' policy, under which the United 
States can compensate settling parties for a portion of the ``orphan 
share.'' This share will be recognized primarily through a compromise 
of past costs or a reduction of future oversight costs. EPA issued its 
Interim Guidance on Orphan Share Compensation in June 1996 and since 
then the Department has moved aggressively to put this concept into 
practice. Over the last 4 years, the United States has offered orphan 
share compensation of more than $175 million at 98 sites to responsible 
parties willing to negotiate long-term cleanup settlements.

Municipal Settlement Policy
    The municipal settlement policy reflects the fact that municipal 
waste typically is not as toxic as industrial waste, and that it is the 
presence of hazardous industrial wastes disposed in municipal landfills 
that generally drives costly remedies. It also addresses the unique 
position of municipal owners and operators of co-disposal landfills. 
The municipal policy provides a fair and efficient basis for settling 
with municipalities and other generators and transporters of municipal 
solid waste (MSW) that are potentially liable under Superfund. The 
policy establishes a formula for calculating a municipality's share of 
response costs at a site based on the typical costs for cleaning up the 
waste found in a municipal solid waste landfill (as compared to 
hazardous wastes). It also provides a presumptive settlement percentage 
of 20 percent for municipal owners and operators of co-disposal sites 
where there are other viable PRPs to share the cost of cleanup. This 
new policy streamlines the settlement process and protects 
municipalities, and generators and transporters of municipal solid 
waste, from expensive transactional costs. Our use of the policy 
methodology as a basis for settlement was recently endorsed by the U.S. 
District Court for the Southern District of Ohio as being reasonable, 
fair, and consistent with CERCLA in approving a consent decree relating 
to the Fultz Landfill near Byesville, Ohio. The United States is in the 
process of finalizing several other settlements on the basis of the 
municipal settlement policy. Moreover, we have learned that the policy 
has been successful in promoting several private party settlements by 
providing a fair methodology by which to determine the share of 
municipal solid waste parties.

Other Administrative Reforms
    Other administrative reforms that have also led to faster, fairer, 
and more efficient settlements include the use of mixed work/mixed 
funding agreements, settlements that take into consideration a party's 
``ability-to-pay,'' and the use of interest-bearing special accounts. 
Under the last of these, the United States will agree to hold monies 
recovered in settlement in special accounts for later Superfund cleanup 
at the same sites where the settlement occurred. Through 1999, the 
United States has collected over $486 million and placed it in 133 
special accounts, which have generated over $85 million in interest. 
These accounts ensure greater fairness in the settlement process by 
taking monies recovered from parties that simply ``cash out'' their 
liability and setting them aside for later use by parties that are 
performing the cleanup work. This reform makes more monies available 
for actual cleanup, which can be an important factor in reaching a 
successful settlement.
    EPA and the Department of Justice are also doing a much better job 
of making sure that all non-de minimis responsible parties involved at 
a site are identified and pursued by the government. Complaints were 
made in the early days of the Superfund program that EPA chose to 
pursue only a handful of ``deep pockets'' at a site, leaving these 
parties with the responsibility to find and pursue in contribution 
actions other parties responsible at a site. It is the government's 
policy to undertake a thorough PRP search at every site and to make 
sure that as many of those parties as possible participate in 
settlement at the site so as to spread the burden of site cleanup among 
all parties.
    Another important way the Department ensures fairness in the 
enforcement process--and which reinforces the importance of 
settlement--is by actively pursuing those parties that choose not to 
settle. Indeed, in a recent decision, U.S. v. Occidental Chem. Corp., 
200 F.2d 143 (3rd Cir. 1999), the Third Circuit upheld the Federal 
Government's authority to enforce administrative orders issued to non-
settling parties that direct them to participate in site work being 
done by other parties. This decision has strengthened our ability to 
ensure greater fairness at Superfund sites. For example, at the Lipari 
Superfund site in Gloucester County, New Jersey, Owens-Illinois, Inc. 
chose not to join a settlement the United States reached with numerous 
parties and instead pursued years of litigation. When it finally choose 
to settle in 1998, Owens was required to pay $13.8 million in 
settlement for cleanup costs. By refusing to cooperate, Owens-Illinois 
incurred substantially higher costs than it would have had it initially 
agreed to take responsibility for its actions.

Alternative Dispute Resolution
    Another way that the Department has sought to make the Superfund 
enforcement process less time-consuming and costly is through the use 
of alternative dispute resolution, or ADR. The Department of Justice is 
committed to the use of ADR to assist in appropriate and efficient 
resolution of cases and issues. ADR can be a useful tool in focusing 
efforts on protecting public health and the environment, rather than on 
protracted litigation. We have found ADR to be particularly helpful in 
complex multi-party CERCLA cost-recovery actions, which require 
enormous time and resources and demand immediate steps to address 
environmental contamination.
    ADR has led to many success stories in CERCLA cases, including 
cases which involved much more than simple cost recovery issues. An 
example is the Landfill & Resource Recovery Superfund Site in Rhode 
Island. The parties at the site were many and varied the United States, 
the State of Rhode Island, four owner/operators of the Site, 12 
generators and transporters of hazardous substances disposed of at the 
Site, and two ``ability to pay'' parties. And the issues were complex, 
involving claims under section 107 of CERCLA for reimbursement of past 
and future response costs, implementation of response actions, and 
civil penalties for failure to comply with a Unilateral Administrative 
Order (``UAO'') issued under section 106 of the Act. Mediation enabled 
us to negotiate a settlement among these parties that resolved all 
outstanding issues much more quickly than might otherwise have 
occurred, saved the parties from costly transaction expenses, and 
reimbursed the government for nearly all expected Site costs.
    The parties began negotiations under the First Circuit's Court of 
Appeals Mediation Program (CAMP) and ultimately reached a settlement 
through the assistance of U.S. District Court Judge Mazzone. The 
consent decree resolved the United States' complaint, a State court 
action related to the Site, and an appeal in the First Circuit 
challenging an earlier de minimis settlement. This settlement 
determined a reasonable settlement payment for the ``ability to pay'' 
parties, and obligated the remaining settling parties to perform 
operation and maintenance of the remedial action and to pay past and 
future oversight costs, as well as a civil penalty of $400,000 for 
noncompliance with the UAO. It also resolved natural resource damage 
claims of the Department of the Interior and provided $525,000 to 
purchase wetlands or related property within the Blackstone River 
Valley National Heritage Corridor. When combined with previous 
settlement recoveries for this Site, and the performance of the 
remedial action by the settlors, this mediated settlement will result 
in a recovery of 97 percent of expected Site costs.
    Just this month we achieved a superb settlement involving the 
Auburn Road Landfill Superfund Site in Londonderry, NH, through a 
voluntary mediation. United States and the State of New Hampshire v. 
Exxon Corporation, et al. (D.N.H.). On March 10, 2000, a consent decree 
was entered that resolves the government's claims against four 
defendants and twenty-seven third-party defendants. Under the proposed 
decree, the settlors have agreed to perform the remedy and to reimburse 
the United States for its past ($5.84 million) and future oversight 
costs. The remedy involved operation and maintenance of the landfill 
cap, monitoring of ground water, surface water and sediments, and the 
performance of any active remediation that EPA may select in the 
future.
    In addition to resolving the United States' claims, the settling 
defendants have agree to reimburse the State for a portion of its past 
response costs and to reimburse the Town of Londonderry over $1.7 
million in partial reimbursement of the Town's response costs for 
constructing the landfill cap. Also, the owner of the Site has agreed 
to convey to the Town of Londonderry over 100 acres of property at and 
around the Site for beneficial reuse. Finally, the defendants will 
collectively pay $125,000 in penalties. These great results were 
achieved more quickly and at lower costs to the parties through the 
mediation process than would have been possible through litigation.
    U.S. v. Allied Signal et al. (D.N.J.) and its companion 
contribution action Rollins Environmental v. United States (D.N.J.) 
provides another good example of the use of ADR in complex, multi-party 
Superfund litigation to resolve cost recovery and contribution 
litigation. The Site in question, the BROS Superfund Site in Logan 
Township, New Jersey, long considered one of the most technically 
challenging sites under the Superfund program, was used as a waste oil 
collection facility and chemical waste storage site for three decades. 
When it closed in the late 1970's, millions of gallons of waste oil and 
other dangerous pollutants were left at the Site, much of it in a 
thirteen-acre lagoon--a ``toxic soup'' of waste material. Spills and 
leaks from the facility had also contaminated the Site's groundwater 
and adjacent wetlands. Mediation resulted in settlement among 80 
private parties and several State and Federal agencies.
    That settlement, conservatively valued at $221.5 million and one of 
the largest ever under CERCLA, covers about 70 percent of the cleanup 
costs and requires the private companies to complete the remaining 
cleanup of the Site's groundwater and wetlands. The settlement is the 
result of more than 2 years of complex negotiations between the Federal 
Government, the State, and settling parties. It reflects Superfund 
reform policies that allow EPA to share in the cleanup costs when some 
of the responsible private parties are defunct or financially 
insolvent. Our commitment to ADR led to settlement in record time for a 
case of this magnitude.
    As demonstrated by these examples, ADR enables parties to create an 
environment to explore solutions that may not be obtainable through the 
judicial process. The potential for creativity and concomitant 
flexibility is invaluable in resolving the difficult problems sometimes 
posed in CERCLA cases.

Federal Facilities
    In addition to enforcing Superfund, the Department is also 
responsible for representing other Federal departments and agencies at 
Superfund sites. Federal facilities are also making significant 
progress in cleaning up contaminated Federal property under CERCLA. 
Federal property must satisfy the same cleanup process and standards as 
private property under CERCLA, including the application of State laws 
as applicable or relevant and appropriate requirements, participation 
by EPA, states, and the public in the cleanup process, and the ability 
of states and citizens to judicially enforce inter-agency agreements 
under section 120.

Results of Administrative Reforms
    What has been the result of all of these administrative reforms? 
They allow us to reach settlement more quickly on terms that are 
considered more fair to responsible parties. This in turn allows us to 
proceed more quickly to cleaning up sites--the fundamental purpose of 
the Superfund--so as to ensure protection of human health and the 
environment. And faster cleanups mean that these contaminated 
properties are available for economic development sooner.
    Over 91 percent of sites on the National Priorities List either 
have been cleaned up or have cleanup construction under way. Moreover, 
the pace of cleanups has accelerated sharply in the last decade. 
Whereas only 61 sites were cleaned up during the first 10 years of the 
program, some 680 sites now have cleanup construction complete. And we 
are getting sites cleaned up faster. In the last 4 years, we've 
finished cleaning up more sites than in the previous fourteen. Through 
enforcing the Superfund law, the Justice Department has played a 
critical role in obtaining these cleanups. The ``Enforcement First'' 
policy has led to a dramatic shift in the performance of Superfund 
cleanups by private responsible parties. Today 70 percent of all NPL 
site cleanups are being conducted by private parties. By contrast, 67 
percent were conducted by the Federal Government in the early years of 
the program. In 1999, we obtained a record $387.3 million in reimbursed 
Federal response costs. These numbers demonstrate that the Superfund 
program is working in a cost-effective manner to clean up sites. The 
Department remains committed to implementing fully the administrative 
reforms that have made these results possible and to refining and 
improving these reforms, where necessary.

            SUPERFUND AND BROWNFIELDS ECONOMIC REDEVELOPMENT

    In addition to promoting cleanups through enforcement activities 
and associated negotiations, the Department also plays a significant 
role in assisting EPA in promoting brownfields redevelopment. The 
Department does this in a number of ways. It does this first and 
foremost by ensuring cleanup of Superfund sites, many of which are 
redeveloped following cleanup and returned to productive use. The 
Department also promotes brownfields redevelopment through its 
enforcement of other environmental statutes and its use of creative 
settlement mechanisms, such as supplemental environmental projects, to 
transform blighted properties. A good example of the effective use of 
supplemental projects in enforcement is United States v. City of 
Chicago, IL (ND Ill, 1999), in which the Department of Justice 
negotiated a consent decree resolving EPA's Clean Air Act claims 
against the city of Chicago from its operation of a now-closed 
municipal incinerator. The decree requires the City to pay a $200,000 
civil penalty and complete four projects at a cost of $700,000. The 
first two projects require the City to spend $450,000 to remove and 
dispose of contaminated soils at two abandoned industrial sites near 
the incinerator, thus facilitating the future redevelopment of the two 
sites. The third project requires the City to spend $100,000 to 
construct a lead-safe house. The lead-safe house will serve as a 
temporary residence for low-income Chicagoans while lead-abatement work 
is being undertaken in their homes. The fourth project requires the 
City to spend $150,000 on a lead-abatement project in northwest 
Chicago.

Prospective Purchaser Agreements (``PPAs'')
    The Department further supports brownfields redevelopment by 
entering into administrative settlements termed ``Prospective Purchaser 
Agreements,'' or ``PPAs.'' PPAs can provide prospective purchasers with 
certainty regarding Superfund liability that might be assumed in buying 
property. At sites where there is already Federal involvement, a PPA 
can provide a buyer with protection from Superfund liability for 
existing contamination caused by previous property owners. PPAs, of 
course, do not provide protection for prospective purchasers if they 
create new contamination or make existing site conditions worse. 
Further, in return for the government's promise not to sue them, 
prospective purchasers usually pay for--or perform--some of the 
response actions at a site. In deciding whether to enter into a PPA, we 
take into account benefits that the community might receive through 
redevelopment and job creation. By providing reassurance to buyers of 
contaminated lands regarding their liability, PPAs have significantly 
contributed to redevelopment.
    It is the responsibility of the Department, exercising the Attorney 
General's authority to compromise claims in litigation, to enter into 
PPAs and, as the Assistant Attorney General for the Environment and 
Natural Resources Division, I am the person who ultimately signs PPAs 
on behalf of the Department.
    To ensure consistency and to streamline the process of issuing 
PPAs, we have worked with EPA to develop a model PPA setting forth 
standard language and provisions to be included in such agreements. 
This model was issued with EPA's revised guidance on PPAs in July 1995 
(60 Fed. Reg. 34,792). Since 1989, when we issued the first PPA, the 
Department has approved 152 PPAs. More than 125 of these have been 
approved in the last 5 years alone, and even more are in progress. When 
EPA conducted a survey last year, the Agency found that redevelopment 
projects related to PPAs cover over 1200 acres, have resulted in over 
1500 short-term jobs, and have created over 1700 permanent jobs. And 
those figures do not reflect the redevelopment that is occurring on 
adjacent properties around the country.
    One PPA success story that happened just this summer was in the 
foothills of the Blue Ridge Mountains in Virginia, about sixty miles 
west of Washington, D.C. As part of a consent decree to resolve a case 
that had been litigated for years, FMC Corporation agreed to take over 
cleanup of the rest of the 440-acre Avtex Fibers Superfund site 
(including removing aboveground and underground storage tanks, 
hazardous substances, and demolition debris) consistent with 
redevelopment plans by the Town of Front Royal and Warren County. One 
of the new uses of the site will be as soccer fields, which will be the 
first project sponsored by the U.S. Soccer Foundation on a Superfund 
site. The PPA that helped to make this consent decree possible will 
also help to put dollars into a cleanup in the community, rather than 
into litigation of a case in a courtroom. U.S. v. FMC Corp., No. 5:99-
CV-0054 (W.D. VA)
    Another recent successful PPA involved the Murray Smelter Site in 
Murray, Utah. The site is located right across the street from City 
Hall and was the location of one of the nation's largest lead and 
arsenic smelters. After the smelter closed in the 1940's, the Site was 
taken over by light industry and warehouses. Parts of the facility 
served as a dumping ground for cement slabs. Under our settlement, 
ASARCO, the company that owned and operated the smelters, will perform 
all the remedial action work. In the consent decree for this 
settlement, we also entered into a PPA with a developer that provides 
an option to purchase the property. The development will include a 
hospital, a large movie theater complex, and associated retail 
establishments. This type of redevelopment is likely to help revitalize 
the City by increasing employment and the city's tax base.
    There are numerous other great examples of how PPAs have turned 
around brownfields sites. For example, at the Publicker Superfund site 
located on the Delaware River in Philadelphia, the United States 
entered into a PPA with Holt Cargo Systems, Inc. and several related 
entities interested in purchasing and redeveloping this site without 
incurring Superfund liability for past disposal activities. The 
original owner/operators used this site to manufacture dry ice, 
whiskey, industrial alcohol, and other chemicals for many years. After 
Publicker ceased manufacturing operations, the site fell into decay and 
was used for storage of hazardous chemicals. EPA listed the site on the 
NPL and completed the necessary cleanup at a cost of $20 million. Under 
the PPA with Holt and others, Holt paid $2.07 million to the United 
States and $230,000 to the Commonwealth of Pennsylvania in partial 
reimbursement of the cleanup costs. In determining the amount of this 
payment, the United States took into consideration the amount it could 
expect to recover from liens on the property. The property was 
particularly desirable for the expansion of Holt's shipping business, 
because it is located on the riverfront in Philadelphia, with ready 
access to train and truck transportation. As a direct result of the 
PPA, this urban wasteland has become an economically productive port 
facility used for transportation and distribution of produce and 
freight.
    PPAs have also been entered into for smaller properties. At the 
Middlefield-Ellis-Whisman (``MEW'') Superfund site, located in Mountain 
View, California, the United States has entered into separate PPAs with 
several different entities for different parcels of this prior 
manufacturing site. The existing Superfund site is being cleaned up 
pursuant to administrative orders issued to the site owners and 
operators. In two recent PPAs related to this site, one covering a 10-
acre parcel of the site, and one covering 1.17 acres, the United States 
agreed to release purchasers of these parcels from Superfund liability 
for past contamination. In exchange, the purchasers will each pay 
$75,000, and have committed to make land available for the soil and 
groundwater treatment remedy (in the first agreement), and committed to 
provide access to ensure that existing cleanup activities are 
undertaken (in the second agreement). The $75,000 payments will 
compensate EPA for administrative costs and provide monies to a 
regional cleanup effort. These PPAs will allow the purchasers to build 
office buildings on these parcels that will return blighted properties 
to productive use and create more than 100 jobs for the local 
community.
    The Administration has also taken a number of steps 
administratively to work with states regarding the treatment of sites 
they are handling under their programs. For example, an EPA guidance 
specifies that when certain sites are being cleaned up under State 
authority, the Agency will defer listing them on the National 
Priorities List. (Guidance on Deferral of NPL Listing Determinations 
While States Oversee Response Actions (May 3, 1995).) Further, EPA has 
signed memoranda of understanding with 12 states (and is negotiating 
with eight more states) governing voluntary cleanups done under those 
states' laws. EPA has stated that generally it will not anticipate 
doing removal or remedial actions at the typically low-risk sites 
covered by those MOUs. Under these policies, EPA enforcement is 
preserved in the event of an imminent and substantial endangerment to 
human health and the environment. My understanding is that states with 
MOUs have been quite satisfied about the level of assurance regarding 
anticipated EPA action. These MOUs have also served the valuable 
function of keeping State and Federal officials better informed 
regarding each other's site cleanup plans.

                              LEGISLATION

    Legislation to reauthorize the Federal Superfund program has been 
proposed in Congress for several years, but has not been enacted. In 
the meantime, through administrative reforms, we have successfully 
moved the program forward and gotten sites cleaned up. The 
administrative reforms EPA and DOJ have implemented have addressed many 
of the concerns about the program and have led to overall improvement 
in the program. Given the present State of the program, comprehensive 
reform legislation on Superfund is no longer needed, and in fact is 
highly likely to return the program to litigation, to delay further 
cleanup, and to undermine the progress we have achieved.
    There remains a public perception that legislative change could 
facilitate and expedite brownfields redevelopment. Brownfields are 
parcels of land, most often located in urban areas, that contain 
abandoned or under-used contaminated commercial or industrial 
facilities, the expansion or redevelopment of which is complicated by 
the presence of hazardous substances. Cleaning up these parcels and 
returning them to productive use provides numerous benefits to the 
community: it improves the health of surrounding communities, as well 
as the appearance and economic well-being of these communities, because 
such projects bring new vitality and jobs to the areas developed. 
Brownfields development also protects undeveloped property and green 
space from the pressures of development.
    Because of its importance to the environmental and economic well-
being of cities, we have taken a number of steps to encourage 
brownfields redevelopment. Targeted Federal legislation may encourage 
such redevelopment even further. To that end, we urge Congress to 
continue funding the Administration's successful brownfields program so 
that more grants and loans can be made available to local communities 
all across the country. We also support legislation that has all of the 
following targeted and specific elements. These are:
     Liability relief for qualified prospective purchasers of 
contaminated property, innocent landowners, and contiguous property 
owners.
     Ensuring that State cleanup programs are well qualified--
the program must provide notice and adequate opportunity for public 
involvement in cleanup decisions, must contain standards that protect 
human health and the environment and ensure completion of the cleanups, 
and must have adequate resources to implement and enforce its program.
     Guaranteeing that Federal authority to respond to 
circumstances that may present an imminent and substantial endangerment 
to human health or the environment is preserved.
    Thank you for the opportunity to speak to this committee.
                                 ______
                                 
  RESPONSES OF LOIS J. SCHIFFER TO ADDITIONAL QUESTIONS FROM SENATOR 
                                 SMITH

    Questions 1a and 1b. Several years ago, EPA proposed and then 
withdrew a Voluntary Cleanup Guidance effort for the states. The issue 
that caused the negotiation of this guidance to break down was how to 
address finality for state decisions. Does the Agency plan any further 
efforts to revive such a guidance? If so, how does the Agency intend to 
address the issue of state finality?
    Response. EPA reports that on November 26, 1997, it withdrew its 
draft voluntary cleanup guidance and has been relying on its November 
14, 1996 memorandum as the framework for negotiating Memoranda of 
Agreement (MOA's) with States regarding their voluntary cleanup 
programs. This memorandum, ``Interim Approaches for Regional Relations 
With State Voluntary Cleanup Programs,'' identifies criteria that the 
state program must meet for EPA to enter into the MOA. The purpose of 
the MOA is to clarify the division of labor at sites, as between EPA 
and the States, and to avoid unnecessary duplication of efforts. In the 
MOA, EPA states that it generally does not anticipate taking removal or 
remedial action at sites involved in an approved state cleanup program, 
unless it determines that there may be an imminent and substantial 
endangerment to public health, welfare, or the environment. EPA has 
included similar language in the 14 MOAs it has negotiated to date with 
states, which I understand are working well. We are unaware that EPA 
has any plans to issue any new or revised guidance.

    Questions 2a and 2b. As part of the omnibus appropriations bill 
signed into law late last year, an effort was made by the National 
Association of Home Builders (NAHB) and EPA to include a Superfund 
liability exemption for developers of contaminated properties and 
certified state brownfields programs. This bill was never introduced, 
hastily drafted, full of errors, and circumvented the usual 
congressional process. Explain the benefit to society of a piece of 
legislation that serves the purposes of a narrow industry group and was 
negotiated outside of the committee framework. Do you still support the 
language that you negotiated with the NAHB?
    Response. I was not involved in the negotiations with NAHB. The 
Administration is interested in achieving responsible brownfields 
legislation to help communities clean up and revitalize their 
neighborhoods. We support communities, not special interest groups. 
Promoting the cleanup of contaminated brownfields sites will enable 
these properties to be redeveloped into useful, productive parcels that 
improve the appearance of the sites, the health of surrounding 
communities, and the economic well-being of the community. The 
Administration remains committed to achieving responsible brownfields 
legislation. It supports targeted reform legislation to advance 
brownfields redevelopment such as the approaches taken in S. 18 
(introduced by Senator Lautenberg and others during the 105th 
Congress), and in H.R. 1750 (introduced by Congressmen Dingell, Towns 
and others during the 106th Congress), and the draft legislation that 
has been called the NAHB bill (and that is limited to non-NPL caliber 
sites.)

    Question 2c. Environmentalists have criticized the Administration 
for brokering deals without extensive public comment and discussion. In 
the instance of the NAHB/EPA brownfields deal, minority and low-income 
areas would have been particularly affected. Does the Administration 
support making a deal at the costs of cutting out public participation?
    Response. Public participation is important and should be provided 
for both in the development of responsible brownfields legislation and 
in the implementation of any state brownfields program.

    Question 3. Under EPA Guidance on Deferral of NPL Listing 
Determinations While States Oversee Response Actions and the 12 
Memorandum of Understandings signed with States (eight more are being 
negotiated) governing voluntary cleanups done under those states' laws, 
does EPA take into consideration the actions performed by state 
voluntary cleanup programs prior to using enforcement authority in the 
event of an imminent and substantial endangerment?
    Response. Based on our experience, the situations where EPA may be 
required to take action at a site cleaned up under a well qualified 
state cleanup program under an MOA will be rare. Nonetheless, 
preserving the ability of the Federal Government to respond in those 
cases is essential to enable us to protect public health and the 
environment. As a practical matter, we would take into consideration 
the actions performed under state voluntary cleanup programs prior to 
using enforcement authority in the event of the threat of an imminent 
and substantial endangerment. Legislative changes are not needed to do 
this, and we have concerns that any new written standard could lead to 
increased litigation over the meaning of the standard.
                                 ______
                                 
      RESPONSES OF LOIS J. SCHIFFER TO ADDITIONAL QUESTIONS FROM 
                           SENATOR LAUTENBERG

    Question 1. Ms. Schiffer, I understand that the Federal Government 
has not stepped in at cases where State cleanup programs have handled 
cleanup of Brownfield sites. Is this correct? If they don't step in 
anyway, why is it important to maintain the ability for the Federal 
Government to do so?
    Response. Your understanding is for the most part correct. 
Generally the Federal Government has not stepped in at brownfields 
sites being addressed under state cleanup programs. We support 
brownfields cleanups under qualified state programs, since the Federal 
Government alone does not have the resources to address every 
contaminated site across the country. Experience shows that the Federal 
Government is particularly well suited to address sites that pose the 
most egregious health threats or the likelihood of protracted 
litigation with numerous parties. However, we encourage states to 
address other sites, so that together we can get as many sites cleaned 
up as possible. And if a site is properly cleaned up under a state 
program to a standard that meets uses the surrounding community 
supports, we are not going to intervene and require a party to do more 
than the state required.
    Although the number of times we have ``stepped in'' has been rare, 
for the following reasons it is important for the Federal Government to 
preserve its ability to do so to protect the public and the environment 
from situations that present an imminent and substantial endangerment.
    Maintaining Federal liability and enforcement is important to 
encouraging state cleanups, including brownfields cleanups done under 
state programs. It is widely recognized that the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA, or 
Superfund) creates a major incentive for cleanups. CERCLA imposes clear 
legal responsibility for those that create or contribute to a 
contamination problem to clean it up. And the threat of CERCLA 
responsibility can encourage private parties to clean up their waste 
voluntarily, even under a voluntary state program. Indeed, in a 
December 1998 GAO report, state officials stated that a strong Federal 
program imposing rigorous cleanup requirements and liability standards 
was critical to the success of the state programs. (HAZARDOUS WASTE 
SITES: State Cleanup Practices 5 (GAO/ACED 99-39, Dec. 1998).)
    In addition, the imminent and substantial endangerment standard, 
which is the same in Superfund and many other environmental laws, has 
been interpreted by the courts. Changes to it may well lead to 
litigation over the meaning of any new standard, bringing lawyers back 
into a system that has been relatively successful at getting them out, 
and potentially delaying cleanups while litigation occurs. Indeed, we 
are already seeing that changes made to Superfund by the recycling 
amendments passed in November 1999 are leading to increased litigation 
at a number of sites.
    Although experience demonstrates that the United States should 
rarely need to exercise its authority to respond at state cleanup 
sites, maintaining adequate Federal authority is critical to protect 
health and environment at sites where it becomes necessary. One example 
where this became necessary is the Grand Street Site in Hoboken, New 
Jersey.
    From about 1910 to 1988, several companies engaged in manufacturing 
at this Hoboken warehouse, including the manufacture of mercury vapor 
lamps and other lighting materials. A subsequent owner filed an 
application for cessation of operation under New Jersey's Environmental 
Cleanup and Responsibility Act (ECRA) and, based on the information in 
the application, New Jersey approved a ``negative declaration,'' which 
indicated that the property was sufficiently clean for redevelopment. 
The property was then sold and redeveloped into residential lofts. 
During 
renovations the new owners found large quantities of liquid mercury, a 
highly toxic material, within the walls of the building. The Agency for 
Toxic Substances and Disease Registry (ATSDR) was asked to evaluate the 
health impacts of the property and determined, after urine testing, 
that elevated mercury in residents, some of them children, constituted 
an imminent health hazard. Thereafter, the Hoboken Health Department 
declared the premises unfit for habitation and evacuated the residents. 
New Jersey rescinded its original approval under ECRA and in January 
1996 asked EPA to step in. The site was listed on the National Priority 
List (NPL) in September, 1997.
    EPA conducted an initial removal action to temporarily relocate 
residents and to further investigate the extent of mercury 
contamination in the buildings and surrounding soils. In 1997, EPA 
issued a remedy decision for the site that calls for permanent 
relocation of the residents, demolition of the buildings, excavation 
and offsite disposal of contaminated soils, and long-term groundwater 
monitoring. All property interests in the site were acquired by the 
Federal Government to facilitate permanent relocation of the residents. 
Pursuant to a unilateral administrative order, PRPs will undertake 
demolition and site remediation efforts. By its efforts EPA has 
protected building residents and the surrounding community from the 
health hazards associated with mercury contamination.
    This example demonstrates that even in states with mature programs, 
something can go wrong or slip through the cracks. EPA's authority to 
respond in these instances should not be dependent upon a state's 
request for intervention. The reason for the Federal safety net is to 
ensure that public health and the environment are protected.

    Question 2. I understand that the EPA and DOJ have been working 
with redevelopers on ``Prospective Purchaser Agreements'' at 
Brownfieldsites. Can you tell us how many of these agreements the EPA 
and DOJ have reached, and how they help facilitate cleanup and reuse of 
these sites? Would codification of a bona fide prospective purchaser 
(``BFPP'') exemption further promote cleanup and reuse? To what extent 
would a BFPP exemption, if passed, address the issue of ``finality''?
    Response. To date we have completed 152 Prospective Purchaser 
Agreements (PPAs), and there are more in the works. By entering into 
these agreements, we provide prospective purchasers at sites of Federal 
interest with explicit relief from liability for pre-existing 
conditions on the site for which they had no responsibility. Buyers 
tell us that PPAs encourage them to purchase contaminated brownfields 
sites and redevelop them into useful, productive parcels that improve 
the appearance of the areas, the health of surrounding communities, and 
the economic well-being of the community.
    An excellent example is the PPA we entered into for the Mechanic 
Street Realty Corp. (MSRC) Superfund Site in New Jersey. This site is a 
vacant four-acre former industrial complex located in a mixed 
residential, commercial and industrial area in Perth Amboy. Nearly 300 
drums and various sized containers and several tanks were found at the 
site. Many of them contained hazardous substances and showed evidence 
of past spills and releases. EPA also found signs of trespass at the 
site. The parties responsible parties for the pollution are now 
defunct.
    The City of Perth Amboy decided to acquire the property for 
redevelopment. Once DOJ approved their PPA, under the terms of the 
Agreement, the City has agreed to complete the removal activities at 
the Site and demolish the buildings at an estimated cost of $400,000. 
Thereafter, the City plans to transfer the property to the County for 
$1 as the proposed location for the new vocational school. If those 
plans don't work, the City will seek to sell to a private developer at 
market value and provide the United States with 50 percent of the sale 
or lease proceeds. As a result of this PPA, the site will be cleaned up 
and returned to productive community use.
    The Administration has supported a bona fide prospective purchaser 
(``BFPP'') exemption to further promote cleanup and reuse. Some have 
argued that prospective purchasers are afraid to purchase brownfield 
properties due to a fear of assuming liability for pre-existing 
conditions for which the purchaser had no responsibility. While I do 
not agree that there is a valid basis for such fear, an exemption for 
qualifying parties would eliminate this excuse for those that can 
undertake brownfields redevelopment.

    Question 3. Ms. Schiffer, I have heard some argue in favor of 
limiting Federal authority and liability at Brownfields sites. Yet, my 
bill and others have included provisions which would protect innocent 
parties--prospective purchasers of contaminated sites, innocent 
purchasers who bought property but had no reason to know it was 
contaminated, and owners of property contiguous to the contamination. 
This would seem to cover the innocent parties pretty well--can you 
explain what other parties would have their liability eliminated if the 
Federal law did not apply?
    Response. The three categories you have identified--prospective 
purchasers of contaminated sites, innocent purchasers who bought 
property but had no reason to know it was contaminated, and owners of 
property contiguous to the contamination--cover the range of parties at 
a Superfund site that the Administration has supported exempting from 
Superfund liability through legislation. Of course, any such liability 
relief must also ensure that the government can recoup the value it 
gives to property through its cleanup action and should preserve 
incentives for voluntary cleanup.
    Parties that must remain liable under Superfund are those that are 
responsible for the contamination at a given site--this is the 
``polluter pays'' principle. These include the past and present owners 
and operators of the site, parties who arranged for the disposal of 
hazardous substances, and transporters who delivered such substances to 
a site.

    Question 4. You testified that there were certain criteria that 
would be essential for Brownfields legislation. Can you please 
elaborate.
    Response. Responsible Federal brownfields legislation should 
contain at least the following elements:
    (1) Legislation must make clear that any deference to state program 
cleanups does not apply to NPL listed, proposed to be listed, or NPL-
caliber sites, all of which remain of Federal interest. State 
brownfields programs are intended to address only sites at which there 
is not a Federal interest.
    (2) Legislation should contain appropriate liability relief for 
qualified prospective purchasers of contaminated property, innocent 
landowners, and contiguous property owners.
    (3) Legislation must require that any state program to which 
deference is given must be well-qualified. A well-qualified state 
program must meet at least the following requirements: it must provide 
notice and adequate opportunity for public involvement in the process, 
including determinations of future land use as a basis for cleanup 
decisions, decisions of cleanup remedies, and determinations of cleanup 
completion; standards that protect human health and the environment; 
and adequate resources to implement and enforce the state program and 
ensure completion of the cleanups.
    (4) Legislation must preserve the Federal Government's authority to 
respond to circumstances that may present an imminent and substantial 
endangerment to human health or the environment, and must require that 
PRPs pay the costs of such remedies.
    (5) Studies consistently show that the biggest obstacle to 
brownfields cleanups is lack of funding. Legislation must provide 
adequate funding for grants and loans to local communities across the 
country to address brownfields.

    Question 5. I have heard that parties complain that fear of Federal 
liability deters them from purchasing, cleaning up, and redeveloping 
brownfields, though I must note that in my home state of New Jersey, I 
have seen tremendous brownfields projects take place, even with the 
current potential for Federal liability. In any event, do you think 
liability relief is the solution, and if so, under what circumstances? 
Is this the only solution?
    Response. I have repeatedly said that the so-called ``fear'' of 
Federal liability that some believe stymies redevelopment is misplaced, 
since there have been very few situations in which the Federal 
Government has stepped in at a brownfields site property cleaned up 
under a state program--and those rare examples that do exist are 
precisely the situations where a Federal role is necessary. 
Nevertheless, the Administration continues to support changes that 
would take away any excuses and would facilitate and expedite 
brownfields redevelopment. Cleaning up brownfields parcels and 
returning them to productive use improves the public health and the 
economic well-being of surrounding communities. Brownfields development 
also protects undeveloped property and green space from the pressures 
of development. Because of its importance to the environmental and 
economic well-being of cities, we have taken a number of steps to 
encourage brownfields redevelopment. Targeted Federal legislation may 
encourage such redevelopment even further.
    Legislation is not the only way to encourage redevelopment, 
however. As we heard at the hearing on March 21, many local communities 
believe the primary impediment to redevelopment is the lack of adequate 
resources for site assessments and remediation. Indeed, in the United 
States Conference of Mayors' recent National Report on Brownfields 
Redevelopment (February 2000), the mayors stated that ``For the third 
year, the `lack of funds to cleanup these sites' was the most 
frequently identified impediment, cited by 90 percent of the 
respondents.''\1\ We therefore strongly encourage Congress to provide 
adequate funding to support brownfields redevelopment in communities 
around the country. The Administration has also been successful in 
encouraging brownfields redevelopment through administrative and 
enforcement efforts, such as EPA's issuance of comfort letters and the 
Department of Justice's approval of PPAs.
---------------------------------------------------------------------------
    \1\ See Recycling America's Land: A National Report on Brownfield 
Redevelopment--Volume III (February 2000), Executive Summary, p. 9.
---------------------------------------------------------------------------
    Finally, I understand that over the last several years, insurance 
for brownfields development has become much more readily available. 
Such policies enable parties to a brownfields transaction to ensure 
against unknown remediation risks associated with the site, thereby 
providing sufficient security and ``finality'' to the parties involved 
to proceed comfortably with redevelopment. As one recent publication 
stated, ``[T]hese policies can and often do bring the transactional 
peace of mind needed to close a deal.'' Environmental Insurance: 
Benefits, Types of Policies Available and Purchasing Issues. I would 
also draw your attention to Current Insurance Products for Insuring 
Against Environmental Risks, ALI-ABA Course of Study, Anne M. Waeger, 
October 14, 1999 (``In recent years, the market for coverage of 
environmental risks has drastically increased, particularly as a result 
of Brownfields initiatives being enacted in many states.'')

    Question 6. Ms. Schiffer, we have already passed several pieces of 
Superfund amendments into law, such as the recycling liability 
provisions passed last year as part of the Omnibus budget bill. Is it 
too early to learn any lessons from the recent passage of the recycling 
amendments?
    Response. The Superfund Recycling Equity Act was passed on November 
19 and signed into law by the President on November 29, 1999. We hope 
that these recycling amendments will have the desired effect of 
encouraging the legitimate recycling of materials in the United States. 
One thing the new amendments are reminding us, however, is that any 
changes to the provisions of Superfund, even when supported by a broad 
consensus, leads to more litigation and reintroduces lawyers into the 
process. We are already involved in several cases in which the courts 
are being asked to determine the scope of the recycling amendments and 
their application to the facts of individual cases. In some cases, 
these questions have upset ongoing settlement discussions, and could 
potentially slow the pace at which cleanups proceed. We should keep 
this in mind as we consider any further changes to the statute.
                                 ______
                                 
  RESPONSES OF LOIS J. SCHIFFER TO ADDITIONAL QUESTIONS FROM SENATOR 
                                 BOXER

    Questions 1 and 2. The Port of Redwood City, located on the 
southern end of San Francisco Bay, is engaged in cleaning up a 
hazardous waste site at which numerous Federal and private entities 
contributed hazardous wastes. Nearly all of the private entities have 
paid their share of the clean-up costs. Although the record is clear 
that 20 Federal agencies contributed waste to the site, the Department 
of Justice has apparently refused to settle the Federal Government's 
cleanup liability with the Port.
    I first became involved in this matter last year. At that time, I 
asked that the Department expedite its treatment of this issue. I now 
understand from the Port, however, that the Department continues to 
delay paying the Federal Government's share of clean-up costs.
    Please provide the following information concerning this claim: 
Status of the claim. Does the Department have a legal justification for 
avoiding liability in this case; if so, what is that justification or 
theory?
    Response. While the Department of Justice's policy on pending 
matters and the confidentiality of the settlement negotiations prevents 
me from commenting in detail on the Port of Redwood City cleanup case 
or the settlement negotiations, I can provide the following public 
information on the status of this case.
    This case concerns cost allocation for the cleanup of hazardous 
substances at the Liquid Bulk Terminal Site, also known as the Former 
Pilot Petroleum/Gibson Environmental Facility, in Redwood City, 
California. The Port of Redwood City is the current and past owner of 
the Site. From 1989 to 1995, the Port leased the Site to Gibson 
Environmental, Inc. In 1995, Gibson abandoned its leasehold and 
commenced bankruptcy proceedings. Later in 1995, the California 
Department of Toxic Substances Control notified the Port that, as 
property owner of the Site, the Port was required to assume 
responsibility for the Gibson Facility under state law, and to prepare 
and submit a closure plan.
    Subsequent investigation revealed toxic pollutants and 
contamination at the Site, apparently resulting from the operations at 
the Gibson Facility. The Port has commenced cleanup of the Site and 
filed a lawsuit in Federal court seeking reimbursement of costs from a 
number of parties including the United States. With respect to the 
litigation, on March 7, 2000, the court issued a written order 
dismissing 7 of the 13 counts against the United States, including the 
count seeking joint and several liability under CERCLA. The Port 
stipulated to dismissing the CERCLA Sec. 107 claim along with some of 
the state tort claims. Litigation and discovery on the remaining counts 
is ongoing.
    Although the Department of Justice on behalf of the Federal 
defendants has been in settlement negotiations with the Port since 1997 
(prior to the filing of the complaint), we have not as yet been able to 
reach a fair settlement. Since the Department's last correspondence 
with you on this matter in 1998, the Federal defendants have exchanged 
information with the Port, both formally through discovery and 
informally, to assess the potential liability of the United States. 
Using this information, we have engaged the Port in negotiations in an 
attempt to settle this case. We have adopted a position that is fair, 
comparable to the position taken by other similarly situated parties 
who have already settled with the Port, and consistent with the 
position we have taken in other similar cases. Although our 
negotiations have not been successful, we remain open to further 
settlement discussions with the Port as we continue to litigate this 
matter.

    Questions 3 and 4. How much time (hours) has been spent by 
Department attorneys on this case? Please estimate how much time and 
money the Department will spend if this case goes to court?
    Response. Our records indicate that to date 726 attorney hours have 
been spent on the Port of Redwood City case since its inception in 
1997. A significant number of hours were spent responding to over 2,000 
discovery requests by the Port last year. Although we continue to 
believe settlement appropriate in this case, all parties will incur 
additional expenses if this litigation continues.

    Question 5. Is it standard Department policy to defend rather than 
settle claims against the Federal Government for Superfund liability? 
Has the Department estimated the legal costs associated with any such 
policy?
    Response. The Department continues to believe that the most 
appropriate resolution of valid claims against the Federal Government 
is fair and reasonable settlements. At the same time, a ``give-away'' 
settlement does not protect the American taxpayers. We remain open to 
further settlement discussions with the Port of Redwood City as we 
continue to litigate this matter.
                               __________

STATEMENT OF J. CHRISTIAN BOLLWAGE, MAYOR, ELIZABETH, NJ, ON BEHALF OF 
                     THE U.S. CONFERENCE OF MAYORS

    I am J. Christian Bollwage, Mayor of Elizabeth, New Jersey. I am 
pleased to appear today on behalf The United States Conference of 
Mayors, a national organization that represents more than 1,050 U.S. 
cities with a population of 30,000 or more.
    Within the Conference of Mayors, I now serve as a Member of the 
organization's Advisory Board, and I am a co-chair of the Brownfields 
Task Force.
    The Conference has been involved extensively in the legislative 
debate on brownfields redevelopment and related efforts to enact much 
needed reforms to the ``Superfund'' law.
    Mr. Chairman, the Conference's statement today addresses a number 
of issues before this Subcommittee today. Specifically, I would like to 
focus my remarks on what is needed to support city efforts to redevelop 
brownfields, recognizing the interplay between the Superfund law and 
these less contaminated, non-NPL sites.

                            SUPERFUND REFORM

    For some time, the Conference of Mayors has been engaged in the 
debate on the nation's Superfund law. And, when mayors talk about the 
need for reform of this law, we have sometimes failed to register our 
strong support for the statute and how it has stopped the reckless and 
thoughtless disposal of harmful chemicals to the environment. When 
enacted, Superfund also meant that the time had come to take 
responsibility for past actions by forcing responsible parties to clean 
up contaminated properties.
    When cities try to offer a consistent view of the workings of 
Superfund as it pertains to the cleanup of Superfund sites, it poses 
challenges for our members. Consider the numbers. In this hearing, we 
are talking about a Superfund that is involved directly with cleaning 
up sites at a rate now of about 85 per year. According to the Census, 
we have more than 20,000 municipalities throughout the country, with 
sites located in larger cities, in smaller ones, in incorporated areas 
of counties and in unincorporated areas. Sites are located in highly 
urbanized areas, developing and ex-urban areas, in ex-urban small towns 
and in remote rural locations. The facts of each situation differ, the 
environmental threats, cleanup considerations, and so on.
    Experience with these sites and others has generated a substantial 
record, prompting the U.S. Environmental Protection Agency to pursue a 
number of administrative reforms to the program. And, the Conference 
has been supportive of these efforts and related policies, urging that 
these reforms be codified to give the agency specific support and 
legislative backing for these program changes.
    Our support for this Committee's legislative efforts and those in 
the House reflect our support for efforts to update the statute and 
provide more certainty to the Agency in administering the statute, 
reflecting the nearly 20 years of experience in the field. And, mayors 
believe that brownfields, specifically, is one significant area which 
needs legislative attention, and I speak to some of these issues later 
in my statement.
    Mr. Chairman, I would note that the life cycle of a Superfund site, 
from listing to construction completion, exceeds the tenure of most 
mayors. As a result, we have focused our efforts on particular areas 
where numbers of our members are affected and there is some common 
experience. For example, we know there are a number of Superfund sites 
where a city or the county owns the site, most commonly a municipal 
landfill, or where municipal waste has been co-disposed at the site. 
Mr. Chairman and Senator Lautenberg, I know you are very familiar these 
circumstances and the challenges these sites present to affected 
communities.
    Shortly after Superfund fund was enacted, a number of cities felt 
the immediate effects of the Act's new standards, given their ownership 
of landfills or in actions related to the disposal of municipal and 
other wastes. When Superfund was first moving through Congress, there 
were many here in Congress and in Executive agencies who believed that 
the new liability provisions would, in fact, enjoin cities and others 
at the local and State level to contribute their so-called ``deep 
pockets'' to augment Superfund resources. In this way, Federal 
resources would be reserved for the most contaminated properties where 
responsible parties were long gone and/or otherwise unreachable.
    This Committee's record is replete with discussions and testimony 
on the municipal solid waste issues. And, we are familiar with, and 
appreciative of, this Committee's efforts to deal with these sites in 
your reform efforts.
    Last year when then Macon Mayor Jim Marshall testified before you, 
he made a very important point about the effects of the law and its 
assignment of cleanup costs at these sites to local taxpayers. He said 
that the law effectively asks a new group of local taxpayers to pay the 
costs for earlier actions by an old set of taxpayers. Absorbing these 
costs, he argues and mayors agree, is very problematic and unfair to 
today's taxpayers.
    And, of course, there is the broader reality of these sites, which 
are owned and operated by localities in performing a traditional local 
government functions, the disposal of solid waste. Superfund 
effectively makes these communities responsibility for past practices 
and uses of materials and substances, all of which are largely outside 
of the control of the level of government now responsible for the clean 
up of these sites. The flow of commerce, and particularly the chemical 
constituents of commerce, have been and continue to be outside the 
purview of local authorities, both constitutionally and often 
practically.
    Here we have pressed for municipal liability caps to help 
communities contribute to these costs, urging that Superfund dollars be 
used to cleanup these sites. In the case of MSW sites, Superfund's core 
principle--``you own it, you are responsible''--is unfair and should be 
reformed. Cities that have taken title to brownfield properties, for a 
variety of reasons, also feel this standard is unfair and should be 
reformed.

                              BROWNFIELDS

    Subsequent to Superfund's passage, local officials and others never 
fully understood how these liability strictures would later fuel the 
phenomenon we now called brownfields. So that while, on one hand, 
Superfund was sending the strongest signal possible that contamination 
of land, buildings and the like will not be tolerated, we were also 
signaling to those parties trying to recycle our nation's land to 
proceed at their own risk.
    Our survey work at the Conference shows that brownfields throughout 
the Nation is a problem of significant proportion. And, we believe that 
our collective efforts among Federal, state, regional and local 
governments and their agencies are far too modest given the scale of 
this national problem. Let me talk about the problem, as the Conference 
recently set forth last month in its Third National Report on 
Brownfields Redevelopment. I have also provided you with my written 
testimony copies of this Report, along with a four-page summary on its 
release.
    First, let me summarize some of the key findings
     232 cities responded to our survey, with 210 cities 
estimating that they had more than 21,000 brownfield sites; these sites 
consumed more than 81,000 acres of land.
     Brownfields are also not just a ``big'' city problem with 
more than six out of ten respondents from cities with less than 100,000 
people.
    We found the obstacles to redevelopment are the same for the third 
consecutive year
     The No. 1 obstacle was the need for cleanup funds to bring 
these properties back into productive use, with 90 percent of the 
respondents indicating that cleanup funds were needed.
     The second more common impediment issue was dealing with 
the issue of liability, followed by the need for more environmental 
assessments to determine the type and extent of the contamination.
    And, we also quantified the benefits of redeveloping these sites, 
underscoring why mayors have been so vocal in advocating support for 
new Federal policies to assist communities
     Let's talk money first. Three-fourths of the survey 
respondents (about 178) estimated that if their brownfields were 
redeveloped, they would realize between $902 million to $2.4 billion in 
annual tax revenues.
     The second most frequently identified benefit was creating 
more jobs, with 190 cities estimated that over 587,000 jobs could be 
created if their brownfield sites were redeveloped.
    We have also been working to make the case that renewed attention 
to brownfields is one of the most viable options in the short term in 
addressing issues related to sprawl, including loss of farmland and 
open space. It is obvious that the redevelopment of these sites can 
make a real contribution to this growing national problem, by recycling 
existing urban land before developing pristine land resources as our 
first choice.
    Related to this issue, we asked the survey respondents to quantify 
how many people their communities could absorb without adding 
appreciably to their existing infrastructure.
     118 estimated they could support an additional 5.8 million 
people, a capacity that is nearly equivalent to the population of Los 
Angeles and Chicago.
    To put this number in context, we took some of the analysis from 
the American Farmland Trust----
     AFT estimates that 15 percent (about 15 million acres) of 
all the land that was developed in the U.S. was developed between 1992 
and 1997; during the same period, the nation's population grew by 12.6 
million.
     These 5.8 million people, which our survey says could be 
absorbed by these 118 cities, is nearly one-half (46 percent) of the 
nation's population growth during the same 5-year period (1992 to 
1997).
    We need to ask ourselves what portion of the 15 million acres that 
were developed could have been saved if we had national policies in 
place that would recycle brownfields back into productive use, and 
other policies to help encourage more people to choose to live in 
existing communities.

                  POLICIES ON BROWNFIELDS SPECIFICALLY

    Mr. Chairman, as a former mayor, I know that you are very familiar 
with the challenges of brownfields in communities all across the 
country. We encourage you to take steps in this Committee to work with 
others to craft bipartisan policies to advance our efforts, by acting 
on brownfield and selected Superfund reforms.
    We also want to acknowledge the many efforts by the Administration, 
particularly U.S. EPA Administrator Carol Browner, who has supported 
many policy reforms and initiatives on brownfields, given constraints 
of existing law.
    EPA's programs and policies have certainly helped, and again let us 
underscore that we are very appreciative of these efforts. But as a 
nation, the mayors believe that we are not making progress at a rate 
that is quick enough or substantial enough given other considerations.
    Let me talk specifically about some of the issues related to 
brownfields redevelopment that would be most helpful.
    First, cities need additional resources to accelerate the pace of 
assessment and clean-up of these sites. Our survey clearly 
substantiates this need.
    As the Committee looks for ways to assist communities, we would ask 
that you consider some of the following key recommendations.

                               ON FUNDING

     Provide communities with the option to apply for both 
grants and loan capitalization funds and make these resources directly 
available to communities to assist their efforts to accelerate site 
remediation.
     Provide an authorization of ``such sums as necessary'' to 
allow future Congress' the flexibility to increase commitments to local 
cleanup efforts. Superfund, as you know, is not a statute that is 
routinely reauthorized.
     Provide grant funds to help communities undertake 
assessment of these sites, investments which will accelerate 
information on the extent of contamination at these sites and provide 
the basis for subsequent clean up efforts.
     Provide an option for those communities that have 
previously received brownfields loan capitalization funds, which were 
funded from Superfund Trust Fund revenues, to use these funds under any 
new rules prescribed for grant and loans fund provided under new 
legislation.
    Finally, the mayors believe that these resources to support local 
brownfield assessment and cleanups should be provided from both general 
revenues and Trust Fund revenues. We would also note, however, that the 
excise taxes, which the Conference supports renewing, do apply to 
chemicals that are often present at many of the sites we call 
brownfields.

                           LIABILITY REFORMS

     Provide prospective purchaser liability protections, 
extending these protections to private and public parties.
     Provide targeted liability protection to municipalities 
and other innocent private parties, who have acquired these properties 
under certain circumstances and conditions. A number of cities, for 
example, have acquired brownfields in a number of ways, usually in 
performing local government functions and in complying with State and 
local laws.

                FUTURE LAND USES/INSTITUTIONAL CONTROLS

     Provide policy support that allows State and local efforts 
to clean up sites, using standards that reflect future uses of the 
site.
     Provide support for local and State efforts to put 
institutional controls in place to ensure future use of these sites 
conform to the cleanup standards used at the site.

                    STATE VOLUNTARY CLEANUP PROGRAMS

     Provide additional funding support to strengthen State 
voluntary cleanup programs, using these funds to ensure that these 
State programs continue to build capacity to address brownfields sites, 
not just emphasizing the more contaminated NPL-caliber properties.
     Provide for a pilot project whereby localities that so 
chose, can be delegated authority under Federal law to undertake their 
own voluntary clean up programs, subject to subsequent State delegation 
of this authority.
     Provide mechanisms that will assure that parties who 
participate in State cleanup programs for the clean up of contaminated 
properties can fully anticipate the level of State authority to make 
final remediation and other decisions at the site.
    Mr. Chairman, these are some elements that would help communities 
and their State partners to accelerate the cleanup and redevelopment of 
these sites.
    I would like to make a few points regarding some of the issues that 
I have just set forth. First, some in Congress continue to express 
concerns about providing additional resources to communities for 
brownfield assessment and cleanup. We know that many communities simply 
don't have the resources to tackle the magnitude of the problem they 
face.
    But, there is also another point that we often make about these 
properties. When these sites were active and producing economic 
activity (i.e. jobs, tax receipts, etc.), all levels of government 
shared in this output. In fact, at the local level, communities on 
average realized between 10 and 20 cents on every public dollar that 
was generated. More than 80 cents of every dollar was shipped to State 
capitols and the U.S. Treasury in the form of income taxes and so on. 
It is hard for local areas, which realized the smallest share of the 
public dollars generated by these private activities, particularly 
those communities with relatively weak tax bases, to absorb all of the 
public costs associated with restoring these properties to productive 
reuse.
    Another key point is the level of effort we have committed, 
collectively, to this effort is far less than what we should be doing 
as a society. Even with the very committed support and leadership at 
U.S. EPA, it remains a very daunting task to accomplish reforms 
administratively.
    In preparing for this hearing, we reviewed the record of EPA's 
efforts to issue comfort letters and Prospective Purchaser Agreements. 
Through Fiscal Year 1998, the agency had entered in to 85 Prospective 
Purchaser Agreements and had issued over 250 comfort/status letters. 
This represents a very small fraction of sites in America. Specific 
legislation deals with some of the issues I have discussed would 
produce the same outcome as thousands of these letters and PPAs.
    I would also urge the Committee to consider language in any 
legislative reforms which takes a broader view of the brownfields 
issue, allowing communities some flexibility to address vacant 
buildings along with land. A new study, which was recently reported in 
USA Today, underscores the need for additional attention to the issue 
of abandoned buildings.

                  ELIZABETH'S SUCCESS WITH BROWNFIELDS

    In my own City, I have seen what is possible by reusing these 
sites. In October, we officially celebrated the opening of the Jersey 
Gardens Mall, located on the site of a 170-acre municipal landfill that 
had been closed since 1972.
    At this site, we have opened the largest outlet mall on the East 
Coast, with more than 200 stores, providing more than 3,000 jobs. This 
site alone will generate about $6.5 million annually in revenue for the 
City. With additional stores opening this Fall, we expect to see 
employment at the site exceed 4,000 jobs.
    As a result of this project, we see additional private investment 
flowing to the immediate area, including a major indoor sports complex, 
hotels, office buildings and ferry service to New York City. And, we 
have had other successes in our City, although not on the scale of what 
the Jersey Gardens Mall has yielded.
    We are fortunate that the city of Elizabeth is ideally situated to 
leverage the substantial economic and population base of Northern New 
Jersey, extending in to Manhattan. And, I am not suggesting that this 
is most characteristic of what cities can accomplish in redeveloping 
brownfields. However, it does underscore the need for Federal policy 
support to help communities generate their own successes, as you now 
see on a relatively modest scale all across the country.

                            CLOSING COMMENTS

    The nation's mayors believe that the time has come for bipartisan 
action on brownfields and, where possible, selected Superfund reforms. 
In moving bipartisan legislation forward, you can count on the support 
of the nation's mayors in this regard.
    On behalf of The U.S. Conference of Mayors, we appreciate this 
opportunity to share the view of the nation's mayors on these important 
issues.
                                 ______
                                 
RESPONSES OF J. CHRISTIAN BOLLWAGE TO ADDITIONAL QUESTIONS FROM SENATOR 
                                 SMITH

    Question 1a. Your testimony states that 15 million acres could have 
potentially been saved from development if we had national policies in 
place that would recycle brownfields back into productive use. From the 
local government perspective, based on your experience, why are 
companies choosing to locate their new factories on ``greenfields,'' 
perpetuating the current problem of sprawl and loss of downtown areas, 
instead of buying ``brownfields?''
    Response. There are many factors why companies choose to relocate 
their new factories on greenfields instead of brownfields and in 
understanding these factors you must examine the atmosphere that 
business operates. The first factor in any business decision is the 
bottom line; it is usually cheaper to relocate and/or build a new 
factory on greenfields verses brownfields. And, we know that public 
investment and subsidies are often skewed toward new facilities over 
the rehabilitation and upgrading of existing public facilities. Second, 
business is conducted in the here and now; companies may not have the 
luxury of time to wait for the cleanup and for the appropriate 
government process of review--bureaucracies take time. Third, farmland 
has become increasingly available. Fourth, it can be more complicated 
to do business in existing cities and communities, which are relatively 
more complicated environments for new development. Finally, if time, 
money and availability isn't a factor the potential of a long-term 
liability may drive the business to greenfields.
    Therefore, financial incentives must be put into place to attract 
business to brownfields, long-term liability issues must be addressed 
adequately to lower the risk, and the advantages of relocating to a 
brownfield must be made known (i.e. labor surplus area, proximity to 
transportation and market access).

    Question 1b. Is it because they are afraid of getting caught up in 
the Superfund liability web?
    Response. Yes, Superfund liability is definitely a factor but it is 
not the whole picture. There are many factors that a businessperson 
looks at before making a decision of this magnitude; unfortunately, 
liability concerns at the outset gives a developer real cause to look 
elsewhere.

    Question 2a. Based on the United States Conference of Mayors (USCM) 
February 2000 report, Third National Report on Brownfields 
Redevelopment, the second most common obstacle cited by cities 
responding to your survey were issues of liability. If states were to 
have finality in decisions regarding cleanups under voluntary programs, 
would the issue of liability be addressed?
    Response. In most of our work with mayors, liability concerns turn 
on two issues. First, for innocent parties, there needs to be specific 
liability relief provided in the statute to make sure these parties 
know where they stand in acquiring sites for redevelopment. More 
broadly, all parties, particularly those who have caused contamination 
at sites, need to know that if they conduct a cleanup under a State 
voluntary program that they have satisfied their liability at the site. 
Otherwise, why would some parties who caused any contamination come 
forward and seek to clean up these properties? The New Jersey 
Brownfield Act of 1998 is an excellent model for the covenant not to 
sue. The language of the legislation should be flexible enough to allow 
a site by site determination regarding the type of contamination and 
therefore determining the condition of no further action.

    Question 2b. Thirty-four percent of the survey respondents said 
that the question of how active their State was in working with them on 
issues of brownfields was inapplicable. Does this mean that the states 
where those survey respondents are located have no voluntary cleanup 
programs?
    Response. Although the survey does not provide respondents with the 
opportunity to describe why they marked ``inapplicable'' on the 
questionnaire, the Conference of Mayors staff has advised me that, 
based on discussions with many of these cities, there are two likely 
explanations. First, some cities indicated that the State did not have 
a program specifically in place for addressing brownfields. Second, 
some of the cities did not have any direct experience in working with 
the state's voluntary cleanup program and could not make an assessment 
of the program.

    Question 3a. In your 1997 testimony to the Senate Committee on 
Environment and Public Works, you set forth the position of the 
Conference of Mayors on the issue of finality. Namely, ``that many 
States have well developed voluntary cleanup programs that lead to No 
Further Remediation letters. The USCM believes that if a site has 
successfully gone through a qualified State program, then there should 
be no additional Federal liability attached to that site for 
contaminants of concern. There may be a reopener clause, but it should 
be limited to cases where (1) there is an imminent threat to human 
health or environment.'' Does the Conference of Mayors continue to 
support this provision?
    Response. Yes.

    Question 3b. What does the Conference of Mayors consider to be a 
``qualified'' State program?
    Response. As a threshold issue, the Conference believes that the 
State rules and regulations regarding procedures on the performance of 
environmental investigation, which meet or exceed Federal regulations 
on environmental investigation should be deemed a ``qualified'' State 
program. The Conference has not adopted a position calling for a 
Federal definition or Federal standards for ``qualified'' State 
programs. In fact, mayors have resisted such an approach in that it 
might result in a new and lengthy Federal process of EPA approval of 
State voluntary programs, slowing forward progress in getting 
brownfield sites cleaned up and redeveloped.

    Question 3c. How and by whom would the determination be made that a 
State response was ``not adequate'' such that the reopener clause would 
apply?
    Response. The U.S. EPA should reserve the right to go back to 
review a case if there is a significant change in magnitude. Magnitude 
meaning a change in environmental health or safety standards that would 
or could directly effect health and safety.

    Question 4. What would be the result of providing State finality in 
decisions on cleanup of brownfield properties?
    Response. It would be an added incentive for developers to build or 
companies to relocate on brownfields.
                                 ______
                                 
RESPONSES OF J. CHRISTIAN BOLLWAGE TO ADDITIONAL QUESTIONS FROM SENATOR 
                               LAUTENBERG

    Question 1. Mayor Bollwage, you have been a real leader in the 
issue of Brownfields and reuse of properties, on behalf of The U.S. 
Conference of Mayors. I understand that in addition to the successful 
commercial mall in your city, you have also used former brownfields 
sites for non-commercial uses, including a little league field and a 
soccer field.
    Are there any unique problems associated with these kinds of 
reuses?
    Response. Elizabeth has been very fortunate in the redevelopment of 
brownfields for recreational and open space uses. The sites that were 
redeveloped for these purposes were at the time unwanted and/or 
abandoned properties. The challenge for the city of Elizabeth, and for 
many others urban areas, is the limited land resources that are 
available for redevelopment as parks and open spaces. There are also 
additional costs, beyond those for simply redevelopment of the site as 
park/open space, for the continuing maintenance and operations at the 
site.
    Therefore, the most prominent problem for cities is available 
funding to cover the costs of preliminary assessments, site 
investigation, remediation and continued maintenance. Brownfields, in 
certain instances, provide opportunities for cities to increase park 
and open spaces, if funding is available.

    Question 2. Do you have specific suggestions as to how could we 
encourage the reuse of brownfield properties as open space or 
recreational areas?
    Response. Because the redevelopment of recreational and open space 
is not developer driven, the responsibility falls largely upon the 
municipality, with some support from other public bodies. For the city 
to redevelop and maintain a recreational facility and preserve open 
space, as I have explained above, can be a very expensive option.
    Therefore, the best encouragement for cities to redevelop 
brownfields is to hear how other cities procured the funds to acquire 
sites, clean up and redevelop these lands for open space and 
recreational purposes. Also, having a clear source of funding not 
fragmented funding through various agencies would greatly reduce the 
resistance to redevelopment of brownfields.
    Nationally, the mayors have been very supportive of pending 
legislation, like the Conservation and Reinvestment Act (CARA), which 
will increase the availability of Federal funds for the acquisition of 
lands for open space/park/recreational uses, including funding for the 
development and rehabilitation of these public assets.
                               __________

STATEMENT OF R.B. JONES, CITY COUNCILMAN, NATIONAL ASSOCIATION OF LOCAL 
            GOVERNMENT ENVIRONMENTAL PROFESSIONALS (NALGEP)

                              INTRODUCTION

    Mr. Chairman and distinguished members of the Subcommittee, my name 
is R.B. Jones, and I am a City Council Member representing the city of 
East Palo Alto, California. I also served as the Mayor of my City for 
the previous 4 years. I am pleased to be here today to testify on 
behalf of the National Association of Local Government Environmental 
Professionals, or ``NALGEP.'' NALGEP appreciates the opportunity to 
present this testimony on the views of local government officials from 
across the Nation on the need for additional Federal incentives to 
promote the cleanup, redevelopment and productive reuse of brownfields 
sites in local communities.
    NALGEP represents local government officials responsible for 
ensuring environmental compliance, and developing and implementing 
environmental policies and programs. NALGEP's membership consists of 
more than 130 local government entities located throughout the United 
States. Our members include many of the leading brownfields communities 
in the country such as Providence, Trenton, Portland, Chicago, Los 
Angeles, Salt Lake City, Dallas, and Cuyahoga County (Ohio), to name a 
few.
    In 1995, NALGEP initiated a brownfields project to determine local 
government views on national brownfields initiatives such as the EPA 
Brownfields Action Agenda. The NALGEP Brownfields Project culminated in 
a report, entitled Building a Brownfields Partnership from the Ground 
Up: Local Government Views on the Value and Promise of National 
Brownfields Initiatives, which was issued in February, 1997.
    During the past few years, NALGEP has continued its work on 
brownfields through coordinating work groups of local officials to 
address the following issues: (1) Brownfields Cleanup Revolving Loan 
Funds; (2) use of HUD Community Development Block Grants for 
Brownfields; (3) building partnerships between business and local 
government officials to reduce sprawl and promote smart growth; and (4) 
implementing the Administration's Brownfields Showcase Community 
initiative. As a result of these efforts, NALGEP is well qualified to 
provide the Committee with a representative view of how local 
governments, and their environmental and development professionals, 
believe the Nation must move ahead to create long-term success in the 
revitalization of brownfields properties.
    NALGEP's testimony today will focus on the following areas: (1) the 
urgent need for increased Federal funding to support the cleanup and 
redevelopment of brownfields sites across the country; (2) the need for 
further liability clarification to encourage the private sector to step 
forward and revitalize more sites; (3) the need to facilitate the 
participation of other Federal agencies (e.g., Army Corps of Engineers, 
Department of Transportation, HUD) in supporting local brownfields 
initiatives; and (4) the urgent need to provide Superfund liability 
relief for local governments that owned municipal landfills or sent 
non-toxic municipal solid waste or sewage sludge to landfills.
    The cleanup and revitalization of brownfields represents one of the 
most exciting, and most challenging, environmental and economic 
initiatives in the nation. Brownfields are abandoned, idled, or under-
used industrial and commercial properties where expansion or 
redevelopment is hindered by real or perceived contamination. The 
brownfields challenge faces virtually every community; experts estimate 
that there may be as many as 500,000 brownfields sites throughout the 
country.
    The brownfields issue illustrates the connection among 
environmental, economic and community goals that can be simultaneously 
fostered through a combination of national leadership, State 
incentives, and the innovation of local and private sector leaders. 
Cleaning up and redeveloping brownfields provides many environmental, 
economic and community benefits including:
     expediting the cleanup of thousands of contaminated sites;
     renewing local economies by stimulating redevelopment, 
creating jobs, expanding the local tax base, and enhancing the vitality 
of communities; and
     limiting sprawl and its associated environmental problems 
such as air pollution, traffic and the development of rapidly 
disappearing open spaces.

                EAST PALO ALTO'S BROWNFIELDS INITIATIVES

    The city of East Palo Alto is a small community of 25,000 people 
that has never enjoyed the economic prosperity of its neighboring 
communities in Silicon Valley. The City has the highest levels of 
unemployment and poverty and lowest median income in San Mateo County. 
In addition, the City has struggled to significantly reduce its crime 
rate, which was one of the highest in the Nation in the early 1990's.
    However, the City is successfully moving forward to revitalize our 
community. East Palo Alto was selected by the Administration as one of 
16 Brownfields Showcase Communities nationwide, announced by Vice 
President Gore in spring 1998. As part of the Showcase initiative, we 
are working with Federal and State agencies to promote sustainable 
environmental cleanup and economic development.
    Our focus is the Ravenswood Industrial Area (``RIA'') and the 
adjacent Four Corners redevelopment area. The Ravenswood Industrial 
Area, a large, contiguous region of approximately 130 developable acres 
in a historically mixed agricultural, commercial, industrial and 
residential area, was designated as a U.S. EPA Brownfields Assessment 
Pilot in 1996. The property is affected by a multitude of toxic 
substances, including arsenic, chromium and other heavy metals, 
pesticides and herbicides, chlorinated solvents and petroleum 
contamination. The City partnered with U.S. EPA Region 9 and the San 
Francisco Bay Regional Water Quality Control Board to assess the site 
and estimates remediation costs at $2-5 million.
    The City has developed a strategic plan and design to redevelop 
this area into a mixed-use development and employment center, with up 
to 2 million square feet of commercial and high-technology offices and 
light manufacturing. New, medium-density housing is also planned 
nearby. The City will seek to promote the location of environmentally 
sensitive businesses, the use of green building practices, and 
development that enhances and protects the beauty of adjacent resources 
such as San Francisco Bay, wetlands, and open space areas. The Four 
Corners portion is slated for the establishment of a new town center 
including government buildings, civic space and commercial 
establishments. The overall design will enhance the com-
munity and its livability. The City expects that redevelopment of the 
entire Ravenswood Industrial Area will create 4,000 new jobs and 
generate more than $1 million per year in new tax revenues.
    The redevelopment of Ravenswood will also benefit the broader 
region. Silicon Valley is enjoying the hottest market in 14 years, but 
is rapidly running out of office space and developable land. This 
leaves the Ravenswood Industrial Area poised to take advantage of a 
tight real estate market and finally enjoy the prosperity of the 
booming regional economy.
    However, revitalizing this area will not be easy. Our biggest 
challenge will be to obtain the $2-5 million required to clean up the 
site. It is unlikely that a private developer would take on this 
project with such significant cleanup costs. Currently, there are few 
available sources to fill this gap. Consequently, East Palo Alto's last 
remaining developable area remains underutilized.
    In addition, we will need to secure funds to upgrade the 
infrastructure in the area including expanding and improving the major 
entrance road to Ravenswood, enhancing our flood control and 
prevention, and upgrading our utilities. East Palo Alto's challenges 
clearly demonstrate the need for innovative partnerships and increased 
Federal funding if we are to fully reap the many benefits from 
redeveloping brownfields like the Ravenswood area.
    The Federal Government, particularly the U.S. EPA, has played an 
important role in helping East Palo Alto develop and advance our 
brownfields redevelopment efforts. Specifically it has:
     Provided critical funding and a staff person to enable us 
to institutionalize a local program and to help investigate and clean 
up specific sites;
     Provided technical assistance and other resources that 
have helped us learn from other communities and take on the many 
challenging obstacles to brownfields revitalization;
     Connected us with other Federal agencies that have 
resources and technical expertise; and
     Most importantly, provided the critical leadership needed 
to educate the many stakeholders and the general public that 
redeveloping brownfields can be done and that it can provide 
significant economic and environmental benefits for communities across 
the nation.

                     BROWNFIELDS LEGISLATIVE NEEDS

I. Ensuring Adequate Resources for Brownfields Revitalization

    As East Palo Alto's efforts to redevelop the Ravenswood area 
clearly demonstrate, local governments need additional Federal funding 
for site assessment, remediation and economic redevelopment to ensure 
long-term success in revitalizing our brownfields. The costs of site 
assessment and remediation can create a significant barrier to the 
redevelopment of brownfields sites. In particular, the costs of site 
assessment can pose an initial obstacle that drives development away 
from brownfields sites. With this initial obstacle removed, localities 
are much better able to put sites into a development track. In 
addition, the allocation of public resources for site assessment can 
provide a signal to the development community that the public sector is 
serious about resolving liability issues at a site and putting it back 
into productive reuse. Likewise, resources for cleanup are the missing 
link for many brownfield sites a link that keeps brownfields from being 
redeveloped into productive areas in many communities like East Palo 
Alto.
    The use of public funds for the assessment and cleanup of 
brownfields sites is a smart investment. Public funding can be 
leveraged into substantial private sector resources. Investments in 
brownfields yield the economic fruit of increased jobs, expanded tax 
bases for cities, and urban revitalization. And the investment of 
public resources in brownfields areas will help defer the environmental 
and economic costs that can result from unwise, sprawling development 
outside of our urban centers.
    The following types of Federal funding would go a long way toward 
helping local communities continue to make progress in revitalizing our 
brownfields sites:
     Grants for Site Assessments and Investigation.--EPA's 
Brownfields Assessment Pilot grants have been extremely effective in 
helping localities to establish local brownfields programs, inventory 
sites in their communities, investigate the potential contamination at 
specific sites, and educate key stakeholders and the general public 
about overcoming the obstacles to brownfields redevelopment. Additional 
funding for site assessments and investigation is needed to help more 
communities establish local brownfields programs and begin the process 
of revitalizing these sites in their communities.
     Grants for Cleanup of Brownfields Sites.--There is a 
strong need for Federal grants to support the cleanup of brownfields 
sites across the country. The U.S. Conference of Mayors' recent report 
on the status of brownfields sites in 223 cities nationwide indicates 
that the lack of cleanup funds is the major obstacle to reusing these 
properties. For many brownfields sites, a modest grant targeted for 
cleanup can make the critical difference in determining whether a site 
is redeveloped, creating new jobs and tax revenues, or whether the site 
remains polluted, dangerous and abandoned.
     Grants to Capitalize Brownfields Cleanup Revolving Loan 
Funds.--In addition to grants, Federal funding to help localities and 
states to establish revolving loan funds (RLFs) for brownfields cleanup 
is another effective mechanism to leverage public and private resources 
for redevelopment. EPA deserves credit for championing brownfields RLFs 
as a mechanism for helping communities fill a critical gap in cleanup 
funding.
    Unfortunately, the effectiveness of the EPA's current brownfields 
cleanup RLF program is severely undermined by the lack of new Federal 
brownfields legislation. Under current law, localities are required to 
jump through and over numerous National Contingency Plan (NCP) 
bureaucratic hoops and hurdles to establish their local RLFs. Moreover, 
the NCP prevents the use of RLF funds on petroleum contaminated sites 
and on buildings contaminated with asbestos or lead common elements of 
brownfield sites. East Palo Alto has received $500,000 from EPA to 
capitalize a local RLF. However , the current NCP requirements will 
make it difficult and costly for the City to effectively use these 
funds. These NCP requirements were originally established for Superfund 
NPL sites, not for brownfields sites. Congress can easily fix this 
problem by making it clear that local brownfields RLFs are not required 
to meet the NCP requirements established for Superfund sites.

II. Liability Clarification at Brownfields Sites

    On the issue of Federal Superfund liability associated with 
brownfields sites, NALGEP has found that the Environmental Protection 
Agency's overall leadership and its package of liability clarification 
policies have helped establish a climate conducive to brownfields 
renewal, and have contributed to the cleanup of specific sites 
throughout the nation. Congress can enhance these liability reforms by 
further clarifying in legislation that Superfund liability does not 
apply to certain ``non-responsible'' parties such as innocent 
landowners, prospective purchasers and contiguous property owners.
    It is clear that these EPA policies, and brownfields redevelopment 
in general, are most effective in states with effective voluntary 
cleanup programs. NALGEP has also found that states are playing a 
critical lead role in promoting the revitalization of brownfields. More 
than forty states have established voluntary or independent cleanup 
programs that have been a primary factor in successful brownfields 
cleanup. The Federal Government should further encourage states to take 
the lead at brownfields sites. States are more familiar with the 
circumstances and needs at individual sites. Moreover, it is clear that 
U.S. EPA lacks the resources or ability to provide the assistance 
necessary to remediate and redevelop the hundreds of thousands of 
brownfields sites in our communities.
    The effectiveness of State leadership in brownfields is 
demonstrated by those states that have taken primary responsibility for 
brownfields liability clarification pursuant to Superfund ``Memoranda 
of Agreement'' (MOAs) with U.S. EPA. These MOAs defer liability 
clarification authority to those states. In order to further facilitate 
brownfields cleanups across the country, NALGEP finds that the Federal 
Government should create clear standards under which States that meet 
minimum criteria can assume the primary role for resolving liability 
and issuing no further action decisions for brownfield sites.
    Authority for qualified states to play the primary role in 
liability clarification is critical to the effective redevelopment of 
local brownfields sites. A State lead will increase local flexibility 
and provide confidence to developers, lenders, prospective purchasers 
and other parties that brownfields sites can be revitalized without the 
specter of Superfund liability or the involvement of Federal 
enforcement personnel. Parties developing brownfields want to know that 
the State can provide the last word on liability, and that there will 
be only one ``policeman,'' barring exceptional circumstances (i.e., 
where there is an imminent and substantial threat to public health or 
the environment).
    At the same time, local officials are also concerned about 
delegating too much cleanup authority too fast to states that have not 
clearly demonstrated the ability to play a primary role. States vary 
widely in the technical expertise, resources, staffing, statutory 
authority and commitment necessary to ensure that brownfields cleanups 
are adequately protective of public health and the environment. If 
brownfields sites are improperly assessed, remediated or put into 
reuse, it is most likely that the local government will bear the 
largest impact from any public health emergency or contamination of the 
environment. NALGEP believes that the U.S. EPA has a role to play in 
ensuring that liability authority over brownfields sites should only be 
delegated to states that demonstrate an ability and commitment to 
ensure protection of public health and the environment in the 
brownfields redevelopment process. Moreover, EPA should be able to 
assert its Superfund authority at particular sites in exceptional 
circumstances (i.e., where there is an imminent and substantial threat 
to public health or the environment) where the State response is 
inadequate; or where the State requests EPA assistance.

III. Facilitating the Participation of Other Federal Agencies in 
        Brownfields Revitalization

    The cleanup and redevelopment of a brownfields site is often a 
challenging task that requires coordinated efforts among different 
government agencies at the local, State and national levels, public-
private partnerships, the leveraging of financial resources from 
diverse sources, and the participation of many different stakeholders. 
Many different Federal agencies can play a valuable role in providing 
funding, technical expertise, regulatory flexibility, and incentives to 
facilitate brownfields revitalization. For example, HUD, the Economic 
Development Administration, the Department of Transportation, and the 
Army Corps of Engineers have all contributed important resources to 
expedite local brownfields projects. The U.S. EPA and the 
Administration have provided strong leadership through the Brownfields 
Showcase Community initiative that is demonstrating how the Federal 
Government can coordinate and leverage resources from many different 
Federal agencies to help localities solve their brownfields problems.
    Congress can help strengthen the national brownfields partnership 
by further clarifying that the various Federal partners play a critical 
role in redeveloping brownfields and by encouraging the agencies to 
work cooperatively to meet local needs. For example, Congress should be 
commended for legislation passed in 1998 to clarify that HUD Community 
Development Block Grant funds can be used for all aspects of 
brownfields projects including site assessments, cleanup and 
redevelopment. This simple step has cleared the way for communities 
across the country to use these funds in a flexible fashion to meet 
their specific local needs. In addition, Congress has provided $25 
million in each of the past 2 years for HUD's Brownfields Economic 
Development Initiative.
    Similarly, Congress should consider clarifying that it is 
appropriate and desirable for the Army Corps of Engineers to use its 
resources and substantial technical expertise for local brownfields 
projects. East Palo Alto needs the Corps of Engineers' help to succeed 
in its Ravenswood revitalization initiative. The Ravenswood area has 
experienced severe flooding from the adjacent San Francisco Bay, making 
flood damage prevention a top priority. In addition, East Palo Alto 
needs assistance in the construction of drainage, sewage and other 
environmental infrastructure. Moreover, the Corps could assist East 
Palo Alto to protect and restore the ecosystem of the area, which 
includes wetlands and other significant natural areas, as well as the 
challenges of brownfields contamination. East Palo Alto has worked 
closely with the Corps to assess environmental contamination and 
waterfront development issues, and we seek to continue this close 
cooperation.
    I understand that the Corps of Engineers intends to propose new 
authorities in the Water Resources Development Act (WRDA) 2000 
legislation for brownfields cleanup and environmental infrastructure, 
in order to protect the water quality and promote the revitalization of 
communities across the nation. I want you to know that East Palo Alto 
believes this is an excellent proposal that will make a big difference 
for our city and many other communities.
    Congress also should work with EPA and the Administration to 
determine how other agencies can help facilitate more brownfields 
revitalization. By taking these steps, Congress can give communities 
additional tools, resources, and flexibility to overcome the many 
obstacles to brownfields redevelopment.

IV. Providing Superfund Liability Relief for Local Governments

    Local governments have a very serious problem. We have been saddled 
with years of delay, and millions of dollars of liability and legal 
costs under the Superfund law simply because we owned or operated 
municipal landfills or sent municipal solid waste or sewage sludge to 
landfills that also received industrial and hazardous wastes. Local 
governments have faced costly and unwarranted contribution suits from 
industrial Superfund polluters seeking to impose an unfair share of 
costs on parties that contributed no toxic wastes to these so-called 
``co-disposal landfill'' sites. We estimate that as many as 750 local 
governments at 250 sites nationwide are affected by the co-disposal 
landfill issue. The costs that our citizens bear as a result are unfair 
and unnecessary.
    Local governments are in a unique situation at these co-disposal 
sites. First, municipal solid waste and sewage sludge collection and 
disposal is a governmental duty. It is a public responsibility to our 
communities that we cannot ignore, and we make no profit from it. 
Second, the toxicity of municipal solid waste and sewage sludge has 
been shown to be significantly lower than conventional hazardous wastes 
and, as such, represents only a small portion of the cleanup costs at 
co-disposal landfills. Yet industrial Superfund polluters continue to 
attempt to make localities pay millions of dollars in liability costs 
unfair--costs that place an unreasonable burden on local taxpayers 
across the country.
    In February 1998, the EPA finalized an administrative settlement 
policy to limit liability under Superfund for generators and 
transporters of municipal solid waste and sewage sludge, and for 
municipal owners and operators of co-disposal landfills. However, as 
fair and appropriate as the administrative policy is, it appears that 
legislative action to resolve the municipal Superfund liability issue 
is necessary and justified. First, the EPA policy is only a policy, 
non-binding on the Agency and subject to change or challenge. Second, 
this policy has already been the subject of litigation, and the real 
threat of further litigation involving local governments remains. A 
change in the Superfund law to address this issue is necessary to 
reduce the costly litigation and delay that municipalities continue to 
face at co-disposal sites. Third, we believe that legislative enactment 
of municipal Superfund liability provisions will give localities the 
certainty and confidence to make use of this settlement mechanism much 
as the codification of lender liability Superfund provisions has 
provided certainty for the banking industry.

                               CONCLUSION

    In conclusion, local governments are excited to work with the 
Federal Government to promote the revitalization of brownfields, 
through a combination of increased Federal investment in community 
revitalization, further liability clarification, and other mechanisms 
to strengthen the national partnership to cleanup and redevelop our 
communities. NALGEP thanks the Subcommittee for this opportunity to 
testify, and we would be pleased to provide further input as the 
process moves forward.
                               __________

 STATEMENT OF ROBERT W. VARNEY, COMMISSIONER, NEW HAMPSHIRE DEPARTMENT 
 OF ENVIRONMENTAL SERVICES, ON BEHALF OF THE ENVIRONMENTAL COUNCIL OF 
                                 STATES

    Good morning, Mr. Chairman and Members of the Committee; I am 
Robert W. Varney, Commissioner of the New Hampshire Department of 
Environmental Services. I am here today to represent views of the 
Environmental Council of States (ECOS) as a current member and past 
president.
    ECOS, which formed in December 1993, is a non-partisan, non-profit 
organization comprised of environmental agency commissioners and 
directors responsible for the states and territories. The ECOS mission 
is to improve the environment of the United States by providing for the 
exchange of ideas, views and experiences among the states; fostering 
cooperation and coordination in environmental management; and 
articulating states' positions to Congress and EPA on environmental 
issues.
    As you know, states are responsible for the vast majority of 
hazardous waste cleanups across the United States. In New Hampshire, 
for example, we are dealing with about 600 hazardous waste sites and 
3,000 petroleum sites. Of the 600 hazardous waste sites, 18 are Federal 
NPL sites, one of which is the former Pease Air Force Base with 
multiple contaminated sites. Thus, the State is solely responsible for 
the investigation and/or cleanup of 97 percent of the hazardous waste 
sites within New Hampshire's borders. Other states have a similar, if 
not higher, percentage. This is an important point when considering 
reform of the Federal Superfund Program.
    In addition, a high percentage of the NPL sites across the Nation 
have entered the cleanup phase of the Superfund program. For example, 
of the 18 NPL sites in New Hampshire, 15 sites or 83 percent are in the 
remedial action phase. New Hampshire is assuming the major oversight 
lead for these sites through the State groundwater management permit 
process. Through this process, a groundwater management zone 
encompassing the contaminant plume is developed as an institutional 
control, prohibiting groundwater use. The groundwater and surface 
waters within the zone are then monitored over a period of years to 
ensure that the remedy is effective and that cleanup goals have been 
achieved. There are many states across the country which are fully 
capable of managing all hazardous waste cleanup programs within their 
borders. EPA and Congress should take steps to delegate Superfund to 
any states which have these capabilities and are willing to assume 
responsibilities for the program. However, we are not saying that there 
is no need for a Federal Superfund program. Some states do not have the 
capacity, resources, or interest in handling Federal Superfund sites. 
Even sophisticated, well-funded, and experienced states rely on the 
Federal Superfund program to achieve their goals. If the Federal 
program is not funded to address the upcoming orphaned high risk sites 
that will appear on the NPL, then these sites are going to languish, 
threatening our citizens and the environment and stymieing reuse. It 
would be a mistake to think that these high risk sites will be cleaned 
up without a fully funded Federal program. States simply do not have 
the financial resources to complete cleanups at high risk, orphaned NPL 
sites.
    In the past 11 years as the environmental commissioner for New 
Hampshire, I have seen a prescriptive Superfund program, which created 
duplication of effort between the Federal and State governments, evolve 
into a more rational, cost-effective Superfund program, which fosters 
mutually supportive roles for the Federal and State governments. 
Although ECOS commends EPA for making a number of administrative 
improvements which have helped to streamline the implementation of the 
Superfund program, some states feel there is considerable overlap and 
duplication of effort. Duplication of effort is an inefficient use of 
government resources and may lead to confusion about roles, 
responsibility and accountability.
    For example, 4 years ago in New Hampshire, State project managers 
were working with site owners and their consultants to investigate the 
same contaminated properties where EPA and its contractor were 
conducting site investigations at the same time. Through EPA's 
administrative improvements in the pre-remedial program and a Federal 
voluntary cleanup program grant to New Hampshire to strengthen the 
State site cleanup program, this duplication of effort has been 
eliminated. New Hampshire and EPA New England have agreed that New 
Hampshire can now use Federal pre-remedial money to investigate 
abandoned/dormant sites and contaminated water supplies to identify 
potentially responsible parties (PRPs). Once PRPs are identified, New 
Hampshire can then work with them to remediate the site; without having 
to list the site on the NPL, if possible. Out of New Hampshire's 
approximately 275 unresolved hazardous waste sites, the approximately 
40 sites that are abandoned/dormant or involve contaminated water 
supplies and that were not being addressed because of a lack of State 
funding, are now being addressed. EPA should be encouraged to extend 
this initiative to all states who want to participate in this program.
    This initiative illustrates the important point that the NPL is no 
longer reserved for just the nation's ``worst of the worst'' sites. NPL 
listing has become the final resort for those high risk sites that are 
truly orphaned and are in need of Federal funding for remediation. 
According to a recent General Accounting Office (GAO) report entitled, 
``Hazardous Waste: Unaddressed Risks at Many Potential Superfund 
Sites'', there are 232 sites on EPA's inventory of potentially 
contaminated sites that either states or EPA believe should go on the 
NPL. This underscores the need for a continuing, fully funded Federal 
Superfund program.
    Many states have expressed the need for a waiver of CERCLA 
liability when the State has cleaned up a site under an approved State 
plan. As a case in point, South Dakota has taken over the Brohm gold 
mine in the Black Hills. Even though the State has communicated and 
coordinated with EPA throughout the entire process, EPA cannot 
guarantee that the State will not incur CERCLA liability. The mining 
industry offered to assist the State of South Dakota on this project, 
but after researching the CERCLA law, they decided to stay away or risk 
exposure to CERLCA liability. Superfund reform is needed so that states 
and others who are not the parties responsible for creating the problem 
can work together to get things fixed. This would accelerate the rate 
of site cleanups while reducing Federal expenditures.
    ECOS strongly supports the voluntary cleanup program. The Superfund 
program and State hazardous waste cleanup programs have focused onsites 
posing the greatest threat to human health and the environment. 
However, there remain many low and medium risk sites. For them, the 
majority of states have initiated voluntary cleanup programs in which 
the owner or developer works cooperatively with the state, as opposed 
to adversarial enforcement-driven program. Site cleanups can take less 
time, and many states offer such additional benefits as technical 
assistance, financial support, and importantly, liability assurances. 
Federal Superfund liability should also be waived at non-NPL sites that 
have been cleaned up in compliance with a State plan. ECOS believes 
voluntary cleanup programs should be encouraged and expanded.
    ECOS also strongly supports the brownfields program. The need to 
encourage ``smart growth'' through the redevelopment of brownfields 
sites has never been greater. As reported in the March 3, 2000 issue of 
the Environment Reporter, published by the Bureau of National Affairs, 
``Redeveloping contaminated urban properties known as brownfields could 
add 550,000 jobs and $2.4 billion in new tax revenues, according to a 
survey report released by the U.S. Conference of Mayors''. Successful 
initiation of these projects is heavily dependent on adequate funding, 
the liability language in prospective purchaser agreements, and 
innocent landowner and contiguous property owner provisions.
    Over the last several years, EPA and the states have launched 
several successful efforts spurring redevelopment of brownfields sites. 
The work done to date has resulted in the investigation, cleanup and 
redevelopment of many sites across our nation, resulting in the 
elimination of health and safety threats to our citizens, creation of 
new jobs, and the revitalization of our communities. ECOS supports 
increasing and continuing grant funding to states and municipalities 
(urban and rural) for these initiatives. In spite of these noteworthy 
accomplishments, financing site cleanup remains a significant barrier 
to brownfields redevelopment. Conventional lending institutions 
continue to be wary of lending for actual site cleanup, thereby making 
it extremely difficult for developers to obtain financing for this 
work.
    In 1997, EPA began providing grant funding to cities and states 
across the Nation to establish Brownfields Cleanup Revolving Loan 
Funds. This funding is to be used to establish revolving loan funds to 
provide financing for cleanup activities at brownfields sites. The New 
Hampshire Department of Environmental Services received a $1.45 million 
loan fund grant and is currently working to develop its loan program. 
New Hampshire is very pleased to be the beneficiary of EPA's efforts to 
provide financing for cleanup of brownfields sites, but I am also very 
concerned about the future success of our loan fund and those across 
the nation. Since 1997, over 60 Brownfields Cleanup Revolving Loan Fund 
pilots have been granted nationwide. To date, only two loans have been 
made nationwide, totaling only $250,000.
    We believe that the central reason for this apparent failure of the 
Revolving Loan Fund initiative is the onerous set of requirements 
placed upon both the fund administrator and participating borrowers. 
The loan fund pilot grant funding is provided under the authority of 
CERCLA Section 104. All projects receiving funding under the program 
will be subject to compliance with CERCLA and the NCP. These 
requirements are hindering the success of the initiative for two 
reasons. First, grant recipients are required to expend considerable 
time and resources to establish their lending programs, with 
requirements that far exceed those in more traditional revolving loan 
fund programs. Many grant recipients are city governments whose 
personnel resources are already stretched thin, and are ill prepared to 
take on the additional administrative burden associated with the loan 
fund program. These grantees would benefit significantly from a 
simpler, more streamlined grant program.
    Second, and more important, the requirements imposed upon borrowers 
in which the relationship that must be established between the grant 
recipient and borrowers are too restricted. Borrowers are allowed to 
use cleanup loan funds only for activities deemed eligible under CERCLA 
and the NCP. While the borrower is not necessarily required to make 
this determination, the ``brownfields site manager,'' and government 
employee designated by the grant recipient, is required to oversee the 
cleanup operations in order to ensure that all work is eligible and 
compliant. This creates a rather unattractive scenario from the 
borrower's perspective since all actions of his cleanup contractor are 
scrutinized by a regulatory authority to determine if they will be 
eligible for financing. In our experience in New Hampshire, the 
developers who have the willingness and the capability to tackle 
difficult and potentially risky brownfields redevelopment projects are 
not receptive to this kind of oversight. It leaves too many questions 
unanswered with regard to total project costs and the availability of 
financing.
    We are very supportive of EPA's efforts to provide Brownfields 
Cleanup Revolving Loan Fund grants, but the program needs to be 
simpler, and more accessible and attractive to developers of 
brownfields properties.
    Congress and EPA should be very careful when considering changes in 
Federal liability provisions, especially with respect to sites that are 
not on the NPL. These sites, comprising a universe far greater than the 
NPL, represent the bulk of our workload in the states and the success 
of many State programs in addressing these sites has been reliant on 
the present Federal liability structure. It should be noted that the 
states do not have a consensus approach to liability. While many states 
rely on strict liability to clean up sites, some believe a causation 
standard of liability is fairer and would encourage the redevelopment 
of brownfields.
    Maintaining adequate Federal funding is critical to the success of 
the Superfund program. Since the majority of PRPs are national 
corporations and since not all states have equal abilities to generate 
the needed funding for site remediation, the amount of Federal funding 
is crucial to the success of State cleanup programs nationally. It 
provides a level playing field for all the states and ensures that PRPs 
are treated in a fair and consistent manner.
    CERCLA should also be changed so that the response trust fund can 
be used to support operation and maintenance activities for the entire 
period of remedial action and monitoring. ECOS recommends that these 
expenditures be subject to the same 10 percent State match requirement 
as cleanup actions. States have currently been held responsible for 100 
percent of the operation and maintenance costs. The dichotomy between 
the State cost shares for remedial action and those for operation and 
maintenance has, in some instances, led to conflicting interests 
between EPA and the states in making remedy decisions. In some cases, 
operation and maintenance at NPL sites may cost more in the long run 
than the remedial action itself. We urge you to correct this by 
ensuring that the State cost share for both the remedial action and 
operation and maintenance are the same.
    As I have experienced in New Hampshire, and most of the other 
states would agree, EPA's Superfund Removals program plays a critical 
role in the Superfund program. Great risk reduction to both public 
health and the environment has been accomplished through this program. 
EPA, on average, conducts $2 to $3 million worth of emergency removals 
each year in New Hampshire alone. The success of the Superfund Removals 
program needs to be fully recognized and the program should be 
strengthened. The strengthening should include increased funding to 
more quickly address time-critical (imminent threat to public health or 
the environment) actions that shouldn't have to wait in a funding 
priority queue. Technically capable states should be allowed to conduct 
federally funded state-lead time-critical removal actions.
    In October 1996, EPA and ASTSWMO committed to conduct two federally 
funded state-lead time-critical pilots, one in New Hampshire and one in 
Texas. The final report on the pilots was released in January 2000. The 
ASTSWMO Removal Action Focus Group believes that state-lead removals 
initiate early risk reduction and lead to complete and final remedies. 
The pilots demonstrated that State action at sites ended with complete 
remediation, eliminating what is often a two step process involving a 
Federal removal action being taken, followed by State or Federal 
remediation. This provides for shorter cleanup time lines. Furthermore, 
the states were able to effectively coordinate and leverage additional 
governmental resources to address local public health, public 
information and redevelopment issues in addition to ensuring a timely 
cleanup.
    ECOS commends EPA's efforts for considering land use in the 
development of soil cleanup standards, and in moving toward a resource 
based and pragmatic approach for groundwater remediation decisions. We 
believe it represents a significant improvement for the Superfund 
program. However, extreme care must be used when determining the use 
and value of groundwater. In states, such as New Hampshire, where 
groundwater is a primary source of drinking water, low cost remedy 
components such as natural attenuation and point-of-use treatment, may 
be short-sighted. A benefit/cost analysis should be evaluated over the 
life-cycle of the remedy, so that the most cost-effective groundwater 
remedy is chosen.
    Since the hazardous waste sites in each State being remediated 
under the Federal program are a small subset of the total sites being 
addressed by each state, preserving the state's role and authority in a 
consistent manner at all sites in a State is essential. The preemption 
of State authority would damage the integrity of both the Federal and 
State programs. For example, if an NPL site is contaminating an aquifer 
and is not subject to the same standards as non-NPL sites, the work 
being performed at surrounding non-NPL sites to cleanup the aquifer 
will be regarded as useless since the lowest common denominator would 
apply (i.e., the standard at the NPL site). Any new legislation should 
ensure that the states are an equal partner in the process, since it is 
the State and local governments that are actually the trustees of the 
state's resources. Most site remediation problems really are local 
rather than national, and thus, states and local government should have 
a strong role.
    ECOS believes that the best option is a comprehensive bill 
addressing a full range of issues, including the following:
     Reinstate the Superfund tax to provide sufficient funds to 
achieve program goals;
     Provide greater authority and funding to the states 
through support grants for remedial program development, site 
assessment and remediation enforcement, and oversight;
     Provide greater authority and funding to states to execute 
the Superfund Removal program if they are capable and wish to do so;
     Provide greater support for State Voluntary Cleanup 
Programs in the form of a legal release to those who voluntarily clean 
sites;
     Provide liability protection to non-culpable parties in 
State ``brownfields'' programs to encourage potentially responsible 
parties and prospective purchasers to reuse and redevelop these 
contaminated properties;
     Provide that the 10 percent State share be applied to 
operation and maintenance costs as well as remedial action costs;
     Improve the natural resource damage claims program through 
changes such as allowing for funding natural resource damage 
assessments from Superfund;
     Ensure a strong State role in the cleanup of Federal 
facilities, with no preemption of State standards; and,
     Provide Governors the statutory right to concur with the 
listing of any new NPL sites in their states.
    If comprehensive reauthorization isn't possible within the next 
year, then Congress and EPA should focus on the following items for 
further administrative and legislative changes:
     Reinstate the Superfund taxes to provide more money/
resources;
     Address liability issues associated with prospective 
purchasers of contaminated properties, innocent landowners, contiguous 
property owners, and the liability of small parties;
     Authorization with Federal funding for the removals 
program; and,
     Federal funding to states for ``Superfund Prevention'' 
through voluntary cleanups, brownfields redevelopment, and State 
enforcement actions.
    In closing, ECOS appreciates the opportunity to continue working 
with you in a spirit of cooperation.
    Any reforms to the Federal Superfund Program must acknowledge the 
maturity of the Superfund program, the maturity and capability of State 
programs, and enhance the complimentary and mutually supportive State 
and EPA roles that have developed. The Superfund program must be built 
on a common ground resolution that is both protective of public health 
and the environment, and cognizant of economic opportunity and the 
revitalization of blighted areas.
                                 ______
                                 
   RESPONSES OF BOB VARNEY TO ADDITIONAL QUESTIONS FROM SENATOR SMITH

    Question 1. The states have spoken about the need to absolve 
liability of parties at Superfund sites where voluntary cleanups are 
being undertaken. Through the years, numerous provisions have been put 
forth to provide States with finality. From a State perspective, what 
is the best way to protect the environment while allowing State 
finality in decisions regarding voluntary cleanup?
    Response. The Environmental Council of the States (ECOS) offers the 
same position as the National Governor's Association (NGA). There needs 
to be a liability provision within the CERCLA statute that ensures that 
at non-NPL sites, a release of liability under State cleanup laws 
protective of human health and the environment constitutes, by 
operation of law, a release from Federal liability. (NGA Policy on 
Superfund, NR-4. Superfund, Sec. 4.4 Liability)

    Question 2a. In your testimony, you make the point that the NPL is 
no longer reserved for just the nation's ``worst of the worst'' sites. 
In fact, the NPL has become the final resort for those high-risk sites 
that are truly orphaned and are in need of Federal funding for 
remediation. In your view, is it necessary to continue level funding 
for the Superfund program recognizing that the net reduction in the 
number of NPL sites in that few sites are being place on the NPL while 
there is an increase in the number of sites being taken off?
    Response. Yes. ECOS offers the same position as NGA. States are 
concerned about proposals to legislatively cap or limit the NPL because 
of differences in capacities among states, the complexity and cost of 
some cleanups, the availability of responsible parties, enforcement 
considerations, and uncertainty as to the actual number of NPL caliber 
sites which will require Federal assistance. There must be a continuing 
Federal commitment to clean up sites under such circumstances. (NGA 
Policy on Superfund, NR-4. Superfund, Sec. 4.11 National Priorities 
List).

    Question 2b. Since the NPL is a final resort for high-risk sites, 
many sites are being cleaned up by the states. What can we do to remove 
barriers that seem to exist in cleaning up these sites and encourage 
voluntary cleanup programs?
    Response. ECOS offers the same position as the NGA. CERCLA should 
be amended to give credit, in the form of a legal release, to 
volunteers who have cleaned a site to protection standards in 
accordance with a State voluntary cleanup law protective of human 
health and the environment. These changes will encourage voluntary 
cleanup and thus increase the number of cleanups completed. In 
addition, CERCLA should encourage and provide clear incentives, such as 
tax exemptions and liability protections for non-culpable parties, for 
Brownfields programs at the State level to encourage potentially 
responsible parties, and for prospective purchasers to reuse and 
redevelop these contaminated properties. (NGA Policy on Superfund, NR-

4. Superfund, Sec. 4.10 Voluntary Cleanup).

    Question 3a. As a practical matter, what is the working 
relationship between EPA and New Hampshire at non-NPL sites?
    Response. In the last 3-4 years New Hampshire and EPA have 
dramatically improved their working relationship on non-NPL sites 
(i.e., State hazardous waste sites). The agencies have cooperatively 
worked to focus State and Federal resources on the high risk and 
abandoned sites and to eliminate duplication between the programs. 
There are approximately 600 non-NPL hazardous waste sites and 18 NPL 
sites in New Hampshire. Approximately 60 percent (+360) of the non-NPL 
sites are either closed or clean-up is proceeding under a permit issued 
by New Hampshire. Of the 40 percent ( 240) of 
``unresolved'' non-NPL sites, the majority are progressing with private 
parties performing work under New Hampshire's supervision. 
Approximately 40-100 of the ``unresolved'' sites are Brownfield sites, 
abandoned, or have uncooperative responsible parties. New Hampshire, 
which has a mature, integrated, and risk-based remediation program, has 
worked cooperatively with EPA to focus the Federal Pre-Remedial, 
Brownfield and Voluntary Clean-up programs on the ``unresolved'' non-
NPL sites that have the greatest need while continuing to encourage 
private parties to perform voluntary clean-ups whenever possible.

    Question 3b. Are New Hampshire's needs being met with regard to the 
Surrette Battery Site in Northfield?
    Response. In meetings with the Town of Northfield and the State, 
EPA has publicly committed to complete the clean-up work at the 
Surrette Battery Site in Northfield. New Hampshire is encouraged that 
EPA has given the site a high priority and has obtained a portion of 
the additional funds needed to complete the work. EPA anticipates that 
the remainder of the necessary additional funds will be secured. While 
New Hampshire is pleased with the positive steps taken to date, New 
Hampshire and the Town will be working with EPA over the next couple 
months to finalize the site clean-up plan and secure all the necessary 
funding.

    Question 3c. How many ``Surrette Battery'' sites do you think are 
out there? These sites are not listed on the NPL and pop up demanding a 
need for both Federal and State resources.
    Response. New Hampshire estimates there are 20-50 abandoned or 
unused former industrial or manufacturing properties scattered 
throughout New Hampshire. As the state's economy has strengthened, some 
of these properties have been redeveloped by private parties and/or 
municipalities. Other sites are in the process of being cleaned-up and 
redeveloped using many of the tools that are available for Brownfield 
sites. Surrette Battery is a former industrial site, which although 
still privately owned, is an economic and environment blight on the 
community. Local property taxes are not paid and the owner is not 
addressing environmental concerns. The recent fire at Surrette Battery 
created immediate health and environmental risks which are being 
addressed by the EPA Superfund Time-Critical Removal Program. In 
addition, the Town of Northfield received Brownfield assistance from 
New Hampshire to evaluate potential redevelopment of the site. New 
Hampshire anticipates other abandoned industrial sites will benefit 
from a similar integration of Federal, state, and local efforts. New 
Hampshire believes that a small portion of these sites will need the 
Federal Superfund Program resources to address immediate risks and, as 
a last resort, to conduct site clean-up.
                                 ______
                                 
 RESPONSE OF BOB VARNEY TO ADDITIONAL QUESTION FROM SENATOR LAUTENBERG

    Question 1. Can you please share with us some of the successes of 
the Brownfields program in New Hampshire? Can you tell us roughly how 
many sites have been assessed and/or cleaned up, and what types of 
reuses your Brownfields program has focused on?
    Response. New Hampshire's Brownfields initiatives include those 
funded at the Federal level by U.S. EPA and State sponsored 
initiatives. Taken together, these initiatives form our integrated 
approach to Brownfields redevelopment, which is to utilize all 
resources available at the local, state, and Federal levels of 
government, and in the private sector to leverage private investment in 
Brownfields revitalization. This approach is implemented against a 
backdrop of sound Brownfields cleanup policy and the desire to make 
judicious use of public funds.
    At the Federal level, New Hampshire has received four EPA 
Brownfields Assessment Demonstration Pilot grants over the last 3 years 
to perform site investigation, remedial action planning, and generally 
promote Brownfields redevelopment in the state. New Hampshire grant 
recipients include the Department of Environmental Services (DES), the 
Office of State Planning Coastal Program, the city of Concord, and the 
city of Nashua. In addition, six municipalities have received 
Brownfields Targeted Assessment Grants for site investigations at 
individual sites.
    Under these federally funded initiatives, approximately 100 sites 
have had Level I assessments performed. An additional eleven (11) sites 
have had Level II Site Investigations performed. Plans call for at 
least 10 additional sites to be investigated under these existing 
pilots. Of this universe of sites, approximately ten (10) sites have 
begun or completed cleanup and redevelopment. We expect that at least 
an additional ten (10) sites will be undergoing cleanup and 
redevelopment within the next 12 months.
    At the State level, New Hampshire's Brownfields Covenant program, 
as established under RSA 147-F, is designed to provide incentives for 
both environmental cleanup and redevelopment of Brownfields sites by 
persons who did not cause the contamination. The Brownfields Covenant 
program provides a process by which eligible persons can undertake site 
investigation and cleanup in accordance with DES requirements, and in 
return receive liability protections in the form of a ``Covenant Not to 
Sue'' from the N.H. Department of Justice (DOJ). This program is an 
integral component of our Brownfields redevelopment initiatives. To 
date, seventeen (17) sites have participated in our Covenant Program, 
with five sites having completed cleanup and received a covenant. Three 
additional sites are expected to receive a covenant within the next few 
months.
    Taken together, sites that have received assistance under New 
Hampshire's Brownfields initiatives have benefited from approximately 
$30,000,000 worth of redevelopment investments. In the most notable 
case, a 19-acre site located near downtown Concord, our capitol city, 
has been cleaned up and is currently being developed. This site was 
abandoned and vacant for over 10 years due to concerns about 
environmental contamination. The site will be built out within 12 
months, with construction of a hotel/conference center, three office 
buildings, and a restaurant.
    DES has not focused on specific reuses for brownfields properties. 
This is in keeping with our philosophy that site reuse should be 
governed by the needs and desires of local communities in which the 
sites are located, and by the marketplace. Accordingly, redevelopment 
of New Hampshire's brownfields sites has included a wide variety of 
uses, including industrial, commercial, residential and reuse as 
greenspace.
                           SUMMARY STATISTICS

    Level I Assessments Completed: 100
    Level II Assessments Completed: 11
    Sites with cleanup/redevelopment started or completed: 10
    Sites with cleanup/redevelopment to start within 12 mos: 10
    Sites in NH Brownfields Covenant Program: 17
    Sites with Covenant Issued: 5
    Total approximate redevelopment investment leveraged: $30,000,000
                               __________
    Statement of Terrence Gray, Assistant Director, Air, Waste and 
    Compliance, Rhode Island Department of Environmental Management

    Good afternoon Mr. Chairman and members of the committee. My name 
is Terrence Gray and I am the Assistant Director for Air, Waste and 
Compliance with the Rhode Island Department of Environmental 
Management. My testimony today represents the Rhode Island perspective 
on the Superfund program and our views on the future of contaminated 
site cleanup programs.
    Although Rhode Island is a very small place geographically, we have 
many contaminated properties. This contamination is the legacy of the 
industrial revolution, which began along the Blackstone River. We have 
13 National Priorities List Superfund sites, including the newest NPL 
site-Centredale Manor, as well as 538 other investigation and cleanup 
projects currently active in our State program. As you can see from 
this accounting, the State is responsible for insuring the 
investigation and proper cleanup and control of the vast majority of 
the contaminated properties we have discovered.
    Historically, Rhode Island relied on the Superfund program to 
address the worst cases of chemical contamination. Our first site, the 
Picillo Farm, was a contemporary of Love Canal and was listed on the 
National Priorities List in 1981, 3 years after the site exploded. 
Seven other chemical disposal sites in Rhode Island were listed on the 
National Priorities List prior to the Superfund amendments in 1986. 
After those amendments, we pursued the listing of two Federal 
facilities and two other municipal landfills. In addition to the sites 
that eventually were listed on the national priorities list, Rhode 
Island also nominated over 300 sites as potential Superfund sites that 
were included on CERCLIS.
    Prior to 1991, Rhode Island had relied exclusively on the Superfund 
program and our RCRA hazardous waste management program to address 
sites contaminated with chemicals and petroleum. Unfortunately, we were 
discovering sites at a rate faster than those programs could address 
them. After evaluating the pace of discovery of new sites and the 
backlog of sites that existed at that time, we decided to follow the 
lead of several other States and establish our own State program. 
Through a collaborative stakeholder effort, Rhode Island promulgated 
its site remediation regulations in 1993 and the pace of cleanup 
throughout the State quickly accelerated. Those regulations lay out a 
process for notification, investigation, and remediation of 
contaminated properties. It is a flexible process designed to be 
adapted to the many types of contaminated sites that we have 
encountered. While these new regulations and the alternative regulatory 
framework that they provide to responsible parties clearly increased 
the amount of clean up in the State, we believe that it is the 
continuing threat of listing in the Superfund program, coupled with our 
own enforcement actions, that provide the impetus for cooperation.
    In 1995, Governor Lincoln Almond proposed the Industrial Property 
Remediation and Reuse Act, or the Rhode Island Brownfields bill, to 
build on the early successes of our State program and provide more 
tools to facilitate the clean up of contaminated sites and support 
their return to beneficial use in the community. This bill was passed 
into law with overwhelming support by the legislature and provides DEM 
with the ability to enter into Settlement Agreements, which include 
Covenants Not to Sue, with performing parties. While the law provides 
specific relief from liability to bona fide perspective purchasers and 
secured creditors, it also allows other performing parties, including 
cooperative responsible parties, to enter Settlement Agreements. These 
new tools prompted the clean up and redevelopment of 48 sites, 
restoring 532 acres of contaminated property and creating or retaining 
1010 jobs and $76.9 million in property and income tax annually. The 
key aspect of this program improvement was the certainty and finality 
that the law and the Settlement Agreements provided to performing 
parties.
    Further program improvements came in 1997 with the amendment of the 
site remediation regulations to include a series of clean up standards 
proportionate to the future use of properties. These amendments added 
three options for a performing party to use to determine the end goal 
of their clean up. The first option, or tier, involves a series of 
tables for performing parties to use to look up the appropriate clean 
up goals corresponding to the groundwater classification and future use 
of the site. The second tier provides an accepted model where 
performing parties could input unique, site specific information to 
come up with a site-specific goal Finally, the third tier preserved the 
traditional risk assessment option. The selection of the method is left 
to the performing party.
    The end result of these efforts is our existing program, which 
provides us with all the regulatory tools needed to respond to proposed 
projects, compel the investigation and remediation of sites, and 
support redevelopment efforts involving Brownfields. These regulations, 
however, strictly address the Department's reaction to issues presented 
to us through either notification of contamination or other proposed 
projects.
    The need to support economic redevelopment in Rhode Island's urban, 
and historically industrial, communities and initiate clean up 
activities in these areas prompted Rhode Island's effort to seek a 
Brownfields Demonstration Pilot grant from EPA in 1996. The pilot was 
focused on a proactive approach, undertaken with many municipal and 
economic development partners, to identify Brownfields sites, assess 
their condition, estimate the costs of clean up, and support the 
marketing of the sites for reuse. The project was an ecosystem based 
approach to identifying vacant or underutilized sites along the 
Blackstone and Woonasquatucket Rivers. Rhode Island was awarded a 
$200,000 grant in 1997, which the State matched with an additional 
$210,000. To date 54 baseline site assessments and 8 Remedial 
Evaluation Reports (which include cost estimates for clean up) have 
been completed at Brownfields sites in the pilot area, but perhaps more 
importantly, a healthy dialog and productive working relationship has 
been established between the economic development agencies, the 
Department of Environmental Management and the municipalities.
    In 1998, our proactive Brownfields efforts were supplemented by the 
designation of Providence as a Brownfields Showcase Community. This 
designation provided a higher level of involvement by EPA and several 
other Federal agencies, most notably Housing and Urban Development, in 
supporting the reuse of contaminated sites in Providence.
    Recent efforts under the Brownfields Pilot and Showcase Community 
projects have primarily been focused on supporting the investigation 
and clean up of properties along the proposed route of the 
Woonasquatucket River Greenway and bike path. The investigation and 
remedial design activities have largely been completed but securing 
funding for the remediation has proved to be a major problem. The 
funding problem mainly is due to the fact that the properties of 
concern, the former Lincoln Lace and Braid and the former Riverside 
Mills properties, are designated for use as open space, bike path 
areas, and other recreational fields and do not have a future income 
stream to support a loan to fund remediation costs. The fact that 
projects designated for future use for non-profit public purposes have 
no current funding support for clean up costs has slowed progress on 
this very important project.
    We have leveraged our success and relationships developed under the 
pilot and Showcase Community to approach other municipalities and 
support their Brownfields redevelopment efforts across the State. 
Recently, we have applied for funding to establish a statewide 
revolving loan program to assist in the funding of remediation costs.
    The evolution of our State program is in many ways similar to the 
process other States have followed. Each State has adjusted their 
approach somewhat to meet the needs and desires of their constituencies 
and to strive for the most efficient and effective models based on 
their individual circumstances. This has led to many innovative 
approaches supporting the clean up of thousands of sites of all shapes 
and sizes nationally.
    Overall, we feel strongly that the Superfund program has evolved 
from a strict, authoritarian and inflexible approach to clean up to a 
more responsive and streamlined program. The emphasis on strictly 
dealing with the ``worst of the worst'' sites has evolved into a 
program focused on serious sites that have a multitude of logistical 
challenges standing in the way of clean up. The program has also 
evolved away from the duplication of effort and heavy handed Federal 
supervision into a more cooperative joint approach between EPA and the 
States that typically features complementary roles for each agency 
working together toward a mutually determined clean up goal.
    In summary, Superfund, the State Cleanup Programs, Brownfields 
programs and Voluntary Cleanup programs all provide valuable tools to 
achieve the flexibility needed to efficiently facilitate the clean up 
of many types of contaminated properties. Flexibility will be critical 
in responding to the next generation of sites that we are now just 
beginning to see through new investigations and innovations supporting 
Smart Growth, exploring the challenges and issues unique to our urban 
environments, and broadening our perspective to look at issues in the 
context of watershed planning and the assessments and decisionmaking 
related to the Total Maximum Daily Load limits of pollutants that can 
flow to our water bodies.
    Program innovation has been occurring at the State level and should 
not be dampened or discouraged.
    The backbone of virtually all clean up programs is the Superfund 
liability system and any adjustments to that core framework should be 
very carefully evaluated to see the full effects of change, including 
the changes on State programs that rely on that Federal framework. 
Nonetheless, some parties merit relief including de minimus/de micromus 
parties, prospective purchasers, municipalities, and downgradient 
receptors. Furthermore, recognizing the finality of State decisions and 
decoupling Federal involvement in Brownfields cases from the strict 
requirements of the NCP should strengthen the Brownfields and VCP 
programs.
    In considering the options for Superfund reauthorization and 
statutory improvements, please consider the following points:
     The backbone of virtually all clean up programs is the 
Superfund liability system and any adjustments to that core framework 
should be very carefully evaluated to see the full effects of change, 
including the impacts on State programs that rely on that Federal 
framework.
     Superfund, the State Cleanup Programs, Brownfields 
programs and Voluntary Cleanup programs all provide valuable tools to 
achieve the flexibility needed to efficiently facilitate the clean up 
of many types of contaminated properties
     Program innovation has been occurring at the State level 
and should not be dampened or discouraged through the establishment of 
Federal standards for ``acceptable'' State programs.
     Some parties merit liability relief including de minimus/
de micromus parties, prospective purchasers, municipalities, and 
downgradient receptors.
     The finality of State clean up decisions should be 
recognized.
     Brownfields cases should be decoupled from the strict 
requirements of the NCP, which we believe will strengthen the 
Brownfields and VCP programs.
     Projects designated for future use for non-profit public 
purposes should be provided with funding support for clean up costs.
    In closing, thank you for the opportunity to testify on the 
Superfund program and the opportunity to provide the Rhode Island 
perspective on the program.
                                 ______
                                 
  RESPONSE OF TERRENCE GRAY TO ADDITIONAL QUESTIONS FROM SENATOR SMITH

    Questions 1a and b. Mr. Gray, your testimony echoed the sentiments 
of Mr. Jones and Mr. Varney in the need for relief for small volume 
contributors, prospective purchasers, and municipalities as well as the 
need to recognize the finality of State decisions and the decoupling of 
Federal involvement in Brownfields cases from the strict requirements 
of the NCP. There have been various levels of Administrative reform 
within EPA to address many of these issues. Do you think the 
Administrative reforms are sufficient to address your concerns with the 
Superfund program or is there a need for legislation as well? How about 
the issue of finality in State decisions?
    Response. I believe that EPA should be recognized and complimented 
for the administrative reforms that it has implemented. These reforms 
have made the program much more responsive and streamlined. As I stated 
in my written testimony, I believe the emphasis on strictly dealing 
with the ``worst of the worst'' sites has evolved into a more focused 
approach to address serious sites that have a multitude of logistical 
challenges standing in the way of clean up. The program has also 
evolved away from the duplication of effort and heavy handed Federal 
supervision into a more cooperative joint approach between EPA and the 
States that typically features complementary roles for each agency 
working together toward a mutually determined clean up goal. However, I 
do not feel that these administrative reforms cure all the issues with 
the Superfund program.
    With respect to the remediation and redevelopment of Brownfields 
sites, administrative reforms have greatly improved the communication 
and coordination between the Rhode Island Department of Environmental 
Management and EPA but, primarily due to the limitations in the 
existing statute, have not been able to address all of the concerns of 
some of the developers and stakeholders we regularly interact with. The 
finality of State decisions is an issue that is still raised by 
developers and prospective purchasers. EPA and DEM have attempted to 
provide assurances to developers considering projects on contaminated 
sites by entering into a Memorandum of Agreement related to our State 
Voluntary Cleanup Program. EPA has also provided ``comfort letters'' to 
developers for reassurance. However, neither of these documents 
provides the ultimate certainty, or finality, that some developers and 
their financial backers require. I believe that statutory recognition 
of the finality of State cleanup decisions, with appropriate safeguards 
that are not overly prescriptive or dampen State innovations, will 
definitively address these concerns.
    EPA's establishment of Brownfields demonstration pilot grants, 
targeted site assessments and the Brownfields revolving loan program 
have all been tremendously helpful in promoting, and supporting, the 
investigation, cleanup and reuse of contaminated properties. However, 
the potential application of the requirements of the National 
Contingency Plan to Brownfields sites receiving Federal assistance for 
either investigation or cleanup has been an issue for us.
    Two particular concerns have been significant. First, the fact that 
investigations and cleanup decisions must meet the requirements of the 
National Contingency Plan when revolving loan funds are used has 
unnecessarily complicated the startup of the Rhode Island loan program. 
This requirement has led to a more direct involvement from our agency, 
based on our familiarity with the NCP, and will lead to a more 
comprehensive review of the remedial decisionmaking process to ensure 
consistency with the Federal model. We do not believe that this 
increased level of review is necessary on most Brownfields sites. 
Second, the concept of cost recovery of Federal funds used in the 
redevelopment of Brownfields sites is of concern to us. We believe that 
the use of these funds to support Brownfields redevelopment should be 
looked at as an investment in the restoration of these properties for 
the public good and should not be seen as strictly cost-recoverable. 
Although neither EPA nor the Department of Justice have sought recovery 
of funds used to support Brownfields redevelopment in Rhode Island to 
date, we are concerned about this potential in the future, particularly 
in potential instances of default in the revolving loan program. We 
believe the statute should provide clear criteria on when costs should 
be recovered and when Federal funding should be considered an 
investment for the public benefit.
                                 ______
                                 
         RESPONSE OF TERRENCE GRAY TO ADDITIONAL QUESTION FROM 
                           SENATOR LAUTENBERG

    Question 1. I understand that you have a number of Brownfields 
sites in the State of Rhode Island. How many Brownfields sites have 
been identified in Rhode Island? Of these, how many assessments and 
cleanups have been conducted, and when? Can you describe the types of 
redevelopment and reuses at these sites?
    Response. The investigation, remediation and reuse of Brownfields 
sites has been a critical focus area for the State of Rhode Island 
since the establishment of our program in 1993. We approach Brownfields 
sites in two ways. The first approach is reactive in nature and 
supports projects brought to our attention by prospective purchasers or 
developers. Since the initiation of our program, a total of 48 sites 
have been assessed, cleaned up and redeveloped, restoring 532 acres of 
contaminated property and creating or retaining 1010 jobs and $76.9 
million in property and income tax annually.
    The second approach is proactive in nature and involves the 
identification, evaluation and redevelopment of Brownfield properties 
by the Department of Environmental Management and our partners, which 
include municipal governments, non-profit organizations and economic 
development agencies. This approach, which is actively supported by the 
Environmental Protection Agency through a Brownfields Demonstration 
Pilot grant and Showcase Community designation, has resulted in the 
completion of 54 baseline site assessments and 8 Remedial Evaluation 
Reports (which include cost estimates for clean up).
    Brownfields properties have been brought back to a wide range of 
beneficial uses through our program. One of our first sites, on the 
waterfront in historic Newport, Rhode Island, was redeveloped as luxury 
time-share condominiums. Another site on the Newport waterfront was 
redeveloped by the non-profit International Yacht Restoration School as 
their main campus. Several other sites have been brought back to use 
for manufacturing purposes, including companies that make display 
cases, metal fasteners, and fixtures. Finally, many sites have been 
brought back to use as commercial facilities, including a campus for an 
insurance company, supermarkets, banking support facilities, and 
convenience stores. Ongoing priority projects include the restoration 
of an abandoned chemical distribution facility property for 
construction of a new inter-modal train station and the restoration of 
a former steel mill on the waterfront in an urban neighborhood for use 
as light manufacturing.
    An ongoing challenge facing our agency is supporting the reuse of 
Brownfields sites for non-profit public uses, such as schools, athletic 
and recreational fields and urban bikeways and greenways. Without a 
future income stream, the cleanup costs on these properties are very 
difficult to address. This continues to be a focus in our pilot project 
and Showcase Community efforts.
                               __________

 STATEMENT OF EUGENE MARTIN-LEFF, ASSISTANT ATTORNEY GENERAL, NEW YORK 
 STATE ATTORNEYS GENERAL OFFICE, ON BEHALF OF THE NATIONAL ASSOCIATION 
                          OF ATTORNEYS GENERAL

    My name is Eugene Martin-Leff, and I am a Section Chief in the 
Environmental Protection Bureau in the office of New York Attorney 
General Eliot Spitzer. I am appearing today on behalf of Attorney 
General Spitzer and on behalf of the National Association of Attorneys 
General (NAAG). I have supervised and litigated cost-recovery actions 
on behalf of the State under the Comprehensive Environmental Response, 
Compensation and Liability Act of 1980 (CERCLA) at both National 
Priorities List (NPL) and non-NPL sites in New York since 1983. I was 
the lead counsel for the State of New York in litigation relating to 
Love Canal. Last year, I represented Attorney General Spitzer in 
Governor Pataki's State Superfund and Brownfields Working Group.
    We very much appreciate the opportunity to appear before this 
Subcommittee on cleanup activities under the Superfund program. The 
State Attorneys General have a major interest in the future of the 
Superfund program. As chief legal officers of the respective states, 
the Attorneys General enforce State and Federal laws in their states. 
They help protect the public health and the environment and natural 
resources in their respective states. Because many steps in the 
Superfund cleanup process necessarily involve legal issues, the 
Attorneys General and their staffs often are called upon to advise 
State agencies--both response agencies and natural resource trustee 
agencies--on how the law should be interpreted and implemented to 
achieve the desired cleanup or restoration goals. We often are also 
responsible for negotiating cleanup and natural resource damages 
settlements, and when a settlement cannot be reached, it is our 
responsibility to commence and litigate an enforcement action. We also 
defend State agencies and authorities when Superfund claims are made by 
the United States or private parties against them.
    NAAG also has been deeply involved in the Superfund reauthorization 
process for many years. At its Summer meeting on June 22-26, 1997, the 
sole resolution adopted by the State Attorneys General addressed 
Superfund Reauthorization; a copy of this bipartisan Resolution is 
attached. The NAAG Resolution arose from the recognition on the part of 
the State Attorneys General of the critical importance of the Superfund 
program in assuring protection of public health and the environment 
from releases of hazardous substances at thousands of sites across the 
country. The Attorneys General want to make the tasks of cleanup and 
protecting the public less complicated and more efficient, and to 
reduce the amount of litigation and the attendant costs that result.
    In New York, our office has been litigating Superfund cases since 
1981. A major impetus for the passage of CERCLA was the discovery of 
the infamous Love Canal and other Hooker Chemical Company sites in 
Niagara Falls, New York. CERCLA has provided both the Federal and State 
governments essential tools to address the dangers posed by those and 
thousands of other sites in New York and throughout the country.

                 IMPORTANCE OF COST-RECOVERY LIABILITY

    The ability to recover costs through CERCLA's liability provisions 
is crucial to our cleanup program in New York. About 10 percent of the 
sites on the New York State Registry of inactive hazardous waste 
disposal sites are NPL-listed, federally funded sites. Even though 
these sites are typically more expensive to clean up than the average 
contaminated site, Federal money constitutes a relatively small part 
(about 13 percent) of all cleanup funding in New York, compared to 
private cleanup funding (about 66 percent) and State funding (about 20 
percent). Most states have had similar results. On the Federal level, 
private cleanup funding has resulted in the saving of some $10 billion 
of public money, because 70 percent of all remedial actions at Federal 
Superfund sites are being performed by responsible parties.
    For this reason, the ability to recover costs through CERCLA's 
liability provisions is even more important in our opinion than direct 
cleanup funding under CERCLA. Potentially responsible parties (PRPs) 
now know where they stand under CERCLA, and most see the wisdom of 
settling their liability with the government. This connection between 
enforcement and the generation of cleanup funds is vital to the overall 
hazardous waste cleanup program in this country.
    The prospect of NPL listing and Federal funding, as well as State 
funding of cleanup costs, is essential to setting the cost-recovery 
mechanism into motion. But Congress has done far more than make money 
available for cleanups. It has leveraged its money into far greater 
matching private dollars by creating and preserving liability for cost 
recovery.
    Clear potential cost-recovery liability is the chief reason for 
private cleanup funding. Strict liability eliminates litigable issues 
and encourages voluntary cleanups. Case law established over nearly 20 
years has added to the predictability of the outcome in litigation. In 
contrast, every change in the law carries with it a loss of 
predictability, with potential cleanup funding consequences. If CERCLA 
enforcement is undercut by amendment, the entire picture could 
radically change, with dire consequences for the 66 percent of cleanup 
costs in New York that is funded by private parties.
    CERCLA enforcement has another crucial role in New York and other 
states. In our State there is no right under State statutory law to 
cleanup-cost recovery without first going through an administrative 
hearing. Our administrative process, which requires a full evidentiary 
hearing before liability can be established, is rarely used. We and the 
other states depend on our express right to sue in Federal court under 
CERCLA. Natural resources damages enforcement in NYS is also based 
primarily on CERCLA.
    It is also worth mentioning that CERCLA liability standards are 
right now being used as the model for proposed legislation in New York 
State. There is wide agreement among stakeholders in New York on the 
fairness of the existing defenses under CERCLA, i.e., the third-party 
defense, the innocent landowner defense, the lender exemption, and the 
de minimis settlement policy. It would be ironic indeed if New York and 
other states adopted CERCLA liability rules this year and then Congress 
made wholesale changes in CERCLA.
    Nevertheless, there is a need for some liability reforms in CERCLA. 
NAAG's Resolution regarding CERCLA reauthorization called for 
clarification of the waiver of sovereign immunity and for the transfer 
of the regulatory authority of the Environmental Protection Agency 
(EPA) at Federal facilities to the states. On July 26, 1999, forty-one 
Attorneys General reiterated the need for this clarification in a 
letter to the Senate Armed Services Committee, a copy of which is 
attached. NAAG strongly urges the adoption of language that is 
contained in the last session's DeGette/Norwood bill, as it represents 
the compromise reached between states and Federal agencies in 1994, and 
would clarify the waiver without disrupting the status quo with regard 
to the issue of dual regulation at NPL sites.
    NAAG also supports changes to the long-standing ``Innocent 
Governmental Entities'' exception to liability. The statute should be 
broad enough to address current abuses where, for example, states are 
subject to counterclaims based on sovereign ownership interests in 
groundwater, stream and river beds and other natural resources.
    NAAG also supports reasonable limitations on liability for disposal 
of municipal solid waste. In addition, municipalities should not be 
unfairly burdened with cleanup costs resulting from their ownership or 
operation of landfills.

                    IMPORTANCE OF THOROUGH CLEANUPS

    On the State level, Attorney General Spitzer is participating in 
the active public debate on Brownfields. Reforms to facilitate 
brownfield revitalization are clearly desirable--on that everyone 
agrees. Future use of contaminated sites must certainly be considered, 
and institutional controls must supplement excavation remedies. But, as 
usual, the devil is in the details.
    Cleanup levels must not be set simplistically based on the current 
use of the site, or a developer's projected use. As required currently 
by EPA, future use must be carefully determined by examining current 
use, projected immediate use and much more; not only existing zoning 
laws and formal municipal plans should be consulted, but also the 
proximity of the site to residential areas, development trends in the 
area, local community views, environmental justice concerns and other 
relevant information. Indeed, in New York, we believe that where the 
site is adjacent to residences, there should be a presumption of an 
eventual residential use and consequently a residential level cleanup, 
and a developer should have the burden to convince the appropriate 
environmental agency why a less thorough cleanup is most appropriate 
under the remedy selection criteria.
    Similarly, institutional controls must not be seen as panaceas. 
Some institutional controls that are necessary when industrial level 
cleanups are done are less reliable than others. For example, a deed 
notice that soil beneath a building is contaminated and that the 
building should not be removed is inherently suspect over the long 
term, because a building has a far shorter life than that of most 
hazardous substances. The building will eventually deteriorate and even 
collapse, exposing the underlying contamination. EPA and State 
environmental agencies should consider the long-term effectiveness of 
any brownfields cleanup, including the reliability of institutional 
controls, along with cost and other relevant factors and choose the 
remedy that best meets all the appropriate criteria.
    Where government must perform the cleanup and sue for cost 
recovery, it is important that litigation over the amount of costs 
recoverable be streamlined. As you know, CERCLA presently limits the 
judicial review of EPA remedies to the administrative record compiled 
by the agency. The remedies selected by states should likewise be 
reviewed on the administrative record compiled by the State counterpart 
of EPA, rather than through a costly, time-consuming trial.
    Another necessary amendment to treat State and Federal 
environmental agencies the same would authorize the Federal Superfund 
to pay State natural resource trustees' assessment costs.

                               CONCLUSION

    The State Attorneys General strongly support a fair and effective 
cleanup program. The public expects government at all levels to protect 
the public health and the environment from facilities that are 
releasing hazardous substances, and they expect the parties responsible 
for those threats to pay their fair share. Whatever refinements are 
made in the current liability and cleanup rules must be true to these 
overarching objectives.
                                 ______
                                 
     RESPONSES OF EUGENE MARTIN-LEFF TO ADDITIONAL QUESTIONS FROM 
                             SENATOR SMITH

    Question 1a. In the testimony submitted, NAAG stated that 
refinements made in the current liability scheme and cleanup rules of 
Superfund must be protective of the public health and environment as 
well as ensure that parties be responsible for paying their fair share. 
The testimony also indicates that stakeholders in New York agree that 
the existing defenses available in Superfund are fair. Are these two 
sentiments inconsistent?
    Response. NAAG believes the two points are consistent because ``the 
core provisions of the current CERCLA liability system . . . are 
essential to assure the effectiveness of the cleanup program'' (NAAG 
Resolution on Superfund Reauthorization of June 22-26, 1997, previously 
distributed to the Committee, at 3), but relatively minor refinements 
would improve the liability scheme. Among these are ``reasonable 
limitations on liability for disposal of municipal solid waste'' and 
``an exemption from liability for `de minimis' parties that sent truly 
minuscule quantities of waste to a site.'' (Id.) However, we consider 
the existing defenses available in Superfund, including the third-party 
defense, the innocent purchaser defense, and the lender liability 
exemption, to be fair. We also would note that a liability scheme that 
placed a heavy burden on the government instead of responsible parties 
would not be fair to taxpayers.

    Question 1b. If the liability scheme were fair and the existing 
defenses sufficient, why has the Environmental Protection Agency 
instituted numerous Administrative reforms to provide additional 
protections for small volume contributors, a municipal solid waste 
policy, prospective purchaser agreements and orphan share funding?
    Response. Administrative reforms that improve the operation of EPA 
programs, such as Superfund, should always be welcome. These reforms, 
in our opinion, do not suggest a need for substantial legislative 
action with respect to liability. First, it is noteworthy that all of 
the listed administrative reforms were lawfully adopted pursuant to the 
current statute, which suggests that major revision is not necessary to 
serve the objectives of those reforms. Second, none of them is 
inconsistent with the core liability and defense provisions. For 
example, the small volume contributor reform was authorized by the 
Superfund Amendments and Reauthorization Act of 1986 (specifically, 
CERCLA Sec. 122(g)). Third, prospective purchasers are, of course, not 
potentially responsible parties until they consummate the purchase of a 
facility; it was entirely consistent with CERCLA as written to offer 
inducements to genuine innocent parties to provide cleanup funds or 
other public benefits in exchange for a release from future potential 
liability under CERCLA. Finally, the EPA orphan share policy was 
reasonably designed primarily as an inducement to settle litigation and 
encourage potentially responsible parties to perform cleanups. (See 
U.S.E.P.A., Interim Guidance on Orphan Share Compensation for Settlors 
of Remedial Design/Remedial Action and Non-Time-Critical Removals dated 
June 4, 1996)

    Question 1c. Do you think that the responsible parties who are 
subject to joint and several liability would agree that this is a fair 
system?
    Response. Naturally, many parties subjected to large monetary 
liability can be expected to question the fairness of the liability 
system. However, based upon views expressed by the Senators attending 
the hearing on March 21, 2000, it appears that the opinions of 
responsible parties vary on this point. In practice, jointly and 
severally liable parties are able to substantially reduce their 
ultimate financial burdens by obtaining contribution from other liable 
parties, often by settlement. Also, de minimis and de micromis parties 
are generally relieved entirely of its effects.
    Finally, Justice Breyer recently observed in Eastern Enterprises v. 
Apfel, 524 U.S. 498, 536 (1998) (dissenting but writing for a majority 
of the Court on a non-CERCLA Takings Clause issue), that CERCLA was a 
statute that ``imposed liability . . . to prevent degradation of a 
natural resource, upon those who have used and benefited from it.'' 
Similarly, it was stated in United States v. Northeastern 
Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 734 (8th Cir. 1986) 
(holding that retroactive application of CERCLA does not violate due 
process), that ``. . . Congress acted in a rational manner in imposing 
liability [under CERCLA] for the cost of cleaning up such sites upon 
those parties who created and profited from the sites and upon the 
chemical industry as a whole. . . .'' A choice must be made between a 
liability scheme that places the burdens relating to the shares of non-
parties on such liable defendants or on governmental plaintiffs (and 
ultimately the taxpayers). The common law, like CERCLA, concluded long 
ago that the fairer outcome was to place it on liable parties rather 
than plaintiffs.

    Question 2a. NAAG has outlined the importance of the ability to 
recover costs through CERCLA's liability provisions for the State of 
New York. NAAG has gone so far as to state, ``if CERCLA enforcement is 
undercut by amendment, the entire picture could radically change, with 
dire consequences for 66 percent of cleanup costs in New York that is 
funded by private parties.'' Is it NAAG's position that the ability to 
obtain settlements which provide adequate funding for cleanups is more 
important than fairness in liability allocation?
    Response. We believe that both adequate funding for cleanups and 
fairness in liability allocation are important and achievable. However, 
if adequate funding is not achieved largely through settlement, an 
increase in taxes would probably be necessary to make up for any 
shortfall.

    Question 2b. Shouldn't fairness be of paramount concern?
    Response. The courts have consistently recognized that the 
``essential purpose'' of CERCLA is to make those responsible for 
problems caused by the disposal of chemicals bear the costs and 
responsibility for remedying the harmful conditions they created. See, 
e.g., United States v. Occidental Chemical Corp., 200 F.3d 143, 147 (3d 
Cir. 1999). However, it is unnecessary, in our opinion, to choose which 
concern is ``paramount'' over the other. Also, as discussed above, a 
system that shifts costs from responsible parties to taxpayers or 
leaves communities with sites that have not been cleaned up would be 
unfair to taxpayers and those communities.

    Question 3a. NAAG has been involved in the Superfund 
reauthorization process for years. At a June 22-26, 1997 meeting, a 
resolution was adopted by the State Attorneys General that addressed 
Superfund Reauthorization. That resolution clearly indicates that State 
cleanup programs are working and yet State resources are not being used 
effectively. The resolution supports strengthening ``State voluntary 
cleanup and brownfield programs by providing technical and financial 
assistance to those programs, and by giving appropriate legal finality 
to clean up decisions of qualified State voluntary cleanup programs and 
brownfield redevelopment programs.'' Does NAAG continue to support 
these provisions?
    Response. Yes, as was stated on March 21, 2000, NAAG believes that 
finality that is appropriate and not absolute, e.g., subject to limited 
reopeners, is important to encourage volunteers to develop brownfields. 
For example, in New York Governor George Pataki has submitted a 
brownfields bill that would authorize the reopening of brownfields 
releases for any of six grounds, including, inter alia, the receipt of 
information which indicates that the remediation performed is not 
protective of public health or the environment for the anticipated use 
of the site. Other states obviously may take different approaches, but 
in New York it is widely believed that such reopeners will not prevent 
developers from stepping forward to enter into brownfields agreements.
                               __________

               NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
                                ADOPTED
                             SUMMER MEETING
                 JUNE 22-26, 1997 JACKSON HOLE, WYOMING

                               RESOLUTION

                       SUPERFUND REAUTHORIZATION

    Whereas, the Attorney General of the States have significant 
responsibilities in the implementation and enforcement of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) and analogous State laws, including advising client agencies 
on implementation of the cleanup and natural resource damage programs, 
commencing enforcement actions when necessary to compel those 
responsible for environmental contamination to take cleanup actions and 
to reimburse the states for publicly funded cleanup, and advising and 
defending client agencies that are potentially liable under CERCLA;
    Whereas, the Superfund programs implemented under CERCLA and 
analogous State laws are of critical importance to assure protection of 
public health and the environment from uncontrolled releases of 
hazardous substances at thousands of sites throughout the country;
    Whereas, Congress is currently considering legislation to amend and 
reauthorize CERCLA;
    Whereas, to avoid unnecessary litigation and transaction costs over 
the interpretation of new terms and new provisions, amendments to 
CERCLA should be simple, straightforward, and concise;
    Whereas, the National Association of Attorneys General has adopted 
resolutions in March 1987, July 1993, and March 1994 on the amendment 
of CERCLA;

                               STATE ROLE

    Whereas, many State cleanup programs have proven effective in 
achieving cleanup, yet the CERCLA program fails to use State resources 
effectively;
    Whereas, State programs to encourage the cleanup and redevelopment 
of underutilized ``brownfields'' are making important strides in 
improving the health, environment, and economic prospects of 
communities by providing streamlined cleanup and resolution of 
liability issues for new owners, developers, and lenders;

                           FEDERAL FACILITIES

    Whereas, Federal agencies should be subject to the same liability 
and cleanup standards as private parties, yet Federal agencies often 
fail to comply with State and Federal law;

                               LIABILITY

    Whereas, the core liability provisions of CERCLA, and analogous 
liability laws which have been enacted by the majority of the states, 
are an essential part of a successful cleanup program, by providing 
incentives for early cleanup settlements, and promoting pollution 
prevention, improved management of hazardous wastes, and voluntary 
cleanups incident to property transfer and redevelopment;
    Whereas, the current CERCLA liability scheme has in some instances 
produced expensive litigation, excessive transaction costs, and unfair 
imposition of liability;

                            REMEDY SELECTION

    Whereas, constructive amendments to CERCLA are appropriate to 
streamline the process of selecting remedial actions and to reduce 
litigation over remedy decisions;

                        NATURAL RESOURCE DAMAGES

    Whereas, constructive amendments to CERCLA are appropriate to make 
it less complicated for natural resource trustees to assess damages and 
to restore injured natural resources, and to reduce the amount of 
litigation that may result in implementing the natural resource damage 
program.
    Now, Therefore, be it Resolved, That the National Association of 
Attorneys General urges Congress to enact CERCLA reauthorization 
legislation that:
A. State Role
    1. Provides for delegation of the CERCLA program to qualified 
states, and for EPA authorization of qualified State programs, with 
maximum flexibility;
    2. Reaffirms that CERCLA does not preempt State law;
    3. Ensures that states are not assigned a burdensome proportion of 
the cost of operation and maintenance of remedial actions and in no 
event to exceed 10 percent;
    4. Clarifies that in any legal action under CERCLA, response 
actions selected by a State shall be reviewed on the administrative 
record and shall be upheld unless found to be arbitrary and capricious 
or otherwise not in accordance with law;
B. Federal Facilities
    5. Provides for State oversight of response actions at Federal 
facilities, including removal actions.
    6. Provides a clear and unambiguous waiver of Federal sovereign 
immunity from actions under State or Federal law;
C. Liability
    7. Provides a liability system that: (a) includes the core 
provisions of the current CERCLA liability system that are essential to 
assure the effectiveness of he cleanup program; (b) provides incentives 
for prompt and efficient cleanups, early cleanup settlements, pollution 
prevention, and responsible waste management; (c) addresses the need to 
encourage more settlements discourage excessive litigation, reduce 
transaction costs, and apply cleanup liability more fairly and 
equitably, especially where small contributors and municipal waste 
landfills are involved; and (d) assures adequate funding for cleanup 
and avoids unfunded State mandates;
    8. Provides reasonable limitations on liability for disposal of 
municipal solid waste;
    9. Provides an exemption from liability for ``de micromis'' parties 
that sent truly minuscule quantities of waste to a site;
    10. Encourages early settlements with de minimis parties that sent 
minimal quantities of waste to a site;
D. Remedy Selection
    11. Provides for the consideration of future land use in selecting 
remedial actions, provided that future land use is not the controlling 
factor, and provided that remedial actions based on future land use are 
conditioned on appropriate, enforceable institutional controls;
    12. Retains the requirement that remedial actions attain, at a 
minimum, applicable State and Federal standards;
    13. Retains the prohibition on pre-enforcement review of remedy 
decisions;
    14. Provides that cost-effectiveness should be considered, among 
other factors, in remedy selection;
    15. Allows EPA or the State agency to determine whether to reopen 
final records of decision for remedial actions, as under current law;
E. Natural Resource Damages
    16. Clarifies that in any legal action, restoration decisions of a 
natural resource trustee shall be reviewed on the administrative record 
and shall be upheld unless found to be arbitrary and capricious or 
otherwise not in accordance with law, without precluding record review 
on other issues;
    17. Provides that claims for damages for injuries to natural 
resources must be brought within 3 years of that completion of a damage 
assessment;
    18. Allows Superfundmonies to be used for assessments of damages 
resulting from injures to natural resources and for efforts to restore 
injured natural resources,
    19. Retains the ability of trustees to recover damages based on any 
reliable assessment methodology;
    20. Does not revise the cap on liability for natural resource 
damages so as to reduce potential damage recoveries;
    21. Clarifies that trustees are entitled to recover legal, 
enforcement, and oversight costs;
F. Brownfields
    22. Strengthens State voluntary cleanup and brownfields 
redevelopment programs by providing technical and financial assistance 
to those programs, and by giving appropriate legal finality to cleanup 
decisions of qualified State voluntary cleanup programs and brownfield 
redevelopment programs;
G. Miscellaneous
    23. Allows EPA to continue to list new sites on the National 
Priorities List based upon threats to health and the environment, with 
the concurrence of the State in which the site is located.
    Be it Further Resolved, That the CERCLA Work Group, in consultation 
with and with approval of the Environmental Legislative Subcommittee of 
the Environment Committee, and in consultation with NAAG'S officers is 
authorized to develop specific positions related to the reauthorization 
of CERCLA consistent with this resolution; and the Environmental 
Legislative Subcommittee, or their designees, with the assistance of 
the NAAG staff and the CERCLA Work Group, are further authorized to 
represent NAAG's position before Congress and to Federal agencies 
involved in reauthorization decisions consistent with this resolution 
and to provide responses to requests from Federal agencies and 
congressional members and staff for information, technical assistance, 
and comments deriving from the experience of the State attorneys 
general with environmental cleanup programs in their states.
    Be it Further Resolved, That NAAG directs its Executive Director 
and General Counsel to send this resolution to the appropriate 
Congressional Committees and Subcommittees and to the appropriate 
Federal agencies.
                                 ______
                                 
                         National Association of Attorneys,
                                     Washington, DC, July 26, 1999.
Hon. John Warner, Chairman,
Senate Armed Services Committee,
U.S. Senate,
Washington, DC.

Hon. Carl Levin, Ranking Member,
Senate Armed Services Committee,
U.S. Senate,
Washington, DC.

RE: Response to Department of Defense and Department of Energy Report 
on Clarification of CERCLA Waiver of Sovereign Immunity

Dear Chairman Warner and Senator Levin: Enclosed, please find a copy of 
the response of the National Association of Attorneys General (HAAG) to 
the February 1999 report of the Departments of Defense (DOD) and Energy 
(DOE) regarding the potential impacts of a proposed amendment to the 
waiver of Federal sovereign immunity under the Comprehensive 
Environmental Response, Compensation and Liability Act (CERCLA).
    As you know, the States have long supported a waiver of Federal 
sovereign immunity under CERCLA, and were instrumental in achieving a 
waiver of Federal sovereign immunity under the Resource Conservation 
and Recovery Act in 1992, and more recently under the Safe Drinking 
Water Act Amendments of 1996. During the previous Congress, your 
committee, in response to a bi-partisan amendment to S. 8, the 
``Superfund Cleanup Acceleration Act,'' waiving Federal sovereign 
immunity under CERCLA, directed DOD and DOE to submit a report 
addressing ``(1) any additional costs that might be incurred . . . as a 
result of the proposed amendment; and (2) any impact that the amendment 
may have on the cleanup of Department of Defense and . . . Energy 
sites.''
    In February 1999, DOD and DOE submitted their Report to your 
Committee. The Report predicts negative impacts from passage of the 
amendment and further finds that the current waiver in CERCLA is 
working and therefore does not need to be clarified. As the attached 
response indicates, we disagree with these conclusions, which we 
believe are not based on a sound understanding of the current law and 
practice of Federal agencies, the well-established record of sensible 
regulation by states, or reasonable, supportable predictions of 
potential impacts.
    We thank you for considering our views on this subject, and look 
forward to working with Congress in the future on this matter of 
critical importance to the States.
            Sincerely,
                    Ken Salazar, Attorney General of Colorado; Bruce M. 
                            Botelho, Attorney General of Alaska; 
                            Richard Blumenthal, Attorney General of 
                            Connecticut; M. Jane Brady, Attorney 
                            General of Delaware; Robert Rigsby, 
                            District of Columbia Corporation Counsel; 
                            Thurbert Baker, Attorney General of 
                            Georgia; John F. Tarantino, Attorney 
                            General of Guam; Alan G. Lance, Attorney 
                            General of Idaho; Jim Ryan, Attorney 
                            General of Illinois; Andrew Ketterer, 
                            Attorney General of Maine; J. Joseph 
                            Curran, Jr., Attorney General of Maryland; 
                            Tom Reilly, Attorney General of 
                            Massachusetts; Jennifer Granholm, Attorney 
                            General of Michigan; Mike Moore, Attorney 
                            General of Mississippi; Jeremiah W. Nixon, 
                            Attorney General of Missouri; Joseph P. 
                            Mazurek, Attorney General of Montana; Don 
                            Stenberg, Attorney General of Nebraska; 
                            Frankie Sue Del Papa, Attorney General of 
                            Nevada; Philip T. McLaughlin, Attorney 
                            General of New Hampshire; John F. Farmer, 
                            Jr., Attorney General of New Jersey; Eliot 
                            Spitzer, Attorney General of New York; 
                            Michael F. Easley, Attorney General of 
                            North Carolina; Maya B. Kara, Attorney 
                            General of Northern Mariana Islands; Betty 
                            D. Montgomery, Attorney General of Ohio; 
                            Drew Edmondson, Attorney General of 
                            Oklahoma; Hardy Myers, Attorney General of 
                            Oregon; Sheldon Whitehouse, Attorney 
                            General of Rhode Island; Mark Barnett, 
                            Attorney General of South Dakota; Paul 
                            Summers, Attorney General of Tennessee; 
                            John Cornyn, Attorney General of Texas; Jan 
                            Graham, Attorney General of Utah; William 
                            H. Sorrell, Attorney General of Vermont; 
                            Christine O. Gregoire, Attorney General of 
                            Washington; Gay Woohhouse, Attorney General 
                            of Wyoming; Earl I. Arzai, Attorney General 
                            of Hawaii; Bill Lockyer, Attorney General 
                            of California; Patricia A. Madrid, Attorney 
                            General of New Mexico; Heidi Heitkamp, 
                            Attorney General of North Dakota; Robert A. 
                            Butterworth, Attorney General of Florida; 
                            Janet Napolitano, Attorney General of 
                            Arizona; James E. Doyle, Attorney General 
                            of Wisconsin.
                               __________

   STATEMENT OF SHERRI W. GOODMAN, DEPUTY UNDER SECRETARY OF DEFENSE 
                        (ENVIRONMENTAL SECURITY)

                              INTRODUCTION

    The Department of Defense requests that this statement be entered 
into the record for the March 21, 2000 Superfund Hearing before the 
Subcommittee on Superfund, Waste Control and Risk Assessment of the 
Committee on Environment and Public Works. The Department of Defense 
would like to describe its progress under the Comprehensive 
Environmental Response, Compensation and Liability Act (CERCLA) in 
cleaning up contamination at its installations and other properties. In 
the last 10 years we have worked with Congress and our stakeholders, 
including the Environmental Protection Agency, Department of Justice, 
states and citizens, to clean up sites using a process which 
establishes and involves the public in the decisionmaking process. The 
Department of Defense supports the Administration's position that 
comprehensive legislative proposals could seriously undermine the 
current progress of the program and could delay cleanups by creating 
uncertainty and litigation.

                              DOD PROGRESS

    DoD is making steady progress cleaning up its sites under the 
environmental restoration program. We have invested nearly $20.5 
billion since 1984 in 27,945 sites at 1,733 active and Base Realignment 
and Closure (BRAC) installations and Formerly Used Defense Sites 
(FUDS). One hundred and fifty of those installations are on the 
Environmental Protection Agencies National Priorities List. At the end 
of Fiscal Year 1999, 95 per cent of the Department of Defense's 27,945 
sites are actively being addressed as indicated below:

                           PROGRESS UNDERWAY

     Investigations: 22 percent
     Cleanup: 8 percent
     Response complete: 62 percent
     Post-Response Complete Monitoring: 3 percent
    Each year, the Department of Defense measures the number of sites 
in the investigation, cleanup, and response complete categories. By 
looking at the number of sites in these categories, the Department of 
Defense can determine its progress toward cleaning up sites. The 
installations categorize all sites undergoing investigation and cleanup 
as ``sites in progress.'' Within the ``sites in progress category,'' an 
important milestone is reaching the ``remedy in place'' (RIP). At sites 
categorized as RIP, construction of the remedy is complete and we are 
ready to begin operation. When all intended studies and cleanup 
activities at a site are complete and the site meets its remedial 
objective, the site is in ``Response Complete.'' When the regulator at 
either State or Federal level agrees that all action is complete, the 
site is placed in the site closeout category.
    The pipeline diagram below illustrates the Department's progress at 
the end of 1999.



    Of the 17,307 sites in the response complete category, 11,739 of 
these sites were placed in this category after the investigation phase. 
This is significant because it demonstrates the importance of a 
thorough investigation and removal action, if required. A total of 
2,948 sites reached response complete by finishing the remedial design/
remedial action phases.
    One of the Department's goals is to have remedies in place or 
response complete for all sites on our active installations by 2014. 
With Congress's continued support and stable funding, we believe we can 
reach this goal.
    In 1999 the number of sites in response complete totaled 17,307, 
this is of key significance because it represents an almost 100 per 
cent increase in response complete from the 8,637 sites reported in 
1992. This indicates that Department of Defense is effectively 
addressing sites through the restoration program. Overall, 62 percent 
of the sites in the environmental restoration program have reached 
Response Complete, a 4 percent increase since Fiscal Year 1998, 
indicating Department of Defense's continued progress toward site 
cleanup goals. In each of the last 2 years, the Department of Defense 
moved approximately 1,000 sites into the response complete category.
    As mentioned earlier, the Department of Defense's ultimate 
objective is to finish all restoration activities and closeout all 
sites at all of our installations. For this reason, the Department of 
Defense also measures its progress in reaching remedy in place and 
response complete at the installation level. It is not enough to close 
out sites; we want to say that entire installations are clean. 
Installations receive the remedy in place designation when all sites at 
the installation reach the remedy in place milestone. Similarly, when 
all sites at an installation achieve response complete status, the 
entire installation reaches response complete. At the end of fiscal 
year 1999, the Department of Defense had remedies in place or response 
complete at almost 60 percent of active installations and formerly used 
defense sites properties and over 40 percent of base realignment and 
closure installations.

                     FUNDING DOD'S RESTORATION WORK

    In the 1984, Congress established a separate account to fund the 
Department of Defense's restoration work. The process of obtaining this 
funding spans several years and requires careful long-range planning. 
The Department must plan its budget needs well in advance to ensure 
that sufficient funding for site restoration is available in a given 
fiscal year. Many factors influence cleanup funding, including changing 
priorities in the cleanup process, identification of new sites, policy 
initiatives, and in some cases, changes in national security policy and 
priorities. The Department of Defense forecasts specific restoration 
activities several years in advance to prepare each budget the 
President submits to Congress.
    The Military Services and Agencies are responsible for allocating 
funds to subordinate units for program execution. The Office of the 
Secretary of Defense oversees the program, including expenditures of 
funds by the Military Services and Agencies. The Department of Defense 
relies on stable funding from Congress to plan effectively its 
restoration activities, and then to carry out its plans.
    Currently the Department is spending about $2 billion a year on the 
active and base realignment and closure installations in the 
environmental restoration program. Approximately 63 per cent of 
environmental restoration funding is spent on cleanup, 24 per cent on 
investigation and 12 per cent on program management support.

                   DEPARTMENT OF DEFENSE AUTHORITIES

    The Department's environmental cleanup mission focuses on cleaning 
up contamination at operational installations, closed installations, 
and formerly used defense sites. The Department of Defense's formal 
environmental cleanup efforts began in 1975, under the Army's 
Installation Restoration Program. Over time, environmental laws and 
regulations required more systematic and far-ranging environmental 
cleanup efforts. In 1980, Congress passed the Comprehensive 
Environmental Response, Compensation and Liability Act, the primary 
driver for our cleanup program.
    The Comprehensive Environmental Response, Compensation and 
Liability Act, commonly referred to as Superfund, authorized Federal 
agencies to respond to the release or substantial threat of release, 
into the environment of hazardous substances, or to pollutants or 
contaminants which may present an imminent and substantial danger to 
public health or welfare. The Comprehensive Environmental Response, 
Compensation and Liability Act authorized the creation of a trust fund 
for the Environmental Protection Agency's use in cleaning up emergency 
and long-term waste problems. However, the trust fund is not generally 
available for remedial actions at federally owned facilities.
    In 1986, the Superfund Amendments and Reauthorization Act (SARA), 
Public Law 99-499) reauthorized the trust fund and significantly 
amended the authorities and requirements of the Comprehensive 
Environmental Response, Compensation and Liability Act. The Superfund 
Amendments and Reauthorization Act created the Comprehensive 
Environmental Response, Compensation and Liability Act Section 120, 
which is of particular interest, because it specifically addressed the 
requirements for response actions at Federal facilities. Superfund 
Amendments and Reauthorization Act Section 211 established the Defense 
Environmental Restoration Program (DERP) and its funding mechanism--the 
Defense Environmental Restoration Account (DERA), which has 
subsequently been expanded to create separate environmental restoration 
(ER) accounts for each of the Military Departments, formerly used 
defense sites and the Office of the Secretary of Defense.
    In addition to the specific authorities and responsibilities 
provided to the Department of Defense by Superfund Amendments and 
Reauthorization Act, two Executive Orders (E.O.) provide Federal 
agencies with the responsibility of cleaning up their facilities. 
Executive Order 12088 (13 October 1978) requires Federal agencies to 
ensure compliance with applicable pollution control standards. 
Executive Order 12580 (23 January 1987) delegated the President's 
authority under the Comprehensive Environmental Response, Compensation 
and Liability Act and the Superfund Amendments and Reauthorization Act 
to various Federal agencies, including the Department of Defense, for 
releases from facilities or vessels under the jurisdiction, custody, or 
control of the agency.
    The Defense Environmental Restoration Program requires the 
Secretary of Defense to ``carry out a program of environmental 
restoration at facilities under the jurisdiction of the Secretary.'' 
The Department of Defense's Defense Environmental Restoration Program 
activities are subject to and must be consistent with section 120 of 
the Comprehensive Environmental Response Compensation and Liability 
Act. Moreover, the Defense Environmental Restoration Program requires 
that ALL response actions be in accordance with the Comprehensive 
Environmental Response, Compensation and Liability Act. In other words, 
Department of Defense sites are subject to Comprehensive Environmental 
Response, Compensation and Liability Act authorities whether or not 
they are included on the National Priorities list (NPL). (The 
Environmental Protection Agency scores hazardous waste sites by their 
potential to affect human health, welfare, and the environment. 
Information from investigations is used to score sites. Sites with the 
scores over 28.5 or greater may be proposed for the National Priorities 
List.)
    The Comprehensive Environmental Response, Compensation and 
Liability Act Section 120(a)(4) provides that State laws concerning 
removal, remedial action, and enforcement also apply to removal and 
remedial actions at Federal facilities not included on the National 
Priorities List. State laws that are not inconsistent with the 
Comprehensive Environmental Response, Compensation and Liability Act 
are applied to Federal facilities not on the NPL.
    A key difference between the Defense Environmental Restoration 
Program and the application of the Comprehensive Environmental 
Response, Compensation and Liability Act to private parties is that the 
Defense Environmental Restoration Program requires the Department of 
Defense to identify EVERY contaminated site and clean it up under the 
procedures of the Comprehensive Environmental Response, Compensation 
and Liability Act and the National Contingency Plan (NCP) 40 CFR 300. 
Private sites not on the National Priorities List are not automatically 
required to clean up to the National Contingency Plan standards. The 
National Contingency Plan is the basic regulation that implements the 
statutory requirements of the Comprehensive Environmental Response, 
Compensation and Liability Act and Section 311 of the Clean Water Act. 
This regulation has the full force of law and Department of Defense 
complies with its requirements.
    The Comprehensive Environmental Response, Compensation and 
Liability Act establishes a comprehensive process for implementing 
cleanup and ensuring that substantive standards under other laws are 
met. The method used to integrate State requirements into the 
Comprehensive Environmental Response, Compensation and Liability Act/
National Contingency Plan process is through the determination of 
Applicable and Relevant or Appropriate Requirements (ARARs).
    The Department of Defense believes that the preferred method of 
dealing with the delicate balance of authority with the states is to 
negotiate approaches for investigation and cleanup. We believe that 
negotiated agreements and remedies provide the best approach for 
achieving the underlying purpose of protection of human health and the 
environment.
    States and the Department of Defense can enter into agreements for 
the clean up of non-National Priorities List sites. We seek input from 
states through our Restoration Advisory Boards (RABs), Management 
Action Plans, Defense State Memorandum of Agreement (DSMOA), and 
through negotiation of State multi-site cleanup agreements that allow 
us to integrate the Comprehensive Environmental Response, Compensation 
and Liability Act obligations with State procedural requirements. The 
use of all of these mechanisms can significantly improve and streamline 
cleanup when State and local regulators are meaningfully involved 
during all phases of the environmental restoration program. To ensure a 
smooth and efficient process, Department of Defense personnel and 
regulators should agree in advance on the cleanup regulatory vehicle, 
cleanup activities, review times and schedules. Installations and 
regulators must listen to each other, respond to one another's needs, 
and understand that there may be limitations on what the other group 
can achieve. The Wright-Patterson Air Force Base case study below 
illustrates the value of reaching consensus.
    Wright-Patterson Air Force Base, Dayton, Ohio (Consensus 
Documents).--Wright-Patterson Air Force Base uses consensus documents 
to expedite the cleanup process and eliminate many of obstacles that 
impede cleanup. (Consensus documents represent the collective opinion 
of the installation and regulators.) Even more important than the 
documents themselves is the decisionmaking process that participants go 
through to reach agreement on the cleanup activities. This process is 
not formal, but exemplifies the installation's successful partnering 
and atmosphere of teamwork. Installation personnel and regulators are 
up-front about their expectations and requirements for each cleanup 
activity because the consensus agreements create an accountability 
mechanism for the cleanup team.
    Once a consensus document is created, it serves as a strategy or 
road map for the cleanup process. For example, Wright-Patterson's risk 
assessment assumption documents explain the approved process for risk 
assessments at the installation. The installation also revisits each 
consensus document if the cleanup process strays from the agreed path.
    Along with their other benefits, consensus documents serve as 
useful transitioning tools for new employees. In this capacity, they 
are often used to familiarize new employees or cleanup team members 
with past issues and the decisions made on them. Consensus documents 
have saved time and money at Wright Patterson.

                       ROLES AND RESPONSIBILITIES

    As discussed earlier, the most important change made to the 
Comprehensive Environmental Response, Compensation and Liability Act by 
the Superfund Amendments and Reauthorization Act was the centralization 
of responsibility for Defense Environmental Restoration Program within 
the Office of the Secretary of Defense. Following passage of Superfund 
Amendments and Reauthorization Act/Defense Environmental Restoration 
Program the President issued Executive Order 12580, which delegated his 
authority under the Comprehensive Environmental Response, Compensation 
and Liability Act and Superfund Amendments and Reauthorization Act/
Defense Environmental Restoration Program to various Federal agencies 
including the Department of Defense. The broad Department of Defense 
responsibilities mandated by the Superfund Amendments and 
Reauthorization Act/Defense Environmental Restoration Program and 
delegated by Executive Order 12580 are as follows:
     Carry out all response actions with respect to releases of 
hazardous substances on properties owned, leased to or otherwise 
possessed by the United States and under the jurisdiction of the 
Secretary.
     Close interaction with the Environmental Protection 
Agency, state, and local regulatory agencies in implementing the 
National Contingency Plan.
     Special notification to the Department of Health and Human 
Services and the Environmental Protection Agency of hazardous wastes 
that are specific to the Department of Defense installations.
     Integration of public review and comment in numerous 
activities associated with implementing the National Contingency Plan.
     Annual reports to Congress explaining Defense 
Environmental Restoration Program activities under Superfund Amendments 
and Reauthorization Act Section 211.
    The Secretary of Defense delegated his responsibilities and 
authorities to execute the Defense Environmental Restoration Program 
and Base Realignment and Closure) environmental restoration programs to 
the Secretaries of the Military Departments and Directors of the 
Defense Agencies with land management responsibilities. The Base 
Realignment and Closure account funds environmental restoration 
activities at installations designated for closure or realignment by 
the Base Realignment and Closure process. The Army, as executive agent 
for the Department of Defense, implements the Defense Environmental 
Restoration Program at formerly used defense sites (FUDS) through the 
US Army Corps of Engineers (USACE). The Office of the Secretary of 
Defense formulates policy and provides oversight for the environmental 
restoration program at operational and Base Realignment And Closure 
installations and formerly used defense sites. The Army, Navy including 
the Marine Corps, Air Force, Defense Logistics Agency (DLA) and Defense 
Threat Reduction Agency (DTRA) execute the programs, consistent with 
guidance, at their installations.
    As required by Department of Defense management guidance, all 
installations have a Management Action Plan (MAP) or equivalent, a key 
document for managing an installation's environmental restoration 
program. The Management Action Plan outlines a vision of the total 
multi-year, integrates and coordinates an approach to achieving an 
installation's environmental restoration goals, and provides for 
cleaning up the installation. The installation should use the 
Management Action Plan to identify and monitor requirements, schedules, 
and project funding requirements. It is the basis for input into 
program planning, budget development, execution decisions, and most 
importantly for discussion with regulatory agencies. The Management 
Action Plan is intended to be a living document, and installations and 
stakeholders keep it current and available for public review. The story 
of Fort Campbell demonstrates the value of Management Action Plans.
    Fort Campbell, Fort Campbell, Kentucky (Installation Action Plan 
Workshops).--The Department of Defense policy calls for each 
installation or property to update its management action plan each 
fiscal year. The Management Action Plan or its equivalent is a key 
document in the management of an installation's environmental 
restoration program. It should outline the entire multiyear, 
integrated, coordinated approach that the installation or property will 
use to achieve its environmental restoration goals. The installation or 
property should use the Management Action Plan to identify and monitor 
requirements, schedules, and project funding requirements. The 
Management Action Plan is also the basis for program planning, budget 
development and project execution decisions, and for discussion with 
all stakeholders on the installation's or property's planned 
restoration activities.
    At Fort Campbell, an annual workshop is held to update its 
installation action plan (as the management action plan is called in 
the Army). Workshop attendance has evolved to include many of the 
stakeholders involved in the installation's cleanup program: 
installation personnel, EPA Region 4, State of Tennessee, Commonwealth 
of Kentucky, Army Environmental Center, FORSCOM, Contracting Office 
representatives, Restoration Advisory Board members, and contractors.
    At each workshop, participants review the Installation Action Plan 
site by site. They examine the status of each site (i.e., what phase of 
cleanup it is in) and update the Installation Action Plan as needed. 
Participants also review the proposed cleanup activities for each site 
for the upcoming fiscal year. They then scrutinize the proposed 
activities in relation to funding for the fiscal year and prioritize 
the proposed activities if not all can be completed as planned. The 
Installation Action Plan undergoes revision to reflect any changes in 
the cleanup schedule.
    Because the workshop participants review the IAP site by site 
against the current fiscal year budget, each stakeholder is aware of 
the cleanup plan.

                   DESCRIPTION OF A DOD INSTALLATION

    Military installations can be very large, consisting of thousands 
of acres and many types of environments, ranging from undeveloped 
expanses of forests to populated areas which resemble small cities with 
both industrial and residential areas. Along with the various 
environments, installations often contain many types of environmental 
restorationsites each requiring evaluation and potentially remediation. 
A typical Department of Defense installation may contain many discrete 
sites with varying types and amounts of contamination. Sites pose 
differing risks to human health and the environment and are treated 
differently depending on the contamination and threat to human health 
and the environment. An installation may have anywhere from zero to 
hundreds of sites. Department of Defense installations typically 
include hundreds to thousands of undeveloped and undisturbed acres.
    Typically, the contamination found on the installation is related 
to the type of operation and past disposal practices. For example, in 
areas where industrial metal working occurred, the contamination 
expected would be metals and solvents both where the metal working took 
place and where the wastes were disposed.
    Most of the contaminants at Department of Defense sites are similar 
to contaminants found at commercial industrial properties, airfields, 
and cities--
     Gasoline, diesel, and jet fuel
     Heavy metals, such as lead and mercury
     Cleaners, degreasers, dyes, paints, and strippers
     Motor oil and hazardous household products
    The Site Types-Counts table shows how many sites the Department of 
Defense has in each site type. Attached are definitions for each of the 
site types.


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Army               Navy            Air Force             DLA                FUDS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Total   Sites in   Total   Sites in   Total   Sites in   Total   Sites in   Total   Sites in
        Site Type Category                Site Type         Sites   Progress   Sites   Progress   Sites   Progress   Sites   Progress   Sites   Progress
--------------------------------------------------------------------------------------------------------------------------------------------------------
Base Operations/Engineered          Building Demolition/        29         7       24        16       33        29      0.0         0      345         1
 Structures.                         Debris Removal.
                                    Contaminated               729       140       60        33       54        12     61.0         6       31  ........
                                     Buildings.
                                    Dip Tank.............       43         3        5         5        5         4      5.0         2        0  ........
                                    Incinerator..........       88        30       19         8        7         3      5.0         0        7  ........
                                    Maintenance Yard.....      132        45       54        45       33        19      1.0         0        2  ........
                                    Oil/Water Separator..      418        17       44        19      105        35      2.0         0        1  ........
                                    Storage Area.........    2,784       234      575       260      223        91    115.0        60       57  ........
                                    Washrack.............      187        28       11         6       24        15      2.0         1        0  ........
                                   ---------------------------------------------------------------------------------------------------------------------
                                        Total............    4,410       504      792       392      484       208    191.0        69      443         1
                                   ---------------------------------------------------------------------------------------------------------------------
Storage Tanks.....................  Above Ground Storage       332        36       85        58       94        42     13.0         5       97  ........
                                     Tank.
                                    POL (Petroleum/Oil/         29        16       76        49      123        83     10.0         2       24  ........
                                     Lubricants) Lines.
                                    Underground Storage      1,322        96      755       306    1,063       400     65.0        16      688         2
                                     Tanks.
                                    Underground Tank Farm       95        19       90        48       23        14      1.0         0       26  ........
                                   ---------------------------------------------------------------------------------------------------------------------
                                        Total............    1,778       167    1,006       461    1,303       539     89.0        23      835         2
                                   ---------------------------------------------------------------------------------------------------------------------
Industrial Operations.............  Optical Shop.........        2         1        0         0        0         0      0.0         0        0         0
                                    Pesticide Shop.......       52        23       17        10       11         4      6.0         0        1  ........
                                    Plating Shop.........        8         3       15        11        3         2      1.0         0        1  ........
                                    Sewage Treatment            65        15       12         6       36        18      1.0         0        5  ........
                                     Plant.
                                    Waste Lines..........      146        36       70        46       36        26      3.0         1        4  ........
                                    Waste Treatment Plant      239        55       37        17       54        27      0.0         0        2  ........
                                   ---------------------------------------------------------------------------------------------------------------------
                                        Total............      512       133      151        90      140        77     11.0         1       13  ........
                                   ---------------------------------------------------------------------------------------------------------------------
Training Areas....................  Burn Area............      230       123       69        46       27        12     19.0         6       17  ........
                                    Explosive Ordnance         159        65       49        34       36        16      0.0         0       75  ........
                                     Disposal Area.
                                    Fire/Crash Training         91        43      127        78      333       185      3.0         2       10  ........
                                     Area.
                                    Firing Range.........       54        17       17         7       15        10      0.0         0       96  ........
                                    Pistol Range.........       19         7        9         2        4         2      4.0         2        2  ........
                                    Small Arms Range.....       69        17        4         1       16        12      0.0         0       36  ........
                                    Unexploded Munitions       192        61       47        28       34        22      0.0         0      648         4
                                     & Ordnance Area.
                                   ---------------------------------------------------------------------------------------------------------------------
                                        Total............      814       333      322       196      465       259     26.0        10      884         5
                                   ---------------------------------------------------------------------------------------------------------------------
Radioactive Areas.................  Mixed Waste Area.....       27         3       39        23       12        10      2.0         0        8  ........
                                    Radioactive Waste           43        10        9         2       84        28      0.0         0        7  ........
                                     Area.
                                   ---------------------------------------------------------------------------------------------------------------------
                                        Total............       70        13       48        25       96        38      2.0         0       15  ........
                                   ---------------------------------------------------------------------------------------------------------------------
Surface Discharge Areas...........  Drainage Ditch.......       38        24       23        12       35        17      4.0         4        1  ........
                                    Industrial Discharge.      115        82       20        13       17        11      0.0         0        2  ........
                                    Sewage Effluent             16         5        3         1        7         3      0.0         0        3  ........
                                     Settling Ponds.
                                    Spill Site Area......      751       214      426       205    1,554       875     42.0        18       13  ........
                                    Storm Drain..........       24         9       13        12       94        73      6.0         2        2  ........
                                    Surface Disposal Area      581       153      698       283      387       200      6.0         1       38  ........
                                    Surface Impoundment/       288       129      100        55       42        26      9.0         4       27  ........
                                     Lagoon.
                                    Surface Runoff.......       49         9       12         8       12         6      0.0         0        4  ........
                                   ---------------------------------------------------------------------------------------------------------------------
                                        Total............    1,862       625    1,295       589    2,148  ........     67.0        29       90  ........
                                   ---------------------------------------------------------------------------------------------------------------------
Subsurface Disposal Area..........  Chemical Disposal....       60        37        5         5       39        24      0.0         0       14  ........
                                    Disposal Pit and Dry       354       119      145        73      549       265     49.0        27       17  ........
                                     Well.
                                    Landfill.............      904       434      425       272      819       440     17.0        10       97  ........
                                    Leach Field..........       58        25        9         6       16         9      1.0         1        1  ........
                                   ---------------------------------------------------------------------------------------------------------------------
                                        Total............    1,376       615      584       356    1,423       738     67.0        38      129  ........
                                   ---------------------------------------------------------------------------------------------------------------------
Contaminated Media................  Contaminated Fill....       57        29       26        11       13         7     79.0         3      101  ........
                                    Contaminated               198       150      108        76       50        40     18.0        17      193         1
                                     Groundwater.
                                    Contaminated               152        67      122        67       32        14     15.0         1       54  ........
                                     Sediments.
                                    Contaminated Soil           46        20       15         9        8         3     20.0         2       21  ........
                                     Piles.
                                    Soil Contamination          66        22        9         7       13         7     31.0         7      107  ........
                                     After Tank Removal.
                                   ---------------------------------------------------------------------------------------------------------------------
                                        Total............      519       288      280       170      116        71    163.0        30      476         2
                                   ---------------------------------------------------------------------------------------------------------------------
Other.............................  Other................      875        31       58        34        0         0     33.0        13    1,539         8
                                   ---------------------------------------------------------------------------------------------------------------------
                                        Total............      875        31       58        34        0         0     33.0        13    1,539         8
                                   ---------------------------------------------------------------------------------------------------------------------
                                        Grand Total......  .......     2,709    4,536     2,313    6,175  ........    649.0       213    4,424       2,3
                                   ---------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------


                      BASE REALIGNMENT AND CLOSURE

    The Base Realignment and Closure (BRAC) environmental restoration 
process is applicable at closing and realigning installations affected 
by Public Law 102-844, Section 330, as amended by Public Law 103-160, 
section 1002. Environmental activities at Base Realignment And Closure 
installations are analogous to those at active installations. The 
Department of Defense's Base Realignment And Closure environmental 
restoration goal is to quickly and effectively clean up closing 
installations so that the property is available for transfer. Before 
the Department can transfer property, it must meet the requirements of 
the Comprehensive Environmental Response, Compensation and Liability 
Act and the National Environmental Policy Act (NEPA). The Department of 
Defense is striving to meet its goal to have property suitable for 
transfer under the Comprehensive Environmental Response, Compensation 
and Liability Act by the end of by fiscal year 2005.
    In 1996, through an amendment to the Comprehensive Environmental 
Response, Compensation and Liability Act, Congress created a valuable 
tool for empowering communities dealing with cleanup issues. The 
amendment, known as Early Transfer Authority, allows full ownership of 
property before the completion of all cleanup activities. Early 
transfer authority gives communities the opportunity to play a more 
active role in realignment and closure decisions by allowing them to 
gain ownership and consequently control of the property at an earlier 
stage of the transfer process. The Department of Defense has completed 
five early transfers to date. An example of an early transfer is the 
Fleet Industrial Supply Center (FISC) Oakland as described below.
    Navy (Community Partnership Accelerates Redevelopment At Fleet 
Industrial Supply Center Oakland, California).--In 1999, the Navy 
transferred its Fleet Industrial Supply Center (FISC) Oakland to the 
Port of Oakland 3 years ahead of schedule. The basis for this transfer 
is a landmark agreement between the Navy and the Port, which allows the 
Port to lease portions of Fleet Industrial Supply Center Oakland for 
immediate reuse while the Navy continues its restoration activities. 
The rapid transfer was largely a result of strong cooperation among 
local, state, and military stakeholders.
    The early transfer of the Fleet Industrial Supply Center Oakland is 
a major achievement for the Base Realignment And Closure program. Early 
transfer of these 530 acres has allowed the Port to meet its Vision 
2000 Redevelopment Plan objectives, and will secure the Port of 
Oakland's position as the nation's fifth busiest port. In addition, by 
tailoring its cleanup efforts to a known property reuse, the Navy saved 
more than $27.5 million in remedial design, construction, and 
monitoring costs.
    Not only do the Navy and the Port benefit from this early transfer, 
the city of Oakland will see an economic benefit as well. The Port 
redevelopment is expected to create more than 10,000 new jobs and 
increase revenue for the entire region.

                    NEW PROGRAM STRATEGY FOR 1990'S

    Through the years, the environmental restoration program has 
undergone considerable evolution. The Department of Defense has 
rigorously examined its processes and policies to streamline the 
cleanup process and maximize effectiveness. Several key policy 
initiatives from the 1990's stand out: applying new program goals, and 
applying the relative risk site evaluation methodology, building formal 
relationships with regulators through partnering, and increasing 
community participation through the Restoration Advisory Boards.
Relative Risk and DERP Goals
    As the Defense Department's Environmental Restoration Program 
progressed in the early 1990's, the Department recognized two major 
problems associated with the pace of the cleanup. First, we had too 
many high priority sites that we tried to address at the same time. 
Second, we were not cleaning up the worst sites first.
    In 1994, the Department of Defense implemented a framework for 
evaluating sites based on their potential risk to human health and the 
environment. Through this framework, the Department of Defense uses 
evaluation of contaminants present, environmental migration pathways, 
and receptors to categorize sites as high, medium and low risk and 
sequences them for cleanup. Components must use the framework to 
evaluate the relative risk posed by each site for future installation 
restoration funding requirements at operating installation, closing/
aligning bases and formerly used defense sites. Installations offer 
opportunities for regulators and other stakeholders to participate in 
the process.
Partnering
    Throughout the life of the Defense environmental restoration 
program, we have found partnering to be one of the most effective tools 
in streamlining and completing cleanup projects. Partnering enhances 
relationships, increases communication, and maximizes the effectiveness 
of each participant's resources by pooling assets and eliminating 
redundancy. Installations develop and improve successful relationships 
through partnering. Cleanups are most successful when installations and 
stakeholders work together throughout the environmental restoration 
process. Working together establishes mutual trust, enables better 
coordination, and encourages agreement on actions that need taken. 
Trust and coordination lead to effective integration of stakeholder 
needs and priorities into the cleanup.
    The Department of Defense teams up with a variety of groups, 
including organizations, communities, industry, other Federal agencies, 
and State and local governments. In addition to partnering with Federal 
and State regulators, the Department of Defense is forging alliances 
with Native Americans and Alaska Native tribes to restore tribal lands 
affected by past Department of Defense activities.
    Through the Defense State Memorandum of Agreement (DSMOAs) program, 
the Department of Defense reimburses states and territories for 
reviewing its investigation and cleanup activities at all Department of 
Defense installations and properties. Authorized by the 1986 Superfund 
Amendments and Reauthorization Act, the Defense State Memorandum Of 
Agreement program supports all active and closing installations, and 
also covers formerly used defense sites. At present, 46 of the 56 
possible United States, states, territories and the District of 
Columbia have entered into cooperative agreements for funding with the 
Department of Defense, and 51 have signed Defense State Memoranda Of 
Agreement.
    These partnering agreements have helped states and the Department 
of Defense coordinate and streamline the environmental restoration 
efforts. The Department of Defense provided states with $24.8 million 
in fiscal year 1999 for their support under the Defense State 
Memorandum Of Agreement program.
Restoration Advisory Boards And Community Participation
    The Department of Defense's public involvement program is based on 
the understanding that the decisions and actions that military 
installations undertake to cleanup and reuse property inevitably affect 
the surrounding communities. To that end, the Department of Defense 
established Technical Review Committees (TRCs) in the mid-1980's, which 
served the purpose of providing forums for technical document review 
and input into the environmental cleanup process. The February 1993, 
Interim Report of the Federal Facilities Environmental Restoration 
Dialogue Committee (FFERDC) included recommendations for improving 
public participation in the environmental restoration process. The 
Department of Defense expanded the Technical Review Committee concept 
by forming Restoration Advisory Boards (RABs) based on the concepts 
recommended in the Interim Report. More than half of the Technical 
Review Committees converted to Restoration Advisory Boards to increase 
community involvement opportunities.
    A Restoration Advisory Board is a group co-chaired by a Department 
of Defense representative and a community member that serves as a forum 
for exchange of information between government officials and members of 
the local community on installation cleanup issues. Restoration 
Advisory Boards meet regularly to discuss environmental cleanup issues 
at Department of Defense installations. They may also review and 
comment on cleanup plans and reports. Primarily, Restoration Advisory 
Boards are responsible for keeping the community informed on 
installation activities and for relaying the community's views and 
concerns to the Department of Defense.
    The Restoration Advisory Board program entered its fifth full year 
of operation in fiscal year 1999. In 1999 there were a total of 284 
Department of Defense Restoration Advisory Boards.
    The intent of Restoration Advisory Boards is to bring together 
people who represent the community as a whole and also those who have 
diverse interests, concerns, and values. A balanced, but diverse 
membership is especially important because every community has 
different needs and one group can not speak for the interests of 
everyone. Since the inception of the program, installations have worked 
to ensure that the Restoration Advisory Boards reflect the diversity in 
the communities they represent. Those efforts have worked in fiscal 
year 1999 Restoration Advisory Board membership was more diverse than 
ever with increased participation of low income and minority groups.
    Installations report that Restoration Advisory Boards helped to 
improve the cleanup process. In fact, at more than half of the 
reporting installations, Restoration Advisory Boards provided 
significant advice that positively affected the scope or schedule of 
environmental study or cleanup. In some cases, Restoration Advisory 
Board members have technical knowledge that helped their installation 
develop cost-saving remedies. Restoration Advisory Boards became more 
proficient in their advisory roles and in presenting technical cleanup 
information to the community while bringing community concerns to the 
installations.

                               CONCLUSION

    The Department of Defense continues to make steady progress under 
the current process established by Congress for our cleanups. The 
Department is proud of its Environmental Restoration Program and its 
accomplishments especially the fact that 62 percent of restorationsites 
have reached the RIP/RC goal demonstrating that the Department is well 
on the path to completing cleanups. With continued Congressional 
support and stable funding, we believe we will continue to make 
progress on our environmental restoration cleanups.
    The framework in place provides an effective mechanism for managing 
a national program. The Comprehensive Environmental Response, 
Compensation and Liability Act and the National Contingency Plan 
provide flexibility while requiring the involvement of State 
regulators. The resulting delicate balance between states and the 
Department encourages both parties to work together to accomplish 
goals. Our relative risk sequencing provides us with a tool to 
prioritize sites and sequence cleanup. We are also continuing our 
efforts to increase opportunities for stakeholders to participate in 
the process.
    The Department of Defense intends to continue the following 
actions, which contribute to a successful environmental restoration 
program:
     Encourage installation personnel and regulators work from 
the same plan and agree on how work will be done.
     Maintain open channels of communication.
     Involve regulators early and continuously throughout the 
process.
     Involve stakeholders throughout the process and 
proactively with them.
     Lead the partnering process and the cleanup team at 
installations.

                        Defense Environmental Restoration Program.--Site Type Definitions
----------------------------------------------------------------------------------------------------------------
            Site Category                     Site Type            Site Description1       Primary Contaminants
----------------------------------------------------------------------------------------------------------------
Base Operations/Engineered Structures  Building Demolition/     Building Demolition/      Asbestos
                                        Debris Removal.          Debris Removal sites     Construction
                                                                 consist of buildings     debris
                                                                 and/or debris that are   Lead paint
                                                                 unsafe and/or must be
                                                                 removed.
                                       Contaminated Building..  Contaminated Building     POLs
                                                                 sites result from        Plating waste
                                                                 releases within, or on   Metals
                                                                 the outside of, a        POL sludge
                                                                 structure of a           Solvents
                                                                 substance that has       Asbestos
                                                                 been contained within    PCBs
                                                                 the building.            Propellants
                                                                                          Pesticides
                                                                                          Acids
                                                                                          Solvents
                                                                                          Acids
                                       Dip Tank...............  Dip Tanks typically are   POLs
                                                                 metal or concrete        Chlorinated
                                                                 units located in         solvents
                                                                 coating shops. They      Metals
                                                                 range in size from 50    Acids
                                                                 to more than 500
                                                                 gallons. The tanks are
                                                                 used to clean parts
                                                                 before treatment or to
                                                                 coat parts with
                                                                 various materials,
                                                                 including metals and
                                                                 plastics.
                                       Incinerator............  Incinerators typically    Ash
                                                                 consist of a furnace     Metals
                                                                 and stack unit used      Ordnance
                                                                 for a variety of         compounds
                                                                 disposal activities,
                                                                 including the
                                                                 incineration of
                                                                 medical waste or of an
                                                                 installation's
                                                                 dunnage. These units
                                                                 vary in size and may
                                                                 be either freestanding
                                                                 or part of other
                                                                 operations, such as
                                                                 hospitals.
                                       Maintenance Yard.......  Maintenance Yards         POLs
                                                                 consist of paved or      Solvents
                                                                 unpaved areas where      Metals
                                                                 vehicles and other
                                                                 maintenance equipment
                                                                 are stored and often
                                                                 serviced. Typically,
                                                                 maintenance supplies
                                                                 are stored at these
                                                                 units.
                                       Oil/Water Separator....  Oil/Water Separators      POLs
                                                                 typically are small      PCBs
                                                                 units that skim oil      Solvents
                                                                 from stormwater          Industrial
                                                                 runoff. The Oil Water    wastewater
                                                                 Separator site
                                                                 consists of the unit
                                                                 and any associated
                                                                 piping.
                                       Storage Area...........  Storage Area sites are    POLs
                                                                 areas where spills and   Metals
                                                                 leaks from stored        Solvents
                                                                 containers or            Acids
                                                                 equipment have           POL sludge
                                                                 occurred.                PCBs
                                       Washrack...............  Washrack sites            POLs
                                                                 typically consist of a
                                                                 building designed for
                                                                 washing vehicles, such
                                                                 as tanks, aircraft,
                                                                 and other military
                                                                 vehicles. This unit
                                                                 also may consist of a
                                                                 paved area where
                                                                 washing of vehicles
                                                                 occurs.
Storage Tanks........................  Aboveground Storage      Aboveground Storage       POLs (for
                                        Tanks.                   Tank sites result from   example, heating oil,
                                                                 release of substances    jet fuel, gasoline,
                                                                 to surrounding areas     and POL sludge)
                                                                 from aboveground
                                                                 tanks, containers, and
                                                                 associated piping.
                                       POL Lines..............  Petroleum, oil,           POLs (for
                                                                 lubricant distribution   example, heating oil,
                                                                 lines are used to        gasoline, jet fuel,
                                                                 transport POL products   diesel fuel, and other
                                                                 from storage to          fuels)
                                                                 dispensing facilities.   POL sludge
                                       Underground Storage      Underground Storage       POLs
                                        Tanks.                   Tank sites result from   Metals
                                                                 the release of           POL sludge
                                                                 substances from          Solvents
                                                                 underground storage
                                                                 tanks and any
                                                                 associated piping.
                                       Underground Storage      Underground Storage       POLs
                                        Tank Farm.               Tank Farm sites result   POL sludge
                                                                 from the release of      Solvents
                                                                 substances from the      Metals
                                                                 multiple, generally
                                                                 large, underground
                                                                 storage tanks and
                                                                 associated piping that
                                                                 make up a tank farm
                                                                 complex.
Industrial Operations................  Optical Shop...........  Optical Shops typically   Solvents
                                                                 consist of laboratory
                                                                 units located within a
                                                                 building. Activities
                                                                 include grinding
                                                                 lenses used in eye
                                                                 glasses or other
                                                                 optical instruments.
                                       Pesticide Shop.........  Pesticide Shops           Pesticides
                                                                 typically are used to    Metals
                                                                 store and prepare        POLs
                                                                 large volumes of
                                                                 pesticides and
                                                                 solvents for
                                                                 maintenance
                                                                 activities. The units
                                                                 may be located in a
                                                                 freestanding building
                                                                 or may be attached to
                                                                 another building.
                                                                 Areas near the unit
                                                                 may have been used for
                                                                 the disposal of off-
                                                                 specification
                                                                 pesticides.
                                       Plating Shop...........  Plating Shops typically   Metals
                                                                 consist of a building,   Solvents
                                                                 or a room within a       Acids
                                                                 building, used for       Industrial
                                                                 coating metal parts.     wastewater
                                                                 The unit contains
                                                                 several tanks of
                                                                 solvents that are used
                                                                 in the plating process.
                                       Sewage Treatment Plant.  Sewage Treatment Plants   Metals
                                                                 typically consist of a   Industrial
                                                                 complex of tanks,        wastewater
                                                                 piping, and sludge       Solvents
                                                                 management areas used    POLs
                                                                 to treat sanitary
                                                                 sewage generated at an
                                                                 installation. The unit
                                                                 may use chemical or
                                                                 biological treatment
                                                                 methods. Lagoons
                                                                 associated with the
                                                                 biological treatment
                                                                 of sewage may be
                                                                 considered to be
                                                                 separate units.
                                       Waste Lines............  Waste Lines are           Solvents
                                                                 underground piping       Metals
                                                                 used to carry            Plating sludge
                                                                 industrial wastes from   Pesticides
                                                                 shop facilities to a     Explosive
                                                                 wastewater treatment     chemicals
                                                                 plant.
                                       Waste Treatment Plant..  Waste Treatment Plant     POLs
                                                                 sites result from        Industrial
                                                                 releases of substances   wastewater
                                                                 at plants that were      Solvents
                                                                 used to treat and        Explosive
                                                                 dispose of domestic      chemicals
                                                                 and/or industrial        Plating sludge
                                                                 wastewater.
Training Areas.......................  Burn Area..............  Burn Area sites consist   POLs (for
                                                                 of pits or surface       example, spent motor
                                                                 areas that were used     oil and jet fuel)
                                                                 for open-air             Explosives
                                                                 incineration of waste.   Propellants
                                                                                          Solvents (for
                                                                                          example, spent paint
                                                                                          thinners and
                                                                                          degreasing agents)
                                                                                          Ordnance
                                       Explosive Ordnance       Explosive Ordnance        UXO
                                        Disposal Area.           Disposal Areas consist   Ordnance
                                                                 of open-air areas that   compounds
                                                                 were used for            Explosives
                                                                 detonation,              Metals
                                                                 demilitarization,
                                                                 burial, or disposal of
                                                                 explosives.
                                       Fire/Crash Training      Fire/Crash Rescue         POLs
                                        Area.                    Training Areas consist   POL sludges
                                                                 of trenches and/or       Solvents
                                                                 pits where flammable     Metals
                                                                 materials were ignited
                                                                 periodically for
                                                                 demonstrations and
                                                                 training exercises.
                                       Firing Range...........  Firing Ranges consist     Metals
                                                                 of large areas of land   Ordnance
                                                                 used for practice        compounds
                                                                 firing of large          Explosives
                                                                 artillery or mortars     UXO
                                                                 or as a practice         Radionuclides
                                                                 bombing range for
                                                                 aircraft. These areas
                                                                 typically are
                                                                 contaminated with
                                                                 unexploded ordnance,
                                                                 which may be found
                                                                 both on and below the
                                                                 ground surface.
                                       Pistol Range...........  Pistol Ranges may be      Metals
                                                                 located indoors or
                                                                 outdoors and are used
                                                                 for target practice.
                                                                 Outdoor units include
                                                                 a soil or sandbag berm
                                                                 located behind the
                                                                 targets to prevent
                                                                 bullets from traveling
                                                                 outside the range area.
                                       Small Arms Range.......  Small Arms Ranges         Metals
                                                                 typically are located    Ordnance
                                                                 outdoors and are used    compounds
                                                                 for target practice
                                                                 with small arms,
                                                                 usually 50 caliber or
                                                                 less. The unit may
                                                                 include a soil or
                                                                 sandbag berm or a hill
                                                                 located behind the
                                                                 targets to prevent
                                                                 bullets from traveling
                                                                 outside the range area.
                                       Unexploded Munitions/    Unexploded Munitions/     UXO
                                        Ordnance Area.           Ordnance Areas are       Explosive
                                                                 areas that have been     chemicals
                                                                 used for munition and    Metals
                                                                 ordnance training.       Ordnance
                                                                                          compounds
Radioactive Areas....................  Mixed Waste Area.......  Mixed Waste Areas are     Solvents
                                                                 areas used to store or   Mixed waste
                                                                 dispose of hazardous
                                                                 wastes that have been
                                                                 mixed with or
                                                                 contaminated by
                                                                 radioisotopes.
                                       Radioactive Waste Area.  Radioactive Waste Areas   Low-level
                                                                 are areas used to        radioactive waste
                                                                 store or dispose of
                                                                 low-level radioactive
                                                                 materials of various
                                                                 types (for example,
                                                                 radium paint and
                                                                 radioactive
                                                                 instruments and
                                                                 propellants).
Surface Discharge Areas..............  Drainage Ditch.........  Drainage Ditch units      POLs
                                                                 typically consist of a   Metals
                                                                 natural or man-made      Solvents
                                                                 ditch used as a runoff   Explosive
                                                                 control structure for    chemicals
                                                                 rainfall. The unit       PCBs
                                                                 also may be used for
                                                                 runoff from other
                                                                 sources, such as
                                                                 process operations.
                                                                 Man-made units may be
                                                                 concrete lined.
                                       Industrial Discharge...  Industrial Discharge      Metals
                                                                 units consist of a       Industrial
                                                                 pipe system used to      wastewater
                                                                 discharge industrial
                                                                 effluent to the
                                                                 environment. The unit
                                                                 may discharge to a
                                                                 natural or man-made
                                                                 water body or to a dry
                                                                 creek bed or some
                                                                 other natural feature.
                                       Sewage Effluent          Sewage Effluent           Metals
                                        Settling Ponds.          Settling Ponds consist   Ordnance
                                                                 of a lagoon, or          compounds
                                                                 lagoons, used for the    Solvents
                                                                 settling of solids and/
                                                                 or for biological
                                                                 treatment of sewage.
                                                                 The units also may be
                                                                 used as infiltration
                                                                 galleries.
                                       Spill Site Areas.......  Spill Site Areas are      POLs
                                                                 small areas where        Solvents
                                                                 spills from drums,       Paint
                                                                 tanks, or other waste    Pesticides
                                                                 storage units have       Metals
                                                                 taken place.             Acids
                                                                                          PCBs
                                       Storm Drain............  Storm Drains typically    POLs
                                                                 consist of a natural     Pesticides
                                                                 or man-made drain used   Metals
                                                                 as a runoff control      Industrial
                                                                 structure for            wastewater
                                                                 rainfall. The unit       POL sludge
                                                                 also may be used for     Solvents
                                                                 runoff from other
                                                                 sources, such as
                                                                 process operations.
                                                                 Man-made units may be
                                                                 concrete lined.
                                       Surface Disposal Area..  Surface Disposal Area     POLs
                                                                 sites consist of small   Solvents
                                                                 areas formerly used      Metals
                                                                 for disposal of solid    Explosive
                                                                 wastes with little or    chemicals
                                                                 no free liquids.
                                                                 Typical materials
                                                                 include rags, filters,
                                                                 paint cans, small
                                                                 capacitors, and
                                                                 batteries.
                                       Surface Impoundment/     Surface Impoundments/     POLs
                                        Lagoon.                  Lagoons are unlined      Explosive
                                                                 depressions,             chemicals
                                                                 excavations, or diked    Solvents
                                                                 areas that were used     Metals
                                                                 to accumulate liquid     POL sludge
                                                                 waste, waste             POL sludge
                                                                 containing free
                                                                 liquid, or industrial
                                                                 wastewater.
                                       Surface Runoff.........  Surface Runoff sites      POLs
                                                                 are areas that           Metals
                                                                 typically experience     Solvents
                                                                 sheet runoff from        POL sludge
                                                                 rain. The runoff may     PCBs
                                                                 contain contaminants,
                                                                 particularly adjacent
                                                                 to industrial areas
                                                                 and airfield aprons.
Subsurface Disposal Area.............  Chemical Disposal......  Chemical Disposal units  .......................
                                                                 are areas that have
                                                                 been used for the
                                                                 disposal of chemicals,
                                                                 typically of an
                                                                 unknown type. The unit
                                                                 may be a burial area
                                                                 where bottles or
                                                                 packages of chemicals
                                                                 were placed or an area
                                                                 where liquids were
                                                                 disposed of on the
                                                                 soil.
                                       Disposal Pit/Dry Well..  Disposal Pit/Dry Well     POLs (for
                                                                 sites consist of small   example, motor oil)
                                                                 unlined excavations      Metals
                                                                 and structures that      Explosive
                                                                 were used over a         chemicals
                                                                 period of time for       Acids (for
                                                                 disposing of small       example, battery acid)
                                                                 quantities of liquid     Ordnance
                                                                 wastes.                  compounds
                                                                                          Solvents
                                       Landfill...............  Landfill sites            POLs
                                                                 typically are areas      Pesticides
                                                                 formerly used for        Solvents
                                                                 disposing of both        Metals
                                                                 domestic and             Paint
                                                                 industrial hazardous     Ordnance
                                                                 waste.                   Compounds
                                       Leach Field............  Leach Fields typically    Metals
                                                                 consist of a             Solvents
                                                                 subsurface area
                                                                 generally associated
                                                                 with septic tanks. The
                                                                 unit serves the
                                                                 purpose of
                                                                 biologically treating
                                                                 sanitary sewage;
                                                                 however, in cases
                                                                 where these units were
                                                                 used at industrial
                                                                 facilities, there is
                                                                 also contamination
                                                                 from non-biodegradable
                                                                 industrial
                                                                 contaminants.
Contaminated Media...................  Contaminated Fill......  Contaminated Fill areas   POLs
                                                                 consist of resulting     Explosive
                                                                 from excavations for     chemicals
                                                                 construction, tanks,     Metals
                                                                 and other purposes.      Paint waste
                                                                                          Ordnance
                                                                                          compounds
                                       Contaminated             Contaminated              POLs
                                        Groundwater.             Groundwater results      Metals
                                                                 from various types of    Chlorinated
                                                                 releases of known or     solvents
                                                                 unknown origin, such     Explosive
                                                                 as migration of          chemicals
                                                                 leachate from disposal   Nonchlorinated
                                                                 areas and migration of   solvents
                                                                 substances from
                                                                 contaminated surface
                                                                 and subsurface soil.
                                       Contaminated Sediments.  Contaminated Sediments    POLs
                                                                 include sediments of     Metals
                                                                 bodies of water that     PCBs
                                                                 have been contaminated   Solvents
                                                                 by surface runoff,       Pesticides
                                                                 subsurface migration,    Explosive
                                                                 or direct discharge of   chemicals
                                                                 contaminants.
                                       Contaminated Soil Piles  Contaminated Soil Piles   POLs
                                                                 consist of soil that     Solvents
                                                                 has been staged after    Sludge
                                                                 an excavation activity.  PCBs
                                                                                          Metals
                                                                                          Ordnance
                                                                                          compounds
                                       Soil Contaminated After  Soil Contaminated After   POLs
                                        Tank Removal.            Tank Removal consists    POL sludge
                                                                 of soil that has been
                                                                 removed during a tank
                                                                 removal operation and
                                                                 staged before
                                                                 treatment.
----------------------------------------------------------------------------------------------------------------

                               __________

   STATEMENT OF THE ASSOCIATION OF STATE AND TERRITORIAL SOLID WASTE 
                     MANAGEMENT OFFICIALS (ASTSWMO)

    The purpose of this statement for the record is to reflect the 
views of the Association of State and Territorial Solid Waste 
Management Officials (ASTSWMO) regarding the reauthorization of the 
Comprehensive Environmental Response, Compensation and Liability Act 
(commonly referred to as Superfund) during the 105th Congress. 
Specifically, we understand that the Senate Superfund, Waste Control 
and Risk Management Subcommittee will hold an oversight hearing on 
March 21, 2000 in order to review the current status of cleanup 
activities conducted under the Superfund program. We respectfully 
request that this statement be included as a part of the record for 
that hearing.
    ASTSWMO is a non-profit association which represents the collective 
interests of waste program directors of the nation's States and 
Territories. Besides the State cleanup and remedial program managers, 
ASTSWMO's membership also includes the State regulatory program 
managers for solid waste, hazardous waste, underground storage tanks, 
and waste minimization and recycling programs. Our membership is drawn 
exclusively from State employees who deal daily with the many 
management and resource implications of the State waste management 
programs they direct. As the day-to-day implementors of the State and 
Federal cleanup programs, we believe we can offer a unique perspective 
to this dialog. Since we share in Congress' and the public's desire to 
achieve effective and timely cleanup of our nation's contaminated sites 
and the restoration of injured resources associated with these sites, 
ASTSWMO has marshaled the comprehensive experience of our membership to 
provide our unique perspective to Congressional discussions and debates 
surrounding Superfund, and has participated in the debate to 
reauthorize and/or revise the Superfund law through the last four 
Congresses.

                         STATE ACCOMPLISHMENTS

    Our statement will be better understood in the context of the 
substantial accomplishments that State programs currently achieve in 
remediating contaminated sites. As with the Federal Superfund program, 
most State programs have had the benefit of 19 years to grow and mature 
in infrastructure capacity and cleanup sophistication. We believe it is 
very important that there is a common understanding of the actual 
status of State programs. With that in mind, ASTSWMO has conducted two 
studies of the accomplishments of State cleanup programs. We are 
providing complete copies of both studies to the Subcommittee staff for 
their use as reference documents. The most recent study collected 
detailed State reports on all short-term removal actions and long-term 
remedial actions conducted between January 1, 1993 and September 30, 
1997 for each site in the State system where hazardous waste cleanup 
efforts were performed by States directly, under State enforcement 
authority, and under State voluntary cleanup and property transfer/
Brownfields programs. Sites listed on the National Priorities List, 
Resource Conservation Recovery Act corrective actions and underground 
and above ground storage tank and other petroleum spills were not 
included in this study.
    The Association received information on 27,235 sites from thirty-
three responding States. The primary ground rule for the study was that 
information had to be reported site-specifically and had to be 
accompanied by background data. Estimates were not accepted or counted 
as part of either the individual State or national totals for work 
accomplished.
    While this study does not capture the complete site universe either 
on a national level or individual State level, it is the view of 
ASTSWMO that enough information was obtained to confirm that a trend 
has developed whereby on a national level States are not only 
addressing more sites at any given time, but are also completing 
(``construction completes'') more sites through streamlined State 
programs. State programs have matured and increased in their 
infrastructure capacity. Key results of the ASTSWMO study included:
     States have completed seven times as many sites per year 
these last four and three-quarter years than they did during the first 
12 years of the program. During the first 12 years of the program, 
States completed 202 sites per year on average. Over the last four and 
three-quarter years, States have averaged 1,475 completions per year 
for a total of 6,768 completions. State managers believe the large 
increase in completions can be attributed to the growth of State 
programs, the advent of State Voluntary Cleanup programs and the 
development of State cleanup standards (i.e., clearly defined 
endpoints).
     States have completed almost twice as many removals per 
year during the last four and three-quarter years of the program than 
they did during the previous 12 years of the program. On a national 
basis, States completed approximately 485 removals per year as compared 
to 293 per year during the first 12 years of the program. This doubling 
of the pace of removals indicates a substantial increase in risk 
reduction in the field.
     Three times as many confirmed contaminated sites have been 
identified and are working their way through the State system than 
during the first 12 years of the program. During the first 12 years of 
the program, States had approximately 1,850 sites working their way 
through their systems at any given time. Today, States are addressing 
an average of approximately 4,700 sites at any given time. (Note: the 
word ``address'' could refer to site remediation, no further action 
designations, or site prioritizations.) These findings clearly show 
that States' programs have matured and State infrastructures have 
increased in their capacity to identify and address more sites.
     Only 8.9 percent (2,426) of the total sites identified by 
States (27,235) were classified as inactive. As the data indicate, 
State capacity to address large numbers of sites has increased 
dramatically. Most sites are being actively worked on by States either 
through traditional State Superfund programs or through voluntary 
cleanup programs and it is the professional judgment of the ASTSWMO 
membership that the majority of sites classified as inactive are 
probably of lower relative risk and not destined for the NPL due to the 
triage system employed by most States.

                     ISSUES NEEDING EARLY ATTENTION

    Within that context of State success in cleanups, we believe we 
have gained some insight into several key aspects of the Federal 
implementation of the Superfund program as it interacts with State 
cleanup programs which need to be addressed if we are to improve the 
ways in which we can move both Federal and State cleanup regimes 
forward in parallel. The following discussion is not inclusive, and 
there are many other topics with strong State interest, such as program 
delegation, natural resource damages, enhanced waiver of sovereign 
immunity, and State funding. The absence of discussion here regarding 
such other CERCLA elements should not be interpreted as a lack of 
interest on the part of our members. We selected several key features 
for their apparent relevance to today's oversight hearing.

                              NPL LISTING

    The first key issue is how a site is listed, or not listed, on the 
National Priority Listing (NPL). ASTSWMO supports the National 
Governors' Association position that Governors should be given the 
statutory right to concur with any new NPL listing in their State. We 
believe the facts support that position. States today employ a triage 
system whereby the worst sites are addressed first. For example, only 
8.9 percent (2,426) of the total sites (27,235) identified by the 
recent ASTSWMO survey were classified as inactive. It is, therefore, 
the strong belief of the ASTSWMO membership that most sites that have 
been identified within a State that could qualify for listing on the 
NPL are already being worked on by the State.
    We believe the views of our membership were validated by the 
General Accounting Office (GAO) Report entitled, ``Hazardous Waste: 
Unaddressed Risks at Many Potential Superfund Sites'' (GAO/RCED-99-8, 
November 1998). In this report the GAO reviewed the status of 3,036 
sites which had pre-scored above 28.5 but for a variety of reasons had 
not been placed on the NPL. Out of a total of 3,036 sites, only 7.6 
percent (232) were estimated by both EPA and State officials to 
potentially warrant listing on the NPL. This confirms that the EPA 
regional staff had utilized good judgment in not placing the vast 
majority of these sites on the NPL; it also confirms that the hazard 
ranking system could be improved.
    This leads logically to the question of the appropriate role of the 
Federal Superfund program in the future. While there may be 40-plus 
States with State Superfund programs and Voluntary Cleanup programs, 
there will always be States who choose not to develop a complete 
program, and Federal Government assistance may be warranted. There will 
also be sites which, due to either technical or legal complexity or 
cost, a State either cannot or may prefer to have the Federal 
Government address. The point is that we think the choice as to whether 
a site is addressed by the Federal Government or State government 
should be determined by the State, given the advanced status of State 
cleanup programs. A Governor should be able to make the determination 
whether a site will be listed on the NPL. While it is EPA policy to 
routinely seek concurrence from the Governor before a site is listed on 
the NPL, it is not mandatory that the concurrence be received. If a 
dispute should arise between EPA and a Governor, the process within EPA 
is to have the Assistant Administrator for OSWER make the final 
determination. Frankly, we do not consider that a satisfactory policy.
    Fortunately, there are very few sites where the States and EPA 
disagree. However, when a dispute does occur the site quickly becomes 
high profile and both the State and Federal Government can lose 
credibility. As indicated by the ASTSWMO survey and GAO survey, the 
States have clearly become the primary regulators for overseeing site 
remediation. The NPL should be reserved for those sites which both the 
State and Federal Governments believe warrant expenditure of Federal 
resources. The NPL is no longer reserved for the ``worst of the worst'' 
sites, rather the NPL has shifted to a venue for remediating sites 
which require the use of Federal resources. The criteria for listing 
sites on the NPL may quickly shift from one of risk based 
determinations to one based primarily on resource needs.

                          FINALITY OF CLEANUP

    States are responsible for remediating the vast majority of sites 
in this country. While it is crucial to clarify the issue of who 
actually will determine in the future whether a site is listed on the 
NPL, it is equally as important to clarify which governmental entity 
will be given the responsibility for determining when a site is fully 
remediated. In other words, the concept of finality needs to be 
addressed. The Federal Superfund statute technically applies to any 
site where a release occurs. However, the reality today is that States 
are responsible for ensuring the remediation of all sites which do not 
score above 28.5 using EPA's Hazard Ranking System (HRS)--the cutoff 
for Federal listing on the NPL. The EPA removal program is able to 
address some sites which are not listed on the NPL, but the removal 
program is designed to stabilize a site, not to ensure the full 
remediation of the site. EPA cannot expend fund money for remediating a 
site not listed on the NPL. Consequently, the State is often still 
responsible for completing the remediation of a site even after an EPA 
removal action has been performed at a site.
    It is our belief that Congress needs to determine definitively 
whether EPA should retain a role in the remediation of non-NPL sites. 
While in practicality EPA has little or no role at these sites and as 
our survey indicated, the States are addressing the large universe of 
non-NPL sites, the statute still maintains a role for EPA in theory. 
Although the majority of these sites (typically brownfields sites) will 
never be placed on the NPL, they are still subject to CERCLA liability 
even after the site has been cleaned up to State standards. It is our 
belief that we can no longer afford to foster the illusion that State 
authorized cleanups may somehow not be adequate to satisfy Federal 
requirements. The potential for EPA overfilings and for third party 
lawsuits under CERCLA is causing too many owners of potential 
Brownfields sites to simply ``mothball'' the properties. We believe it 
is imperative that Congress seek to clarify the State-Federal roles and 
potential liability consequences under the Federal Superfund program. 
States should be able to release sites from liability once a site has 
been cleaned up to State standards. In situations which are deemed 
emergencies and where the State requests assistance, we believe the 
Federal Government should be able to address the site and if necessary 
hold the responsible party liable consistent with liability assigned 
under State cleanup law. Emergency actions should be the only 
exceptions to such releases from Federal liability.
    This is a contentious issue and we understand that others have 
raised objections to provisions of this nature, but we think there are 
several reasons why such a change in favor of State finality decisions 
must eventually follow. First, EPA does not have the ability to compel 
parties to take remedial actions at sites not listed on the NPL, except 
for removal actions. Second, the majority of these sites will never be 
listed on the NPL, therefore, EPA lacks the regulatory authority to 
spend fund money at these sites to perform the necessary remedial 
actions. Third, if a State should release a site from State liability, 
and a situation should develop which warrants Federal attention, the 
State will act responsibly and contact EPA. All States have standard 
``reopener'' provisions contained in their liability releases which 
allow activation if, for example, the remedy should fail, and we see 
little likelihood of a need for Federal intervention in most 
situations. While it is clear in some emergency situations that EPA 
should have the ability to enter a site, we believe the second prong of 
the condition must also be met, i.e., with State concurrence similar to 
our recommendation for listing sites on the NPL. We wish to avoid 
duplication as much as possible and therefore believe that, if a State 
is capable of addressing the emergency, there is no need to utilize 
EPA's resources. The States have proven they act responsibly in these 
situations and it is to the State's advantage to notify EPA when either 
the State's financial or technical resources are not sufficient to 
adequately address the problem.
    We believe the universe of sites to be addressed by State Cleanup 
(State Superfund and State Voluntary Cleanup) programs and the sites 
eligible for releases from Federal liability is the non-NPL universe of 
sites. It seems only practical to officially exclude proposed and 
listed NPL sites simply for the fact that much work has already ensued 
in order to place these sites on the NPL. However, some suggest that 
the non-NPL universe can be divided into two categories, NPL-caliber 
and low risk sites. We are the primary regulators for non-NPL sites and 
we can tell you that there is no clear line that differentiates these 
sites. Many would suggest the bright line should be 28.5 (as determined 
by the HRS), but there are two problems with using this arbitrary 
cutoff. First, 28.5 is the quantitative scoring factor used to 
determine if a site qualifies for placement on the NPL. However, this 
figure is based on an arcane hazard ranking system which many EPA and 
State managers acknowledge is flawed, so much so, that EPA and State 
managers in the recent GAO study identified only 7.9 percent of the 
3036 pre-scored universe of sites for potential listing on the NPL. 
Second, in order to use the quantitative NPL-caliber designation, 
States would have to HRS score every site prior to admitting those 
sites into a voluntary cleanup program; a very wasteful use of valuable 
resources. Clearly, the pre-scoring of a site as a condition for 
entering a State Voluntary Cleanup program would be a huge disincentive 
for marketing a State Voluntary Cleanup program and would not serve to 
move this large universe of sites to cleanup, nor to facilitate 
economic redevelopment of brownfields.
    While the program has operated for years on a ``you know it when 
you see it'' basis in identifying NPL-caliber sites, we consider that 
bad public policy. Such an intuitive approach should not be acceptable 
for differentiating State and EPA roles and for providing certainty to 
the process. If a site is not to be listed or proposed for listing on 
the NPL, than the State should be free to address the site without EPA 
interference and the site should be eligible for the same benefits as 
any other site, such as liability releases.

                       COST SHARING AT NPL SITES

    The current cost share system shifting the future burden of 
Operation and Maintenance (O&M) costs to States has served only to 
exacerbate the tension which exists between State Waste Agencies and 
EPA. Under the status quo the financial incentives for EPA and the 
States are diametrically opposed when considering final remedies for a 
site (States desiring more capital intensive remedies and EPA seeking 
remedies with lower capital costs and higher O&M costs). State Waste 
Officials believe the State cost share match needs to be set at 10 
percent (including in-kind options) at all fund-lead remediation sites.

                            LIABILITY ISSUES

    As State Waste Managers, our principle concern is ensuring the 
timely and effective cleanup of contaminated sites. We are not legal 
experts and will simply note that we need an adequate and stable source 
of funding in order to complete our work. We understand that reforms 
are needed and that Congress will address issues of fairness and 
responsibility in weighing this matter. We believe that elected 
officials have the mandate to make those kinds of decisions, and 
respectfully refer the Subcommittee to the standing policies of the 
National Governors Association regarding the balances required in 
addressing statutory liability change.

                              BROWNFIELDS

    There has been considerable discussion of the advisability of 
addressing some issues, such as Brownfields cleanups, separately from 
comprehensive CERCLA reauthorization, especially as that process has 
proven so difficult to conclude. We have always preferred a 
comprehensive approach because interactive elements of the Superfund 
program can be revised to work together and implementation efforts can 
be consolidated in a timely fashion. However, we recognize that some 
progress is preferable to none, but only if there is real progress. 
Frankly, several versions of suggested Brownfields legislation do not 
resolve problems we consider serious and inhibiting (e.g., the absence 
of State ability to establish finality of a site), and some contain 
suggestions we think will actually impede the continued success of our 
State cleanup programs. An example of the latter is the view that where 
Federal grant funds are provided for Brownfields remediation, the State 
cleanup program must be approved or authorized by the EPA administrator 
under extensive Federal criteria. No one questions the need for 
financial accountability of Federal funds provided any recipient, but 
that is established by reporting and audits. However, the State cleanup 
programs are empirically successful, and draw their strength from being 
customized to meet State procedural needs and standards. They achieve 
fast paced, safe, and effective cleanups and that is how they should be 
measured. They were never designed to operate alike, and any attempt to 
force them to fit a one-size-fits-all Federal mold will tie their hands 
and reduce their effectiveness. We urge the Subcommittee to continue to 
seek solutions which build on the successes of State cleanup programs, 
and to avoid statutory restrictions which will impede their future 
success, should there be movement toward separate Brownfields 
legislation.

                               CONCLUSION

    In conclusion, ASTSWMO's members are proud of their accomplishments 
in reducing the number of unaddressed contaminated sites, and hopeful 
that Congress will find ways to provide them a broader range of 
statutory tools to use in enhancing their cleanup programs. Our 
Associations stands ready to assist the Subcommittee as it works 
through the many complex issues flowing from almost 20 years of 
Superfund implementation. Thank you for the opportunity to provide this 
input to your welcome review process.

                                
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