[Senate Hearing 109-1042]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 109-1042
 
                   OVERSIGHT OF THE SUPERFUND PROGRAM

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


                                HEARING

                               before the

             SUBCOMMITTEE ON SUPERFUND AND WASTE MANAGEMENT

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 15, 2006

                               __________

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


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                            congress.senate


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia             JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri        MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio            JOSEPH I. LIEBERMAN, Connecticut
LINCOLN CHAFEE, Rhode Island         BARBARA BOXER, California
LISA MURKOWSKI, Alaska               THOMAS R. CARPER, Delaware
JOHN THUNE, South Dakota             HILLARY RODHAM CLINTON, New York
JIM DeMINT, South Carolina           FRANK R. LAUTENBERG, New Jersey
JOHNNY ISAKSON, Georgia              BARACK OBAMA, Illinois
DAVID VITTER, Louisiana
                Andrew Wheeler, Majority Staff Director
                 Ken Connolly, Minority Staff Director
                              ----------                              

             Subcommittee on Superfund and Waste Management

                   JOHN THUNE, South Dakota, Chairman
JOHN W. WARNER, Virginia             BARBARA BOXER, California
CHRISTOPHER S. BOND, Missouri        MAX BAUCUS, Montana
JOHNNY ISAKSON, Georgia              FRANK R. LAUTENBERG, New Jersey


                            C O N T E N T S

                              ----------                              
                                                                   Page

                             JUNE 15, 2006
                           OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana.........    17
Boxer, Hon. Barbara, U.S. Senator from the State of California...     6
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     1
Jeffords, Hon. James M., U.S. Senator from the State of Vermont, 
  prepared statement.............................................    49
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................    10
Lieberman, Hon. Joseph I., U.S. Senator from the State of 
  Connecticut....................................................    50
Obama, Hon. Barack, U.S. Senator from the State of Illinois......    12
Thune, Hon. John, U.S. Senator from the State of South Dakota....     3

                               WITNESSES

Bodine, Susan Parker, Assistant Administrator, Office of Solid 
  Waste and Emergency Response, Environmental Protection Agency..    20
    Prepared statement...........................................    50
Cantwell, Hon. Maria, U.S. Senator from the State of Washington..    16
Durbin, Hon. Richard, U.S. Senator from the State of Illinois....    14
Porter, Winston J., president, Waste Policy Center...............    36
    Prepared statement...........................................    71
Probst, Katherine N., senior fellow and director, Resources for 
  the Future.....................................................    34
    Prepared statement...........................................    61
    Responses to additional questions from:
        Senator Boxer............................................    68
        Senator Jeffords.........................................    68
Spiegel, Robert, executive director, Edison Wetlands Association.    43
    Prepared statement...........................................   108
Steinberg, Michael W., Superfund Settlements Project.............    41
    Prepared statement...........................................   102
Trasande, Leonardo, M.D., MPP, assistant director, Center for 
  Children's Health and the Environment, Department of Community 
  and Preventive Medicine, Mount Sinai School of Medicine........    40
    Prepared statement...........................................    74
    Responses to additional questions from:
        Senator Boxer............................................   101
        Senator Obama............................................   101

                          ADDITIONAL MATERIAL

Articles:
    Children's Health............................................ 80-94
    American Journal of Industrial Medicine......................95-100
Charts:
    Cost Frequency Distribution for Construction Complete Sites 
      1981-2005..................................................    59
    More than $24 Billion Total in PRP Commitments for Cleanup 
      and Cost Recovery Since 1981...............................    57
    Operable Units for Final and Deleted NPL Sites...............    60
    States with the Largest Number of Superfund Sites and the 
      Largest Number of Superfund Sites Where Human Exposure is 
      not Under Control..........................................   129
    Superfund Appropriation Versus Trust Fund Balance (beginning 
      of the year)...............................................    56
    Superfund Site Assessment Workflow--FY 2004..................    58
    Superfund Sites with Uncontrolled Human Exposures...........130-133
Statement, John B. Stephenson, Director, U.S. Government 
  Accountability Office..........................................   120


                   OVERSIGHT OF THE SUPERFUND PROGRAM

                              ----------                              


                        THURSDAY, JUNE 15, 2006

                               U.S. Senate,
         Committee on Environment and Public Works,
            Subcommittee on Superfund and Waste Management,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:30 a.m. in 
room 628, Dirksen Senate Office Building, Hon. John Thune 
(chairman of the subcommittee) presiding.
    Present: Senators Thune, Inhofe, Jeffords, Baucus, Boxer, 
Lautenberg, and Obama.
    Also present: Senators Cantwell and Durbin.
    Senator Thune. Today's hearing will come to order.
    I would like to welcome everyone to our oversight hearing 
regarding the Superfund program, the program that I gained a 
better understanding of since joining this committee. This is 
the first hearing on this Superfund program in the past 4 
years. So as we begin our hearing today, I would like to remind 
my colleagues and those who will be testifying before the 
committee today to be diligent in limiting your remarks to 5 
minutes, so that we can ensure that we hear from all interested 
parties.
    There also will be a 5-minute round of questioning 
following each panel. Any additional questions can be submitted 
for the record.
    With that, before I make my opening statement, the Chairman 
is here and has to get to another meeting. So I am going to 
yield to him and allow him to make his opening statement.
    Chairman Inhofe.

 OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM 
                     THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you, Mr. Chairman. I have to manage 
the DOD Authorization bill on the floor here in just a few 
minutes. So I will make an opening statement.
    However, I want to start by thanking the subcommittee 
Chairman, Senator Thune, for holding this hearing. Superfund 
was passed in 1980 and was at the time a step forward in 
dealing with environmental issues plaguing our country. We have 
learned a great deal since this legislation was passed and hope 
this hearing today will allow us to expose some strengths and 
weaknesses in important yet complex issues.
    As most on this committee know by now, the No. 1 Superfund 
site is in my State of Oklahoma, Tar Creek. When I became 
Chairman, we started looking at this very closely. Much of the 
progress that we have made was due to getting the Federal 
Agencies together. I can remember when, Senator Boxer, it might 
surprise you to know that all these Agencies had never even 
talked to each other at the time, I am talking about DOE, DOJ, 
EPA, and all of that.
    Well, we got them together, and as a result of that, things 
did work out. So things can happen. My friends across the aisle 
will argue the only way to ensure long-term cleanup solution 
would be to reinstate the Superfund tax, so that the polluter 
pays for the cost. I, like the Administration, support the 
polluter pay standard under the current Superfund law. When the 
polluter can be identified that can pay, then they are held 
liable for the damages. This has meant that about 70 percent of 
Superfund sites are cleaned up by the polluters without the 
involvement of Government revenues.
    Other sites that are initially cleaned up by EPA are paid 
for from costs later recovered from the parties that 
contributed to the cause of pollution. At a marginal number of 
these sites, responsible parties who contributed to the 
contamination have gone out of business or do not have assets 
to contribute to the cleanup. The Government prioritizes and 
funds the cleanup at such sites out of general revenue funds 
from all taxpayers and Superfund trust fund balances to assure 
the protection of public health.
    Some will argue that because of no tax, sites are unfunded 
and therefore those communities are at risk. The truth behind 
this statement is that local communities are not at risk. Sites 
are funded based on risks they pose, meaning that most unstable 
sites receive priority designation on funding. This is how EPA 
has always determined funding, regardless of the 
Administration. It was true in the Clinton administration and 
in previous administrations. EPA focuses dollars where they are 
needed the most. The Administration has displayed a strong 
financial commitment to Superfund and I support the current 
Superfund budget request.
    I believe the reinstatement of any type of a Superfund tax 
would create an inequitable burden on those companies that are 
within the law. Various funding methods that are now working to 
impose such a tax on business to raise money to put into the 
trust fund would serve as a general inhibitor on business 
development throughout our country. This tax would fall on 
businesses already paying for their own cleanups, or that have 
never created any kind of a Superfund site, and would put a 
burden on those companies to pay for cleanups on sites.
    So critics would say that those already doing their part 
pay twice and have the very small number of those who did 
contribute to the problem transfer the burden to everyone else. 
I think this is a subject we have gone all around and around 
and around on. There is a difference of opinion, certainly, 
that is going to come out during the course of this hearing 
between the left and the right side of this, Mr. Chairman. I 
would just say that I feel very strongly that we don't need to 
unnecessarily punish someone, someone who is a citizen, who has 
not been responsible for any kind of a Superfund problem and 
consequently, I believe this is a very significant, important 
hearing to have, Senator Thune. I appreciate your holding this 
hearing.
    I do regret that I have to go to the floor to handle the 
DOD bill for about 45 minutes. If you are still in after that, 
I will come back. Thank you for allowing me to go first, and 
thank you, Senator Boxer.
    [The prepared statement of Senator Inhofe follows:]
       Statement of Hon. James M. Inhofe, U.S. Senator from the 
                           State of Oklahoma
    I want to start off by thanking the subcommittee Chairman John 
Thune for holding this hearing. Superfund was passed in 1980 and was at 
the time a step forward in dealing with environmental issues plaguing 
our country. We have learned a great deal since this legislation was 
passed and hope this hearing today will allow us to expose some 
strengths and weaknesses in this important yet complex issues.
    As most on this committee know by now, the No. 1 Superfund site in 
the entire country is in my home State of Oklahoma known as Tar Creek. 
We have made significant progress at Tar Creek since I became Chairman. 
Much of that progress was due to getting the Federal Agencies under 
EPW's jurisdiction to finally work together to remove the obstructions 
that had stalled cleanup efforts. The lack of cooperation within the 
Federal family prior to my Chairmanship was simply unacceptable. In my 
view if the bureaucracy of these Agencies would work in a collaborate 
effort then the sites could be restored at a much higher rate than is 
currently being accomplished.
    My friends across the aisle will argue the only way to ensure a 
long-term cleanup solution would be to reinstate the Superfund tax so 
that the ``polluter pays'' for the cost. I, like the Administration, 
support the polluter pays standard under the current Superfund law. 
When a polluter can be identified that can pay, they are held liable 
for the damages. This has meant that about 70 percent of Superfund 
sites are cleaned up by the polluters without the involvement of 
government revenues. Other sites that are initially cleaned up by EPA 
are paid for from costs later recovered from the parties that 
contributed to the cause of the pollution. At a marginal number of 
these sites, responsible parties who contributed to the contamination 
have gone out of business or do not have assets to contribute to the 
cleanup. The Government prioritizes and funds the cleanup at such sites 
out of general revenues from all taxpayers and Superfund Trust Fund 
balances to assure protection of public health.
    Some will argue that because of no tax, sites are unfunded and 
therefore those communities are at risk. The truth behind this 
statement is that local communities are not at risk. Sites are funded 
based on the risks they pose, meaning that the most unstable sites 
receive a priority designation on funding. This is how EPA has always 
determined funding, regardless of administrations. EPA focuses dollars 
where they are needed most. The Administration has displayed a strong 
financial commitment to Superfund and I support the current Superfund 
budget request.
    I believe the reinstatement of any type of Superfund tax would 
create an inequitable burden on those companies that are within the 
law. The various funding methods are now working and to impose such a 
tax on businesses to raise money to put into a trust fund would serve 
as a general inhibitor on business development throughout our country. 
This tax would fall on businesses already paying for their own cleanups 
or that has never created a Superfund site and would put a burden on 
those companies to pay for cleanups on sites they had nothing to do 
with.
    Critics would have those already doing their part pay twice and 
have the very small number of those who did contribute to the problem 
transfer their burden to everyone. Both Democratic and Republican 
controlled Congresses have rejected such an unfair approach, now that 
the recovery scheme that enforces the polluter pays principle is fully 
in place and working.
    I believe that with renewed commitment from the Administration in 
cutting down bureaucratic hurdles that are impeding cleanup and 
improved communication between Agencies, the Administration can make 
great strides in cleaning up these sites without putting great 
hardships on businesses not liable for these environmental damages.

  OPENING STATEMENT OF HON. JOHN THUNE, U.S. SENATOR FROM THE 
                     STATE OF SOUTH DAKOTA

    Senator Thune. Let me just say by way of opening remarks 
that unlike other States that have numerous Superfund sites, 
South Dakota is relatively fortunate in that it has only two 
sites, the Gilt-Edge Mine, which is a 258-acre open pit cyanide 
heap-leaching gold mine in the Black Hills, and the other one 
is Ellsworth Air Force Base, which continues to be monitored 
for groundwater contamination and other hazardous substances 
that were deposited by the military dating back to the 1940s.
    The primary purpose of the hearing today is to learn more 
about EPA's efforts to stabilize and clean up sites on the 
National Priority List. We will hear from a diverse number of 
witnesses that will, No. 1, testify regarding potential risks 
Superfund sites pose to the public; No. 2, update us on what 
PRPs and the EPA are doing to address the clean up of 
contaminated sites; and No. 3, what improvements could be made 
to make the Superfund program operate more efficiently and more 
effectively, both in the short term and the long term.
    It is clear to me that the EPA faces a far different 
universe of cleanup demands than when the Superfund program 
started over 25 years ago. While some have criticized the 
Superfund program because the annual number of site completions 
have dropped, I would like to make the observation that EPA is 
doing more today to protect human health and the environment, 
especially at the large cleanup sites.
    Take for instance the combined impact that the following 
laws have had on our country over the past three decades: The 
Clean Air Act, Clean Water Act, RCRA, Toxic Substance Control 
Act and Superfund. While tremendous progress has been made to 
reduce human exposure to hazardous substances, I believe there 
is ample room for improvement, especially within the Superfund 
program. Hopefully following today's hearing we can come to an 
agreement on a handful of improvements that might be able to be 
made.
    Last but not least, while it is not a central part of 
today's hearing, I would like to raise concerns about what I 
consider to be an attempt by some activists to regulate manure 
under our Superfund laws. Superfund was intended by Congress to 
provide for the clean up of the worst industrial toxic sites, 
such as Love Canal. It was never intended to apply to 
substances such as manure.
    I have been approached numerous times in South Dakota by 
agricultural producers and organizations who are concerned 
about what attorneys might succeed in classifying manure as a 
hazardous substance. Manure has been safely used for centuries 
as a natural fertilizer all over the world. If we allow animal 
manure to be considered a hazardous substance under Superfund, 
then virtually every farm operation in the United States could 
be exposed to liabilities and penalties. The economic impact 
across the country would be devastating to American agriculture 
and related industries. As many of you know, Superfund claims 
could be brought against all sizes of operations and 
individuals.
    The history of Superfund shows that all contributors, no 
matter their size, can and will be held liable. I do not 
believe Congress ever intended such an outcome for America's 
farmers, and I believe we need to address this issue in the 
near future.
    Like other business sectors, American agriculture is 
appropriately regulated by a wide range of Federal and State 
environmental laws, including the Clean Water Act, the Clean 
Air Act and nuisance laws. It has never been considered to be 
regulated under Superfund and I don't believe it should be now.
    Currently, the agriculture industry is working with the 
private sector, universities and Government Agencies to develop 
new and emerging technologies for manure management, including 
using excess animal manure for energy generation through 
methane digesters. This is exciting technology, especially as 
our Nation explores alternative sources of energy.
    Congress should not allow the courts to legislate on this 
issue. We need to act to clarify that liability and reporting 
requirements under CERCLA and parallel reporting requirements 
under EPCRA do not apply to livestock manure.
    With that, I would yield to the Senator from California for 
her opening statement.
    [The prepared statement of Senator Thune follows:]
          Statement of Hon. John Thune, U.S. Senator from the 
                         State of South Dakota
    Today's hearing will come to order. I would like to welcome 
everyone to our oversight hearing regarding the Superfund program a 
program that I have gained a better understanding of since I joined the 
EPW Committee. Also, today's hearing is important because it's been 4 
years since this committee held a hearing on the Superfund program.
    As we begin today's hearing, I would like to remind my colleagues 
and those who will be testifying before the committee that you need to 
be diligent in keeping your remarks to Five Minutes to ensure that we 
can hear from all interested parties.
    Also, there will be one 5-minute round of questions following each 
panel. Any additional questions for today's witnesses will be submitted 
for the record.
    With that, I will begin my opening statement and then yield to 
Senator Boxer, the Ranking Member of this subcommittee for her 
remarks--other members of the committee will be recognized based on the 
Early-Bird Rule.
    Unlike other States that have numerous Superfund sites, South 
Dakota is relatively fortunate because it only has two such sites--Gilt 
Edge Mine which was a 258-acre open pit cyanide heap-leach gold mine in 
the Black Hills and Ellsworth Air Force Base which continues to be 
monitored for groundwater contamination and other hazardous substances 
that were deposited by the military dating back to the 1940s.
    The primary purpose of our hearing today is to learn more about 
EPA's efforts to stabilize and clean up sites on the National Priority 
List. A diverse number of witnesses will: (1) testify regarding the 
potential risks that Superfund sites pose to the public; (2) update us 
on what PRPs and the EPA are doing to address the clean up of 
contaminated sites and; (3) what improvements could be made to make the 
Superfund program operate more effectively both in the short-term and 
the long-term.
    It's clear to me that the EPA faces a far different universe of 
cleanup demands than when the Superfund program started over 25 years 
ago. While some have criticized the Superfund program because the 
annual number of site completions have dropped, I would like to make 
the observation that the EPA is doing more today to protect human 
health and the environment especially at large cleanup sites.
    Take for instance the combined impact that the following laws have 
had on our country over the past three decades:
     The Clean Air Act,
     The Clean Water Act,
     The Resource Conservation Recovery Act,
     The Toxic Substance Control Act and,
     The Comprehensive Environmental Response, Compensation and 
Liability Act.
    While tremendous progress has been made to reduce human exposure to 
hazardous substances, I believe there is ample room for improvement--
especially within the Superfund program. Hopefully following today's 
hearing we can come to an agreement on a handful of improvements that 
can be made.
    Last but not least, while not a central part of today's hearing, I 
also want to raise concerns about what I consider to be a ludicrous 
attempt by some activists to regulate ``Manure'' under our Superfund 
laws.
    Superfund was intended by Congress to provide for clean up of the 
worst industrial toxic waste sites such as Love Canal. It was never 
intended to apply to substances such as manure. I have been approached 
numerous times in South Dakota by agriculture producers who are 
concerned that litigious attorneys might succeed in classifying manure 
as a hazardous substance.
    Manure has been safely used for centuries as a natural fertilizer 
all over the world. If we allow animal manure to be considered a 
hazardous substance under Superfund, then virtually every farm 
operation in the United States could be exposed to liabilities and 
penalties. The economic impact across the country would be devastating 
to American agriculture and related industries. As many of you may 
know, Superfund claims could be brought against all sizes of operations 
and individuals.
    The history of Superfund shows that all contributors, no matter 
their size, can and will be held liable. I do not believe Congress ever 
intended such an outcome for America's farmers, and I think we need to 
address this issue in the near future.
    Like other business sectors, American agriculture is appropriately 
regulated by a wide range of Federal and State environmental laws--
including the Clean Water Act, the Clean Air Act and nuisance laws. It 
has never been considered to be regulated under Superfund, and I do not 
believe it should be now.
    Currently, the agriculture industry is working with the private 
sector, universities and government agencies to develop new and 
emerging technologies for manure management, including using excess 
animal manure for energy generation through methane digesters. This is 
exciting technology--especially as our Nation explores alternative 
sources of energy.
    Congress should not allow activist judges to legislate from the 
bench on this issue. We need to act soon to clarify that liability and 
reporting requirements under CERCLA and parallel reporting requirements 
under EPCRA do not apply to livestock manure.

OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Boxer. Thanks, Mr. Chairman. As you noted, the last 
oversight hearing was 4 years ago on this program. I happened 
to be the Chair of the subcommittee then. So this is long 
overdue.
    The Superfund program should first and foremost be about 
protecting the health and safety of our communities, including 
our children, who are the most vulnerable to toxic waste. In my 
State, we have the second highest number of Superfund sites. I 
have cared a lot about this program because of that, and other 
States across the country. I would ask unanimous consent to 
place in the record a chart, two charts from the EPA's own Web 
site, Mr. Chairman, if I might do that.
    Senator Thune. Without objection.
    [The referenced material follows on page 129.]
    Senator Boxer. What I wanted to point out is the top 25 
States with Superfund sites with uncontrolled exposures. 
Uncontrolled exposures as defined by EPA. New Jersey has 19 of 
these sites, Senator Lautenberg. New Jersey has 19 of the 
uncontrolled sites, the highest in the Nation. Illinois has 
second, with 12 uncontrolled sites. Washington State, I say to 
my colleague, Senator Cantwell, and I should have Senator 
Durbin, 12, Washington 10, New York 8, California 7. It goes 
on. Many of our smaller States are on this list.
    This isn't a question of left and right, as my good 
Chairman said. This is a question of right and wrong. Because a 
lot of these States are red States, a lot of these States are 
blue States. It is not about this, it is about right and wrong. 
What are we doing to clean these sites up?
    I have to tell you that clear answers have not been 
forthcoming from the EPA about the state of the Superfund 
program. It has only been with extraordinary effort, using 
every tool at my disposal as a Senator that I have been able to 
piece together information about the program and the nature of 
the threats posed by Superfund sites that for years have been 
underfunded.
    I held up the current Assistant Administrator's 
confirmation, it wasn't personal. It was that I wanted 
information. I asked for funding shortfall information and 
honest answers about the risks posed by these sites. To date, I 
have received partial answers.
    But what I have learned has made it clear that we have to 
get to the bottom of what is going on in this program. I am 
especially concerned about the sites where human exposure is 
not under control. I read some of the States that have the 
greatest hazard there. I learned there were 149 of these sites 
when I made my request. Today, EPA is saying there are 139.
    Sites where human exposure is not under control can have 
pathways of exposure that directly affects our children. 
Residential back yards, parks, playgrounds or areas where 
children have easy access sometimes have arsenic, lead or other 
contaminants, according to EPA's own documents. I understand 
each site has its own story. Some are worse that others. Some 
have documented high levels of lead in children's blood like 
Omaha lead in Nebraska or Bunker Hill in Idaho.
    One thing is clear: EPA should have an open door policy 
when it comes to information on the status of these sites. 
People have a right to know if their children are safe and if 
there is a threat, there is a fundamental right to know so 
those affected can act. That is the American way. Secrecy is 
not the American way. EPA's closed door approach to Superfund 
is unacceptable.
    We share many values in this country, and one of the most 
central of values is the value we place on our children. It is 
totally unacceptable for EPA to say that members of a community 
or Members of Congress cannot know what is going on at these 
sites in terms of risk and funding. What EPA plans to do or not 
do should not be a secret. There is no national security here. 
The limited need to protect enforcement information isn't an 
excuse for keeping families in the dark.
    It is stunning to see the casual way EPA treats the 
public's right to know. Many of the documents I have asked for 
at these sites, especially those relating to timing of cleanup, 
funding shortfalls and related risks are stamped 
``privileged.'' Look at it. This is what we get back. 
Privileged, across the whole page. The vast majority of the 
documents EPA provided in response to my questions were marked 
this way one very single page.
    To shut the people out and keep them in the dark is 
unconscionable, and it must change. Superfund fee has long 
expired, polluters have been left off the hook. The funding 
levels for this program in constant dollars has dropped by more 
than a third. It should be no surprise that a program that has 
been shortchanged like this cannot meet its obligations. I have 
a bill to restore the polluter fee. That would be an important 
step.
    I also applaud Senator Cantwell's effort in her bill to 
force EPA to put together a financial assurance program for 
polluting companies. It is a wonderful idea. Why should 
Superfund information be kept secret? What is the motivation? 
One thing is clear: if the public knew just how long the EPA 
planned to take to clean up the site next door, there would be 
an outcry. The Administration does not want to shift priorities 
to a program like this. That is clear. So to prevent the 
outcry, people are left in the dark. It needs to change.
    I plan to work with my colleagues in an effort to make sure 
that EPA has transparency, respects the public right to know. I 
plan to introduce a bill to ensure that the public right is 
protected and the door will be open at EPA, not tightly shut as 
it is now. I will do everything in my power to ensure that the 
state of this program is changed for the better. I look forward 
to working with my chairman and the Chairman of the full 
committee to make sure that this program gets back on track.
    Thank you very much.
    [The prepared statement of Senator Boxer follows:]

        Statement of Hon. Barbara Boxer, U.S. Senator from the 
                          State of California

    Mr. Chairman, I appreciate your agreement as well as that 
of the Chairman of our full committee to hold this critically 
needed oversight hearing on the state of the Superfund program. 
I conducted the last oversight hearing as Chairman of this sub-
committee more than 4 years ago and oversight of the EPA 
Superfund program is long overdue.
    The Superfund program should first and foremost be about 
protecting health and safety of communities, including children 
who are the most vulnerable to exposure to toxic waste. I have 
long cared a great deal about the threat posed by Superfund 
sites in my State. California has the distinction of being 
second in the Nation in the number of Superfund sites with 94, 
tied with Pennsylvania and only exceeded by our friends in New 
Jersey. People who live near these sites have a right to know 
exactly what is in the Superfund site next door and what 
measures are being taken to protect them from the risks 
associated with these highly toxic sites.
    I am sorry to report that clear answers have not been 
forthcoming from the EPA about the state of the Superfund 
program. It has only been with extraordinary effort using every 
tool at my disposal that I have been able to piece together 
information about the program and the nature of the threats 
posed by Superfund sites that for years have been under-funded. 
I held up the current Assistant Administrator's confirmation to 
attempt to gain access to information on sites where human 
exposure is not under control. I asked for funding shortfall 
information and honest answers about the risks posed by these 
sites.
    To date, I have received only partial answers to my 
questions from the EPA--but what I have learned has made it 
clear that we must quickly get to the bottom of what is going 
on in this program. I am especially concerned about the sites 
where human exposure is not under control. I learned there were 
149 of these sites when I made my request. Today there are 139 
according to EPA's Web site.
    Sites where human exposure is not under control can have 
pathways of exposure that directly affect children. Residential 
backyards, parks, playgrounds or areas where children have easy 
access have arsenic, or lead or other contaminants according to 
EPA documents. I understand that each site has its own story. 
Some are surely worse than others. Some have documented high 
levels of lead in children's blood like Omaha lead in Nebraska 
or Bunker Hill in Idaho. One thing is clear. EPA should have an 
open door policy when it comes to information on the status of 
these sites. People have a right to know if their children are 
safe. If there is a threat, there is a fundamental right to 
know so those affected can act.
    EPA's closed door approach to Superfund site information is 
unacceptable. We share many values in this country. One of the 
most central is the value we place on the health and safety of 
our children. It is totally unacceptable for EPA to say that 
members of a community or Members of Congress cannot know what 
is going on at these sites in terms of risk and funding. What 
EPA plans to do or not do for a site should not be a secret. 
The limited need to protect enforcement information is no 
excuse for keeping families in the dark about the future of 
their community.
    It is really stunning to see the casual way EPA treats the 
public's right to know. Many of the documents I have asked for 
at these sites, especially those relating to timing of cleanup, 
funding shortfalls and related risks are stamped ``PRIVILEGED'' 
across the whole page in bright red ink. The vast majority of 
the documents EPA provided in response to my questions were 
marked this way on every page; they were given to Senator 
Inhofe and EPA asked that our access be limited. They talked 
about not allowing us to review these documents without 
supervision. This program is set up and paid for by the people. 
To shut the people out and keep them in the dark in this way is 
unconscionable. This is not a national security issue. It must 
change. It must change quickly.
    The Superfund fee has long expired and polluters have been 
let off the hook as a result. The funding levels for this 
program in constant dollars have dropped by more than a third. 
It should be no surprise that a program that has been 
shortchanged like this cannot meet its obligations to 
communities. I have a bill to restore the polluter fee and that 
would be an important step. I also applaud Senator Cantwell's 
efforts in her bill to force EPA to put together a financial 
assurance program for polluting companies.
    Why should Superfund information be kept a secret? What's 
the motivation? One thing is clear. If the public knew just how 
long the EPA planned to take to clean up the site next door--
there would be an outcry. The Administration does not want to 
shift priorities, that is clear. So, to prevent that outcry 
people are left in the dark. This needs to change. I plan to 
work with my colleagues in an effort to make sure that EPA has 
transparency and respects the public's right to know.

    Senator Thune. Thank you, Senator Boxer.
    Let me just make a couple of comments, if I might, about 
the documents. First, following DOJ guidelines, EPA only 
provides privileged or confidential documents to the committees 
of jurisdiction. Chairman Inhofe has made these documents 
available to any member of this committee to help the members 
and their staff with our oversight function.
    In terms of providing the documents to members off the 
committee, my understanding is that has never been done in the 
past, and I understand as well that there have been 
consultations with the late John Chafee's former chief counsel, 
and that that was the policy when he was the chairman of this 
committee as well.
    Second, my understanding as well, there is frustration that 
many of the documents have been labeled privileged or 
confidential, or that they have been mislabeled. Again, I would 
simply say, that is not our call to make. We have to treat the 
documents in accordance with their classification. If we want 
to challenge the classifications, then that is something that 
needs to be done with the Administration privately, not 
publicly. So these documents that have been made available to 
Senator Boxer and the minority for the last 6 months, there has 
been ample time to discuss the classifications prior to today's 
hearing.
    What I would add is that Chairman Inhofe has requested that 
I object to any unanimous consent request to place any 
privileged or confidential documents into the record of today's 
hearing. So I make that statement.
    OK, what we are going to do is----
    Senator Boxer. Well, Mr. Chairman, excuse me. If I might, 
as the Ranking on this subcommittee, respond to you. We will 
talk to our own lawyers and we will decide how we will act 
here. So I just want to make that clear.
    Senator Thune. Well, that is your prerogative. All I have 
simply said is----
    Senator Boxer. You knew my prerogatives.
    Senator Thune. Well, if you want to take it up with the 
Administration or take it up with legal counsel, that is 
certainly within your realm of options.
    But in any case, I want to proceed with opening statements. 
We have a couple of our colleagues who want to testify this 
morning, but I am told that Senator Obama has an opening 
statement, Senator Lautenberg, Senator Jeffords, you all have 
opening statements. Senator Jeffords does not?
    OK, let's go to Senator Obama, unless you want to defer to 
your----
    Senator Obama. I will defer to my better looking colleague.
    Senator Thune. All right, Senator Lautenberg.
    Senator Lautenberg. At least he didn't say older.

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

    Thanks, Mr. Chairman. Your statement, and I know given in 
good faith, does raise some eyebrows here. When we talk about 
privileged, I think the best way to describe it would be 
hidden, instead of privileged. Then in a subtitle would be 
hidden from the public, that is what we are talking about.
    When Congress created the Superfund 25 years ago, our 
country made a commitment: a commitment to clean up toxic waste 
sites in our neighborhoods and communities. A commitment to the 
principle that those who did the damage, the polluter, should 
pay for the clean up of our environment. These commitments were 
upheld by every Administration from both political parties 
until the present Administration. The Bush administration does 
not believe that polluters should pay.
    It is nothing new that some companies don't want to clean 
up the pollution they caused. What is new is that the Bush 
administration is helping companies evade their responsibility. 
So not only do citizens have to live with the pollution, but 
they also have to pay to clean it up. So the victims get taxed 
a second time. First, they have to pay for it, and second, they 
have to breathe it and worry about their kids playing nearby.
    Superfund established fees that were paid by the oil and 
chemical industries. These fees were used to clean up abandoned 
sites that had been polluted by companies that are no longer in 
business. These fees expired more than 10 years ago.
    But for a few years, the lack of fee collection wasn't a 
problem, because Superfund still had a surplus of resources to 
clean up toxic sites. Now it is a problem. The Superfund is 
broke, bankrupt. Now it is taxpayers, not polluters, who get 
stuck with the bill for their careless behavior for cleaning up 
those abandoned toxic sites.
    While the oil companies and others rake in profits, 
taxpayers get stuck with the bills. It is a bad deal for our 
taxpayers, a threat to the health of the people in States like 
New Jersey, where we have over 100 sites. We have about a dozen 
that are considered highest priority. But over 100 sites on the 
National Priority List for cleanup, those sites, 14 of them, 
actually, where human exposure to contaminated soil, polluted 
groundwater or air emissions is not under control.
    It is bad enough that the Bush administration doesn't want 
polluters to pay to clean up these sites. But even worse, they 
are trying to hide from the public the information about the 
threats to their health. The Environmental Protection Agency, 
EPA, has refused, as we heard from Senator Boxer, to release 
information about toxic sites in communities where people live. 
The American people deserve the truth about threats to their 
health. They deserve a strong Superfund that makes polluters 
pay to clean up toxic sites. I am pleased that two of our most 
distinguished colleagues, Senator Cantwell and Senator Durbin, 
will be testifying before us today.
    I would also like, particularly like to extend a welcome to 
Bob Spiegel of the Edison Wetlands Association, an organization 
in New Jersey. Bob has been fighting a good fight for many 
years, cleaning up polluted sites in New Jersey and protecting 
our citizens. That really, without any resources except that 
which he creates himself. So I wish that the Bush 
administration shared the concern, the commitment to 
environmental protection that Bob Spiegel and so many others 
across the country have demonstrated. I thank Bob Spiegel for 
being here today.
    Mr. Chairman, thank you. I heard your opening remarks. I 
hope that you will understand that when the question of 
privilege is exerted, that it really suggests to us that this 
is information that, given to an enemy, might be dangerous for 
our well-being. This isn't dangerous. This is sleight of hand, 
and it is resented, and hopefully will be understood by the 
public across the country.
    Thanks, Mr. Chairman.
    [The prepared statement of Senator Lautenberg follows:]
     Statement of Hon. Frank R. Lautenberg, U.S. Senator from the 
                          State of New Jersey
    Thank you Mr. Chairman for holding this oversight hearing on the 
Superfund program.
    When Congress created the Superfund 25 years ago, our Nation made a 
commitment. A commitment to clean up toxic waste sites in our 
neighborhoods and communities. A commitment to the principle that 
polluters who damage our environment should pay to clean it up.
    Those commitments were upheld by every Administration from both 
political parties--until the Bush administration. The Bush 
administration doesn't believe polluters should pay.
    It's nothing new that some companies don't want to clean up the 
pollution they cause. What is new is that the Bush administration is 
helping companies evade responsibility. Instead of making polluters 
pay, they want to protect polluters. So not only do citizens have to 
live with the pollution, but they also have to pay to clean it up.
    The Superfund established fees that were paid by the oil and 
chemical industries. These fees were used to clean up abandoned sites 
that had been polluted by companies no longer in business.
    These fees expired more than ten years ago, but for a few years, 
the lack of fee collection wasn't a problem because the Superfund still 
had a surplus of resources to clean up toxic sites. But now it is a 
problem. The Superfund is broke. Now it is taxpayers--not polluters--
who get stuck with the bill for cleaning up these abandoned toxic 
sites.
    While the oil companies and other polluters rake in record profits, 
taxpayers get stuck with the bill. This is a bad deal for taxpayers--
and it's a threat to the health of people in states like New Jersey, 
where we have 113 sites on the National Priority List for cleanup.
    There are 14 New Jersey sites where human exposure to contaminated 
soil, polluted groundwater, or air emissions is not under control. It's 
bad enough that the Bush administration doesn't want polluters to pay 
to clean up these sites.
    But even worse, they don't even want the American people to know 
about plans to clean up these sites that pose threats to their health. 
The Environmental Protection Agency has refused to release information 
about toxic sites in communities where people live.
    The American people deserve the truth about threats to their 
health. They deserve a strong Superfund that makes polluters pay to 
clean up toxic sites.
    I am pleased to see that two of our most distinguished colleagues, 
Senators Durbin and Cantwell, will be testifying before us today. I 
would also particularly like to extend a welcome to Robert Spiegel of 
the Edison Wetlands Association. Bob has been fighting the good fight 
for many years, cleaning up polluted sites in New Jersey and protecting 
our citizens.
    I wish the Bush administration shared the commitment to 
environmental protection that Bob and so many others across the country 
have demonstrated. Thank you, Bob, for coming down for this hearing 
today.
    Thank you again Mr. Chairman, for holding this important hearing.

    Senator Thune. Thank you, Senator Lautenberg.
    Senator Obama.

 OPENING STATEMENT OF HON. BARACK OBAMA, U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Obama. Thank you very much, Mr. Chairman, I 
appreciate the time.
    Let me just start, because I know my colleagues are 
waiting, I am going to be brief. But I do have to echo 
something that has been said about this assertion of documents 
that are privileged and confidential. I recognize that these 
are labels that were placed on these documents by the 
Administration. I hold them responsible.
    I do have to note, Mr. Chairman, that if we don't hold them 
accountable, I don't know who does. If we get into a situation 
in which any time there is information that an Administration, 
Democrat or Republican, decides they don't want exposed 
publicly, all they have to do is slap on the privileged or 
confidential label and that's the end of the story, and we are 
going to be completely deferential to those determinations, 
then the American public is not going to be well served.
    I cannot imagine a circumstance, and I will be asking the 
lawyers, what the circumstances might be whereby information 
about polluted sites somehow can't be made available for the 
public record. Maybe there is an answer to that. I don't know 
what it is.
    One of the most basic roles of a congressional committee is 
oversight. We haven't had an oversight hearing in the past few 
years. But when properly done, oversight can help to figure out 
what aspects of agency work is moving properly and hopefully to 
provide a prod to the Agency if it is not attending to some 
important issues.
    Now, during the past year and a half, I have spent quite a 
bit of time on children's health issues. Because of their 
smaller size, their developing organs and bones and their 
propensity to play in dirt and put things in their mouths, 
children are more vulnerable to environmental hazards than most 
adults. As a result, one of my priorities has been ensuring 
that Agencies such as EPA are adequately protecting our 
children's health.
    Now, Senator Boxer, about this time last year, approached 
Senator Durbin and myself with a chart showing that Illinois 
had the highest number of Superfund sites with ``uncontrolled 
human exposure.'' Just to give you one example of one of these 
sites, Mr. Chairman, one of them is in Ottawa, IL. Ottawa is a 
small town in central Illinois, about an hour and a half, 2 
hours outside of Chicago. There was a plant there where mostly 
women worked in a factory, painting luminous clock faces. 
Because of the fine detail work needed, women were preferred. 
They were taught to roll the brush with their tongue to make a 
fine point. It turns out that they were licking radium-laced 
paint.
    Now, obviously that is tragedy enough. Most of them died in 
their twenties. These women would now be grandmothers and 
great-grandmothers. They lost their lives as a consequence of 
working to better the lives of their families.
    The factory is closed, but the radium contamination 
remained. Another generation began to have uncommon cancers. 
Now a new generation of children is growing up in Ottawa, and 
they are being exposed to some of these same hazards, because 
the Superfund site where human exposure is uncontrolled, there 
is a vacant lot where children play and there is a skateboard 
park that teenagers use.
    There are similar tales around the country. Shortly after 
Senator Boxer showed us this list of uncontrolled sites, 
Senator Durbin and myself asked the EPA to elaborate on the 
situation at these sites. It took 9 months to get a response 
from EPA. After 9 months, the response that they sent us was 
still incomplete. We later learned that they had provided 
Senator Boxer more information about these Illinois sites than 
they had provided Senator Durbin and I.
    So you might understand our sense of frustration about 
this. I am sure if you had a similar situation in South Dakota, 
you would be similarly frustrated. We have now received some 
more information from EPA, but frankly, the men, women and 
children who live near these sites deserve better than a 
piecemeal release of information or a grudging release of 
information to the two Senators that represent this area.
    So I am hopeful that, I know there is going to be a break 
for a vote and then we will have a chance to return to the 
panel, part of what I want to hear from the EPA is what is it 
in the culture at EPA that prevents us from getting timely, 
forthcoming information about these situations? We recognize 
that the EPA didn't necessarily create these hazardous 
situations, but it is part of their mandate to fix it. We have 
an obligation to make sure that we are well informed about what 
they are doing.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Obama follows:]
        Statement of Hon. Barrack Obama, U.S. Senator from the 
                           State of Illinois
    Mr. Chairman, Ranking Member Boxer, thank you for holding this 
important hearing today. One of the most basic roles of a congressional 
committee is oversight. Unfortunately, that hasn't happened much over 
the past few years. But, when properly done, oversight can foster a 
productive ongoing dialog between the Agency and Members of Congress 
about what is working, what is not, and how Congress and the Agency can 
work together to improve the operation of government.
    During the past year and a half, I've spent quite a bit of my time 
on children's health issues. Because of their smaller size, their 
developing organs and bones, and their propensity to play in the dirt 
and put things in their mouths, children are more vulnerable to 
environmental hazards than most adults. As a result, one of my 
priorities has been ensuring that agencies such as EPA are adequately 
protecting our children's health.
    About this time last year, Senator Boxer approached Senator Durbin 
and me with a chart showing that Illinois had the highest number of 
Superfund sites with I quote ``uncontrolled human exposure.'' The EPA 
Web site with information on these sites reads a little like a Stephen 
King novel.
    For example, one of the sites is in Ottawa, IL. Ottawa is a small 
town in central Illinois where hardworking Midwestern women went to 
work in a factory painting luminous clock faces. Because of the fine 
detail work needed, women were preferred. They were taught to roll the 
brush on their tongue to make a fine point. Of course, we now know that 
they were licking radium-laced paint.
    Most of them died in their 20's. These women, who would now be 
grandmothers and great grandmothers, gave their lives so they and their 
families could have a better life. The factories closed but the 
contamination remained and another generation began to have uncommon 
cancers. And now a new generation of children is growing up in Ottawa, 
and they're being exposed to these same hazards. You see, near these 
Superfund sites where human exposure isn't controlled, there's a vacant 
lot where children play and there's a skateboard park that teenagers 
use.
    Unfortunately, there are similar tales at other sites around the 
country.
    Shortly after Senator Boxer first showed us the list of 
uncontrolled sites, Senator Durbin and I asked EPA to elaborate on the 
situation at these sites. It was a reasonable request, but it took 9 
months for EPA to provide an incomplete response. And incredibly, we 
later learned that EPA provided Senator Boxer with more information 
about these Illinois sites than they had provided us.
    We've now received some more information from EPA. But frankly, the 
men, women, and children who live near these sites deserve better than 
this piecemeal release of information.
    I hope today's hearing will impress upon EPA that we are serious 
about oversight in this committee. Again, I thank the Chairman and 
Ranking Member for examining this issue.

    Senator Thune. Thank you, Senator Obama.
    Again, I will let EPA speak to the question of what they 
consider to be privileged and confidential. My understanding is 
that that is to, when they classify those things that way, it 
is to ensure that ongoing enforcement actions aren't 
compromised. But I would add, you should have had, as a Member 
of this committee, nobody on this committee should have been 
denied access to any of that information, any of that.
    Senator Obama. Thank you.
    Senator Thune. Senator Durbin, Senator Cantwell, thank you 
for your patience. Please, Senator Durbin, proceed, and then we 
will move to Senator Cantwell.

 STATEMENT OF HON. RICHARD DURBIN, U.S. SENATOR FROM THE STATE 
                          OF ILLINOIS

    Senator Durbin. Thank you, Senator Thune, for having this 
hearing. Thank you, Senator Boxer, for your leadership on this 
issue. You have really informed me and Senator Obama about 
things involving this Superfund issue which we couldn't find, 
as members of the Senate. It is an incredible situation. But I 
thank you for your diligence. I am glad we are talking about 
this.
    I testified before this subcommittee before on this issue. 
Since then, there has been very little progress. I am really 
troubled that, as we learn more about the health implications 
of exposure to hazardous chemicals, especially threats to 
children, as Senator Obama has noted, our commitment to provide 
the funds necessary to clean up these orphaned hazardous waste 
sites has declined. So as we learn more about the threat, we 
put less into the effort to clean it up. That is exactly the 
opposite of what I think public service requires.
    Over the years some in Congress and this Administration 
have resisted reauthorizing the Superfund approach which says 
very basically, polluters pay. Instead, the approach of the 
Administration is, all taxpayers pay. If someone is guilty of 
pollution, everyone should pay for it. Most of us feel that the 
ones who are responsible, the industries responsible, should be 
paying for the cleanup.
    Sadly, if we go to the all taxpayers must pay approach, we 
find Superfund fighting with so many other things that need 
funding: cutbacks in Amtrak and health care and education. We 
know at the end of the day there will be very little, if any, 
money left to do anything necessary, anything that is necessary 
to clean up.
    We know that these funding shortages delay cleanups and 
leave communities at risk. I am troubled that cleanup is still 
not completed, sites listed 20 years ago. Parsons Casket 
Hardware site in Belvedere, IL, 6,000 people live within 1 mile 
of this site. Twenty years ago, we said it was a problem. 
Nothing has been done.
    My recent communications with EPA have made it clear there 
is another problem, and it has been highlighted this morning. 
The EPA doesn't want to talk about this. When they talk about 
it, they want to stamp ``privileged'' on it and suggest that we 
don't want the public to know.
    Wait a minute. If this is a danger to the public and we 
have an open and transparent Government, why aren't we telling 
the public about this danger? Is this building up to another 
Erin Brockovich movie? Is that what it will take to finally get 
the EPA to meet their public responsibility?
    Senator Obama has mentioned, last year Senator Boxer 
approached us with a list of 11 Superfund sites in our home 
State. I am sorry that we are No. 2 on the list. I wish we 
weren't even on the list. Senator Obama and I said, ``Well, 
let's go to the EPA and get the information.'' We wrote a 
letter. First, tell us information about these sites. Second, 
analyze any threats at these sites. Third, tell us your 
timetable and your plan to clean them up. It was a pretty 
straightforward letter, when you get right down to it.
    It took them 9 months to write a reply. Nine months. What a 
gestation period for a simple letter. The EPA then refused to 
provide us as much information as they already had posted on 
their Web site. So we wrote them back and said, Excuse me? You 
can't tell us, as U.S. Senators what is going on in our State 
at Superfund sites that you are responsible for? Meanwhile, 
people are asking questions, we go to their Web site, we 
understand there is some threat of human exposure, Senator, 
what can you find out for us?
    Well, it turns out the EPA would tell us little or nothing. 
We wrote to them again and we received a second response. 
Unfortunately, it was still woefully incomplete. In fact, many 
of the responses from the EPA are confusing and misleading. How 
is it the Interstate Pollution Control site in Rockford was not 
on the July 2005 list of 11 sites with uncontrolled human 
exposure, then was classified as uncontrolled in their April 
letter to us, and then was removed from the list 2 months later 
in the June response? I don't think the EPA is even in 
communication with itself, when it comes down to some of these 
sites.
    If you lived next to this polluted site, what would you 
think? If your kids were anywhere near, if your family was 
near, if there was a threat that some of this exposure might 
lead to cancer or other serious illness, wouldn't you be 
worried? Any responsible parent would be.
    Can any of us in this committee really have confidence that 
the sites in our States have been accurately classified? Can we 
be sure the EPA designates a site today and then won't change 
its mind tomorrow for no obvious reason? You have to get to the 
bottom of it, not just for the families that are developed 
here, but for the reputation of the U.S. Senate. If we cannot 
ask the hard question and get honest answers from an Agency of 
this Government, we are failing in our oversight 
responsibility. We need answers before there is any further 
damage or exposure to the communities and families that are 
affected.
    Thank you for this hearing.
    Senator Thune. Senator Cantwell.

 STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM THE STATE 
                         OF WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman, for holding this 
crucial Superfund oversight hearing, and to the Ranking 
Subcommittee Member, Senator Boxer, for her leadership, and to 
my other colleagues for being here today.
    A few weeks ago, the Wall Street Journal reported on a 
growing phenomenon across the West: that is, that towns and 
cities are struggling to ensure cleanup from decades of 
environmental contamination on properties formerly owned by the 
ASARCO Company. For over a century, ASARCO mined and smeltered 
and refined metals at sites across the country, leaving behind 
a legacy of lead, arsenic and other contamination in more than 
90 sites in 22 western States. But when ASARCO, a former 
Fortune 500 company, filed for bankruptcy in August 2005, 
suddenly the American taxpayer was stuck with a billion dollar 
cleanup bill for the company's legacy of environmental 
pollution, which includes 19 Superfund sites nationwide.
    I would like to explain briefly to the committee how this 
happened, because I think these are very important lessons that 
Congress can learn from in order to reinvigorate Superfund. It 
started in 1999 when a private Mexican mining company, Grupo 
Mexico, bought ASARCO. Within days of their takeover, Grupo 
Mexico began a fire sale of its non-mining assets to pay for 
the takeover costs. These actions liquidated many of the 
resources that ASARCO could have used to clean up its toxic 
legacy.
    Then in the summer 2002, Grupo Mexico attempted to purchase 
ASARCO's stake in Peruvian mines at a price way below their 
market value. With EPA growing increasingly concerned over 
ASARCO's ability to fulfill court decrees to clean up some of 
the Superfund sites, the Department of Justice lawyers blocked 
the asset transfer, expressing concerns that ASARCO was selling 
off assets to avoid their liability responsibilities.
    Salvaging what public value they could in 2003, the Federal 
Agency struck a deal with ASARCO in which they agreed to put up 
$100 million in funds to pay for contamination cleanup on about 
30 sites. In exchange, ASARCO received a 3-year moratorium on 
Federal cleanup enforcement and was allowed to sell the 
Peruvian mines to their parent company, Grupo Mexico.
    However, last August, just as the 3-year moratorium was set 
to expire, an asset-poor ASARCO filed for Chapter 11 
reorganization, leaving taxpayers and local communities holding 
the bag for an estimated $1 billion in cleanup of these 
contaminated sites across western States. In my own State, 
ASARCO has two Superfund sites, including a $180 million mess 
on the shores of Commencement Bay, adjacent to the cities of 
Tacoma and Ruston.
    The real world effects of ASARCO's corporate maneuvering 
became strikingly clear last summer when the day after ASARCO 
declared bankruptcy, contractors abandoned, midway through the 
project, the leveling and cleaning up of local yards that they 
had torn up to remove contaminated dirt. This picture actually 
shows the sites in Tacoma where ASARCO literally walked off the 
job. Walked off the job when they declared bankruptcy, and left 
these sites just as they are there.
    I wish I could say that ASARCO was just an exceptionally 
bad actor, but there is evidence that the company's devious 
practices are more common than we realized. That is why we 
asked for an investigation into this. I might note, we were 
successful in getting emergency funds from EPA, taxpayer 
dollars, to basically finish the cleanup in these individual 
yards as we continued to battle.
    But that is why in 2002, when ASARCO first threatened to 
file for bankruptcy, I asked the Government Accountability 
Office to examine how corporate polluters like ASARCO might be 
avoiding their cleanup responsibilities under existing 
environmental law. I want to thank Senators Jeffords and Boxer 
for helping with that important investigation.
    Some of you may know that that report found that EPA faces 
significant challenges when seeking to hold businesses 
responsible for their cleanup liabilities in bankruptcy and 
other financial distress. It is because of that report that I 
have filed legislation that my colleagues have supported that 
will help us get the financial assurances that we need earlier 
in the process.
    The report found that EPA could make greater use of 
available authority and enforcement tools to pursue these 
hazardous waste cleanups from bankruptcy courts and financial 
distress businesses. So I urge my colleagues to not leave the 
American taxpayer on the hook for cleaning up contaminated 
sites or leaving residential yards unfinished but instead to do 
what it takes for us to provide sound and safe cleanup on 
Superfund sites across the United States.
    I thank the Chairman and the Ranking Member.
    Senator Thune. Thank you, Senator Cantwell.
    We have a vote on, and just a few minutes left to vote on 
the supplemental Appropriation bill. So I am going to recess, 
then we will come back and take it up with EPA.
    [Recess.]
    Senator Thune. The hearing will resume.
    I want to ask Assistant Administrator Bodine to come 
forward and take the witness stand. Before we hear testimony 
from her, we have been joined by our colleague from Montana, 
Senator Baucus, who would like to make an opening statement. 
Senator.
    Senator Baucus. It is pretty formal here, she is taking the 
witness stand. That is a whole new development.
    [Laughter.]

  OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE 
                        STATE OF MONTANA

    Senator Baucus. I thank the Chairman.
    Mr. Chairman, as we well know, a part of EPA's mission is 
to protect the public health from environmental degradation. 
Perhaps nowhere is this challenge greater than in the town of 
Libby, MT. Just listen to the story of Mel and Lerah Parker. In 
1993, they bought a little piece of land along the Kootenai 
River from W.R. Grace and Company. This land was a site of W.R. 
Grace's screening plant. But to Mel and Lerah, it was the 
perfect spot to start their own business, Raintree Greenhouses. 
They worked hard, built their business. By the late 1990s, they 
had the largest nursery in the State of Montana.
    Then in 1999, the extent of the asbestos contamination was 
uncovered, and the Parkers' world literally came crashing down. 
EPA had to tear down their outbuildings, their greenhouses and 
their home. The EPA even had to destroy their cars and many of 
their personal belongings. For several years, the Parkers 
rented a house. Lerah Parker was recently diagnosed with 
asbestosis.
    Because of the huge loss they took with their business, 
they will never rebuild their greenhouses. But the Parkers are 
resolute. They hope to one day rebuild a house on a little 
piece of property along the Kootenai River.
    This is just one story from Libby. There are hundreds of 
others, many of them even more tragic. Tremolite asbestos from 
W.R. Grace's vermiculite mine has killed some 200-area 
residents and sickened hundreds more. Again, killed over 200-
area residents and sickened hundreds more.
    Assistant Administrator Bodine, I hope to impress upon you 
just how important it is that EPA get the cleanup in Libby 
right. In all my years as an elected official, this issue of 
doing what is right for Libby is one of the most personally 
compelling things I have ever been called upon to do. I have 
been to Libby 18 times since the year 2000. Every time I go, 
the devastation is worse, and it is worse. More people are sick 
and dying. Helping the people of Libby is a very personal fight 
for me, and I want to do all I can to get Libby residents the 
help they need and deserve. It is the right thing to do for 
both the victims and for future generations that we can still 
protect.
    That is why I was completely outraged to learn just last 
week that workers digging a water line discovered a patch of 
tremolite asbestos near the surface 8 to 12 inches thick, 6 
feet wide and 20 feet long in a site that was supposed to have 
been cleaned up, not once but twice, the first time by W.R. 
Grace and the second time by EPA itself. Compounding the 
offense is the fact that the workers were digging a water line 
that was intended to serve the park that features the asbestos 
victims' memorial.
    It is not right. It is totally unacceptable. Given such 
outrageous failures, I ask how can the EPA ever assure folks 
like the Parkers that it is safe to rebuild their homes? 
According to EPA's own calculations, there are 16 exposure 
pathways that exist in Libby, 16. Asbestos exposure can occur 
via the dust, soil, air, and other media at commercial and 
residential sites. Cleanup has not even begun at Troy, MT, 
which faces many of the same issues as Libby, including a 
school building that needs to be cleaned.
    The discovery of tremolite asbestos in an area that was 
supposed to have been cleaned up twice calls much of EPA's work 
at Libby into question. What quality controls are in place to 
ensure that their mediation is adequate to protect the public 
health? How long will Troy have to wait before EPA begins their 
work? The Parkers deserve better. All of the residents deserve 
better. EPA needs to make Libby, MT, one of its top priorities. 
People are sick, they are dying. They need our help.
    We are the public servants, they are the employers. We are 
supposed to be working for them. Not some different Agency that 
has a different point of view. We are the employees. We are 
working for the people and the country who we represent. I 
strongly urge the EPA to do their part and help right the wrong 
that has been committed. It is an outrage, Ms. Bodine. I see 
EPA people come and go. I think to some degree they look at it 
just as a turn of the crank, punching the clock, it's a job. 
That is not what your job is. Your job is to serve the people. 
Your job is to clean up this Superfund site, get rid of all 
this asbestos, get rid of all this vermiculite, get rid of it, 
clean it up more quickly, not just in a turn the crank, passive 
way, as has been the case when this asbestos has twice been 
missed.
    Mr. Chairman, the Parkers and hundreds of other Libby 
residents ought to begin rebuilding their lives. I am 
embarrassed it has taken this long, to be honest with you, Mr. 
Chairman, Ms. Bodine. All these years it has taken, you had one 
person working up there that was really good, for 2 or 3 years. 
His name escapes me right now. He was excellent. He had the 
confidence of people in Butte. He bled. He cared. He was an 
amazing guy. He lived in the community for a couple, 3 years.
    You just need to, I will get his name to you. You have to 
find people like him, not only in Libby, but everywhere. But I 
am thinking more about Libby right now.
    Thank you for holding this hearing, and I look forward to 
responses to my questions. I just want to impress upon you, Ms. 
Bodine, I have never experienced anything in the years I have 
been in the Senate, and that is 27 years, like this. These 
people just, it is a part of Montana that is more remote, it is 
a part of Montana people just don't know a lot about. These 
people were made sick intentionally, in my judgment, by W.R. 
Grace. There is a criminal suit going on right now. If you look 
at the documents, it is quite clear that W.R. Grace knew what 
it was doing, it knew it was causing this damage to the people 
of Libby, MT. That is why they transferred 90 percent of their 
assets out of reach of patients, so lawsuits couldn't attach 90 
percent of their assets. That is on the record. They did that 
intentionally to avoid these lawsuits. They knew what they were 
doing.
    At least you ought to know what you are doing. I don't say 
that personally. I say that as the Assistant Administrator of 
EPA, to get this done right away. Clean it up.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Baucus follows:]
          Statement of Hon. Max Baucus, U.S. Senator from the 
                            State of Montana
    Mr. Chairman, thank you for holding this hearing. Part of the EPA's 
mission is to protect the public health from environmental degradation. 
Perhaps nowhere is this challenge greater than in the town of Libby 
Montana. Just listen to the story of Mel and Lerah Parker.
    In 1993 they bought a little piece of land along the Kootenai River 
from W.R. Grace and Company. This land was the site of W.R. Grace's 
screening plant, but to Mel and Lerah it was the perfect spot to start 
their own business, Rain Tree Greenhouses. They worked hard, built 
their business, and by the late 1990s they had the largest nursery in 
the State of Montana.
    Then in 1999 the extent of asbestos contamination was uncovered, 
and the Parker's world literally came crashing down. The EPA had to 
tear down their outbuildings, their greenhouses, and their home. The 
EPA even had to destroy their cars and many of their personal 
belongings.
    For several years the Parkers rented a house. Lerah Parker was 
recently diagnosed with Asbestosis. Because of the huge loss they took 
with their business, they will never rebuild their greenhouses, but the 
Parkers are resolute. They hope to one day rebuild a house on their 
little piece of property along the Kootenai River.
    This is just one story from Libby. There are hundreds of others, 
many of them even more tragic. Tremolite asbestos from the W.R. Grace 
vermiculite mine has killed some 200-area residents and sickened 
hundreds more.
    Assistant Administrator Bodine, I hope to impress upon you just how 
important it is that the EPA get the cleanup in Libby right. In all of 
my years as an elected official this issue of doing what is right for 
Libby is among the most personally compelling things I have ever been 
called on to do. I've been to Libby 18 times since 2000 and every time 
I go the devastation is worse and worse. More people are sick and 
dying. Helping the people of Libby is a very personal fight for me. I 
want to do all I can to get Libby residents the help they need and 
deserve. It's the right thing to do for both the victims and the future 
generations we can still protect.
    That's why I was completely outraged to learn just last week the 
workers digging a waterline discovered a patch of tremolite asbestos 
near the surface 8 to 12 inches thick, 3 feet wide and 20 feet long on 
a site that was supposed to have been cleaned up, not once but twice, 
the first time by W.R. Grace and the second time by EPA itself. 
Compounding the offense is the fact that the workers were digging a 
waterline that was intended to serve the park that features the 
asbestos victims' memorial. It's not right. It's totally unacceptable.
    Given such outrageous failures, how can the EPA ever assure folks 
like the Parkers that it is safe to rebuild their homes?
    According to EPA's own calculations there are 16 exposure pathways 
that exist in Libby. Asbestos exposure can occur via the dust, soil, 
air, and other media at commercial and residential sites. And cleanup 
has not even begun at Troy, MT, which faces many of the same issues as 
Libby, including a school building that needs to be cleaned.
    The discovery of tremolite asbestos in an area that was supposed to 
have been cleaned twice, calls much of the EPA's work at Libby into 
question. What quality controls are in place to ensure that the 
remediation is adequate to protect the public health? How long will 
Troy have to wait before EPA begins their work?
    The Parkers deserve better--all Libby residents deserve better. EPA 
needs to make Libby, MT one of its top priorities. People are sick and 
dying and they need our help. I strongly urge the EPA to do their part 
and help to right the wrong that has been committed.
    Mr. Chairman, the Parkers and hundreds of other Libby residents 
want to begin rebuilding their lives. Thank you for holding this 
hearing. I look forward to hearing the responses to my questions.

    Senator Thune. Thank you, Senator Baucus.
    We will now proceed to our second panel. We have with us 
Assistant Administrator Susan Parker Bodine. Ms. Bodine, 
Administrator Bodine, please proceed with your testimony and 
then we will open it up to the panel for questions.

  STATEMENT OF SUSAN PARKER BODINE, ASSISTANT ADMINISTRATOR, 
  OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL 
                       PROTECTION AGENCY

    Ms. Bodine. Good morning, Mr. Chairman, members of the 
subcommittee. I am Susan Bodine, EPA's Assistant Administrator 
for the Office of Solid Waste and Emergency Response. I am very 
happy to appear today to talk about the Superfund program, 
identify the challenges, talk about where we have been in the 
past and where we are now that the Superfund program is in its 
third decade.
    I will summarize my statement, but ask that the entire 
statement be submitted into the record.
    Senator Thune. Without objection.
    Ms. Bodine. You have my written statement, and in that, I 
have attempted to explain the history of the program. Some of 
you need no explanation, some of you have been working with the 
program for many years. The point I am trying to make in the 
statement is that the Superfund program is not where it was in 
1980 when it was enacted by Congress in response to situations 
like Love Canal or Times Beach.
    At that time, there was outcry and concern over large toxic 
waste sites, the program got started, started investigating 
these sites. But a lot of time was being spent on investigation 
at that point, because it took a lot of time to determine what 
the risks were and to determine what the technological 
solutions were. So not a lot of progress was made in the 1980s, 
I think that is fair to say.
    In the 1990s, in the program in its second decade, you saw 
more progress. Ten years had gone by, studies were completed, 
remedies were selected, so you did see more sites going to 
construction. So again, it is a natural progression of the 
program.
    The program is now in its third decade. We are not done, by 
any means. What has been completed are the easier sites, the 
smaller sites. I know that other EPA officials have made that 
point. What I tried to do in my written testimony and in some 
of the attachments to that was provide the documentation that 
shows that that is the case, the vast majority of the sites 
that are at the construction complete stage were the low cost 
sites, were sites that cost EPA itself either less than a 
million or less than $5 million.
    What we do have left are the higher cost sites, either 
higher in oversight costs being carried out by PRPs, or fund 
lead sites with multiple operable units that are more complex, 
or Federal facility sites, which can have up to 10 or more 
operable units. That is the challenge that we face in the 
program now.
    But I also want to impress upon the subcommittee that that 
is not the only cleanup that is going on. There has been a huge 
growth in cleanup through State programs. There has been a huge 
growth in State cleanup programs as well as State voluntary 
cleanup programs, as well as brownfields programs that EPA has 
sponsored and supported. So what would have been listed on the 
Superfund National Priorities List back in the 1980s, those 
sites aren't even coming to the NPL any more. We are not seeing 
the small, low cost sites that were listed in the 1980s, and 
completed in the 1990s. Those sites are being done under State 
programs.
    The sites that come to the National Priority List today are 
either the complex sites from a technological standpoint, or 
they are the sites that don't have cooperative PRPs, and that 
need Federal enforcement. That is the profile of our current 
sites, and those are the sites that we are managing today.
    I would like to talk about some of the issues that were 
raised in earlier discussions this morning. One of the areas 
that I very much am personally interested in is improving 
management of the Superfund program. That requires good 
information. The program, and the Agency has been getting much 
better about providing information. In fact, far more data and 
far more information is available about these sites than has 
ever been in the past. I would point out that currently, for 
every site, we have a site profile--I have examples of a couple 
of them here, that is available on our Web site.
    These profiles link to documents. That is an exciting 
technological advance that we now have called SDMS, Superfund 
Document Management System. We are linking to the actual 
records of decisions. You can link to the risk information from 
ATSDR. You can link to investigation and RFS documents. There 
is far more information available about each NPL site than has 
ever been available before.
    I would also like to talk about the issue of whether or not 
sites are exposure under control or not under control. On that 
issue, that is a measure that was never publicly available, 
never actually reviewed until 2002. In 2002, EPA began to look 
at the sites in terms of whether human exposure was under 
control or not, and make that information publicly available. 
So again, that is new information that had not previously been 
available.
    The data on that, that is one thing I have been spending a 
lot of time on since I started in this job in January of this 
year, is to improve the quality of that data. I think Senator 
Durbin made the point, the sites have shifted. That is true. 
That is because we have been spending a lot of time examining 
those sites, talking to the regions to determine whether or not 
truly there is human health under control or not. By that, that 
definition means whether or not there is a complete exposure 
pathway to a chemical or contaminant above a level of concern. 
If there is a complete exposure pathway, it should be indicated 
as not under control, human health not under control. If there 
is no complete exposure pathway under current site conditions, 
it should be under control.
    Based on the documents that we provided to the committee 
prior to my confirmation, reviewing those, it was clear that 
the regions were essentially all over the map in how they were 
interpreting that, how they were supposed to apply that 
definition. We are now changing our guidances, making sure 
everyone understands how it is supposed to be used.
    We have completed review of all the sites that are not 
under control. We are also going back and looking at the sites 
that were listed as under control to make sure those were 
properly categorized. So when we are done, we will have a good 
data-set that we can rely on and use to manage the program. I 
wanted to make sure people understood that.
    Then one point, I know I am way over my time, in terms of 
the risk information related to these sites, that information 
is absolutely public information, the risks associated with 
these sites. It is certainly on our Web sites, and we have 
links to documents. But also the information that we provided 
to the committee that dealt with the risks and the exposure 
pathways, all that information was not marked privileged. The 
privileged information had to do with funding and the issue of 
privilege was related to enforcement. The Agency is not at all 
claiming that any situation or any issue with respect to risk 
should not be a matter of public record.
    Thank you.
    Senator Thune. Thank you, Administrator Bodine.
    Let me ask a couple of questions and then I will turn to my 
colleagues to ask their questions as well. You have made 
reference to the human exposure not under control. Could you 
explain what that indicator means? Does it mean that there are 
NPL sites that have actual exposure going on?
    Ms. Bodine. To flag a site as human exposure not under 
control, what that means is that under current site conditions, 
there is a completed exposure pathway. What we don't require 
are the remedial project managers to go out and prove that 
there is exposure, because that would be too difficult. We want 
to know that there is a completed exposure pathway. We consider 
that a problem that needs to be addressed.
    So there is, I'm certain, actual exposure at some of these 
sites. But also, not actual exposure at some of these sites. In 
the information that was provided to the committee, again as 
part of my confirmation process, there were in many of the 
templates that were filled out on sites, you would have the 
first column saying no current exposure, and the second column 
saying potential exposure. Again, that is very confusing when 
we go back and look at it.
    The remedial project manager may have said, no current 
exposure, but if there was a pathway, we would still say yes, 
that site is not under control and needs to stay on the not 
under control list. If there was no exposure pathway, for 
example, if you had contaminated groundwater but nobody was 
drinking it, no wells were sunk, then that site right now is 
under control and that is how we would track it.
    That isn't to say the site is done. That isn't to say we 
have achieved long-term protection. That is still a site we are 
addressing through our remedial program. But human health 
exposure is under control at that site.
    Senator Thune. If you say that there is an exposure 
pathway, when do you then make a determination about, that 
there is potential for exposure when exposure actually occurs? 
When you say you are tracking that, if there is an exposure 
pathway, how do you get to the point where you make a 
determination?
    Ms. Bodine. We are tracking the completed pathway and then 
when that pathway has been cutoff, and again, these are interim 
measures, but cutoff either by providing bottled water and 
alternative water supplies, on putting up a fence, just so the 
people are no longer exposed, then we would say human exposure 
is under control at that site.
    The reason we don't go and actually look for actual 
exposure is because that would literally require you to 
essentially test people themselves to see whether they are 
exposed. We don't require that.
    Senator Thune. Let me ask you, since you have been on the 
job, since being confirmed as the Assistant Administrator, have 
you identified or been advocating or come up with any suggested 
improvements in the Superfund program? Obviously this is the 
first oversight hearing this committee has had in several 
years. So it hasn't been closely examined. My assumption is 
that having been on the job now for a few months, you have 
probably had an opportunity to look in some detail at the 
program.
    Do you have recommendations that you would like to forward 
or things that you think can be done to improve the program?
    Ms. Bodine. I certainly do believe that we can do better 
managing the program. That is something that I intend to do and 
intend to continue to work on. Again, I have spent a lot of the 
time in these first 6 months making sure that the data we have 
on exposure under control and exposure not under control are 
accurate. Because then, as has been mentioned by Senators here 
this morning, we can then be confident that we can use that 
data to manage the program to emphasize and to require that the 
data be used in prioritization. In fact, I have already made 
those changes that the indicator does need to be used in the 
funding prioritization.
    The other changes again also go to having good information 
to manage the program, including our data bases and our 
tracking systems. We have a large effort underway right now to 
bring all of our data bases together so that a manager has 
access to everything at once. Again, we have made incremental 
steps on that. We have the documents now. We are tracking, 
doing a better job, we are tracking things like 5-year reviews, 
which had not been tracked before and following up where the 
reviews haven't been completed.
    In addition, we are now looking at what is called the post-
construction phase. A lot of the emphasis in the program to 
date has been on whether or not you have achieved construction 
completion. That was the benchmark people were looking for. But 
construction completion only means that the construction of the 
remedy is done. It doesn't mean that you have achieved long-
term protection, it doesn't mean that you've got a site that's 
back into productive use.
    We are now focusing on the post-construction phase, which 
has not been focused on recently. It is very important, because 
this is where we are really bringing the sites back to the 
American public, back to use. To do that, we need to make sure 
that we have institutional controls in place. I am placing a 
huge emphasis on that. We have established a new measure under 
GPRA, the Government Performance and Results Act, called 
Superfund Sites Ready for Re-Use. To be considered ready for 
re-use, our definition requires the institutional controls to 
be in place. That is a brand new effort, but again, that is to 
make sure that we are delivering on our promise to the American 
people that yes, we are constructing the remedy, but also, we 
are bringing these sites back into productive use.
    Senator Thune. Thank you.
    Senator Obama.
    Senator Obama. Thank you very much, Mr. Chairman. I want to 
thank my Ranking Member, Barbara Boxer and others, for 
deferring to me. I am going to have to leave, unfortunately, in 
just a couple of minutes.
    First, any idea why it took us 9 months to get a response, 
Senator Durbin and myself, on this issue? I know it actually 
began before you were even appointed. But if a couple of U.S. 
Senators take 9 months to get a response, I can only imagine 
what the response would be like for ordinary citizens. Give me 
some sense of what is going on there.
    Ms. Bodine. First, let me apologize personally for that. 
That should not have happened. What I believe happened was that 
people assumed that the information on the sites that was being 
provided to the committee was also being provided to you 
personally. Because the questions that you were asking were the 
same questions that the committee was asking. So there was a 
failure to follow up with you personally, and you obviously 
deserved a personal response.
    Senator Obama. Well, that's fine.
    Ms. Bodine. But the EPA has put in a process to track all 
of the correspondence, so this doesn't happen again. I 
apologize.
    Senator Obama. Explain to me, if a lay person was just 
reading the term uncontrolled exposure, that would indicate 
that we don't have a handle on the exposure and that if in fact 
there are individuals, particularly children, who are playing 
on a site or near a site that is uncontrolled, that it poses a 
potential health risk to them. Am I misunderstanding the 
definition of uncontrolled? If I am not, then what active steps 
is the EPA taking in bringing it under control?
    Ms. Bodine. In many cases, there is an interim step, you 
have long-term protection and you have final cleanup. But an 
interim step to cutoff exposure would be, for example, a fence. 
Another interim step could be a cap. In the skateboard park 
that you referred to at the Ottawa radiation site, there is 6 
feet of soil between the radiation and the skateboard park. 
That is providing protection.
    The piece where exposure is not cutoff is another area that 
is about 75 feet away. It is outside the skateboard park right 
next to a building. The owner of the building is making sure, 
is keeping people from that area and watching the site, 
monitoring the site so that it is not being trespassed upon. 
But that area does not have a fence at this point in time.
    Senator Obama. So just so I am clear, it is fair to assume 
that if this is an uncontrolled site that it poses some 
potential health risk, is that an accurate statement?
    Ms. Bodine. Yes, that is an accurate statement.
    Senator Obama. OK. If that is in fact the case, how do you 
prioritize within the Agency to ensure that a site is 
considered controlled? What funding mechanisms at this point 
are being, are either existing or being pursued to bring these 
sites under control? Finally, what proactive measures are in 
place to inform residents who might be exposed that this is in 
fact an uncontrolled site?
    The bottom line is, I am trying to get to a point where, if 
I am a parent with little kids near an uncontrolled site, (a) I 
know that it is an uncontrolled site; (b) that my State and 
local authorities are aware that it is an uncontrolled site, 
not that it is just posted on a Web site, but they actively 
know that this is the case; and (c) that there is some sort of 
ongoing efforts to bring it under control. Can you walk me 
through how that process is taking place right now?
    Ms. Bodine. On the awareness of the public, every Superfund 
site has a community involvement coordinator. So we have a 
person who is assigned to work with the community and 
communicate to the community exactly the risks posed by the 
site.
    On the funding priorities, up until this point, the regions 
have established the priorities based on their understanding of 
the risks at each site and are prioritizing based on risks. 
That has been done at the regional level. But that means that 
at the headquarter level, from a management level, I don't know 
exactly how they are establishing that.
    So what I would like to do going forward is be much more 
clear in guidance to the regions on how they establish their 
funding priorities, that they do need to take into account the 
human exposure indicator.
    Now, they have told me they already take this into account, 
and I believe that to be the case, but it is not formalized in 
terms of how you track to this particular environmental 
indicator. We will be doing that.
    Senator Obama. What I would like to do, and I am out of 
time, I am going to work with Senator Durbin's office and with 
Senator Boxer to put in some more formal requests. I think we 
have to have some sort of formalized system so we know how 
priorities are being set and how these judgments are being 
made. So part of what I--it may be that in some cases you just 
don't know the answers yet. In other cases, it may be that the 
system has broken down in some fashion.
    But I would expect, I would like to be able to say very 
clearly, here is how decisions are being made about controlling 
these sites. If it is a function of a lack of money, I want to 
be able to know that so that I could potentially work to get 
dollars for the EPA to control these sites. If it is not a 
question of money but just simply there are too many sites and 
we are prioritizing them based on risks and exposure, I would 
like to know what the formula is by which those decisions are 
being made, so that I can make some educated decisions about 
how I am going to proceed in terms of making sure my 
constituents are protected. I don't think that is too much to 
expect from your office.
    Ms. Bodine. If I could just respond. I do want to assure 
you that the people who are making these decisions are the 
technical experts in the field, that these are not, it is not a 
top-down system. We have the folks that are working on the 
sites making these evaluations and judgments and they are very 
dedicated people.
    Senator Obama. But if you, as the head of the responsible 
EPA office, don't know how those judgments are being made, and 
I don't expect you to know everything, although it would be 
nice if you, coming to this committee knowing that these 
questions were going to come up, had been fully briefed on it. 
But if you are having problems articulating it, I certainly 
don't know it. I guarantee you that the folks living in Ottawa 
or these other sites don't know it. I am just saying, this is 
something that we should know. It should be public, it should 
be clear, it should be transparent and people should be held 
accountable. That is what I am going to be looking for in the 
coming months.
    Thank you.
    Senator Thune. Senator Boxer.
    Senator Boxer. Yes, and I know Senator Obama is on his way. 
Before he leaves, I just want to pick up on something he said, 
very quickly. You said that the people who are making the 
decisions are in the field. Now, that is true in terms of their 
recommendations for how sites should be cleaned up.
    Unfortunately, it is the budget crunchers who are deciding 
how much you are going to spend on these sites. I am not going 
to identify any of these, nor am I going to read them, in 
deference to my Chairman's remarks, which I, by the way, 
totally disagree with but respect, and so I will go by his 
rules and will not put this in the record. But very clearly, 
Senator, and I am going to give you this, because you are 
allowed to see this, because you are on the committee, even 
though it said privileged, what we have here are directions 
sent out to people in the field saying, put together a budget, 
and one of them should be the least you can get by with. Not 
one word here about what we must do to make people safe.
    So I want to give this to you, because I think you are onto 
something here. It seems like it should be simple, but it isn't 
simple where there is no commitment to this program. My belief 
is yes, the people in the field are committed. That's why I 
know what I know. But the people at the top, and I am not 
talking about you, Ms. Bodine, I don't know exactly what your 
influence is there, but I have to say, there is no interest, in 
my view, in this program.
    So continuing, without mentioning, identifying the sites, I 
am going to ask my staff to give you a one-pager that was 
marked privileged by your people on a site I will not mention. 
I have gone through this with counsel. There is nothing in 
there, says my counsel, at all, that would have any impact on 
any lawsuit, as a matter of fact, in this case, the settlement 
funds are exhausted, and even if there is any future lawsuit, 
nothing in this document.
    But I would say this. My gut tells me the reason this is 
marked privileged so people out there can't see it and people 
in this neighborhood can't see it is because it says that the 
human health risk here in this particular site, seafood 
consumption risk, is 40 times higher than it should be or 
higher in worst case scenarios, and dermal contact risk with 
shoreline soils, we talk about direct contact, is 4 times 
higher than it should be, or higher under worst case scenarios. 
Public and private access is a continual concern.
    This deals with PCB levels that are 30 times higher than 
ambient water quality criteria, sediment PCB levels 10,000 
times higher than ecologically safe levels. Your people are 
saying this. The real thing, I think, that your Administration 
doesn't want people to know is, you are actually considering 
taking 26 years to clean this up. You are considering 26 years 
to clean this up. You have got to be kidding. What are we here 
for?
    So you have looked at this. What in this makes this that I 
can't hand it to everybody in the audience and the press? What 
is in here that makes it privileged?
    Ms. Bodine. I would offer to sit down with you and with EPA 
counsel to----
    Senator Boxer. No, no, no. I want you to tell my Chairman, 
who is defending you, what in here makes this be marked 
privileged, so that he has to now tell me that I can't give it 
out to the people, or people who aren't on this committee? What 
in this document?
    Ms. Bodine. The issue, the areas of privilege that EPA is 
concerned about have to do with enforcement, which is why a 
document, on a document by document basis, I would be happy to 
sit down and determine if any enforcement----
    Senator Boxer. I have already told you that our counsel has 
looked at this, the Senate counsel, and says there is not one 
thing in here that talks about enforcement. It has nothing to 
do with it. If you are worried about linking, we are not going 
to link.
    So I guess I would ask you, on this particular document, so 
that we don't go into the range of documents, will you please 
have your people look at it and let me know by the end of the 
day if I can in fact release this to the Senators, two of whom 
do not sit on this committee, and to the Members of Congress, 
both sides of the aisle, and the people in the community? If 
you would get back to me, and in writing, in a privileged 
communication, tell me why I can't do that.
    Now, I want to get some other things, and I see that my 
time is running out, so let me do this and ask for another 
round, if I can. Mr. Jim Gulliford has been nominated to be 
Assistant Administrator for the Office of Prevention, 
Pesticides and Toxic Substances. After his hearing, members of 
this committee asked him a series of written questions. When we 
received his responses, we could see that edits had been made 
to the document, cutting important information relating to 
things like whether EPA had internally sought more funds for 
the Omaha lead project than were formally requested by the 
Administration.
    The fact that the answer was yes was deleted. We have, I 
know you probably can't see this, but I am going to read. This 
chart shows the deleted information. Prior to the issuance of 
the interim record of decision in December or initial request 
for funding to sample residential properties was higher than 
the amount received, but had virtually no impact on the actual 
cleanup, since we were limited in the amount of--is that what 
they wrote instead of--yes. So in other words, it was taken 
out, the simple answer, and this was what was inserted.
    There were other important deletions as well. Mr. Gulliford 
has told us he approved the original response and headquarters 
asked for changes. A staff member in the Office of 
Congressional Affairs indicated that you made or were involved 
in the changes. More recently we were told by the same office 
that you were not involved in the changes. Were you or your 
staff involved in any way, directly or indirectly, in deleting 
the information relating to Superfund in Mr. Gulliford's 
responses? Did you meet with the potentially responsible 
parties in that case and discuss issues related to the deleted 
information? Do you believe Members of Congress are entitled to 
know the analysis of the funding needs for Superfund sites when 
they ask for it?
    So those are three questions.
    Ms. Bodine. No, I had nothing to do with any edits, nor did 
anyone in my office have anything to do with any edits of Mr. 
Gulliford's testimony.
    Senator Boxer. So where were they edited?
    Ms. Bodine. I do not know.
    Senator Boxer. Will you find out? Because he said----
    Ms. Bodine. All the responses have to go through the Office 
of Congressional and Intergovernmental Affairs.
    Senator Boxer. I know, but you are responsible. You are the 
head of the Superfund program. He answered a question on a 
Superfund project, simply saying yes, that EPA internally 
sought more funds than were formally requested. You saw how 
that answer came back. Did that not get you upset, that Mr. 
Gulliford was being overturned by someone outside your office?
    Ms. Bodine. I did not see those responses before they were 
sent to the committee.
    Senator Boxer. OK. So even in your high level position, you 
didn't look at who in your office did?
    Ms. Bodine. No one in my office looked at those responses 
before they were sent to the committee.
    Senator Boxer. Well, where did they come from? Who 
delivered the responses to this committee, the answers to the 
questions?
    Ms. Bodine. The Office of Congressional and 
Intergovernmental Affairs.
    Senator Boxer. So the Office of Congressional Affairs 
deleted information that Mr. Gulliford answered, and you didn't 
see it, nor did you look at it before it came here?
    Ms. Bodine. That is correct.
    Senator Boxer. Thank you. Did you know anything about it, 
that they were changed?
    Ms. Bodine. Only after the fact, after----
    Senator Boxer. Did you do anything about it? Did you talk 
to anyone and say, why did you do that, why did you change Mr. 
Gulliford--after all, you are pushing for him. He's a good guy. 
He answered a question honestly and then his simple, 
straightforward answer is turned into gobbledygook. Did you 
make any--did it disturb you when you found out about it? Did 
it disturb you? Be honest with us. No one is going to hurt you 
for being honest.
    Ms. Bodine. I was surprised. The emotion I felt was 
surprise. I guess I am not sure how to respond to your 
question.
    Senator Boxer. Well, honestly, I wish you would just say 
how you felt. I feel like you're saying you were surprised. To 
me it is shocking that someone over at the Office of 
Congressional Affairs would edit someone's answers to questions 
that are important for this committee to know, important to 
know where this man stands. Now he, his whole image changes 
when that answer changes, a simple, straightforward question, 
did the EPA staff want more money to clean up that site in 
Omaha. ``Yes,'' he answers, and then we get gobbledygook. It is 
very disturbing.
    So I guess--I know my time has run out on this round. I 
just want to say to you, we need you to be honest with us. You 
are there to fight for the environment. That is what the EPA--
it isn't the Environmental Pollution Agency, it is the 
Environmental Protection Agency. We can't seem to get that kind 
of passion over here. Thank you.
    Senator Thune. Senator Jeffords, we will recognize you, and 
Senator Boxer, I will say to you, we have people on the third 
panel who have a plane to catch, so we are probably going to 
have to submit questions for the record.
    Senator Boxer. That's OK, I will submit them for the 
record.
    Senator Thune. OK, good. Senator Jeffords.
    Senator Jeffords. I will put most of mine into the record. 
I just have questions for Susan Bodine.
    The Government Accountability Office has documented that 
the Superfund program is operating with about 35 percent less 
money in inflation-adjusted dollars than it had in 1993. How 
has this impacted EPA's ability to clean up toxic waste sites?
    Ms. Bodine. I wish I had a copy of the GAO report you are 
referring to. It is important, when you are looking at the 
numbers, to make sure that we are not comparing apples to 
oranges. Because in 1993, there was more in the Superfund 
appropriation than there is now. The appropriation was covering 
ATSDR and NIEHS, which received $50 million, $60 million, up to 
$70 million a year each. So that is one important component 
that we have to compare. I am not sure, since I don't have it 
in front of me, which two you are comparing.
    But I would also ask you to understand that because we are 
collecting money from PRPs and we are setting up special 
accounts, we also have a great deal more money to spend that is 
not appropriated funding. Essentially, the expenditures have 
been relatively flat. Because we get an extra $160 million to 
$170 million a year that is PRP money, that is settlement money 
that is then put toward sites as well.
    So funding has been relatively flat.
    Senator Jeffords. The U.S. Supreme Court ruled last year 
that parties liable under Superfund cannot sue other liable 
parties for contribution unless they themselves have been sued 
by the Government. How has this ruling impacted the willingness 
of private parties to voluntarily cleanup contaminated 
property?
    Ms. Bodine. Senator, you have asked me about how it has 
impacted people's willingness. I don't have that information. 
That is not data that you can collect. I have heard concern 
from parties that are interested in cleaning up sites. I have 
heard anecdotes that this is causing people to think twice 
about stepping forward and cleaning up sites.
    But because we don't collect data on people's willingness, 
I don't have hard information for you on that.
    Senator Jeffords. In August 2005, GAO recommended that EPA 
issue regulations required under the 1980 Superfund law to 
compel high risk facilities that manage hazardous substances, 
such as hard rock mining sites, to provide financial assurances 
of their ability to clean up their own mess, so that taxpayers 
are not left on the hook when these companies go bankrupt. Why 
has EPA not yet issued these regulations? What is EPA's 
schedule for proposing such rules?
    Ms. Bodine. To date, EPA has relied instead on the 
financial assurance regulations under RCRA, the Resource 
Conservation and Recovery Act, which requires financial 
assurance for people who treat, store, or dispose of hazardous 
waste. We are now going back and doing an analysis of sites on 
the National Priorities List, and in terms of the date these 
sites were listed and under what regulatory programs were in 
effect at the time the sites were listed, to determine if 
additional financial assurance on the generator side is 
necessary. That analysis is not yet complete.
    Senator Jeffords. Ms. Bodine, in your written testimony, 
you suggest that cleanup slow-down is due to increased 
complexity, rather than chronic funding shortfall. If this is 
the case, please explain why the EPA's proposed target for 
completing site assessments will plummet by 17 percent in just 
350 in fiscal year 2007. Am I correct that the Superfund 
funding shortfall is constricting all phases of Superfund 
activities?
    Ms. Bodine. We have been, as we have been directed by 
Congress in appropriations bills, we have heard expressions of 
concern on progress on the back end of what we call the 
Superfund pipeline, which is the remedial action construction 
phase, and have been focusing on that end of the program.
    We are still completing a great many site assessments. In 
addition, through brownfields programs, States are also 
conducting many site assessments, in part with brownfields 
funding and in part under their own authorities. So if you 
look, again, at the universe of activity, not just at what EPA 
itself is doing, sites are being examined. In fact, you have to 
do that to determine whether you are eligible for brownfields 
funding, to determine if you are an eligible response site. You 
can look at these sites and screen them out.
    I would also point out that in the site assessment program, 
the vast majority of sites are screened out. In fact, the 
States prioritize those sites based on risk and already have a 
good understanding of what sites need to be pushed forward, as 
we are working on them.
    Senator Jeffords. Thanks, Mr. Chairman.
    Senator Thune. Senator Lautenberg.
    Senator Lautenberg. Thanks, Mr. Chairman.
    I am going to try to be very brief, Ms. Bodine, which 
probably would make you feel better. But the fact of the matter 
is that because of the shortness of time, I am going to ask you 
a question--is it on?
    Just to repeat what I said, you hear a litany, a chorus 
from here, of disappointment, not just in the fact that these 
sites are not being cleaned up at a rapid enough pace, but the 
integrity of the institution, of the Department, is also at 
stake here. Privileged? Senator Boxer, whatever you do, unless 
we know that the staff has secret clearance, don't hand them 
that paper, because you could break the law, based on the 
definition we have from our distinguished Chairman, that 
privilege means that it is for your eyes only.
    So do you think that we are allowed to give any papers to 
our staff that say privileged on them? Do you need a secret 
classification to be able to read these documents, privileged?
    Anyway, it's nonsense, and everybody knows it's nonsense. 
It's deceptive and dishonest and really traitorous to the 
people we serve.
    What is the quick definition of an uncontrolled site, 
please, Ms. Bodine?
    Ms. Bodine. A site that has a complete exposure pathway, 
such that a person could be exposed to contaminants above a 
level of concern.
    Senator Lautenberg. OK, fair enough. So in your testimony, 
you say, listing on the site of the NPL, the completion, 
construction could take, takes more than 10 years on average. 
So do we then go out to the people living in the community and 
say, get the devil out of here as quickly as you can, take your 
kids, cover them up and leave the site? Does EPA do any 
warnings like that?
    Ms. Bodine. As I mentioned earlier, we have a community 
involvement coordinator at every site. We also----
    Senator Lautenberg. Do you know what they do?
    Ms. Bodine. For example, we take interim actions, if it is 
a groundwater exposure situation, we provide bottled water or 
we provide municipal hookups.
    Senator Lautenberg. Do you tell them that their kids could 
get cancer or other diseases as a result of living there for, 
well, if it is 10 years or 5 years or 3 years, whatever?
    Ms. Bodine. The Agency holds public meetings and they 
discuss the risks associated with the site.
    Senator Lautenberg. Would it be a good idea to have a 
broadside mailing to say, look, this is dangerous territory you 
live on, you live on a site that could be worse for your 
children than some effects of terror, or that kind of thing?
    Ms. Bodine. Yes, at many sites the EPA is very proactive at 
getting out to the community to tell them what measures they 
need to take, good housekeeping measures, to reduce exposure. 
So yes, that does happen.
    Senator Lautenberg. It is so ludicrous. I think down deep 
you agree, you are an intelligent person, you know what you 
have here. Is there an impairment as a result of shortage of 
funds in working the Superfund program?
    Ms. Bodine. We are able to manage the program and protect 
human health and the environment within our existing funding. 
That is because we are prioritizing based on risk and because 
as we just discussed, you take interim actions to cutoff 
exposure. So you----
    Senator Lautenberg. In my State alone, there are 19 sites 
that are listed among the uncontrolled sites. If you had more 
money, could we get faster action on those sites?
    Ms. Bodine. Since I have been at the Agency, one of the 
things, again, focusing on the human health not under control, 
I have gone and looked at the sites that are listed as not 
under control and asked, OK, what can we do? Because we should 
be able to take steps to cutoff----
    Senator Lautenberg. I know, that is the same question we 
both asked. So now that you have asked yourself that question, 
could we do anything, if we had more money to get on with these 
sites?
    Ms. Bodine. The interim actions that the regions put 
forward, they are doing. In some cases, they already had the 
money to do it. In other cases they had a PRP to do it.
    Senator Lautenberg. If you had more money, Ms. Bodine, 
respectfully, if you had more money, could you accelerate the 
pace of cleanups? Yes or no, please. Yes or no.
    Ms. Bodine. With more money, at some sites you may be----
    Senator Lautenberg. I know it's hard to come out, but 
please.
    Ms. Bodine [continuing]. Able to proceed more quickly, but 
that doesn't necessarily----
    Senator Lautenberg. Well, is that a yes or a no? 
Consolidate. If you had more money, could you accelerate the 
pace of cleanup?
    Ms. Bodine. Not at all sites. But at some sites, I am sure 
that you could. And that when you look at the national 
program----
    Senator Lautenberg. At some sites. I would hope that it is 
near my grandchildren, where my grandchildren live. I would 
hope that it is near where everybody's grandchildren live that 
you could accelerate. Your denial, it's outrageous. Honestly, 
Ms. Bodine, for someone who has as lofty a position as you 
have, for the experience you have, for the intellect that you 
have, the fact of the matter is, the fact that you can't answer 
that simple question yes or no is disturbing.
    Should we, do you think that we ought to go back and ask 
companies to contribute to clean up or are you satisfied to ask 
the taxpayers in America to pay for it?
    Ms. Bodine. We are asking companies to contribute to clean 
up. In fact pursuing them and compelling them to pay for 
cleanup.
    Senator Lautenberg. Right. But would you be willing to ask 
companies that contribute to the pollution, I am not saying 
PRPs now, I am saying as it used to be, and I was instrumental 
in that, because I started with Superfund issues in 1983. Would 
you be willing to ask companies that are likely to contribute 
to polluting, to the pollution in sites, would you be willing 
now to recommend to the Administration that maybe we ought to 
go back and tax or put a fee on the products that are being 
made that could leave a trail of pollution behind?
    Ms. Bodine. I don't think it is appropriate for me to 
express a judgment on the source of revenue. The reason is 
because the source of revenue for the Superfund program and the 
taxes that used to be collected had no relation to the amount 
of appropriations that was appropriated each year to run the 
program. That is because Superfund is an on-budget trust fund. 
This committee, I know, understands trust funds. It is not like 
the Highway Trust Fund. There are no firewalls.
    So when you are appropriating money----
    Senator Lautenberg. So technically, it had to be 
appropriated.
    Ms. Bodine. Not only that, it is part of the unified 
Federal budget.
    Senator Lautenberg. Right.
    Ms. Bodine. So it is competing with health care, it is 
competing with HUD, it is competing with everything else.
    Senator Lautenberg. Yes, but it is easy to earmark it based 
on the source of the revenue to say that any funds that derive 
from that situation are to be directed at, it doesn't have to 
be law, it can just show intent. But your unwillingness to say 
that more money, that we ought to get after these things, we 
ought to, that we--sorry. There is no current funding for 
continuing remedial sites at, at a particular site, if 
additional funding becomes available, cleanup could be 
accelerated by continuing the ROD determined to clean up, the 
cleanup of the site.
    Senator Boxer. Show that if they had more money they could 
do a better----
    Senator Lautenberg. No, well, that is----
    Senator Boxer [continuing]. Every yellow tag----
    Senator Lautenberg. Every yellow tag says, we would let you 
see this information, it is not privileged, that has, that has 
identified here, says if there was more money these sites could 
be cleaned up, in Indiana, it goes across the country. The fact 
that you are, in no way do you see need for more money, that 
you admit that more money would accelerate cleanups, then is it 
just that we sit and wish and hope that our kids don't get 
sick, that there are no problems?
    Senator Obama talked about a company that made radium faces 
for watches. The women used to lick the brush to make them. 
There is a site very near my house in Montclair, NJ, three 
blocks away, where the neighborhood took almost $200 million to 
clean it up. Finally clean. Took years. But the people who 
worked there all died premature of cancer.
    It is very disappointing, Ms. Bodine, that you can't be 
more forthright and say yeah, no, you know, take the response 
that is likely to get. We would honor you for the truth, I 
promise you that.
    Senator Boxer. Mr. Chairman, I just have one quick, very 
directed question about blood testing on kids. Could I ask it 
before she leaves?
    Senator Thune. Let me explain our dilemma here. The third 
panel has planes to catch, we have two votes scheduled at noon 
and we have five people that need to----
    Senator Boxer. Thirty seconds?
    Senator Thune. Thirty seconds.
    Senator Boxer. Really. A recent National Academy of 
Sciences report on the site in Bunker Hill, in Idaho, 
recommends universal blood testing of children in the affected 
area. You have not requested these funds. My understanding is 
it is a $200,000 request.
    Will you please answer the question as to why you haven't 
recommended that?
    Ms. Bodine. I will have to get back to you for the record 
on that, because I believe the discussions were ongoing with 
ATSDR on that matter. So I will have to respond for the record.
    Senator Boxer. Please.
    Senator Thune. Thank you, Ms. Bodine. I am going to ask the 
third panel to come forward. I want to, as soon as you get up 
here, recognize in this order Katherine Probst, followed by Dr. 
Porter, both of whom I am told have flights to catch. Then we 
will move to Dr. Trasande, Mr. Steinberg and Mr. Spiegel. In 
order to accommodate, to make sure that all witnesses have an 
opportunity to be heard, too, I would ask you to really try 
hard to stay within the 5 minutes allotted, because they will, 
at least the last notification I got is that they are going to 
call votes at noon, we are going to have a couple of votes.
    I am going to ask Ms. Probst, if you would please proceed. 
Thank you for being here.

 STATEMENT OF KATHERINE N. PROBST, SENIOR FELLOW AND DIRECTOR, 
RISK, RESOURCE, AND ENVIRONMENTAL MANAGEMENT, RESOURCES FOR THE 
                             FUTURE

    Ms. Probst. Thank you, Mr. Chairman, and distinguished 
members of the subcommittee. Thank you for asking me to testify 
today about the critical issues facing the Superfund program. I 
am a senior fellow at Resources for the Future and have 
conducted research on issues relating to Superfund for more 
than 15 years.
    I am going to focus on four key issues today: cleanup 
funding, monitoring and enforcing institutional controls, 
improved data and public information, and the need for 
independent evaluation.
    If Congress wants to hold EPA responsible for achieving 
cleanup in an expeditious fashion for current and future NPL 
sites, they need to ensure that the Agency has the funds it 
needs. As has been mentioned, there has been a major decrease 
in the program's funding. Since 1987 there has been a 40 
percent decline in real dollars.
    If that funding isn't increased, it is really critical that 
EPA come clean about the implications of the shortfall on the 
future pace of cleanup and on progress at individual NPL sites. 
This will only happen if Congress, either in oversight hearings 
such as this one, or as part of the annual appropriations 
process, requires that EPA identify, on a site-by-site basis, 
the specific shortfall for each site on the NPL and specify 
which sites will be delayed, and by how, much if funding is not 
increased.
    In addition, Congress should require that EPA, on an annual 
basis, present to this subcommittee and to the relevant 
appropriations committees, how much funding would be needed to 
fully fund cleanup.
    I would like to just mention, I think that the page that 
Senator Boxer read is probably about New Bedford Harbor, which 
is a site that needs $300 million more to be cleaned up and is 
estimated to take another 30 years. I know that the EPA 
Regional Office region has asked for increased funding--the 
site is currently getting about $20 million a year. That is why 
it is going to take 30 years to clean up that site.
    The second issue, which Ms. Bodine has already mentioned, 
is monitoring and enforcing institutional controls. 
Institutional controls are restrictions on the use of land, 
water, or groundwater that are intended to keep people from 
coming into contact with contamination that remains at a site 
after all cleanup activities are complete.
    These are now a common feature of remedies at NPL sites. 
Almost a decade after these issues were first raised by 
researchers at RFF, the Environmental Law Institute, University 
of Tennessee and others, the Superfund program still does not 
have a consistent and reliable approach to tracking and 
monitoring these controls. As more and more site remedies rely 
on institutional controls to ensure protection of public 
health, EPA must make monitoring and enforcement of these 
controls a top priority.
    Simply put, institutional controls work only when people 
know about them and comply with them. It is foolish to spend 
tens or hundreds of millions of dollars on a site remedy and 
them skimp on the monitoring and enforcement of these controls. 
The Love Canal site, which in many ways begat the Superfund 
program, is the proverbial poster child for the failure of 
institutional controls at a Superfund site. EPA has a choice to 
make: it can try to prevent future Love Canals by monitoring 
and enforcing these controls, or it can create a situation 
where the next Love Canal is just waiting to happen.
    The third issue I wanted to raise, which has also been 
mentioned, is improved data and public information. Getting 
information on the progress, contamination, cost, and health 
risks of NPL sites is a challenge. While there is in fact some 
good information to be found on the Superfund Web site and the 
site profiles that Ms. Bodine mentioned are wonderful, it is 
actually very hard to find those site profiles on the EPA 
Superfund Web site. You actually have to know where this 
information is ahead of time in order to find it.
    In addition, there are still major questions about the 
quality of much of the information in the Superfund program's 
two major systems, CERCLIS, which is basically their day-to-day 
management data base, and the Agency's financial management 
system (IFMS). These systems need a major overhauling, not a 
tweaking. Absent reliable information on site progress, 
contamination, and costs, it is extremely difficult to evaluate 
or manage the cleanup program.
    The final topic I want to talk about today is the need for 
independent evaluation. Twenty-five years after the Superfund 
program began, we still do not know the answers to some very 
basic questions. We should know where scarce Superfund 
resources are going, why some sites take decades to clean up, 
why some sites are extremely expensive, and why there are still 
sites where human exposure is not under control, but we don't.
    The Superfund program needs to do a better job of 
evaluating all major aspects of the cleanup program to identify 
improvements. EPA needs to create a small office that has 
strong policy and economic analysis capability, that is charged 
with conducting and sponsoring independent analysis and 
evaluation relating to the many aspects of the Superfund 
program. Once such a critical mass is created, the first task 
for this group should be to develop and implement a 3- to 5-
year strategy for independent research and evaluation and to 
set aside funds for this purpose.
    All of the studies and evaluations should be subject to 
some form of external peer review to assure credibility and all 
of these studies should be made public. Even though the program 
is short of funds for cleanup, good evaluation should help the 
program save money and be more effective in the future, which 
is certainly an investment worth making.
    In closing, I would note that after 25 years, many of the 
same challenges remain as in the early years of the program. 
There is a need for better data, for independent evaluation, 
for a willingness to consider and make radical changes in 
funding and management priorities. There is a need for 
increased transparency in all aspects of the program.
    I urge EPA to have as its goal not making the program 
better this year or next, but to try to ensure that 5 years 
from now, the program is better focused and managed, and that 
there is better data and information about Superfund sites 
available to the public. With an eye on the long term, rather 
than tomorrow's news, EPA can give the American public a much 
stronger and more effective program.
    Thank you very much.
    Senator Thune. Thank you, Ms. Probst.
    Dr. Porter.

  STATEMENT OF J. WINSTON PORTER, PRESIDENT, THE WASTE POLICY 
                             CENTER

    Mr. Porter. Thank you, Mr. Chairman. I am going to be very 
brief, also.
    I have had about 20 years experience in Superfund, 
including serving as Assistant Administrator back in the early 
days with Senator Lautenberg and Senator Baucus and others on 
this subcommittee.
    What I want to do is take a little different tack today. I 
want to talk about how to improve the program from an 
efficiency standpoint. I grew up in the engineering world with 
a very large firm in San Francisco, where budget and schedule 
were critical. I think the EPA career staff has done a good job 
of doing the best they could under the circumstances, and made 
a lot of progress. Two-thirds of the sites have been completed, 
400 sites are in construction, for example.
    But the bottom line, after my 20 years in Superfund, 
including running the program for a while, sites take too long 
and they cost too much. I think this problem has to be attacked 
at the project level. It is nice to look at all these other 
things, like management systems, and I don't disagree with 
them. But Superfund is not an exact science. It takes a lot of 
common sense and a lot of leadership.
    I want to talk briefly about three phases of the program, 
the study phase, the selection of remedy phase, and the 
construction phase. This may sound like kind of nuts and bolts 
stuff, but it is very important, from my experience in project 
management. The reason why we are talking about money here 
today, and talking about time is because we need to be more 
efficient in getting these sites finished.
    On the study phase, most important is to set deadlines. 
Amazingly, most Superfund sites get started in with a study 
without any real deadline of how long it is going to take. We 
need to say, this is a 3-year project, or a 2-year project, or 
a 5-year project, and make it happen.
    A little secret I will let you in on is Superfund has 
become something of a jobs program. One of the reasons these 
sites take so long, in my opinion, and I am being kind of blunt 
here today, is you have a lot of consultants, a lot of lawyers, 
a lot of governmental employees, et cetera, who are making a 
pretty good living off Superfund. I don't mean they are being 
unprofessional. Most of them are quite professional. But I do 
see that there doesn't seem to be much pressure to finish a 
site.
    Also, we need to identify alternatives early. There are not 
hundreds of alternatives at a site. There are three or four or 
five. We need to focus on those early, focus the data on those 
and start talking about them. Because, as I sometimes tell the 
decisionmakers, about half of Superfund is technical, about 
half is ``other.'' The other includes communications, public 
relations, costs, and implementability. It is also State 
acceptance, community acceptance, etc.
    We need to streamline the deliverables. What we have in the 
Superfund now is what I call a culture of deliverables, where 
if you deliver enough products, meaning reports and documents 
and data bases, you are assumed to have done the job. I want to 
see a culture of results and a culture of completion. I think 
that, again, these all sound simple, but they are very 
important and they are not ususally being done.
    Selection of remedy. I would like to move the selection of 
remedy up a notch to at least the regional administrator level 
where it was in my day. It has been put further down in the 
system in most cases. These are tough judgment calls. I would 
be more happy if the regional administrator or someone in my 
old job, the assistant administrator, were making more of these 
decisions. Because what we have in this program is a serious of 
projects. It is a series of projects, and you have to run 
projects on a project by project basis.
    The role of land use is important. We don't spend enough 
time on land use. What is the site going to be used for? Let me 
give you a quick war story from my day. At Rocky Mountain 
Arsenal, a huge site near Denver, the Army decided after many 
years of work and study and contention they were going to make 
this into a wildlife refuge. Once that decision was made, the 
whole thing flowed very quickly. It has been a great success, 
billions of dollars were saved at Rocky Mountain Arsenal and 
the public seems happy. So land use is very important.
    Let me move finally to the construction phase, which I 
think is the main thing now, because a lot of sites are in 
construction. If I were you, I would look at the $1.2 billion 
very carefully. I say this also to Susan and her colleagues. 
Two billion dollars is a lot of money that the Government has 
given EPA for Superfund, not to mention an even larger amount 
of money put in by PRPs. Some 60-70 percent of all sites now 
are cleaned up by responsible parties.
    I am concerned that not enough of that money is getting 
directly to the sites. EPA is a large organization. There is a 
lot of overhead, there is a lot of groups at headquarters that 
siphon a fair amount of that money off before it gets to the 
field. I think the people in the field, have every expectation 
they should get more of that money. I think that can be done.
    Frankly, I would consider, if you want to do something, and 
I would answer yes to what Senator Lautenberg said to Susan, 
you could do more work with more money. I don't think we need 
lavish amounts of money. I am not for new Superfund taxes. But 
this committee and others might want to appropriate somewhat 
more money, directed very directly at sites that need to be 
finished.
    Some of these sites don't need huge amounts of money. Some 
do, some don't. These sites were created by everybody from 
cities to counties to industry to individuals, and I think 
Federal revenues are not a bad way to fund sites where there 
are no viable responsible parties.
    So that is what I would like to say. I think the program 
has great room for efficiencies, and we could do much more with 
sounder project management. We need to get people on the hook 
by name, know who is making decisions at sites. I don't want to 
just see a lot of data bases and other things. I want to know, 
because I grew up in the project world, who is responsible for 
finishing a project.
    Thank you.
    Senator Thune. Thank you, Dr. Porter.
    Let me, if I might, turn to Senator Boxer here for a 
minute. I understand you two both have to depart here shortly. 
Maybe a couple of questions for the record, then we will go to 
the other three panelists for your testimony. We do have two 
votes locked in at noon, so we have some constraints.
    Senator Boxer. I will be quick.
    Dr. Porter, thank you so much for being here. In your 
testimony, in your written testimony you say apparently EPA 
does not have sufficient funds to expeditiously complete all of 
the construction work now planned. You say something sort of 
interesting here. You say, and that among other things, if 
Congress is satisfied that EPA has done all it can do to 
squeeze out funding for as many construction sites as possible, 
then it might consider supplemental appropriations.
    I find it interesting. Now, as you know, supplemental 
appropriations are used for emergencies. I do think if we go to 
Senator Lautenberg's testimony, where he went through these 
uncontrolled sites, and we go to the definition of what it 
means, that people are being exposed, notwithstanding the stuff 
about wipe off your feet. These are the good housekeeping 
things they suggest in these sites, and I think Mr. Spiegel 
will tell more about it. But make sure you wash yourself, don't 
let your kids play if it is windy, wipe your feet off, vacuum 
the house. That is not sufficient, to my mind. Just as a family 
member, you know, how do I know how much wind is too much wind 
and all the rest.
    We have to clean up these sites. You are right. When you 
get a plan, clean it up. There are plans. So my question is, if 
we were to have support to go to supplemental, you would 
consider that we should pick the most urgent sites, I am 
assuming.
    Mr. Porter. That is right. I don't think Congress ought to 
frankly get in the business of earmarking individual sites or 
something like that. But I do think what you should do first, 
and I think what Susan is doing, is you should look at, and the 
Administrator should look at the fact that EPA has $1.2 
billion, year in, year out. Admittedly, it is a little less 
than it used to be, but it is still a fair amount of money.
    Are we really using that money effectively? Are we really 
using it on these sites that need it badly? There is several 
hundred million dollars used at headquarters.
    Senator Boxer. I am asking about supplemental.
    Mr. Porter. Well, supplementals I think----
    Senator Boxer. If we went to a supplemental, you would say 
some of those sites, you could say are emergencies. That's what 
a supplemental----
    Mr. Porter. I think you might be able to do that, yes.
    Senator Boxer. That is what you said in your testimony.
    Mr. Porter. I don't think I used the word emergency.
    Senator Boxer. You said supplemental, and that is what 
supplemental is.
    Mr. Porter. Yes, if you are satisfied that the $1.2 billion 
is being prioritized properly, then I think the next line of 
defense is to say, let's look at where we could spend money on 
sites that really need to be cleaned up.
    Senator Boxer. Thank you very much. I will stop there.
    Senator Thune. Any comment on that? I guess that was 
directed to Dr. Porter.
    Ms. Probst. I can if you want, but you are short of time.
    Senator Thune. All right, let's proceed to our third 
panelist, Dr. Leonardo Trasande.

STATEMENT OF LEONARDO TRASANDE, M.D., MPP, ASSISTANT DIRECTOR, 
CENTER FOR CHILDREN'S HEALTH AND THE ENVIRONMENT, DEPARTMENT OF 
   COMMUNITY AND PREVENTIVE MEDICINE, MOUNT SINAI SCHOOL OF 
                            MEDICINE

    Dr. Trasande. Good morning, Mr. Chairman and members of the 
subcommittee. I am Dr. Leonardo Trasande. I am a pediatrician 
and the assistant director of the Center for Children's Health 
and the Environment at the Mount Sinai School of Medicine, the 
Nation's first academic policy center devoted to the protection 
of children from environmental threats.
    Approximately 4 million children in the United States live 
within 1 mile of a federally designated Superfund sites. These 
children are at especially high risk of exposure to chemical 
toxicants released from these sites into air, groundwater, 
surface water and surrounding communities. Pound for pound, 
children drink more water, they eat more food and breathe more 
air, and so they take proportionately more of these toxins into 
their bodies.
    They also do not metabolize, detoxify and excrete many 
toxics in the same way as adults. Thus, the chemicals can 
reside longer in children's blood streams and cause more 
damage.
    A third reason is that children are undergoing rapid growth 
and development and those very complex developmental processes 
are easily disrupted. Superfund chemicals have been proven to 
cause chronic disease in children. Lead, mercury, 
polychlorinated biphenyls and certain pesticides have been show 
to cause brain damage and to contribute to learning 
disabilities and to disruption of children's behavior. Benzene, 
1,3-butadiene and pesticides have been etiologically associated 
with childhood malignancies. Ambient air pollutants also have 
been shown to increase incidence of asthma and to trigger 
asthmatic attacks.
    Never has cleanup of the Superfund sites become so 
important to the health of America's children. Over the past 30 
years, chronic diseases of environmental origin have become 
epidemic in American children. These include asthma, birth 
defects, brain cancer, developmental disabilities, pre-term 
birth, leukemia and testicular cancer. These rapidly rising 
rates of chronic disease threaten the health of our children 
and the future security of our Nation. It may create a 
situation that has not been witnessed since the Great 
Depression, in which our current generation of children may be 
the first to enjoy a shorter life span than the generation 
before them.
    Toxic exposures at Superfund sites are also costly to our 
economy. Four of the leading diseases of environmental origin 
in American children have been found to cost our Nation $54.9 
billion annually. Mercury pollution has been found to cost our 
Nation $8.7 billion annually, as a result of lost economic 
productivity, not to mention the 1,566 cases of mental 
retardation annually that have been associated with mercury 
pollution. Each of these cases is associated with additional 
special education and health care costs, and thus the reduction 
of unnecessary toxic exposure to Superfund chemicals can be an 
effective and cost-effective approach to improving child health 
in America.
    This subcommittee should therefore continue to assure that 
EPA is fully executing its duties under the Superfund program 
to identify and clean up hazardous waste sites in the safest 
and most expeditious manner possible. The benefits of 
preventing exposure to Superfund chemicals have been proven 
time and time again, first with lead, then with PCBs and more 
recently with pesticides and methylmercury. Delays in 
preventing toxic exposure will lead to preventable and costly 
diseases in children such as developmental disabilities, birth 
defects and childhood cancer.
    I would like to close my testimony and urge the members of 
this subcommittee to take two additional steps to prevent the 
health effects of Superfund chemicals in American children. 
First, the National Institute of Environmental Health Sciences 
Superfund Research Program has developed cutting edge 
technology to assess and evaluate human exposure, determine 
effects of hazardous substances and track their transport 
through various media at waste sites. The program improves the 
efficiency of cleanup at Superfund sites and ensures that our 
public health is most fully protected.
    Finally in this testimony, I wish to point out the urgent 
need for full funding of the National Children's Study, which 
will unearth critical information of the health effects of 
chemicals found at Superfund sites. I would like to take this 
opportunity to thank the Chairman, Senator Thune and the 
Ranking Member, Senator Boxer, for their strong support. Nearly 
all of the 105 study sites overlap geographically with National 
Priority List sites, and thus the National Children's Study 
will provide extremely useful guidance about the health effects 
of Superfund chemicals and ensure that the clean up of those 
sites most efficiently protects their health.
    Congress first authorized the National Children's Study in 
2000. Since then, thousands of scientists have invested their 
time and energy in planning the study, and Congress has 
appropriated $55 million since then to design the study, 
complete the preparatory research and designate the seven 
Vanguard sites that will conduct preliminary testing. To move 
forward, the study will require $69 million in fiscal year 
2007. By failing to provide those funds and abandoning the 
study at this point, we would forego all of that dedication, 
all of that incredible effort and all that logistical 
preparation, just when it is poised to do so much for our 
children's health and prevent toxic exposure at Superfund 
sites.
    I thank you and I would be pleased to answer your 
questions.
    Senator Thune. Thank you, Dr. Trasande.
    Mr. Steinberg.

   STATEMENT OF MICHAEL W. STEINBERG, SUPERFUND SETTLEMENTS 
                            PROJECT

    Mr. Steinberg. Good morning, Mr. Chairman and members of 
the subcommittee. On behalf of the Superfund Settlements 
Project, I am very pleased to be here this morning. I would 
like to begin with a big picture comment and then move on to 
some specific recommendations for improving Superfund.
    Superfund today is far from perfect. But we should 
recognize that it is a mature program. It has largely achieved 
its original objectives and it has largely addressed its 
original workload. The gaps in our environmental laws that led 
to the creation of so many contaminated sites have long been 
filled. Today, responsible parties are cleaning up most of the 
sites on the NPL and they are paying the full cost of those 
cleanups. EPA is using Superfund to pay for cleanups at orphan 
sites where no responsible parties exist who can pay.
    So looking ahead, perhaps the most important thing that EPA 
can do is to make the best possible use of its appropriation 
from Congress. This morning I would like to offer four 
recommendations, each aimed at conserving more of that 
appropriation for the core mission of this program: cleaning up 
NPL sites that have no responsible parties.
    First, as Dr. Porter mentioned, a sizable chunk of the 
Superfund appropriation is transferred each year to other EPA 
offices that are not involved in cleanup work. These include 
the Office of Administration, the Chief Financial Officer, the 
Office of Inspector General. These offices provide what are 
essentially shared services to many EPA programs, including 
Superfund. Together, they receive something on the order of 
$200 million each year, right off the top. That is roughly a 
fifth of the total Superfund budget. We believe there is ample 
room to trim those allocations and bring them more in line with 
the program's current needs. Doing so will conserve more money 
for the core mission of cleaning up NPL sites.
    Second, each new NPL site that gets listed is a long-term 
financial obligation for Superfund. So before a new site is 
listed, it is important to think clearly about why that site is 
being listed and what other options might be available for 
addressing it. It may be, for example, that the State's 
enforcement program was unable to secure cleanup from 
responsible parties. It may be that there are no responsible 
parties to pay for a cleanup.
    Whatever the reason for listing a particular site on the 
NPL, what we need here more than anything else is transparency. 
Each proposed listing should say something about why EPA wants 
to list the site and what alternatives have been considered. 
This transparency will allow the local communities and other 
members of the public to submit meaningful comments on how best 
to handle the site. It will help us avoid listing sites that 
can be addressed through other programs instead.
    Third, EPA headquarters should have a larger role in key 
decisions about cleanups. Dr. Porter alluded to this as well. I 
would actually take it a step further. The reason this is so 
important is that after the NPL listings, the next most 
important decisions in terms of their impact on Superfund's 
budget are the decisions about how to clean up the sites. Each 
new record of decision, or ROD, selects the cleanup plan for an 
NPL site. In practical terms, each new ROD is a long-term 
financial commitment. So it is important that the cleanups 
selected in these RODS are protective, practical and cost 
effective.
    Today, most of these cleanup decisions are made in EPA's 
regional offices. Under an internal delegation dating back to 
1994, most of the RODs are signed by division directors in the 
10 regions. Now, there are advantages to this kind of 
decentralized decisionmaking. But we think it is essential that 
headquarters be able to manage the rate at which this program 
takes on new long-term financial obligations. For that reason, 
we recommend having Superfund program managers at EPA review 
the new RODs before they are signed. This will allow program 
management to address any concerns they have before final 
decisions get made.
    Fourth and last, EPA should reduce its spending on 
oversight of cleanup work performed by experienced private 
parties. All too often, as Dr. Porter mentioned, EPA hires 
outside contractors to perform oversight, and those contractors 
devote excessive time to the job. When this happens, the result 
is large oversight bills and money is diverted away from 
Superfund's other priorities. EPA has long recognized that it 
needs to reduce oversight. But to date, the Agency has made 
only very limited progress. We would encourage decisive action 
here, which will in turn free up money that can be used for 
Superfund's core mission.
    Thank you, Mr. Chairman.
    Senator Thune. Thank you, Mr. Steinberg.
    Mr. Spiegel.

    STATEMENT OF ROBERT SPIEGEL, EXECUTIVE DIRECTOR, EDISON 
                      WETLANDS ASSOCIATION

    Mr. Spiegel. Thank you, Senator Thune, Senator Boxer, and 
the committee for having me here to testify.
    My name is Bob Spiegel. I am the executive director of the 
Edison Wetlands Association. Since 1989, we have been working 
to clean up contaminated sites throughout New Jersey and other 
States. I personally work actively to clean up, or am working 
on 75 sites currently. Twenty of them are Superfund.
    As you know, funds have all been dried up for orphan sites, 
or sites with a lack of a viable responsible party. While the 
EPA publicly states that the cleanups are on track, it is clear 
at many sites that work is proceeding at a far slower pace or 
not at all. This is especially troubling, because many New 
Jersey Superfund sites are located in densely populated 
residential areas, and their impact to public health and 
environment is immediate and direct.
    I want to talk about one site to illustrate the point at 
hand, and that would be the Cornell-Dubilier Superfund Site in 
South Plainfield. On the EPA's own Web site, they have a nice 
little icon, when they talk about those sites that are not 
under control, there is a little OK with a line through it. It 
is kind of comical, because it really doesn't give the full 
picture. It says that that site is not under control, the 
Cornell-Dubilier site. It is now called the Hamilton Industrial 
Park, and it is home to approximately 15 active businesses. The 
site is approximately 26 acres, and it sits adjacent to a 
working class residential neighborhood.
    From 1936 to 1962, Cornell-Dubilier manufactured electronic 
components and capacitors, and they dumped PCB-contaminated 
material directly on site. As was the custom up until 1980, 
onsite disposal was how businesses disposed of their waste. In 
addition to the PCBs, there are 26 other contaminants of 
concern that they are worried about at the site, which impact 
the soil, the groundwater, both onsite and offsite, the stream 
sediments and the Bound Brook as well. PCB capacitors from this 
site were also found at another separate Superfund site nearby.
    Even in the State with more contaminated sites with any 
other, I believe we have about 18,500, which is a pretty big 
record for New Jersey, Cornell-Dubilier stands out. The EPA's 
own risk assessment has found cancer risks in excess of 3 out 
of 100. Three out of one-hundred. That is a very high cancer 
risk. That is a big number. Many residents have asked us how 
they can get cancer studies for the neighborhood, which also 
have a very high prevalence of cancer and other illnesses.
    Some of the highest levels of PCBs in the State of New 
Jersey are caught in the fish caught adjacent to the brook at 
the site. Many local residents still consume the fish, they 
still catch them for subsistence for them and their families.
    EWA first got involved with this site after we received a 
phone call that children were riding their bikes around the 
disposal areas in the rear of the property and a truck driving 
school was operating at one of the most contaminated areas, 
creating a toxic dust cloud that moved through the adjacent 
community. Although owners, elected officials and regulators 
all knew that the area was highly contaminated, no one seemed 
willing to take the lead.
    After 21 years, after the EPA first got to the site, the 
scope of the contamination remains staggering. They have 
buildings on site where people are working inside these 
buildings, including women of child-bearing age, where there is 
dust with high levels of PCBs, lead and other chemicals. The 
EPA calculated the hazard index for the PCBs at about 150. To 
give you an idea what that means, at one they have to take an 
action. But they are allowing people to work in these 
buildings.
    Local families continue to catch the fish adjacent to the 
site. Children continue to trespass on the site. The 
groundwater remains highly contaminated. Homes around the site 
still contain unacceptable levels of PCBs and require 
additional testing. There are day care centers that have PCBs 
as well.
    Rather than waiting indefinitely for the EPA's next action, 
we tested the Bound Brook and we found TCE in the surface water 
downstream from the site at over 200 times the New Jersey 
surface water criteria. While EPA maintains that the cleanup is 
moving forward, this illusion is just a house of cards ready to 
collapse. The Agency is making a promise they can't deliver.
    The remediation of the onsite soils at the site alone are 
going to cost $90 million to $100 million. The PRPs have 
already told the EPA that they don't have the money. So where 
is the EPA going to come up with the money for the cleanup? 
They are saying it is going to start this fall. They haven't 
told us yet where this $100 million is going to come from.
    The ATSDR, their sister Agency, and EPA, are allowing 
people to continue to work in these buildings, instead of doing 
a simple measure which would vacuum them out or clean the dust 
out of them and protect public health. EPA's lone action, 
which--this is the most shocking--they told workers the way to 
protect their health is to wash their hands and wash their feet 
before they go home, and then provide no insight to make sure 
that is done.
    I know my time is short, I know we are running out of time 
here as well. But while we look at a vast array of 
environmental problems, like global warming and over-
development, we must not forget another inconvenient truth: 
without the Superfund tax there will be no funding to clean up 
the sites like Cornell-Dubilier. I would invite all the 
Senators who haven't been to a Superfund site to come out and 
visit one either in New Jersey or in their own community.
    Thank you.
    Senator Thune. Thank you, Mr. Spiegel.
    I have a question which I will, in deference to my 
colleagues who have a high level of interest in this, submit 
for the record.
    Senator Lautenberg, you are recognized.
    Senator Lautenberg. You are very kind, Mr. Chairman, I 
appreciate it greatly.
    I would ask two questions, one of Mr. Steinberg. As I read 
your testimony and listened carefully to what you said, you 
said the project you represent regards Superfund as a mature 
program that has largely accomplished its goal. I ask you, if 
you were in a theater and someone screamed fire and you saw the 
flames, but half of the people got out, would you say it was a 
successful evacuation?
    Mr. Steinberg. I would be concerned, Senator.
    Senator Lautenberg. Oh, I am glad. I am glad you said that. 
Because to suggest that the mission is largely accomplished, I 
would tell you, if you want to move to 1 of 19 places in New 
Jersey, very cheap real estate near these Superfund sites, you 
could bring your family there and live there, expose your 
children.
    Bob Spiegel is someone who is an expert because he has been 
hands-on, working, pushing, cajoling, you name it, to get a 
couple of sites cleaned up. One of them is a now infamous site 
that took place in Ringwood, NJ, I didn't hear whether you 
mentioned it in your testimony.
    Mr. Spiegel. It was in my testimony but I didn't have time 
to talk about it.
    Senator Lautenberg. They said that the site was cleaned up 
and it was closed off. What happened, please? Tell us very 
briefly if you can.
    Mr. Spiegel. Well, this really goes to speak to the heart 
of why we need adequate funding. The Ringwood Mine Superfund 
site is a site where the Ramapough-Lenape Indian Nation has 
probably been poisoned as a result of the Ford Motor Company's 
dumping of toxic paint sludge throughout the community. EPA 
originally listed this as a site and de-listed it without 
properly cleaning it up.
    What they basically did was allowed the polluter, Ford 
Motor Company, to come in, do the cleanup, submit the paperwork 
and then essentially walk away and de-list the site. As a 
matter of fact, this site is going to be the first site in the 
United States to be relisted, because of the amount of toxic 
waste that was dumped.
    One of the biggest problems that we see with the lack of 
funding is, it takes away the EPA's hammer. When I say the 
EPA's hammer, right now they have the treble damages where they 
can go out, do a cleanup and then collect triple damages to a 
polluter. That is why we have had 70 percent of the polluters 
step up to the plate and do the work, because they know that if 
they didn't, EPA had the ability to go in, do the cleanup and 
then recover costs.
    Well, that is not there any more. The polluters all know 
that EPA is not going to step in and do the cleanup, because 
they don't have the funds. How are they going to step in and do 
$100 million cleanups? They are not. As such, the processes 
have slowed down, the cleanups are less comprehensive and there 
is more interim measures, I'm sorry, no interim measures done 
at sites, because EPA is afraid they will lose their places in 
the line. At least in Region II we have seen a very big 
slowdown in interim measures, because EPA tells us privately 
they don't want to lose their place in line for funding, even 
though they know that the funding is scarce.
    So the site in Ringwood really speaks to a lot of troubling 
issues. As a matter of fact, yesterday at this time I was up in 
Ringwood with Bob Degroot and his wife, with their grandkids, 
pulling up toxic sludge out of their backyard where their kids 
play. It is something, if you don't see it, it is easy to just 
dismiss it. Thank you.
    Senator Thune. Senator Boxer.
    Senator Boxer. Two brief questions. Mr. Steinberg, I found 
your testimony to be just--I won't characterize it. I find it 
unbelievable. The first thing you say is the Superfund program 
has done most of its work. I think Senator Lautenberg pointed 
that out, so I won't harp on that.
    But then you say, don't do oversight, and now we hear from 
Mr. Spiegel that without oversight, we might have these sites 
listed again.
    Mr. Steinberg. To be clear, Senator, I am not suggesting 
that oversight is unnecessary. I am suggesting what EPA itself 
admitted 10 years ago, which is that far too much of their 
Superfund dollars go to oversight of PRPs.
    Senator Boxer. OK, so you think there should be oversight, 
but not as much oversight?
    Mr. Steinberg. Correct.
    Senator Boxer. OK. Who do you represent today?
    Mr. Steinberg. I am here today for the Superfund 
Settlements Project, Senator.
    Senator Boxer. Who pays for that?
    Mr. Steinberg. It is an association of eight companies, and 
our members are listed in my prepared statement.
    Senator Boxer. OK. Are they polluters?
    Mr. Steinberg. They each have a number of Superfund sites 
that they are involved in cleaning up.
    Senator Boxer. OK, well, that puts it in context.
    Doctor, would you tell us please, I cannot thank you enough 
for your testimony and for the work you do. Because children, 
that's it for me. If we can't come around and all of us say, it 
is our job to protect them, we have failed as human beings, let 
alone Government officials. So you are doing this every day. 
What are the effects--you said something really frightening, 
that we may see that there is not as long a life expectancy 
among our children as we had because of exposure to toxics. Am 
I saying it correctly?
    Dr. Trasande. Senator, we are facing an epidemic of chronic 
disease in childhood. A vast array of chronic diseases are on 
the rise in American children and a large number of those 
chronic disease have their origins in environmental exposures.
    Senator Boxer. OK. I also noted the other day, with shock, 
to see an article that our own life expectancy in this country 
has fallen way below where it used to be. I want to get that 
information put into the record if I might. I don't have it 
here, but it is just sinking in terms of the world.
    So, we don't know why everything is happening, but 
certainly you have raised an alarm. Could you tell us what 
impacts you have seen from these toxins on our children, the 
lead, the arsenic, the PCB? What happens to children, in 
graphic terms, what happens to children when they have this 
exposure.
    Dr. Trasande. Senator, there is what we know and much of 
what we don't know and need to learn more. But what we know is 
unfortunately quite frightening. We learned first 100 years ago 
with lead that lead caused children to have seizures, coma. Now 
at lower levels, we have found that children were suffering 
loss of IQ, behavioral problems and other neuro-developmental 
problems from lead exposure.
    Unfortunately, that was just the tip of the iceberg. I 
can't say that we have gotten much deeper into understanding 
the effects of other chemicals.
    Senator Boxer. And mercury? What does that do?
    Dr. Trasande. Methyl mercury toxicity has affected on the 
order of 300,000 children in the 2,000 U.S. birth cohort, 
costing our Nation $8.7 billion annually in lost economic 
productivity.
    Senator Boxer. $8.7 billion lost?
    Dr. Trasande. Yes.
    Senator Boxer. And what does it do, though, to kids?
    Dr. Trasande. Methyl mercury is ingested by women, it 
enters the bloodstream, it then crosses the placenta and then 
causes brain damage during the prenatal period.
    Senator Boxer. Brain damaged kids. And then PCBs?
    Dr. Trasande. PCBs also cause brain damage through a number 
of mechanisms. Most especially the concern is that it may also 
displace thyroid hormone, which is so important for prenatal 
brain development.
    Senator Boxer. OK. Well, Mr. Chairman, I will stop here. 
You know where I am coming from on this, it is not surprising 
to you, because you have known me for years. But here is the 
thing. When we talk about these Superfund cleanups, we are 
talking about protecting our children, our families and our 
communities. I think a lot of it gets lost in these memos that 
are marked privileged, where people are just told, give me the 
cheapest thing we can get away with, don't fess up to what we 
need to do.
    This whole baloney we hear that you can't answer the 
question if you have more money you could cleanup sites, 
Senator Lautenberg has a document that is not privileged where 
that is stated clearly, in many sites after sites after sites. 
Yes, if we had more funding, we'd do this.
    So what I would love to have is an honest debate about 
this. In other words, if we want to say it is not a priority, 
that's OK, let's have that debate. I am willing to engage in 
it. But let's not hide information. Let's not have this 
committee decide that the members of the public don't deserve 
to know.
    I will say this, Mr. Chairman, and I know you are a 
reasonable person to work with, and I appreciate your allowing 
us to discuss these documents, although we didn't name them and 
identify them, we are going to pursue this with Chairman 
Inhofe, the Democrats. I don't know about you and the rest of 
my colleagues, but the Democrats that I have talked to are 
intent upon getting these documents out in the public. We are 
just going to make the fight. If we have to go all the way to 
wherever we have to go, we will do it.
    But this is a Government of, by and for the people. If the 
people don't know information that they should know, it is not 
a national security question. As far as I can tell, by looking 
at these documents, a lot of them don't even refer to cases, 
they are nothing to do with it. It seems like it is being 
hidden from the public because of political reasons. I can't 
think of anything else.
    So I am going to work--I hope we can work together on this. 
If not, we will just have to debate it and see where we go. I 
thank you so much for having this hearing. We haven't had this 
in 4 years. I can kind of see why some people didn't want to 
have for 4 years. I appreciate that we have had it.
    Senator Thune. Thank you, Senator Boxer. I will alert 
Chairman Inhofe that he will be hearing from you on that 
subject, among other subjects.
    Senator Jeffords. Mr. Chairman?
    Senator Thune. Senator Jeffords.
    Senator Jeffords. Dr. Trasande, thank you for reminding us 
about the critical role of Superfund in preserving the health 
of our Nation's children. In your written testimony, you 
mentioned a stunning funding, that environmental pollutants 
cost our Nation an estimated $55 billion annually. I would like 
to enter this study into the record of today's hearing. Could 
you give us a copy of that?
    Dr. Trasande. I would be most happy to.
    Senator Jeffords. Thank you. Dr. Trasande, could you please 
elaborate on this study a little bit, tell us your concerns?
    Dr. Trasande. Certainly. My mentor and the director of the 
center, Dr. Philip Landrigan, led a study in 2002, published in 
the Journal of the National Institute of Environmental Health 
Perspectives, in which he looked at just four diseases for 
which the evidence was strongest for the relationship between 
environmental exposure and harm to children. Those are lead 
poisoning, developmental disabilities, childhood cancer and 
asthma.
    They aggregated the economic costs of those diseases and 
the total morbidity of those diseases, and they assigned a 
conservative percentage to limit the percent of that cost that 
could be attributed to the environment. That is where they came 
up with the estimate of $55 billion annual cost to society.
    Given what we don't know of the environmental exposures and 
their role in children's health, it is likely that that number 
is a gross underestimate.
    Senator Jeffords. Mr. Steinberg, I understand you are 
familiar with the U.S. Supreme Court case involving the ability 
of private parties to seek contribution from other potential 
responsible parties?
    Mr. Steinberg. Yes, Senator.
    Senator Jeffords. How has this ruling impacted the 
willingness of private parties to voluntarily cleanup 
contaminated property?
    Mr. Steinberg. I think the Supreme Court ruling has to be 
considered a setback in terms of the incentives for companies 
to perform voluntary cleanups. Often what is required to begin 
the cleanup process is for a company to sign up and agree to 
clean up a site that a number of other companies also helped to 
contaminate. So you sign up for 100 percent of the cleanup, and 
you do that typically in the hope that you will eventually get 
some equitable contribution down the road from the other 
companies that helped or the other Government Agencies that 
helped to create the mess.
    What the Supreme Court has done is to make that much more 
difficult. It is now much more uncertain whether the right of 
contribution will ever be available. So companies have another 
reason to stop and think before signing on to a new consent 
decree for a new NPL site.
    Senator Jeffords. Well, this concerns me, what you are 
telling us. I hope that you will follow up, give us some help 
in trying to see what we can do.
    Mr. Steinberg. I would be glad to, Senator.
    Senator Jeffords. Thank you.
    Senator Thune. Thank you, Senator Jeffords. I appreciate 
your asking that question. That is one also that it seems to me 
at least we ought to be able to address. There ought to be a 
way that legislatively we can provide a solution. We would look 
forward to working with you and Senator Boxer and others to 
make that happen.
    I want to thank the panel for your testimony and for your 
answers in response to the questions. It has been very 
insightful. I would note, too, for the record, that the record 
will be open for another 5 days for people who want to submit 
additional testimony or questions. So with that, we will 
adjourn.
    Thank you.
    [Whereupon, at 12:16 p.m., the subcommittee was adjourned.]
    [Additional statements submitted for the record follow.]
      Statement of Hon. James M. Jeffords, U.S. Senator from the 
                            State of Vermont
    Mr. Chairman, thank you for holding this hearing.
    Superfund has successfully cleaned up thousands of toxic waste 
sites and protected the health of millions of Americans. Thousands of 
communities have benefited from short-term removal actions, and 
remedies have been constructed at about 665 of the most contaminated 
sites in the Nation.
    In addition, fear of Superfund liability has prompted corporate 
America to minimize its toxic waste generation and take extra care to 
prevent waste mishandling. The Nation is healthier as a result.
    Yet, our work is not done. Even today, the EPA estimates that one 
in four Americans live within 3 miles of a Superfund site. 
Approximately 600 sites remain on the National Priorities List, with 
over 100 having ``human exposure not under control.''
    Let me highlight four issues that must be confronted to ensure that 
the Superfund program is effective in protecting public health.
    First, we must fully fund Superfund, which has been on life support 
in recent years. In real dollars, the program is operating with about 
35 percent less money than it had in 1993. The result of chronic 
underfunding is less cleanup. In Vermont alone, we have three sites 
that have languished for years on the National Priorities List due to 
insufficient funds. In this tight budget climate, the only way to fully 
fund the Superfund program is to reinstate the ``polluter pays'' fees.
    Second, we must make sure that companies that handle hazardous 
substances set aside enough money to meet their cleanup obligations 
before they cease operating. The EPA has yet to issue the regulations 
required in 1980 to address this problem.
    Third, a GAO Report I requested last year found that 83 percent of 
recent Superfund remedies were designed to leave residual contamination 
in place. Yet, the report found that controls to minimize future 
exposure to this contamination were rarely properly implemented, 
monitored, or enforced. If the EPA cannot resolve this problem, 
cleanups at thousands of sites will need to be revisited.
    Finally, the U.S. Supreme Court ruled last year that parties liable 
under Superfund cannot sue other liable parties for contribution unless 
they themselves have been sued by the Government. The result of this 
ruling is confusion and, I fear, fewer voluntary cleanups. A wide range 
of stakeholders, including major corporations, environmental groups, 
and the National Governors Association have called on Congress to 
overturn this decision. I hope we are able to do so before this 
Congress adjourns.
    Again, I thank the Chairman for holding this hearing.
                               __________
     Statement of Hon. Joseph I. Lieberman, U.S. Senator from the 
                          State of Connecticut
    Thank you Mr. Chairman. Contaminated industrial sites in this 
country continue to harm our children, our families, and our 
communities. I am disturbed by the mounting evidence that children are 
especially vulnerable to suffering brain damage and malignant disease 
as a result of exposure to the chemicals still found at these polluted 
sites. The Center for Children's Health and the Environment at the 
Mount Sinai School of Medicine points out that 3 to 4 million children 
and adolescents live within 1 mile of a Superfund site.
    EPA concedes that there is current, actual human exposure to 
hazardous contaminants at two sites in my State:
    In Stratford, CT, wastes containing lead, asbestos, and PCBs are 
found at 30 locations, including a residential parcel and a community 
park. Groundwater contaminated with volatile organic compounds flows 
beneath 120 homes in the town. Indoor air testing has confirmed 
probable intrusion of those compounds unto the basements of those 
homes.
    In Durham, CT, 80 houses abut and surround a contaminated 
industrial site.
    Children live in approximately 30 of those homes. All of the homes, 
in addition to three churches and a school, lie within the lateral 
extent of the plume of contaminated groundwater that extends from the 
industrial site. All of the buildings in the area get their water from 
wells.
    Both of these sites are in the Superfund pipeline, and I deeply 
appreciate the ongoing work of dedicated EPA employees, State 
employees, and neighborhood activists to minimize harmful exposure and 
to clean up the waste. But the people doing that vital work need 
adequate funding. They are unlikely to get adequate funding if the 
entire Superfund program is under-funded. I believe that if the 
Superfund program is under-funded, the responsible officials at the 
U.S. EPA have an obligation to own up to that fact, so Congress can do 
something about it. Moreover, I believe the obligation is a moral one, 
because the health of children is at stake.
    I am concerned, then, over indications that EPA is not divulging a 
significant inadequacy in this vital program's funding. I would like to 
rely on EPA's assurances, because I have tremendous respect for the 
expertise and dedication of the Agency's career employees. But I have 
seen enough to make me suspect that whenever a senior EPA official 
tells Congress that Superfund does not need increased funding, career 
EPA employees shake their heads in disbelief and dismay.
    As Resources for the Future points out, annual appropriations for 
the Superfund Program have not kept pace with inflation. In fact, the 
program's Fiscal Year 2005 appropriation of $1.2 billion represents a 
40 percent decrease in purchasing power when compared with the Fiscal 
Year 1987 appropriation of $1.4 billions. Meanwhile, as EPA 
acknowledges, highly complex and expensive mega-sites make up an 
increasing percentage of the program's cleanup burden.
    As the tension has increased between reality and EPA's insistence 
that Superfund is adequately funded, EPA management has made less and 
less in the way of program details available to the public. That 
secrecy has fostered a suspicion that, in certain instances, sites have 
been allowed to progress through the Superfund pipeline even though 
their cleanup has not met the standards to which we can and must hold 
ourselves in order to protect Americans.
    So I am proud to cosponsor Senator Boxer's bill to reinstate the 
polluter fee, which is justified and necessary to replenish the 
Superfund Trust Fund. As a government, we owe that to the children of 
Stratford, Durham, and countless other communities across the country.
    Thank you, Mr. Chairman.
                               __________
 Statement of Susan Parker Bodine, Assistant Administrator, Office of 
  Solid Waste and Emergency Response, Environmental Protection Agency
    Good morning Mr. Chairman and members of the subcommittee. I am 
Susan Bodine, Assistant Administrator of the Office of Solid Waste and 
Emergency Response, Environmental Protection Agency. Thank you for the 
opportunity to appear today to discuss the Superfund program: the 
tremendous progress that has been made, the challenges that remain, and 
what EPA is doing to address those challenges.
                         the superfund program
    As the subcommittee knows, the Superfund program was established 
under the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA or Superfund), which Congress passed in December 
1980 to respond to citizen concerns over Love Canal and other toxic 
waste sites. Through the Superfund program, the Environmental 
Protection Agency (EPA) and its partners address abandoned, 
accidentally spilled, illegally dumped or intentionally released 
hazardous substances that pose current or future threats to human 
health and the environment.
    The Superfund program has been very successful in protecting human 
health and the environment. To date, EPA and its State and Tribal 
partners have assessed 46,515 sites; the removal program has conducted 
8,948 removals at 6,415 sites; and 1,612 sites have been proposed to, 
listed on, or deleted from the National Priorities List (NPL). Of the 
1,553 final or deleted sites, 95 percent have begun construction 
activity, have been completed, or have been deleted from the NPL. 
Remedy construction is complete at 970 sites. EPA expects the Superfund 
program to complete cleanup construction at an additional 40 Superfund 
sites in fiscal year 2006.
    EPA also has been very successful in leveraging Federal dollars to 
secure private party cleanups. In fiscal year 2005, EPA secured 
commitments from Potentially Responsible Parties (PRPs) to carry out 
cleanups worth more than $857 million and to reimburse EPA for more 
than $248 million in costs. The cumulative value of private party 
cleanup commitments and cost recovery settlements is more than $24 
billion. EPA's enforcement efforts have allowed the program to focus 
the Agency's appropriated funds on sites where PRPs cannot be 
identified or are unable to pay for or conduct the cleanup.
    To fully understand the status of the Superfund program today, it 
is important to understand the process for cleaning up toxic waste 
sites, as well as how the Superfund program has evolved over the past 
25 years.
The Superfund Pipeline
    To achieve protection of human health and the environment, the 
Superfund program takes each site through a process of investigation, 
study, and finally cleanup, commonly referred to as the ``Superfund 
pipeline.''
    The Superfund cleanup process begins with site discovery or 
notification to EPA of possible releases of hazardous substances. Sites 
are discovered by various parties, including citizens, but the majority 
of sites are referred to EPA by State agencies. Once discovered, sites 
are prescreened. For example, in 2004, approximately 80 percent of 
sites were screened out because they posed little or no potential 
threat to human health or the environment. The remaining 20 percent of 
the sites were entered into the Comprehensive Environmental Response, 
Compensation, and Liability Information System (CERCLIS). Next, EPA or 
the State evaluated the potential for a release of hazardous substances 
from these sites through a preliminary investigation. This stage 
screened out 65 percent of the remaining sites. At the sites still 
remaining, EPA or the State conducted a site assessment. Another 64 
percent were screened out at this stage, and those that were not, 
received additional assessment (screening out another 13 percent of the 
sites that reach this stage). The data from a site assessment are used 
to evaluate a site under the Hazard Ranking System (HRS). Sites that 
score above 28.5 under this system are eligible for NPL listing and, if 
listed, become eligible for remedial funding.
    For the sites that are listed on the NPL, EPA or PRPs, then conduct 
further investigation to determine the most appropriate remedy for the 
site (called the remedial investigation/feasibility study). This phase 
culminates with a record of decision, selecting a remedy for the site, 
following public notice and comment. EPA, or cooperating PRPs, then 
design and construct the remedial action. Following completion of a 
remedial action, often operation and maintenance activities often must 
continue.
    In addition, at any point during the site investigation process, 
EPA may conduct a removal action at a site, to address an emergency 
situation, an immediate threat to public health, or to jump-start a 
remedy with an interim action. For example, EPA has provided 
alternative water supplies to more than 2 million people to cutoff 
exposure to contaminated water. During the first half of fiscal year 
2006, EPA has conducted removal actions at 82 NPL sites.
    EPA also conducts searches for PRPs during this process, and takes 
action to ensure cleanup work is conducted or paid for by those PRPs, 
rather than by EPA using appropriated dollars. Finally, sites that are 
screened out during the site investigation process are considered 
eligible response sites, which are sites that are eligible for funding 
under EPA's Brownfields Program.
Superfund Program's Early Years
    In the 1980s, Superfund was a new program that was just getting 
started. EPA issued regulations to implement the Superfund program in 
July 1982, by revising the National Contingency Plan, which was first 
promulgated under section 311 of the Clean Water Act, to incorporate 
the Superfund program requirements. In September 1983, EPA promulgated 
the first National Priorities List (NPL), identifying 406 sites as 
national priorities among the known releases or threatened releases of 
hazardous substances, pollutants, or contaminants throughout the United 
States.
    From listing a site on the NPL to the completion of the 
constructing a remedy, the cleanup process takes more than 10 years, on 
average. As is discussed later, simple sites may take less time, but 
more complex sites take considerably longer. As a result, during the 
early days of the Superfund program, most of the activity 
understandably centered on the investigation and study phase of the 
Superfund pipeline.
A Maturing Program
    Progress continued throughout the 1980s. However, very few sites 
were cleaned up. In fact, before 1991, remedies were completed at only 
49 sites, 16 of which required no construction. As a result, there was 
a public perception that the Superfund program was addressing sites too 
slowly. EPA addressed these issues with two initiatives. First, to 
leverage Federal dollars and increase the number of sites being cleaned 
up, EPA adopted an ``enforcement first'' policy in 1991 to require PRPs 
to perform cleanups, rather than using appropriated dollars and seeking 
cost recovery. Second, to help explain to the public the progress that 
the Superfund program had made, in 1993 EPA created the category called 
``construction completion,'' and began tracking and reporting the 
number of Superfund sites where the physical construction of the 
cleanup remedy was finished.
    During the 1990s, many sites that had been placed on the NPL in the 
1980s finally moved through the Superfund pipeline. Remedial 
investigations and feasibility studies were completed. Records of 
decision selecting remedies were issued. Cleanup remedies were 
constructed. Between 1991 and 1995, 297 additional sites reached 
construction completion (33 of which were determined not to need 
construction).
    Despite this progress, the program continued to be criticized that 
the pace of cleanup was too slow. In response, EPA began aggressively 
managing the program to achieve construction completions. Between 1996 
and 2000, 411 sites achieved the construction completion stage of the 
pipeline (16 of which were determined not to need construction). 
However, 162 of these sites cost EPA less than $1 million per site to 
achieve construction completion (including both fund lead and PRP lead 
sites). An additional 165 cost EPA less than $5 million. Thus, while 
the program was achieving on average 82 construction completions per 
year during this timeframe, the vast majority of those sites were 
smaller, low cost sites, or were PRP sites with low EPA oversight 
costs.
    Between 2001 and 2005, an additional 209 sites have achieved the 
construction completion phase. If one looked only at construction 
completions, one could conclude that the pace of cleanup in this 
country declined. This would be untrue. While the number of low cost 
sites reaching construction completion declined, the number of costly 
and complex sites that have reached construction completion has 
increased. Moreover, cleanup has progressed significantly at the 
remaining costly, complex sites.
    In addition, cleanup of low cost sites is continuing, just not as 
often through listing on the NPL. During the late 1990s, a fundamental 
shift in how sites are cleaned up occurred as a result of the 
development and growth of State cleanup programs and State brownfields 
programs. Today, less costly and less complex sites, and sites with 
cooperative PRPs, are much more likely to be addressed through a State 
cleanup or voluntary cleanup program or a State brownfields program 
than through the Federal Superfund program.
    This trend was not unexpected. In fact, in November 1998, the 
General Accountability Office (GAO, then called the General Accounting 
Office) surveyed States and EPA regions regarding all sites that were 
then in CERCLIS and determined that, of the 3036 sites in the active 
CERCLIS data base in 1997, EPA or a State program identified only 232 
sites as potential candidates for NPL listing. The actual number of 
sites listed after 1997 is 172 and an additional 59 sites have been 
proposed to the NPL, totaling 231.
    Working with our State partners, EPA Regions now try to identify 
the most appropriate program to address sites that require cleanup. 
This may be a State program; it may be the Resource Conservation and 
Recovery Act (RCRA) corrective action program; it may be the Superfund 
removal program or the Superfund remedial program and listing on the 
NPL. As a result, cleanup is continuing through a variety of programs 
and the NPL has become more of a list of sites that need Federal 
funding or Federal expertise than a list of all uncontrolled toxic 
waste sites.
The NPL Universe Today
    At this point in the history of the Superfund program, the universe 
of sites not yet complete and the type of sites being listed on the NPL 
are very different from the universe of sites on the list 10 years ago. 
EPA has completed work at many low cost sites that were listed in the 
past, and new sites in this category are being addressed through other 
programs. The remaining sites are more complex.
    As can be expected given the Superfund pipeline, 893 of the 970 
sites that have reached construction completion to date were listed 
before 1991. At 61 percent of these sites, only one, or in some cases 
no remedy required construction. In Superfund parlance, these sites had 
only one ``operable unit'' (OU).
    It is important to remember that many of the sites that have not 
reached the construction completion stage have been part of the 
Superfund program for many years, but are large, complex sites that 
simply take more time to address. Of the 583 sites that have not 
reached the construction completion state, 318 (54 percent) also were 
listed before 1991. That means the Superfund program has been 
addressing these sites for over 15 years, making progress while dealing 
with technically challenging issues. 367 (63 percent) of the remaining 
583 sites have more than one OU. 189 of the remaining 583 sites have 
been identified as sites where the remedy costs will have or have the 
potential to exceed $50 million (32 percent). In Superfund parlance, 
these are called ``mega-sites.''
Management of Current Superfund Program
    Given the complexity of many sites that remain on the NPL, EPA must 
carefully manage the program. First, management attention and resources 
are given to the sites that present the greatest risk. Second, actions 
are taken to protect human health and the environment while remedies to 
achieve long-term protection are developed and constructed. Third, to 
ensure efficiency in contracting, the largest sites are managed as 
long-term construction projects. Fourth, to turn a community blight 
into a community asset, EPA looks for land revitalization opportunities 
when developing remedies. Fifth, with so many sites reaching the 
construction completion stage, attention is now focused on the 
achievement and maintenance of long-term protection at these sites. 
Finally, EPA is taking steps to ensure that all Superfund resources are 
being put to their highest and best use.
            Prioritizing Sites Based on Risk
    To help EPA manage its funding decisions in a risk-based manner, 
sites that are ready to begin construction and will be paid for using 
EPA's appropriated funding are subject to a rigorous prioritization 
process. EPA's National Risk-Based Priority Panel reviews new cleanup 
construction projects as they become ready for EPA funding. The Panel 
prioritizes the projects based on three factors: protection of human 
health, protection from significant environmental threats, and 
potential threats based upon site conditions at the time of review. A 
number of factors are then used to weigh funding priorities among the 
sites including: human exposure risk, contaminant characteristics and 
stability, significant environmental risk, and program management 
considerations. The Panel is composed of national EPA Superfund program 
experts from both Regional and Headquarters offices.
            Addressing Immediate Risks Through Interim Actions
    Even though selection, design and construction of what are often 
multiple remedies at a site may take many years, EPA can and does take 
interim actions to address immediate risks to human health. EPA has 
taken removal actions at 58 percent of the sites listed on the NPL. For 
example, EPA did not wait to list the Omaha Lead site on the NPL before 
taking action to reduce the risk posed to residential communities. EPA 
started cleanup work in 1999 using Superfund Removal authorities. The 
site was listed on the NPL in 2003, and using an expedited interim 
remedy process, is on schedule to have completed cleanups of more than 
2000 residential yards by the end of fiscal year 2006.
    EPA is developing tools to identify and improve the management of 
risks at ongoing NPL cleanups. Beginning in 2002, EPA applied the Human 
Exposure Under Control Environmental Indicator to document the interim 
progress made toward achieving long-term human health protection by 
controlling unacceptable human exposures at NPL sites. This measure 
tracks the status of whether human health exposures are controlled 
under current site use. EPA considers human exposure to be not under 
control if, under current site use, there are complete pathways for 
human exposure to contaminants at levels that present an unacceptable 
risk. EPA does not require documentation of actual exposure when 
applying this measure. A complete exposure pathway is sufficient.
    As the subcommittee knows, the list of sites where human exposure 
is not under control is dynamic. Over time, sites are removed and new 
sites are added, depending on changed site conditions or new 
information. Since becoming Assistant Administrator, I have made it a 
priority to improve the quality of the data supporting this 
environmental indicator so that it can be used to prioritize and manage 
the program.
            Managing ``Mega-Sites''
    The largest and most complex Superfund sites must be managed as 
multi-year construction projects. This is particularly true of the 
``mega-sites'' with estimated costs over $50 million. EPA funded 
``mega-sites'' consume the majority of our resources. In fiscal year 
2005, approximately 50 percent of the Superfund obligations for long-
term, on-going cleanup work were committed to just 11 sites. The Agency 
expects to have a similar situation this year. For this reason, EPA has 
developed long-term funding plans for a number of complex, costly, 
sites. These funding plans are based on the construction plans for the 
sites, and allow EPA to enter into contracts that provide for efficient 
use of resources.
            Land Revitalization
    The land revitalization initiative, launched in April 2003, 
includes all of EPA's cleanup programs as well as partners at all 
levels of government and in the private and non-profit sectors. The 
goal of land revitalization is to restore our Nation's contaminated 
land resources and enable America's communities to safely return these 
properties to beneficial economic, ecological, and societal uses. EPA 
is ensuring that cleanup programs protect public health, welfare, and 
the environment; and also ensuring that the anticipated future uses of 
these lands are fully considered in cleanup decisions.
    Experience has taught us that one of the best ways to clean up 
contaminated sites and to address blighted properties in communities is 
to expressly consider the future uses of the land. The country has 
accepted the economic and ecological importance of recycling various 
consumer products--and our understanding of sound resource management 
must now also embrace the recycling of contaminated properties.
            Post-Construction Completion Strategy
    With so many sites now at the construction completion stage, the 
Superfund program also must focus attention and resources to address 
post-construction activities to ensure that remedies remain protective 
over the long term and sites can be returned to productive use.
    In October 2005, to ensure that completed sites remain protective 
of human heath and the environment, EPA published its Post Construction 
Completion Strategy. The strategy was developed to improve site 
operations and maintenance, remedy performance tracking, institutional 
control implementation and tracking, and reducing barriers to 
beneficial site reuse. Under this strategy, EPA is ensuring that 5-year 
reviews are completed and any discrepancies identified in the reviews 
are acted upon. EPA also is developing an Institutional Control 
Tracking System, to document and make public the institutional controls 
that are needed to ensure long-term protectiveness.
    In addition, EPA is developing a new post-construction completion 
measure for the Superfund program as part of its fiscal year 2006-2011 
Strategic Plan under the Government Performance and Results Act. This 
new measure will track and target the number of sites that have been 
made ``ready for reuse'' by the Superfund program. These are sites that 
have achieved the cleanup goals and have implemented the institutional 
controls that ensure long-term protection and allow reuse of land.
    EPA already is collecting and will continue to collect and report 
data on the number of acres that are ``ready for reuse'' at Superfund 
sites, even if the entire site is not construction complete, and is 
working on developing similar information for all of EPA's cleanup 
programs. Both the new GPRA measure and the ongoing information on 
acres made ``ready for reuse'' demonstrate how cleaning up waste sites 
to protect human health and the environment can produce the 
accompanying benefit of returning properties to beneficial reuse.
            Managing Superfund Resources
    EPA is undertaking a number of actions to ensure that Superfund 
resources are not expended on unnecessary activities and are available 
to carry out site cleanup work. For example, EPA has:
     Initiated a workforce analysis to determine if staff 
resources should be reallocated
     Started benchmarking studies of EPA performance
     Shared best practices among the EPA Regions
     Established the Contaminated Sediments Technical Advisory 
Group, comprised of Agency experts, to provide technical support to 
Regions with potentially high cost contaminated sediment sites
     Increased the number of sites addressed by the Remedy 
Review Board, which reviews high cost cleanup remedies, by lowering the 
threshold cost of remedies that will be reviewed from $30 million to 
$25 million
     Continued to optimize long-term groundwater remedies in 
order to reduce operating costs and restore potential drinking water 
sources more efficiently
     Aggressively deobligated funds from contracts, grants, 
cooperative agreements and interagency agreements, resulting in more 
than $600 million for new cleanup activities over the past five fiscal 
years.
    These efforts are, in part, a result of several studies, including 
an internal review of the Superfund program, known as the 120-Day 
Study, which identified opportunities for the Agency to put its 
resources to better use.
                           emergency response
    EPA's Emergency Response activities are another facet of the 
Superfund program. The Emergency Response program provides national 
leadership to prevent, prepare for, and respond to human health and 
environmental emergencies, including terrorist events. EPA7s Superfund 
Emergency Response program was actively involved in the response to the 
events of 9/11 and the subsequent anthrax attacks, and, most recently, 
in the response to Hurricanes Katrina and Rita.
    Beginning on August 25, 2005, to prepare for Hurricane Katrina, EPA 
deployed personnel to the Federal Emergency Management Agency (FEMA) 
National Response Coordination Center and sent On-Scene Coordinators 
(OSCs) to the Florida, Louisiana, Alabama and Mississippi Emergency 
Operations Centers. The OSC is the Federal official responsible for 
monitoring or directing responses to all oil spills and hazardous 
substance releases reported to the Federal Government. EPA sent 
additional personnel to the affected areas as soon as travel into the 
region was possible. In anticipation of Hurricane Rita, EPA also 
deployed response experts to the multi-agency Regional Response 
Coordination Center in Denton, TX on September 20. Nearly 400 EPA staff 
and contractors are continuing to assist with recovery in the Gulf 
Coast. EPA's hurricane response related activities are being funded by 
FEMA under a mission assignment pursuant to the President's disaster 
declarations for the Gulf Coast.
    EPA is the lead Federal Agency under the National Response Plan for 
Emergency Support Function (ESF) No. 10, which addresses oil and 
hazardous materials, and works with other agencies to provide support 
for a number of other Emergency Support Functions, including ESF No. 3, 
which addresses Public Works and Engineering. Specifically, EPA's 
responsibilities include preventing, minimizing, or mitigating threats 
to public health, welfare, or the environment caused by the actual or 
potential releases of hazardous materials; testing the quality of flood 
waters, sediments, and air; and assisting with the restoration of the 
drinking and waste water infrastructure. Also under ESF No. 3, the 
Agency works with the U.S. Army Corps of Engineers to address final 
disposition of the large volumes of debris from homes, buildings and 
other structures damaged by Hurricane Katrina. EPA, in coordination 
with the States, is providing information to both workers and the 
public about sampling test results, as well as assisting communities 
with debris disposal and hazardous waste issues.
                               conclusion
    Administrator Johnson and the Bush administration are fully 
committed to Superfund's mission, protecting human health and the 
environment by cleaning up our Nation's worst toxic waste sites. The 
Superfund program has produced significant accomplishments and EPA is 
continuing its efforts to manage the program efficiently and 
effectively in order to protect human health and the environment, and 
provide opportunities for reuse and redevelopment to communities across 
the country.
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 Statement of Katherine N. Probst,* Senior Fellow and Director, Risk, 
    Resource, and Environmental Management, Resources for the Future
    Mr. Chairman and distinguished members of the subcommittee, thank 
you for inviting me to testify before you today about the critical 
issues facing the Superfund program. I am a Senior Fellow at Resources 
for the Future (RFF) and the director of RFF's Risk, Resource, and 
Environmental Management Division.
---------------------------------------------------------------------------
    *The views expressed herein are those of the author only, and do 
not represent the views of the staff, management, or Board of Directors 
of Resources for the Future.
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    RFF is an independent, nonprofit 501 (c)(3) research and 
educational organization located here in Washington, DC. For over 50 
years, researchers at RFF have been conducting research on a wide 
variety of issues related to energy, natural resources, and the 
environment. RFF does not lobby and does not take positions on 
legislation or regulations as an organization. The views I present 
today are mine alone, and do not reflect the opinions of the staff, 
management, or Board of Directors of Resources for the Future. I will 
try to keep my oral remarks brief, and I would appreciate it if you 
would include my full written statement in the record.
    For more than 15 years, I have conducted research on issues related 
to the evaluation, management, and improvement of the Superfund 
program. I was the lead author of a Report to Congress, issued by RFF 
in July of 2001, titled Superfund's Future: What Will It Cost? which 
included estimates of the funding that would be needed by EPA from 
fiscal year 2000 through fiscal year 2009 to fully implement the 
program, assuming no change in the program's policies or regulations. I 
was also the lead author of a more recent report, Success for 
Superfund: A New Approach for Keeping Score, published by RFF in April 
2004. In this report, I recommended that EPA develop a one-page 
``report card'' for each site on the National Priorities List (NPL) 
that would include key information not only on site progress, but also 
on major site contaminants and other key site attributes. I have also 
directed a number of studies about other aspects of the Superfund 
program as well as studies of ways to improve the cleanup of sites in 
the nuclear weapons complex, which, as you know, are the responsibility 
of the Department of Energy.
    In all of theses studies, in addition to addressing key policy 
issues, I have made specific suggestions for improving the data and 
management systems used by the Superfund program, an issue near and 
dear to my heart.
    The subcommittee asked for comments regarding oversight of the 
Superfund program. I would like to first very briefly summarize the 
status of the program as it relates to progress at sites on the NPL and 
then focus on four key issues:
    1. Cleanup funding;
    2. Monitoring and enforcing institutional controls;
    3. Improved data and public information; and
    4. The need for independent evaluation.
                   a snapshot of cleanup at npl sites
    After a site is listed on the NPL, each site is either addressed as 
a whole or divided into multiple projects. Each major project goes 
through a number of steps: the site is characterized, alternative 
remedies are evaluated, a remedy is selected, and then a detailed 
remedy design is prepared. After that, the site (or project) enters 
what is called the ``construction'' phase, which is the actual 
implementation of the remedy. When all remedies at a site (some sites 
have multiple remedies) have been fully implemented--that is, when all 
the construction and engineering work is done--the site is deemed 
``construction complete.'' Construction complete is one of EPA's major 
milestones for reporting individual site progress, and the progress of 
the program as a whole. It is worth noting that just because a site is 
categorized as ``construction complete'' does not mean that the cleanup 
goals at the site have been achieved. And, as discussed in more detail 
later in my testimony, at many sites where hazardous substances are 
left on site at levels that preclude unrestricted use of the site, 
restrictions on land, water, or groundwater use--referred to as 
``institutional controls''--are required to ensure that people do not 
come into contact with contamination remaining at the site.
    As of the end of May 2006, there were 1,244 final sites on the NPL 
(this number does not include ``proposed'' NPL sites, nor sites that 
were once final NPL sites and have since been formally ``deleted'' from 
the NPL.) Just over half of these sites (665) are construction 
complete. That is the good news. The bad news is that the remaining 579 
sites--or 47 percent--are not yet construction complete, which means 
that the cost of site studies and remedies lies in the future and that 
substantial additional funds will need to be appropriated to complete 
cleanup activities at many of these sites. Most of these sites are in 
the construction stage, but there are a large number where studies are 
underway or have not yet begun, meaning that a sizable number of theses 
sites are just beginning to make their way through the ``Superfund 
pipeline.''
    According to information available on EPA's Superfund Web site, a 
large number of these sites still present some kind of current risk to 
human health or the environment. Of the 579 final NPL sites that are 
not construction complete, there are:
    128 sites (22 percent) where human exposure is not under control, 
and
    192 sites (33 percent) where groundwater migration is not under 
control.
    Clearly, there is not enough information on the Superfund Web site 
(a subject I return to later in my testimony) to know exactly what this 
information means and how large the risks at these sites are, but it 
does suggest that there is more critical work that needs to be done, 
and in an expedited manner.
    Although many would like to think that after 25 years of the 
program's existence, we are nearing the end of the need for the 
Superfund program, this appears to be wishful thinking. While fewer 
sites have been listed in recent years than in the heyday of the 
program, some of the new sites being added are large and complex, and 
there are still a large number of ``old'' sites yet unfinished. Current 
and future NPL sites need cleanup, attention, funding, and EPA and 
congressional oversight.
Cleanup Funding: Coming Clean about What Lies Ahead
    Since 1987, Superfund's annual appropriations have fluctuated from 
a low of $1.1 billion in fiscal year 1988 to a high of $1.6 billion in 
FYs 1991 and 1992, as shown in the figure below. In recent years, EPA 
Superfund appropriations have been relatively constant at just under 
$1.3 billion a year, at least in what are referred to as ``nominal 
dollars.'' In constant 1987 dollars, however, the Superfund's program 
spending power has decreased substantially since 1987, as also shown in 
the figure below. The program's fiscal year 2005 appropriations of $1.2 
billion are the equivalent of $820 million in constant 1987 dollars--a 
40 percent decrease in purchasing power when compared with actual 
fiscal year 1987 appropriations of $1.4 billion. Thus, the Superfund 
program's real purchasing power has decreased dramatically at the same 
time as large, complex, and expensive sites--often referred to as 
``mega sites'' make up an increasing proportion of the program's 
workload. It should come as no surprise that, as predicted in the July 
2001 RFF Report to Congress--and documented by many subsequent reports 
since then--there is a shortfall in funds needed for cleanup.

[GRAPHIC] [TIFF OMITTED] 42282.001


    Over the past few years, the U.S. Government Accountability Office 
and the EPA Office of Inspector General have clearly documented that 
the Superfund program suffers from a funding shortfall and that EPA has 
had to delay cleanup actions at NPL sites as a result. One solution to 
this problem, of course, is to increase annual funding for the 
Superfund program. In fact, in the past 2 years, the Administration has 
included in the President's budget a request (although not with much 
force) for an additional $150 million targeted specifically for cleanup 
actions at NPL sites. This funding request most likely represents the 
minimum, not the maximum shortfall, based on the work of RFF and other 
independent organizations. Any funding increase by Congress should be 
targeted specifically to clean up related activities.
    If the needed funding is not forthcoming, however, it is critical 
that EPA ``come clean'' about the implications of this shortfall on the 
future pace of cleanup, and on progress at individual NPL sites. This 
will only happen if Congress, either in oversight hearings such as this 
one, or as part of the annual appropriations process, requires that EPA 
identify on a site-by-site basis the specific funding shortfall for 
each site on the NPL, and specify which sites will be delayed--and by 
how much--if funding is not increased over current appropriations.
    In addition, Congress should ask EPA, on an annual basis, to 
present to this subcommittee and to the relevant appropriations 
committees how much funding would be needed to ``fully fund'' cleanup, 
assuming no change in current cleanup standards and policies. This is 
exactly the charge that was given to RFF in the conference report that 
accompanied the fiscal year 2000 VA-HUD independent agencies 
appropriations bill. RFF was asked to conduct this study by 
congressional staff because it was felt that EPA did not have the 
credibility to do this work.
    If there is still concern about EPA's credibility, the subcommittee 
could require the report be subject to independent external peer review 
(on an expedited basis) at all stages of the project (conceptual, first 
set of results, final results). This would assure that the analysis and 
assumptions are sound. Conversely, Congress could again request that 
the Agency contract with an independent third-party for this 
information. In addition, Congress should require that EPA develop a 
reliable model for estimating future cleanup and other related costs 
and update this model annually. In fact, EPA had just such a model, 
called the ``outyear liability model,'' for many years, but it is now 
defunct. It is critical for effective congressional oversight that EPA, 
and Congress, know the estimated future costs of the Superfund program.
    In this era of ever-scarcer Federal dollars, the Superfund program 
also must take a hard look at its own budget, identify areas that are 
not very productive, and reprogram funds wherever possible to 
activities that are directly related to clean up. This does not mean 
cutting the enforcement program, but it does mean examining the myriad 
initiatives that have sprouted over the years to assess which ones are 
truly worthwhile. These include everything from efforts to focus on 
redevelopment of Superfund sites to efforts to stimulate new 
technologies for cleanup. While almost all the initiatives sound good, 
it is critical that their benefits and costs be evaluated to make sure 
that the best use is being made of scarce Superfund dollars. While it 
is unlikely that reprogramming from existing programs and initiatives 
will release enough funds to address the cleanup shortfall, it is 
important that the program be willing to undertake this kind of self-
reflection and put funds where they are most needed. There is little 
appetite in many quarters for increased cleanup funding until EPA takes 
a hard look at where current funds are going and makes needed 
adjustments.
Monitoring and Enforcing Institutional Controls: Let's Get On With It!
    Since the mid-1990s, researchers from RFF, the Environmental Law 
Institute (ELI), and the University of Tennessee, among others, have 
published a number of studies documenting the need for closer 
monitoring and more active enforcement of institutional controls at 
Superfund sites. Many in government, academia, and the private sector 
have written about these issues as well. What has actually been 
accomplished in the past 10 years? Well, a lot and not much.
    In some ways, a lot has happened regarding institutional controls 
(now fondly referred to as ``ICs''). A decade ago, few people in the 
cleanup field even knew what institutional controls were, and even 
fewer were concerned about them. Now there are frequent ICs meetings 
and conferences, and various Web sites and other Internet resources 
devoted to ICs, land use controls, long-term stewardship, call it what 
you will. More importantly, after many long meetings and discussions, a 
group of experts developed the Uniform Environmental Covenants Act 
(UECA), which has been enacted or introduced in more than a dozen 
States. This uniform law, once enacted, ensures that States would be 
able to implement and enforce durable environmental covenants to 
restrict land use. However, UECA will do nothing to solve the 
institutional problem of assigning responsibility to a specific entity 
to ensure that ICs are monitored regularly, or to clarify who will have 
the responsibility for bringing enforcement actions when needed.
    We appear to be no closer to what is really needed: reliable 
information on ICs for all NPL sites and annual on-the-ground 
inspections and enforcement of institutional controls. The Superfund 
program still does not have a consistent and reliable approach to 
tracking and monitoring ICs, which is critical to the protection of 
public health and the environment at contaminated sites. More and more 
contaminated site remedies rely on ICs to ensure protection of public 
health and environment. EPA must make monitoring and enforcement of ICs 
a top priority.
    Ironically, the most recent major report on ICs by the U.S. 
Government Accountability Office (Hazardous Waste Sites: Improved 
Effectiveness of Controls at Sites Could Better Protect the Public, 
GAO-05-163, January 28, 2005) reached many of the same conclusions as 
the many prior studies conduced in the 1990s by RFF, ELI, and others. 
GAO concluded that:
     Institutional controls are increasingly part of Superfund 
remedies and their effective implementation is critical in ensuring 
protection of public health, that is, to limit exposure to 
contamination that remains onsite even after a remedy has been 
implemented.
     There is often great uncertainty regarding what level of 
government--local, State, or Federal--is responsible for monitoring 
these restrictions on land, water, and groundwater use. And, of course, 
without consistent monitoring, we don't really know if ICs are in place 
and working.
     Due to the nature of institutional controls, it is often 
not clear what organization has the authority to enforce institutional 
controls.
     Currently available information suggests that for a non-
trivial number of sites, the institutional controls required to ensure 
a remedy is protective are not in fact being fully implemented.
    The real question is, why isn't EPA moving forward aggressively to 
establish a robust monitoring and enforcement program now for ICs at 
NPL sites, which is what is really needed?
    So far, EPA's main response has been to focus its resources on 
developing a complex (and much-delayed) data base to track 
institutional controls and to issue a variety of guidance documents. 
While these are positive actions, it is unclear whether we are any 
closer to having reliable information on ICs at all NPL sites. It is 
taking many years and untold dollars to get the data base up and 
running, and the guidance documents suggest that EPA will rely on 5-
year reviews to monitor implementation of ICs.
    Five years is a long time interval between IC inspections--to long 
a time--when the issue is assuring compliance with land use and other 
restrictions needed to protect public health. While guidance documents 
are nice, and EPA can get them issued without going through the Office 
of Management and Budget (OMB) and the White House, the reality is that 
they ``do not have the force of law.''
    Simply put, institutional controls ``work''' only when people know 
about them and comply with them. Having restrictions on the use of 
land, water, and groundwater only on paper is meaningless, unless these 
controls are actively enforced and monitored. And, if the controls are 
not enforced, the public can be at risk.
    What then is to be done?
    Ideally, EPA would make institutional controls part of the 
regulatory framework governing Superfund cleanups. This would require 
amending the National Oil and Hazardous Substances Pollution 
Contingency Plan (NCP) to address how institutional controls should be 
developed, monitored, and enforced. When the NCP was written, EPA's 
policy analysts (and most of us on the outside) were focused on getting 
remedies selected at Superfund sites. The NCP lays out very detailed 
requirements, including provisions for public comment, on the process 
that results in the selection of a site remedy. However, the NCP is 
quite sparse in regard to regulatory requirements after that point. In 
fact, even though ICs usually are not fully developed until after a 
remedy is selected--typically as part of a settlement agreement--there 
is no provision for public input on ICs, nor is EPA required to 
maintain an administrative record after a remedy is chosen.
    Given that ICs are a critical part of the effectiveness of many 
remedies, there should be clear and consistent requirements for how ICs 
are selected, monitored, and enforced that have the force of law. No 
matter how difficult it might be to get the NCP amended, we have been 
operating with the band-aid of IC guidance documents for long enough.
    The recommendations I am making today are identical to those 
included in a 1997 RFF report Linking Land Use and Superfund Cleanups 
that I co-authored with colleagues Bob Hersh, Kris Wernstedt and Jan 
Mazurek:
     EPA should revise the National Contingency Plan (NCP)--the 
regulatory blueprint for the Superfund program--to address the role of 
land use in remedy selection, including incorporating the development 
of institutional controls into the formal remedy selection process.
     EPA should, in consultation with State and local 
governments, develop a strategy (for eventual codification in the NCP) 
to ensure effective long-term regulatory oversight of Superfund sites 
where contamination remains at levels that present a risk to public 
health after the remedy has been constructed and implemented.
    Sadly, these recommendations are just as relevant today as when we 
made them 9 years ago. If EPA does not move forward to amend the NCP, 
EPA can still take action right now to implement a simple and 
streamlined ICs tracking system that would give the Agency the 
information it needs to find out if ICs are being complied with, and, 
if they are not, to take the necessary follow-up action. There is 
absolutely nothing that precludes EPA from doing this; all that is 
needed is senior management direction and attention.
    The first step is to implement a simple and straightforward ICs 
tracking and compliance data base, available to all on EPA's web site. 
We have ample evidence that the more complex the data base, the less 
likely it is that the data in it will be reliable. The old adage ``keep 
it simple stupid'' is still apt. After many years, and many hours of 
work by EPA, consultants, and the input of many experts, we still don't 
have a workable ICs tracking system that is up and running and 
available to the public.
    It is time, as economists are fond of saying, to forget about 
``sunk costs'' and create a relatively simple ICs tracking system right 
now. Such a tracking system could be up and running in 3 to 6 months if 
it has the backing of senior management in the Office of Solid Waste 
and Emergency Response.
    To jump-start this process, I lay out below the kind of information 
that should be collected by EPA for each site on the NPL that requires 
institutional controls. This information should be accessible on the 
EPA Web site.
     What is the legal basis for the IC?
     What specific kind of control is required?
     Who is responsible for implementing the IC?
     Has the IC been implemented, and if not, why?
     Who is responsible for monitoring the IC?
     When was the last time someone from EPA, the State, or one 
of their contractors went to the site to see if the IC is being 
complied with?
     If it appears that the IC is not being implemented as 
required, what steps have been taken to remedy the situation?
     Is specific information about the nature of the IC 
requirement and who to call if the IC is not being complied with for 
individual sites readily available on all EPA Web sites?
    This is just a preliminary list of information that needs to be 
included in a simple ICs tracking system. EPA should, of course, review 
and refine this set of questions and get input from both internal and 
external experts. That said, I strongly recommend a very streamlined 
data base with perhaps 10 to 15 pieces of critical information that 
would give EPA, and the public, enough information to know what kinds 
of ICs are required at each site and if they have been fully 
implemented.
    It is true my list of questions will not tell you everything you 
ever wanted to know about ICs at a given site, but it will give EPA 
management and the concerned public enough information to know if there 
is a problem that requires attention. And, this kind of data base would 
be relatively quick and inexpensive to develop, and easy to maintain. 
Perhaps most importantly, the questions are simple enough that it 
should be possible to have highly reliable information that can be 
trusted. While other more sophisticated information may be required in 
the future, this information should have been collected years ago, and 
we need to start someplace.
    After this initial assessment is completed, EPA needs to develop an 
inspection strategy to ensure that ICs are monitored at least once a 
year and are implemented as required. The safety of those living near 
these sites depends on this, and it is hard to see what could be more 
important for the vast majority of NPL sites where some contamination 
remains on site, even after cleanup activities have been fully 
implemented. At these sites, ICs can be as important in protecting 
public health as the engineering remedy itself. It would be foolish to 
spend tens or hundreds of millions of dollars on a site remedy, and 
then skimp on the monitoring and enforcement of institutional controls. 
The Love Canal site--which in many ways ``begat'' the Superfund 
program--is the proverbial poster child for the failure of 
institutional controls. EPA has a choice to make--it can try to prevent 
future ``Love Canals'' by monitoring and enforcing ICs, or it can 
create an environment where the next Love Canal is just waiting to 
happen.
Improved Data and Public Information
    Getting information on the progress, contamination, costs, and 
health risks of NPL sites is still a challenge. If you log on to the 
main Superfund site (www.epa.gov/superfund) and click on ``sites'' it 
is not readily apparent where to go to get different kinds of 
information on individual sites among the many choices, nor is it clear 
where to go to get the most ``user-friendly'' information. There is in 
fact some good information to be found on individual sites, but one has 
to be a Superfund maven to know what is on the Superfund Web site, and 
how to find it. In addition, it is quite difficult to obtain 
information on overall program progress, that is, the number of sites 
that have institutional controls, or where current sites are in the 
``Superfund pipeline.''
    In addition, there are still major questions about the quality of 
much of the information in the Superfund program's two major systems--
CERCLIS, which is the main Superfund data base, and IFMS, the Agency's 
financial management system. Both systems suffer from too many 
individual codes that are inconsistently applied, and the way the 
systems are organized is anything but ``user friendly.'' It is a well-
known fact that individual Superfund offices have created their own 
data bases to serve their needs, leading to multiple systems with 
multiple data, and, one can only assume, increased total cost to the 
program. These systems need a major overhaul, not tweaking. They also 
have many substantive gaps. Ideally, senior management in EPA should be 
able to access, on their own personal computer, up-to-date information 
on each and every NPL site, including future funding needs, when 
various site actions will be started and completed, the status of ICs, 
the major risks at the site, etc.
    Overall, the Superfund Web site is extremely difficult to navigate. 
In this day and age, when so many people go ``on-line'' to get 
information, the Superfund Web site, especially as it relates to site-
specific information, could be greatly improved. More attention should 
be paid to describing the various sources of information and to 
improving the graphics and user-interface of the site. In our report 
Success for Superfund\1\, my colleague Diane Sherman and I recommended 
a one-page report card for all NPL sites, and a longer ``NPL site 
scorecard.'' While EPA has improved the information that one can get 
from the main EPA Web site in recent years, it is still difficult to 
obtain basic information about the timing of future site actions, and 
what exposure pathways may be of concern.
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    \1\ This report can be found at http://www.rff.org/documents/RFF-
RPT-Superfund Success.pdf
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    Creating better internal systems and a more accessible and ``user-
friendly'' Superfund Web site should be a top priority. That said, it 
is critical that any such effort have very strong management from EPA 
so that the systems created are simple, and the data is reliable. This 
will require working with EPA's regional offices, who are on the front 
line in terms of site response activities--and making sure that 
whatever consultant is charged with this task does not create a complex 
system that will only serve to ensure them full future employment for 
the rest of their careers.
The need for independent evaluation: The Superfund program should 
        develop and fund a 3- to 5-year research and evaluation 
        strategy.
    Finally, the Superfund program--like many Federal programs--needs 
to do a better job of evaluating itself. Although there have been many 
mandates in recent years--requirements under GPRA, the PART analyses 
led by OMB, and others--to stimulate more and better program 
evaluation, this new culture seems not to have taken hold yet in 
Superfund.
    The first task is for the program to create the policy and analytic 
capability internally to create a 3- to 5-year research and evaluation 
strategy, and to set aside funds to implement it. Some of these 
projects can and should be done internally (by EPA staff or their 
contractors); others studies must be done independently--through 
contracts assuring contractor independence or requests for proposals to 
the academic and nonprofit community. All of the work should be subject 
to some form of external peer review to assure credibility.
    The goal of program evaluation should be to improve implementation 
in the future and to assure that funds are being spent in the most 
efficient and cost-effective fashion. With Superfund, everyone has an 
anecdote about what works, what doesn't, and what the benefits and 
costs are. All of these elements need to be part of a broader, credible 
assessment of the program's accomplishments--not simply as a 
``communications'' initiative.
    I think it is fair to say that almost every other program in EPA 
has a more robust capability for policy and economic analysis than does 
Superfund. I suspect this is because the Superfund program has never 
had to comply with the requirements of the various executive orders 
requiring regulatory impact analyses. Superfund, however, still does 
not have a core policy analytic capability charged with independent 
analysis and evaluation. A group needs to be created within OSWER that 
has the charge of looking at the entire program, including enforcement, 
as that is so crucial to Superfund, and the group needs to be protected 
from day-to-day fire drills and have resources to fund external 
research and analysis.
    Once such a critical mass is created, the next step is to develop 
and implement a 3- to 5-year strategy for independent research and 
evaluation of the Superfund program and to set aside funds for this 
purpose on an annual basis. This should be done with input from 
external experts, as well as with input from senior EPA management. 
Even though the program is short of funds for cleanup, good evaluations 
should help the program save money and be more effective in the long 
term. Needless to say, I think it is very important that the results of 
these studies be made public.
    What kinds of questions would be included in such a research 
strategy? Below are some suggestions. These are just some of the many 
questions that, if asked, might lead to improvements in the Superfund 
program. For a program that costs the American taxpayer $1.3 billion a 
year, and that has been in existence for over 25 years, we should know 
the answers to some of these questions.
     Why does it take so long to reach ``construction 
complete'' at some sites? Are there patterns to the causes of delay 
that could be addressed to speed cleanup?
     Why are there still so many sites where human exposure is 
still not under control?
     Which remedies have been most effective, and which have 
not, for particular kinds of contamination?
     How accurate have EPA's initial estimates been of site 
costs and time to complete cleanup? What steps could be taken to 
improve both estimates?
     How much are responsible parties paying for cleanup 
actions? How does this compare to initial cost estimates?
     What makes a ``mega site'' a mega site? What drives the 
high costs at these sites?
     Are institutional controls being implemented? If not, why?
     What, conceptually, are the benefits and costs of 
Superfund cleanups, and do the data and methodologies exist to actually 
estimate them?
     What is the quality of site studies and remedy designs? 
Are there changes to these processes that would both improve the 
quality of these efforts, and decrease program costs?
     Are all Superfund moneys actually going to Superfund-
related activities, or are some funds and staff siphoned off to other 
programs and EPA initiatives?
     How do sites listed in recent years compare to those 
listed in earlier years in terms of complexity, costs, and pace of 
cleanup?
     What are the findings of the 5-year reviews, in terms of 
whether site remedies are being implemented as designed and whether 
cleanup goals are being met?
    In closing, it is clear from even a brief look at the status of 
sites on the NPL and the fact that new sites continue to be added each 
year that the Superfund program is going to be with us for some time 
yet. Thus, it is worthwhile to invest in improving current data and 
management systems, and to conduct independent evaluations of key 
aspects of the program in order to make improvements in how the program 
is managed and implemented. These investments will pay off by leading 
to a more efficient program, and ultimately, allow the Agency to do 
more with the funds it has.
    EPA has a responsibility to people living on and near contaminated 
sites to ``come clean'' about what has been done at these sites, what 
contamination and health concerns remain at ``their'' sites, and when 
they can expect each site to be cleaned up. While ``coming clean'' is 
always scary--and carries with it the risk of disclosing problems and 
concerns of which Congress and the American public were previously 
unaware--it is a crucial first step to improved management and 
credibility of this important environmental program.
    Lasting reform is unlikely to be the result of a series of new 
initiatives, or quick fixes. After 25 years, many of the same 
challenges remain as in the early years of the program. There is a need 
for better data, for independent evaluation, for a willingness to 
consider--and make--radical changes in funding and management 
priorities. And there is a need for increased transparency in all 
aspects of the program. I urge EPA to have as its goal not making the 
program better this year or next, but to try to ensure that, 5 years 
from now, the program is better focused and managed, and that there is 
better data and information about Superfund sites available to the 
public. With an eye on the long-term (rather than on tomorrow's news) 
EPA can give the American public a much stronger and more effective 
Superfund program.
    Thank you very much for asking me to testify before you today. I 
would be happy to answer any questions.
       Responses by Katherine N. Probst to Additional Questions 
                         from Senator Jeffords
    Question 1. In your testimony, you suggest that EPA should come 
clean about the impact of the funding shortfall on the future pace of 
Superfund clean ups. What specifically do you recommend?
    Response. I recommend that EPA detail, for each site on the NPL, 
the total amount of additional funding needed to complete cleanup of 
each site as expeditiously as possible, and specify how much in funding 
would be needed each year until cleanup is complete to finish all 
remedial activities at each site as soon as possible.
    EPA should then specify the implications, on cost and duration of 
cleanup, of current funding levels, i.e. for each site, EPA should 
detail the likely delay in each phase of the cleanup process due to the 
current funding shortfall, and any increase in total costs (both in 
discounted and undiscounted dollars), for that site as a result of the 
cleanup being spread out over more years than dictated by any physical 
or engineering constraints at the site.
    It should be noted that while past evaluations have made clear that 
more cleanup funding would speed clean up, there are physical and 
engineering constraints in how quickly any individual site can be 
cleaned up. For example, when we completed our study of future cleanup 
costs, EPA staff estimated that the New Bedford Harbor site needed 
approximately $300 million in additional funds to complete cleanup 
activities. If that full amount were allocated to the Regional Office 
today, they could not finish that cleanup in one year.

    Question 2. In your testimony, you also discussed a number of steps 
that EPA needs to take to ensure that institutional controls at 
Superfund sites are monitored and enforced. Am I correct in stating 
that, without proper monitoring and enforcement, EPA clean ups that 
rely on institutional controls are not protective?
    Response. Without proper monitoring and enforcement of 
institutional controls there is no way to know if a site that relies on 
institutional controls as part of the remedy is protective. If, in 
fact, the required institutional are not in place, then the site remedy 
is not protective.

    Question 3. Your written testimony notes that EPA's annual 
Superfund appropriations has decreased substantially when adjusted for 
inflation. How has this impacted the Superfund program? Am I correct 
that EPA could clean up more abandoned sites if it had greater 
resources?
    Response. Many people (including myself) often say that the 
Superfund program has had ``level funding'' for the past few years, and 
refer to funding levels over the life of the Superfund program in what 
are called ``nominal dollars.'' In so doing, we all minimize the very 
real ``cuts'' to the program that has occurred over the past 20 years. 
The reason to point out the decrease in appropriations when the amounts 
are adjusted for inflation is to make clear that the Superfund 
programs' purchasing power has in fact decreased dramatically over the 
past 15-20 years.
    As noted in my response to question No. 2 above, I think 
unquestionably some cleanups at some NPL sites could be accelerated, 
and additional sites contaminated with hazardous substances could be 
cleaned up if annual Superfund appropriations were increased, and if 
these funds were targeted specifically to cleanup activities. That 
said, as noted in my response to question No. 2, there is a limit to 
how much some cleanups can be accelerated--as there are limitations on 
what can be done that are imposed by the physical characteristics of 
each site, as well as engineering constraints.
    Clearly, with more funds, more sites could be placed on the NPL, or 
more removal actions could be completed. That said, at some point, 
limited EPA staffing could itself be a constraint on the number of 
cleanups that could be implemented.
                               __________
       Responses by Katherine N. Probst to Additional Questions 
                           from Senator Boxer
    Question 1. Your testimony states that ``it is critical that EPA 
``come clean'' about the implications of [a funding] shortfall on the 
future pace of cleanup, and on progress at individual sites'', and that 
EPA should tell Congress on an annual basis ``how much funding would be 
needed to `fully fund' cleanup, assuming no change in current cleanup 
standards and policies.''
    Do you think that EPA's release of this information would help 
increase program accountability and efficiency, and play an important 
role in increasing public involvement in cleanups?
    Response. I think that releasing information on the amount of funds 
needed to complete cleanup at each and every NPL site, whether PRP or 
Fund-lead would increase program accountability and efficiency and play 
an important role in increasing public involvement in cleanups. I would 
refer you to the recommendations in a report for which I was the lead 
author, Success for Superfund: A New Approach for Keeping Score, which 
us available at http://www.rff.org/Documents/RFF-RPT-
SuperfundSuccess.pdf.

    Question 2. Your 2001 report to Congress, ``Superfund's Future'', 
recommended that EPA ``improve the management and financial systems for 
tracking Superfund progress and costs.'' Today, in 2005, you are again 
recommending that EPA improve their data management, but also that the 
Agency increase the public's access to useful information on sites.
    Could you please describe the main actions that you think EPA 
should undertake in order to provide truly useful information to the 
public.
    Response. Again, I would refer you to the recommendations in a 
report for which I was the lead author, Success for Superfund: A New 
Approach for Keeping Score, which us available at http://www.rff.org/
Documents/RFF-RPT-SuperfundSuccess.pdf.
    The main recommendations that we make in that report is that EPA 
should:

          Create a standardized NPL Scorecard for each NPL site 
        that contains concise up-to-date information on site progress 
        and key attributes (updated at least quarterly). The NPL 
        Scorecard would have six sections: (1) background information, 
        (2) site progress to date and expected future actions, (3) 
        baseline contamination and population information, (4) risk 
        reduction accomplishments, (5) post-construction activities, 
        and (6) cost information.
          In our report, we detail the specific information that we 
        recommend be included in each section of the Scorecard. The 
        information we recommend is easy to understand and technically 
        accurate at the same time. We recommend that EPA include in 
        this report planned future activities at each site, as well as 
        past and estimated future costs.
          Create a one-page NPL Report Card, which would 
        include a subset of information from the NPL Scorecard 
        containing the most important measures of site progress, along 
        with a small amount of background information. A mock up of the 
        Report Card is included in our report.
          Institute a Web-based Superfund annual report that 
        would include summary information on site progress, as well as 
        other indicators of program performance. This annual report 
        would be similar to the formerly issued Superfund Annual Report 
        to Congress. As part of this new report, EPA should include an 
        annual (or biannual) program evaluation agenda. This agenda 
        should identify the key issues that are ripe for an in-depth 
        qualitative or quantitative evaluation and make public the 
        topics and schedule for these evaluations. To develop this 
        agenda, EPA staff would regularly solicit suggestions from 
        states, tribes, local community representatives, environmental 
        groups, industry, external experts, and other stakeholders.

    I would note that while we do not say this explicitly in the 
report, our assumption was that this NPL scorecard and report card 
would be the first item you would see for each NPL site when logging on 
to the EPA Superfund Web site, i.e. it would be easy to find.

    Question 3a. Your 2001 report provided low, middle and high funding 
scenarios for the Superfund program from 2000 to 2009.
    Please provide me with a comparison, in figures adjusted for 
inflation to 2005, of your low, middle and high funding estimates and 
the amount of money appropriated to or requested for EPA between 2001 
and 2007.
    Response. This information is included in the figure and table 
below.

    Question 3b. Please provide an annual and cumulative total for any 
amount of underfunding.
    Response. This information is included in the figure and table 
below. 
[GRAPHIC] [TIFF OMITTED] 42282.029

   Statement of J. Winston Porter, President, The Waste Policy Center
    Mr. Chairman, my name is J. Winston Porter, and I am president of 
the Waste Policy Center in Leesburg, Virginia. The WPC is a private 
research and consulting organization which deals with management, 
policy, and technical issues in the areas of solid and hazardous waste 
management, as well as other environmental subjects. From 1985 to 1989, 
I was EPA's Assistant Administrator for Solid Wastes and Emergency 
Response.
    It is a pleasure to be here today to provide testimony on the 
status of Superfund, particularly as it relates to the possibility of 
improved efficiencies in the program.
    In my testimony I will draw upon some 20 years of Superfund 
management and consulting experience, including that with EPA, the 
Departments of Energy and Defense, several States, and numerous private 
parties. My professional background also includes the fields of 
chemical engineering and project management. I will start with a brief 
background statement, followed by my recommendations related to 
Superfund's study, remedy selection, and remedy construction phases.
                               background
    Briefly, the current status of EPA's Superfund program is that 
about two-thirds of the 1,550 national priority list sites have reached 
the construction completed (remedy installed) phase, almost 400 sites 
are in the remedy design or construction phases, and approximately 150 
sites are in the study phase.
    In addition, many thousands of ``emergency removals'' have been 
conducted at Superfund sites in order to quickly, cost effectively, and 
directly deal with obvious problem areas. This program has perhaps been 
Superfund's biggest success.
    It is also important to note that the EPA has a significant number 
of Superfund sites in the remedy construction phase for which both 
potential responsible party (PRP) and Federal funds are very limited.
    In addition to the EPA, both the DOE and DOD have major Superfund-
related programs underway. The DOE work primarily involves a few dozen 
large facilities, most of which have been components of the nuclear 
weapons program. The DOD sites are much more numerous and include both 
Superfund and base closure activities.
    So, a large amount of work is underway or has been completed by a 
group of knowledgeable and dedicated Federal and State governmental 
personnel as well as PRPs and specialized private contractors. My 
overall assessment is that much has been achieved under the Superfund 
program, but much remains to be done. For this remaining work it is 
important to improve program efficiency in order to ensure timely and 
technically sound cleanups in a more cost-effective manner.
    As we strive to improve the ongoing program, let me first make 
several general observations related to the Superfund program, which 
will serve as the bases for my later recommendations.
    First, Superfund is not an ``exact science.'' Science and 
technology are very important in addressing Superfund waste sites, but 
selecting a sound remedial action at a site requires a good dose of 
common sense and ``engineering judgment'' since no two sites are the 
same. The Superfund regulations themselves require decisionmakers to 
consider such elements as cost effectiveness, implementability, and 
state and community acceptance in selecting a remedy. These are not 
primarily technical issues.
    Second, while much has been accomplished by Superfund, site study 
and remediation activities generally take too long and cost too much.
    Third, the trend in recent years to use the Superfund program for 
only the most complex and hazardous sites is sound. Most waste sites in 
the country can now be managed under other EPA or State programs, 
brownfields activities, and various voluntary cleanup processes.
    Most of the following recommendations will be directed at the EPA 
Superfund program, but will also have important implications for other 
Federal agencies. My comments will be further divided into study, 
remedy selection, and construction phases.
                            the study phase
    While the study projects related to Superfund sites are a 
decreasing part of the overall program, such activities are still very 
important to overall program success. Superfund projects usually begin 
with a ``remedial investigation/feasibility study'' (RI/FS). This 
complex study process is described in some detail in Superfund's 
primary regulation--the National Contingency Plan.
    Very briefly, the RI portion calls for characterization of the site 
in terms of its natural features, as well as the amount and location of 
contamination and likely risks of such contamination to both humans and 
the environment. The FS part involves selection of alternative remedial 
actions, and then comparison of such alternatives against a set of nine 
remedy selection criteria.
    Based on the RI/FS process, as well as substantial stakeholder 
input, EPA then selects a remedy for the site through a ``record of 
decision'' (ROD) process.
    In general, the RI/FS process has gotten steadily more complex and 
lengthy over the years, for almost all types of sites. My 
recommendations for conducting faster, less costly, and more 
technically sound RI/FSs are as follows:
    1. Most importantly, timeframes for completing the study phase 
should be agreed to by the EPA and other key participants, such as 
PRPs.--Unfortunately, at many sites the study work simply meanders 
around for many years without much focus or mid-course corrections, 
leading to wasted time and money, and ,in some cases, an unimaginative 
or noncost-effective remedy selection. Frankly, part of this lengthy 
process has to do somewhat with the fact that Superfund has become a 
large ``jobs program'' for governmental employees, as well as various 
consultants, contractors, and lawyers. All of these specialists are 
needed, but their work needs to be more directed toward results rather 
than complex processes.
    Some complex Federal and other sites (eg., some major river 
sediment problems) will require longer study periods, but for most 
sites about 2-4 years should be adequate to produce a sound RI/FS.
    So, early in the RI/FS process the EPA, PRPs, and other relevant 
organizations, should work together to set a clear goal to complete the 
study activities. This end date can be modified if necessary, but it is 
important for all to understand that, like almost every other type of 
engineering project, schedule (and budget) are key factors and should 
be adhered to.
    There a number of examples of the success of target setting in 
Superfund, but perhaps the most dramatic has been the DOE Rocky Flats 
Closure Project, near Denver. For this site the ``completion 
contractor,'' Kaiser-Hill, and the DOE agreed upon a 2005 target date 
for all study and remedy implementation work to be completed. If 
successful, the contractor was to receive a completion bonus. Not only 
was the project completed on time, but billions of dollars and decades 
of time were saved. This work, of course, required good cooperation 
among the DOE, EPA, the State of Colorado, local stakeholders, and the 
contractor. The firm completion target date greatly focused this 
cooperation.
    Finally, this project illustrates the importance, for both study 
and construction work, of the site personnel developing what I have 
referred to as a ``culture of completion.''
    2. When the RI/FS process begins one of the first orders of 
business should be to use experienced staff and key stakeholders to 
quickly identify about 4-7 major remedial action alternatives.--Where 
relevant, use should be made of EPA's list of ``presumptive remedies'' 
for many types of problems, as well as experience gained at similar 
Superfund sites.
    This set of alternatives can always be modified during the study 
phase, but the current process which often involves ``taking data'' for 
many years before detailed focus on remedial options often leads to 
overly costly information, much of which is not needed, or with 
shortages of the data which is actually needed to compare remedial 
alternatives for the site.
    An iterative approach should be used where information collection 
and analysis of remedial alternatives work cooperatively in order to 
achieve sound comparisons of options, leading to a good remedy 
selection.
    Even more importantly, the identification of key options early in 
the study process allows the decisionmakers and stakeholders to begin 
their dialog on the non-technical factors which are contained in the 
remedy selection criteria. These include such items as cost-
effectiveness, implementability, and state and community acceptance. 
Many times these types of factors are at least as important as the 
strictly technical matters.
    3. Significantly streamline the process for developing the myriad 
of deliverables at Superfund sites.--While certain documents are 
clearly needed to guide the RI/FS activities, the long, tedious process 
of developing lengthy draft and final work plans, for example, should 
be expedited. This is also true of other ``deliverables'' which take so 
much time at Superfund sites, many of which should be quite standard by 
now.
    There are several perverse effects which have led to such lengthy 
periods for document development and review. One has to do with the 
fact that Superfund is the only Federal environmental program where 
responsible parties have to pay for additional oversight beyond that 
which salaried regulators normally provide. Thus, if a group of 
companies are forced to give EPA, say, $5 million for oversight, then 
EPA can retain contractors to provide hundreds of pages of ``comments'' 
on such items as the aforementioned work plans. So, we now have dueling 
contractors battling over many pages of detailed text, before work can 
even begin.
    One near term answer would be for review periods and oversight 
dollars to be reduced substantially, so participants can focus more on 
results than elaborate processes.
    4. The PRPs should be encouraged to conduct the RI/FSs themselves 
with their own contractors and under EPA's overall supervision.--While 
this concept has been largely accepted and successfully promoted by 
EPA, more could be done to encourage PRPs to do the study work, 
particularly where PRPs would commit to more reasonable timeframes than 
EPA often takes for its own studies.
    5. Finally, innovative study approaches should be developed which 
recognize newer technologies, as well as a quarter of a century of 
Superfund experience.-- An example is EPA's ``Triad Approach,'' which 
promotes real time technical decisionmaking in order to move rapidly 
through the study and cleanup phases.
                     the selection of remedy phase
    The RI/FS process discussed above presents the decisionmaker with 
detailed comparisons of alternative remedial actions, from which this 
person must select a remedy, present it to the public for comment and 
make a final determination. The selection of protective, cost-effective 
remedies is, of course, a key to the overall success of the Superfund 
program. My suggestions in this area are as follows:
    1. The decisionmaker should be a very senior EPA official who can 
oversee all of the considerations which go into remedy selection.-- As 
noted earlier, technical factors are very important in this process, 
but non-technical factors are also key. For example, if there is very 
strong community opposition to a particular remedial action, or if a 
remedial option is not cost-effective, such factors must be considered 
by the decisionmaker.
    During my tenure as an EPA assistant administrator I made a number 
of ROD decisions, mainly at ``nationally significant sites.'' Most 
decisions I delegated to the ten EPA regional administrators (RAs). 
However, over the years the ROD decision responsibility has, in most 
cases, been delegated further down the line in the EPA regions.
    My own view is that the RA should be the decisionmaker in this 
important process since he or she is the one who can speak for the 
region and has the position and stature to consider all aspects of the 
problem, while ``pushing'' the staff to provide the necessary 
information to complete remedy selection expeditiously.
    2. The role of expected land use should be an important factor in 
selecting a remedy.--While all remedies should be protective, it does 
not make much sense to demand that a cleanup be sufficient for, say, a 
children's center, when the site is slated for use as a golf course, or 
a factory, or a wildlife preserve. All of these uses have their own 
requirements, but we do not need a one-size-fits-all approach to waste 
sites. The goal should be for a site to always be protective, so the 
remedial action may need to be modified at a later date if the site use 
changes dramatically.
    During Superfund's history one of the better examples of the role 
of land use in remedy selection has to do with the DOD's Rocky Mountain 
Arsenal in Colorado. For this site, the DOD decided ultimately that the 
land use would be for a wildlife refuge. Once this decision was made 
the DOD, Shell Oil, EPA, and the State and local stakeholders worked 
together to select the remedy and move quickly into the construction 
phase.
    Another DOD issue may also be instructive with respect to the land 
use issue. This has to do with the DOD's Superfund-related remediation 
sites versus those conducted under the base closure program. Simply 
stated, the base closure cleanups, including the selection of remedy, 
seem to proceed much faster than those related to Superfund. One of the 
reasons, I believe, has to do with the fact that local communities and 
others are usually highly motivated to finish base closure cleanups in 
order to bring the affected land into productive use. The same time 
pressure often does not exist with Superfund remedial activities.
                         the construction phase
    As noted earlier the major activity these days has to do with the 
construction phase at Superfund sites. Almost 400 sites are in the 
phase where the selected remedy is being either designed or 
constructed. Currently, this is also the most controversial phase in 
that EPA apparently does not have sufficient funds to expeditiously 
complete all of the construction work now planned.
    This is particularly true for so-called fund-financed sites where 
EPA must install the remedy itself as there are insufficient willing 
and able PRPs to conduct this work at some sites. This issue is further 
compounded by the views of some that at a significant number of sites 
the community may not be fully protected since construction funds are 
not readily available.
    The following are my recommendations on these construction-phase 
issues:
    1. The roughly $1.2 billion which is annually appropriated to EPA 
by Congress should be looked at very carefully by EPA senior management 
to ensure that the highest priority is given to protecting human health 
and the environment. While I have not done a detailed review of the 
current Superfund budget, my general view is that large amounts of 
money are still being used for nonsite-specific activities and 
overheads.
    2. If Congress is satisfied that EPA has done all it can do to 
squeeze out funding for as many construction sites as possible, then it 
might consider a supplemental appropriation to EPA to focus on 
additional construction activities.
    3. The EPA might selectively revisit the ROD decisions made at 
these sites to see if some savings can be made based on new information 
or technology.
    4. Although I suspect that this is already being done, that portion 
of the site which may provide actual, near term risk to the community 
should receive very high priority for funding.
    5. While aiming at the highest risks is always the most important 
priority, I personally believe that where sites can be finished for 
very modest sums of money, such funding should be considered, as there 
are usually site ``carrying charges'' which can then be reduced.
    6. The EPA and others should be creative in finding non-Federal 
funds for completing sites. In some cases, local developers or others 
may be so interested in having access to a completed site that they may 
be interested in helping financially. This type of financial driver 
has, of course, been instrumental in dealing with brownfields sites, 
which can often be very valuable when cleanup measures are completed.
    7. Other creative measure should be pursued in the future to 
mininimize costs and to develop more creative financing. A good example 
is the joint EPA and Army Corps of Engineers eight pilot program 
referred to as the ``urban rivers restoration initiative.'' In this 
program the EPA and the Corps, along with State and other agencies, 
work together to achieve a better and more cost-effective restoration 
program than by using Superfund alone.
    8. Finally, it was mentioned earlier in this testimony that the 
removal (or early action) program has been one of Superfund's major 
successes. This program can deal with obvious contamination problems 
anytime during the Superfund process, with much less process costs than 
the remediation program. Given, this program's success, Congress might 
consider allowing EPA to spend more than the current limit on 
individual removal actions.
    Implicit in all the above is the fact that I don't believe that the 
chemical and petroleum feedstock taxes should be renewed on Superfund. 
These taxes are unfair in that they target only two industries, which 
together account for much less than half of Superfund's contamination 
problems. Also, Superfund sites are a broad societal problem which has 
been created by many types of industries; local, State, and Federal 
agencies; and even individuals. Therefore, I believe the current 
process of using general revenues and funds from directly responsible 
parties is the right approach.
    Finally, I am not convinced that EPA and the Congress have done all 
they can to increase Superfund efficiencies and to prioritize the use 
of existing funds.
    Mr. Chairman, I hope my remarks will be helpful to Congress in 
dealing with this important program, and will be happy to answer any 
questions which you might have.
                               __________
 Statement of Leonardo Trasande, M.D., MPP, Assistant Director, Center 
for Children's Health and the Environment, Department of Community and 
          Preventive Medicine, Mount Sinai School of Medicine
    Good morning, Mr. Chairman and members of the subcommittee. I am 
Dr. Leonardo Trasande. I am a pediatrician and Assistant Professor of 
Community & Preventive Medicine and Pediatrics at the Mount Sinai 
School of Medicine. I am also the Assistant Director of the Center for 
Children's Health and the Environment, the Nation's first academic 
policy center devoted to the protection of children against 
environmental threats to health.
    Approximately 3 to 4 million children and adolescents in the United 
States live within 1 mile of a federally designated Superfund hazardous 
waste disposal site. These children are at especially high risk of 
exposure to chemical toxicants released from these sites into air, 
groundwater, surface water, and surrounding communities. In the face of 
a growing body of scientific knowledge about the preventable, 
environmental causes of learning and behavioral problems in our 
children, we must take prudent action, and today I urge the members of 
this subcommittee to take three important steps to prevent chronic 
disease in American children:
     Expeditious identification and cleanup of Superfund sites,
     Full funding for the NIEHS/EPA Superfund Basic Research 
Program, and
     Full funding for the National Children's Study.
       the need for identification and cleanup of superfund sites
    The EPA Superfund program is especially critical to the health of 
these children. Rapid identification and cleanup of these sites is so 
important because children are especially vulnerable to many chemicals 
that exist at many of the Superfund sites in our Nation. There are 
several reasons why children are so sensitive to chemical toxins, and 
the research that we have undertaken in our Superfund Basic Research 
Program at Mount Sinai has contributed greatly to the understanding of 
these factors:
     One important reason why children are so vulnerable to 
environmental chemicals is that they have disproportionately heavy 
exposures. Pound per pound of body weight, children drink more water, 
eat more food, and breathe more air than adults, and so they take 
proportionately more of the toxins in water, food and air into their 
little bodies. Small children's exposure is magnified further by their 
normal behaviors--their play close to the floor, and their hand-to-
mouth activity, which we pediatricians call ``normal oral exploratory 
behavior.''
     A second reason for their great susceptibility to chemical 
toxins is that children do not metabolize, detoxify, and excrete many 
toxins in the same way as adults; thus the chemicals can reside much 
longer in children's bloodstreams and cause more damage.
     A third reason is that children are undergoing rapid 
growth and development, and those very complex developmental processes 
are easily disrupted.
     Finally, children have more future years of life than most 
adults and thus have more time to develop chronic diseases that may be 
triggered by early environmental exposures.
    Over the past 30 years, chronic diseases of environmental origin 
have become epidemic in American children, and are the diseases of 
greatest current concern. These include:
     Asthma, which has more than doubled in frequency since 
1980 and become the leading cause of pediatric hospitalization and 
school absenteeism;
     Birth defects, which are now the leading cause of infant 
death. Certain birth defects, such as hypospadias, have doubled in 
frequency;
     Neurodevelopmental disorders--autism, dyslexia, mental 
retardation, and attention deficit/hyperactivity disorder (ADHD). These 
conditions affect 5-10 percent of the 4 million babies born each year 
in the United States. Reported rates of autism are increasing 
especially sharply--more than 20 percent per year.
     Leukemia and brain cancer in children and testicular 
cancer in adolescents. Incidence rates of these malignancies have 
increased since the 1970s, despite declining rates of mortality.
     Testicular cancer has risen by 55 percent, and primary 
brain cancer by 40 percent. Cancer is now the second leading cause of 
death in American children, surpassed only by traumatic injuries; and
     Preterm birth, which has increased in incidence by 27 
percent since 1981.
    These rapidly rising rates of chronic disease threaten the health 
of our children and the future security of our Nation. Indeed, concern 
is strong among the pediatric community that these rapidly rising rates 
of disease may create a situation unprecedented in the 200 years of our 
Nation's history, in which our current generation of children may be 
the first American children ever not to enjoy a longer life span than 
the generation before them.
    Evidence is increasing that many environmental chemicals found at 
Superfund sites contribute to the causation of disease in children. 
Lead, mercury, polychlorinated biphenyls (PCBs) and certain pesticides 
have been shown to cause brain damage and to contribute to learning 
disabilities and to disruption of children's behavior. Benzene, 1,3-
butadiene, and pesticides have been etiologically associated with 
childhood malignancies. Ambient pollutants--airborne fine particulates, 
ozone, oxides of nitrogen, and diesel exhaust also have been shown to 
increase incidence of asthma and to trigger asthmatic attacks. Although 
many of the causes of developmental problems in children are still not 
known, a recent National Academy of Sciences study suggests that at 
least 28 percent of developmental disabilities in children--dyslexia, 
attention deficit disorder and mental retardation--are due to 
environmental causes.
    Diseases of environmental origin in American children are also 
extremely costly to our Nation. Four of the leading diseases of 
environmental origin in American children--lead poisoning, childhood 
asthma, neurodevelopmental disabilities and childhood cancer--have been 
found to cost our Nation $54.9 billion annually. Mercury pollution has 
been found to cost our Nation $8.7 billion annually as a result of lost 
economic productivity, and an additional 1566 cases of mental 
retardation have been associated with mercury pollution. Each of these 
cases is associated with additional special education and health care 
costs that are disproportionately borne by the American taxpayer. By 
cleaning up toxic waste sites, we reduce toxic exposures and prevent 
chronic disease, and thus reduction of unnecessary toxic exposure to 
Superfund chemicals can be an effective and cost-effective approach to 
improving child health in America. This subcommittee should therefore 
continue to ensure that EPA is fully executing its duties under the 
Superfund program to identify and cleanup hazardous waste sites in the 
safest and most expeditious manner possible.
      the need for continued full funding of the superfund basic 
                            research program
    The Superfund Basic Research Program (SBRP) is equally critical if 
we are to understand and prevent the environmental causes of chronic 
childhood conditions that have now reached epidemic proportions in our 
Nation. The National Institute of Environmental Health Sciences' 
(NIEHS) Superfund Basic Research Program is a unique program of basic 
research and training grants directed toward understanding, assessing, 
and reducing the adverse effects on human health that result from 
exposure to hazardous substances. Grants made under this program are 
for coordinated, multicomponent, interdisciplinary programs. The 
technology within this program is on the cutting edge of assessing and 
evaluating human exposure, effects of hazardous substances and 
transport of chemicals through various media from waste sites. This 
program is researching and developing many innovative technologies for 
detecting, assessing, and reducing toxic materials in the environment.
    The NIEHS/EPA SBRP had previously focused on understanding the 
impact of toxic environmental exposures on the health of adults. 
However, it has become apparent that this data base of information is 
not necessarily applicable to children. The program recognized this 
deficit early and, accordingly, has directed an increasing percentage 
of its diverse research efforts toward understanding the effects of 
environmental exposures on children's health. These studies in 
universities across the United States include fetal, infant, childhood, 
and adolescent research. Research in exposure assessment is of 
particular interest.
    The below Table provides a snapshot of some of the previous 
projects that have been supported in the past by the SBRP in the area 
of children's health.

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    While it seems that studies of adult exposures might most 
efficiently investigate gene-environment interactions related to the 
disorders that produce the greatest disability, hospitalization, and 
death, which occur in adults rather than children, this focus ignores 
the growing evidence of important and even crucial environmental 
contributions to adult disorders that start early in development. 
Because early environmental exposures are so important, a longitudinal 
assessment of the environment from the preconceptual period through 
infancy is essential to unravel the underlying susceptibility to 
diseases of adulthood. It is now clear that vulnerability to a 
particular risk factor is often determined not only by the genome 
acquired at conception, but also by dynamic modifications to the 
genome, and therefore to assess gene-environment interactions 
adequately, not only will the stable DNA sequence be essential but also 
epigenetic modifications to nuclear and mitochondrial DNA will have to 
be identified. Thus continued emphasis on child health studies within 
the Superfund Program is especially critical going forward.
 the national children's study--safeguarding the health of our children
    Finally, in this testimony I wish to point out the critical need 
for funding the National Children's Study, which will unearth so much 
important information of the health effects of chemicals found at 
Superfund sites.
    The National Children's Study is a prospective multi-year 
epidemiological study that will follow 100,000 American children, a 
nationally representative sample of all children born in the United 
States, from conception to age 21. The study will assess and evaluate 
the environmental exposures these children experience in the womb, in 
their homes, in their schools and in their communities. It will seek 
associations between environmental exposures and disease in children. 
The diseases of interest include all those listed above. The principal 
goal of the Study is to identify the preventable environmental causes 
of pediatric disease and to translate those findings into preventive 
action and improved health care. The National Children's Study was 
mandated by Congress through the Children's Health Act of 2000. The 
lead Federal Agency principally responsible for the Study is the 
National Institute of Child Health and Human Development. Other 
participating agencies include the National Institute of Environmental 
Health Sciences, the Environmental Protection Agency, and the Centers 
for Disease Control and Prevention. By working with pregnant women and 
couples, the Study will gather an unprecedented volume of high-quality 
data on how environmental factors acting either alone, or in 
combination with genetic factors, affect the health of infants and 
children. Examining a wide range of environmental factors--from air, 
water, and dust to what children eat and how often they see a doctor--
the Study will help develop prevention strategies and cures for a wide 
range of childhood diseases. By collecting data nationwide the study 
can test theories and generate hypotheses that will inform biomedical 
research and he care of young patients for years to come. Simply put, 
this seminal effort will provide the foundation for children's 
healthcare in the 21st Century.
    Six aspects of the architecture of the National Children's Study 
make it a uniquely powerful tool for protecting the health of America's 
children:
    1. The National Children's Study is prospective in its design.--The 
great strength of the prospective study design is that it permits 
unbiased assessment of children's exposures in real time as they 
actually occur, months or years before the onset of disease or 
dysfunction. Most previous studies have been forced to rely on 
inherently inaccurate retrospective reconstructions of past exposures 
in children who were already affected with disease. The prospective 
design obviates the need for recall. It is especially crucial for 
studies that require assessments of fetal and infant exposures, because 
these early exposures are typically very transitory and will be missed 
unless they are captured as they occur.
    2. The National Children's Study will employ the very latest tools 
of molecular epidemiology.--Molecular epidemiology is a cutting-edge 
approach to population studies that incorporates highly specific 
biological markers of exposure, of individual susceptibility and of the 
precursor states of disease. Especially when it is embedded in a 
prospective study, molecular epidemiology is an extremely powerful 
instrument for assessing interactions between exposures and disease at 
the level of the individual child.
    3. The National Children's Study will incorporate state-of-the-art 
analyses of gene-environment interactions.--Recognition is now 
widespread that gene-environment interactions are powerful determinants 
of disease in children. These interactions between the human genome and 
the environment start early in life, affect the health of our children, 
and set the stage for adult disorders. The heroic work of decoding the 
human genome has shown that only about 10-20 percent of disease in 
children is purely the result of genetic inheritance. The rest is the 
consequence of interplay between environmental exposures and 
genetically determined variations in individual susceptibility. 
Moreover, genetic inheritance by itself cannot account for the sharp 
recent increases that we have seen in incidence of pediatric disease.
    4. The National Children's Study will examine a nationally 
representative sample of American children.--Because the 100,000 
children to be enrolled in the Study will be statistically 
representative of all babies born in the United States during the 5 
years of recruitment, findings from the Study can be directly 
extrapolated to the entire American population. We will not need to 
contend with enrollment that is skewed by geography, by socioeconomic 
status, by the occurrence of disease or by other factors that could 
blunt our ability to assess the links between environment and disease.
    5. Environmental analyses in the National Children's Study will be 
conducted at the Centers for Disease Control and Prevention.--The CDC 
laboratories in Atlanta are the premier laboratories in this Nation and 
the world for environmental analysis. Because the testing will be done 
at CDC it will be the best available, and the results will be 
unimpeachable.
    6. Samples collected in the National Children's Study will be 
stored securely and will be available for analysis in the future.--New 
tests and new hypotheses will undoubtedly arise in the years ahead. 
Previously unsuspected connections will be discovered between the 
environment, the human genome and disease in children. The stored 
specimens so painstakingly collected in the National Children's Study 
will be available for these future analyses.
    Congress has already laid a firm foundation for the National 
Children's Study. Between 2000 and 2005, the Congress invested more 
than $55 million to design the study and begin building the nationwide 
network necessary for its implementation. Seven Vanguard Centers and a 
Coordinating Center were designated in 2005 at sites across the 
Nation--in Pennsylvania, New York, North Carolina, Wisconsin, 
Minnesota, South Dakota, Utah and California--to test the necessary 
research guidelines--with plans to expand the program to 38 States and 
105 communities nationwide. The tough job of designing and organizing 
is nearly complete. Funding for the Study this year will permit 
researchers to begin achieving the results that will make fundamental 
improvements in the health of America's children. To abandon the Study 
at this point would mean forgoing all of that dedication, all of that 
incredible effort, and all of the logistical preparation.
    The National Children's Study will yield benefits that far outweigh 
its cost. It will be an extraordinarily worthwhile investment for our 
Nation, and it can be justified even in a time of fiscal stress such as 
we face today. Six of the diseases that are the focus of the Study 
(obesity, injury, asthma, diabetes, autism and schizophrenia) cost 
America $642 billion each year. If the Study were to produce even a 1 
percent reduction in the cost of these diseases, it would save $6.4 
billion annually, 50 times the average yearly costs of the Study 
itself. But in actuality, the benefits of the National Children's study 
will likely be far greater than a mere 1 percent reduction in the 
incidence of disease in children. The Framingham Heart Study, upon 
which the National Children's Study is modeled, is the prototype for 
longitudinal medical studies and the benefits that it has yielded have 
been enormous. The Framingham Study was launched in 1948, at a time 
when rates of heart disease and stroke in American men were 
skyrocketing, and the causes of those increases were poorly understood. 
The Framingham Study used path-breaking methods to identify risk 
factors for heart disease. It identified cigarette smoking, 
hypertension, diabetes, elevated cholesterol and elevated triglyceride 
levels as powerful risk factors for cardiovascular disease. These 
findings contributed powerfully to the 42 percent reduction in 
mortality rates from cardiovascular disease that we have achieved in 
this country over the past 5 decades.
    The data from Framingham have saved millions of lives--and billions 
of dollars in health care costs. The National Children's Study, which 
will focus on multiple childhood disorders, could be even more 
valuable. We do not need to wait 21 years for benefits to materialize 
from the national Children's Study. Valuable information will become 
available in a few years' time, as soon as the first babies in the 
Study are born.
    Consider, for example, data on premature births. The rate of U.S. 
premature births in 2003 was 12.3 percent, far higher than the 7 
percent rate in most western European countries. Hospital costs 
associated with a premature birth average $79,000, over 50 times more 
than the average $1,500 cost for a term birth. Just a 5 percent 
reduction in rates of prematurity would cut hospital costs by $1.6 
billion annually. Within just 2 years, that savings would match the 
full cost of the Study.
    The Study enjoys a broad group of supporters, including The 
American Academy of Pediatrics; Easter Seals; the March of Dimes; the 
National Hispanic Medical Association; the National Association of 
County and City Health Officials; the National Rural Health 
Association; the Association of Women's Health, Obstetric and Neonatal 
Nurses; United Cerebral Palsy; the Spina Bifida Association of America; 
and the United States Conference of Catholic Bishops, just to name a 
few. This broad and diverse group recognizes the overwhelming benefits 
this Study will produce for America's children.
    Congress first authorized the National Children's Study in 2000, 
and has appropriated $55 million since then to design the Study, 
complete preparatory research, and designate the seven Vanguard sites 
that will conduct preliminary testing.
    This has been a wise investment that should not be abandoned just 
as the Study is about to bear fruit. Unfortunately, the Administration 
has not provided continued funding in the fiscal year 1907 budget, a 
decision which threatens to squander the investment already made and to 
throw away the multi-generational benefits the Study will yield. 
Funding for the Study this year requires a commitment of $69 million. 
These funds will be used to begin enrolling children in the study. They 
will enable the NIH to continue establishing the 105 study sites around 
the country. We urge Congress to fully fund the National Children's 
Study. It is an investment in our children--and in America's future. 
The National Children's Study will give our Nation the ability to 
understand the causes of chronic disease that cause so much suffering 
and death in our children. It will give us the information that we need 
on the environmental risk factors and the gene-environment interactions 
that are responsible for rising rates of morbidity and mortality. It 
will provide a blueprint for the prevention of disease and for the 
enhancement of the health in America's children today and in the 
future. It will be our legacy to the generations yet unborn.
    In summary, Congress is poised to take three critical steps to 
improve the health and economic security of our Nation. Through 
continued expeditious cleanup of Superfund sites and prevention of 
toxic chemical exposures from these hazardous waste sites, we can 
prevent disease before it occurs in children. We need to continue to 
support the Superfund Basic Research Program which provides desperately 
needed information about the environmental fate and toxic effects of 
Superfund compounds, and we need full funding for the National 
Children's Study if we are to develop effective methods of preventing 
diseases of environmental exposure among American children.
    Thank you. I shall be pleased to answer your questions.
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        Responses by Leonardo Trasande to Additional Questions 
                           from Senator Boxer
    Question 1. If EPA is stretching out timelines for cleanups and 
using institutional controls that have been shown to be of questionable 
effectiveness, could this result in increased risks of cancer and other 
disease?
    Response. Yes, Senator, delays in cleanup can most definitely 
increase risk for chronic diseases, especially in children. 
Uncontrolled chemical exposures pose special dangers to children for 
the reasons that I have described in my oral testimony. As I stated in 
my oral testimony, the benefits of preventing exposure to Superfund 
chemicals have been proven time and again--first with lead, then with 
PCBs and more recently with pesticides and methylmercury. Delays in 
preventing toxic exposure will lead to preventable and costly diseases 
in children such as developmental disabilities, birth defects and 
childhood cancers.

    Question 2. Mr. Trasande, Mr. Spiegel's testimony described a 
situation where EPA was recommending that people wipe off contaminated 
dust from their shoes as a way of reducing exposure.
    How effective is this type of activity to reducing potentially 
harmful exposures to chemicals such as PCBs?
    Response. This approach is ineffective at best, and not an adequate 
substitute for removing the offending agent or preventing contact. For 
example, in our Pediatric Environmental Health Specialty Unit, we 
advise parents who work with asbestos, lead or other chemicals to keep 
their work clothes at work, and change into new clothes there so that 
they do not needlessly track toxic dusts into the home. Once they 
deposit in the home, chemical dusts can be extremely difficult to 
remove, and can easily be ingested in hand-to-mouth behavior. Once 
ingested or even inhaled in some cases, lead and other chemical dusts 
can harm the brain and other developing organs in children.
                               __________
        Responses by Leonardo Trasande to Additional Questions 
                           from Senator Obama
    Question 1. Based upon your experience observing the effect of 
toxic chemicals on children, do you believe children may potentially be 
at risk of cancers and other medical conditions at lower exposure 
levels than we previously believed?
    Response. Thank you for asking this important question, Senator. 
Yes, our Nation's children are at increased risk of cancers, 
respiratory illness, developmental disabilities and a host of other 
chronic childhood conditions as a result of chronic, low-level 
exposures that are currently considered ``safe.'' Genetics cannot 
explain the massive epidemic of chronic childhood diseases we are 
experiencing in America. Unfortunately, we still do not know which 
chemicals contribute most significantly to this epidemic because we 
have limited data about the toxicity of many widely used environmental 
chemicals. Our effort to understand the role of environmental chemicals 
in chronic childhood disease is further complicated by the reality that 
many of these chemicals also cause harm without leaving a permanent and 
detectable fingerprint to which to trace exposure.
    Our current regulatory process for chemicals also presumes safety, 
and allows a dangerous natural experiment to ensue. Of the 2,800 high 
production volume chemicals, of which more than one million pounds are 
produced annually, fewer than half have undergone any toxicity testing 
at all, and fewer than one-fifth have had any previous testing for 
developmental toxicity. Among those chemicals that have been studied, 
the little we know suggests that chemicals are likely to be harmful to 
children. In the past few years, we have learned that even one 
microgram per liter of lead can stunt a child's cognitive development. 
Ten micrograms per liter is the current action threshold according to 
the Centers for Disease Control. The American Academy of Pediatrics has 
called for major changes of outdoor air quality standards because 
studies have found that particulate matter, sulfur dioxides and other 
pollutants harm lung development, may precipitate asthma, and may pose 
increased risk of cancer. Levels below the EPA's Reference Dose for 
mercury have been associated with abnormalities on behavioral evoked 
auditory response tests. This is unfortunately just the tip of the 
iceberg, and in the absence of adequately toxicity testing, families 
are unknowingly placing their children in harm's way.

    Question 2. Should we be looking more closely at the risks posed to 
children by these sites than to adults?
    Response. Yes, Senator, the standard for environmental abatement at 
Superfund sites should always be set to protect our Nation's most 
valuable resource, our children. This standard was most recently set in 
the 1993 Food Quality Protection Act, which was passed unanimously by 
both houses of Congress. This law codified the scientific reality that 
our children are especially vulnerable to toxic chemical exposures, and 
that special consideration should always be taken to protect children, 
even when the scientific evidence has not confirmed the certainty of 
chemical toxicity.
    We also desperately need to determine child safety thresholds for 
many chemicals, and if there is one study that can provide insight into 
the risks that chemicals pose for children, it is the National 
Children's Study. A study of its magnitude is desperately needed 
because so many factors complicate understanding the role of chemicals 
in childhood disease--genetic variability, social factors and other 
chemical exposures make teasing out the role of individual toxicant 
extremely difficult. To date, small epidemiologic studies have provided 
piecemeal knowledge about chemicals, but often we have so little 
information that Superfund cleanup efforts are based on toxicity to 
adults or hypothetical, unseen risks. Superfund cleanup could thus be 
made more cost-effective and efficient through the National Children's 
Study.
                               __________
     Statement of Michael W. Steinberg, on Behalf of the Superfund 
                          Settlements Project
                           executive summary
    Superfund today is a mature program that has largely accomplished 
its goals. Private parties are cleaning up most of the sites on the NPL 
and paying the full cost of those cleanups. Superfund has also 
addressed most of its original workload; construction of the remedy has 
already been completed at most of the sites on the NPL.
    Despite Superfund's accomplishments, there is still considerable 
potential for improvement. In particular, EPA can do more with the 
Superfund appropriation it receives from Congress each year.
    Specifically, EPA can take action to conserve more of its annual 
appropriation for the core mission of the Superfund program--completing 
long-term cleanup at sites on the NPL. Among the steps EPA should take 
are the following:
     revisiting the amount of money transferred each year to 
EPA offices other than OSWER;
     providing greater transparency on key decisions, such as 
adding sites to the NPL;
     exercising greater management authority over remedy 
selection decisions, which increase Superfund's long-term financial 
obligations;
     reducing spending on oversight of work performed by 
experienced private parties; and
     reducing spending on non-emergency removal actions.
                               statement
    The Superfund Settlements Project (``the Project'') appreciates the 
opportunity to share with the subcommittee some industry perspectives 
on the Superfund program as it operates today. The Project is a not-
for-profit association of eight major companies from various sectors of 
American industry.\1\ It was organized in 1987 in order to help improve 
the effectiveness of the Superfund program by encouraging settlements, 
streamlining the settlement process, and reducing transaction costs for 
all concerned.
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    \1\ The current members of the Project are Chevron, Ciba Specialty 
Chemicals Corporation, the DuPont Company, FMC, General Electric 
Company, Honeywell International Inc., United Technologies Corporation, 
and Waste Management, Inc.
---------------------------------------------------------------------------
                              introduction
    The members of the Project share an extraordinary degree of 
practical, hands-on experience with the Superfund program. These 
companies have been involved at hundreds of Superfund sites across the 
country over the last 25 years. Representatives of the Project have 
testified before Congress on many occasions regarding various aspects 
of the Superfund program. The Project has also played an active 
leadership role in the national policy debate over many Superfund 
issues, and has been a strong supporter of EPA's Superfund 
Administrative Reforms since they were announced in 1995.
    Collectively, these eight companies have spent well over $6 billion 
on site cleanups and site studies since 1980. That spending covered not 
only the companies'own shares of liability, but also sizable shares 
attributable to other parties that were defunct, insolvent, or 
otherwise unable to pay their fair shares. On top of that, these eight 
companies also paid out hundreds of millions of dollars more in Federal 
Superfund taxes during the first 15 years of the program's life. All 
told, these companies have paid far more than any fair or equitable 
measure of their actual responsibility for the contamination at these 
sites.
    The Project regards Superfund as a mature program that has largely 
accomplished its goals (albeit at a cost that was not always justified 
by the risks being addressed\2\). The gaps in environmental regulatory 
programs that led to the creation of many Superfund sites have been 
filled by the Clean Water Act, the Resource Conservation and Recovery 
Act, and the Toxic Substances Control Act. Today, private parties are 
cleaning up most of the sites on the National Priorities List 
(``NPL''), and they are paying the full cost of those cleanups. The 
Superfund Trust Fund is paying for cleanups at the ``orphan'' sites 
where no responsible party exists.\3\
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    \2\ Superfund does consider ``cost-effectiveness'' to a limited 
extent. After EPA develops a list of remedial alternatives that are 
protective, meet applicable or relevant and appropriate requirements 
(ARARs), satisfy the statutory preferences for treatment and 
permanence, etc., then Superfund asks whether the cost of each 
alternative is ``proportional to'' its effectiveness. 40 C.F.R. 
Sec. 300.430(f)(1)(ii)(D)(2005). But the more fundamental questions--
such as the benefits of meeting ARARs and satisfying the statutory 
preferences in the first place--are not asked.
    \3\ This includes ``orphan'' sites where the responsible party is 
insolvent, or has been exempted from liability by Congress. The Trust 
Fund is also paying for general informational and outreach programs 
such as technical assistance to community groups, research and 
development, remedial and brownfields policy development, and public 
participation.
---------------------------------------------------------------------------
    Superfund has also largely addressed its original workload. 
Significantly, construction of the remedy has already been completed at 
most of the sites on the NPL. Today, Superfund is working on the 
remaining NPL sites, which include some of the largest, most complex, 
and most challenging sites.
                                overview
    In this statement, we address several key aspects of the Superfund 
program's past, present, and future. First, we describe the evolving 
partnership between EPA and industry that has enabled the program to 
achieve notable successes, particularly since EPA's announcement of the 
administrative reforms in October 1995.
    Second, we describe the current need for EPA to do more with the 
Superfund appropriation it receives each year from Congress.
    Third, we note that a significant fraction of EPA's Superfund 
appropriation is transferred every year to other EPA program offices 
that are not involved in actual cleanup work. We recommend that EPA 
conserve more of its appropriation for the core mission of the 
Superfund program--completing long-term cleanup at NPL sites.
    Fourth, we urge that the process of listing sites on the NPL be 
focused and transparent. The NPL should continue to be ``the tool of 
last resort.'' EPA should also begin explaining to the public why it is 
listing on the NPL sites with viable Potentially Responsible Parties 
(``PRPs'').
    Fifth, we recommend that EPA Headquarters have a major role in 
making the key decisions about cleanups, in order to achieve more 
effective management of Superfund's long-term costs.
    Sixth, we urge EPA to reduce spending on oversight of work 
performed by experienced private parties and to redirect this money to 
the program's core mission.
    Seventh, and last, we propose refocusing the removal action program 
on its original purpose of addressing ``emergency'' threats to human 
health or the environment.
I. Superfund Today Represents a Highly Successful Partnership Between 
        EPA and Industry
    Although the Superfund program has generated extraordinary levels 
of controversy and criticism, EPA has, over time, developed 
institutional capability and expertise, solved problems, improved 
relationships, and ultimately established a program that operates 
relatively effectively and performs a critical function in society. To 
be more specific:
     tens of thousands of contaminated sites have been 
evaluated;
     short-term removal actions have been taken at several 
thousand of those sites;
     longer-term remedial actions have been completed at most 
of the non-Federal sites on the NPL; and
     construction is underway at most of the remaining NPL 
sites.
    Superfund--once a topic of intense public concern, dominated by 
controversy and emotion--has fundamentally achieved its objectives and 
accordingly has receded in the public focus. Today a general public 
recognition exists that at most sites, the actions which should be 
taken are being taken.
    In the process and in recent years, EPA has also worked to improve 
relationships with Potentially Responsible Parties (``PRPs'') and has 
minimized its previously confrontational approach to private parties. 
For the most part, there now exists an atmosphere of cooperation and 
mutual respect. EPA should be commended for its accomplishments in this 
field.
    It should also be recognized that industry has made major 
contributions to the success of this program. Perhaps unfairly, 
industry initially bore the brunt of criticism for past disposal 
practices that in essence reflected the values and scientific knowledge 
of society in an earlier era. Stung by such criticism and offended by a 
liability system that many regarded as totally unfair, much of industry 
initially protested and resisted the obligations imposed on it by the 
Superfund statute.
    By the mid to late 1980s, however, those attitudes had changed, and 
most national corporations accepted the imperative that they must 
participate constructively in addressing this national problem. At site 
after site across the country, those companies rose to the challenge. 
They organized PRP groups, established committees within those groups, 
investigated the conditions of contamination, and developed action 
proposals. Once EPA selected the remedies, those companies carried out 
remedial actions, and today they are managing long-term operation and 
maintenance at most sites. They provided the leadership, the technical 
resources, and the funding to perform required work at an ever-
increasing percentage of contaminated sites. That percentage is now 
greater than 70 percent of NPL sites.
    Welcoming the more cooperative spirit that EPA has demonstrated 
since adoption of the administrative reforms in 1995, those companies 
have themselves taken pride in the results of this program. They have 
earned the right to be regarded as constructive partners in the 
achievement of success under Superfund. They will continue to be 
constructive partners in addressing other sites through other cleanup 
programs.
    Despite Superfund's notable successes, however, the program still 
has considerable room for improvement. In particular, EPA can and 
should do more with the money it receives each year from Congress. 
Accordingly, in the spirit of constructive criticism, we describe below 
several ways in which EPA can direct more of its annual Superfund 
appropriation to the core mission of completing long-term cleanup at 
NPL sites. Importantly, all of the measures that we recommend here are 
steps that EPA can take without the need for legislative action or 
rulemaking.
II. EPA Can Do More With the Money it Receives Each Year from Congress
    The Superfund program today faces a variety of challenges relating 
to financial management. The central theme that connects all of these 
issues is the pressing need for EPA to manage its annual appropriation 
more effectively.
    Currently, the Superfund program:
     transfers a significant fraction of its appropriation each 
year to other EPA offices that are not involved in cleanup work;
     takes on new long-term financial obligations each year 
with little transparency and limited management review; and
     spends money each year on projects that are not high 
priorities and activities that are not essential.
    In sum, EPA is not yet managing either its Superfund ``income'' or 
its Superfund ``expenses'' as well as it can.
    We offer below a series of recommendations aimed at helping EPA 
address these challenges. In particular, EPA should:
     conserve more of its annual Superfund appropriation for 
the program's core mission--completing long-term cleanup work at NPL 
sites;
     provide greater transparency for key decisions;
     exert greater management control over the key decisions 
that increase Superfund's long-term financial obligations; and
     reduce unnecessary spending wherever possible.
    We address each of these topics below in greater detail.
III. EPA Should Conserve More of Its Superfund Appropriation for 
        Cleaning Up NPL Sites.
    Currently, some $200 MM/yr of EPA's annual Superfund appropriation 
is directed not to the Office of Solid Waste and Emergency Response 
(``OSWER''), but to other EPA offices that provide varying degrees of 
indirect support to the Superfund program. These other offices include:
     Office of Research and Development (``ORD'');
     Office of Administration and Resource Management 
(``OARM'');
     Office of the Chief Financial Officer (``OCFO'');
     Office of Inspector General (``OIG'');
     Office of Policy and Environmental Information; and
     Office of General Counsel (``OGC'').
    The net effect of these transfers is that nearly one-fifth of the 
total Superfund appropriation is diverted ``right off the top'' to 
other EPA offices that are not actually involved in cleaning up any 
Superfund sites. This is significant for several reasons.
    First, the amount of money involved here is large, particularly in 
comparison to the total amount that EPA actually spends on cleanup 
work. For example, the amount transferred to these other offices in 
fiscal year 2003 was about the same as the total amount that EPA spent 
that year on Remedial Design and Remedial Action at NPL sites, which is 
the core mission of the Superfund program. To put it another way, 
Superfund has been spending about as much on indirect support in non-
Superfund offices as it spends on actual cleanup of NPL sites.
    Second, the dollar amounts of these annual transfers to other 
offices were established years ago. These amounts apparently have not 
been revisited in light of the current level of program support that is 
actually needed from these other offices. Thus, it is not clear that 
these allocations reflect Superfund's current needs, or that they 
reflect sound management decisions about the wisest use of public 
funds.
    Third, we know of no policy reason why the Superfund program should 
pay for the support of OARM, OCFO, and OIG, among others. These support 
offices provide shared services to EPA's many programs, and these 
offices are directly funded by Congress as part of EPA's annual 
appropriation. The current practice of having the Superfund program pay 
for these shared services is a glaring departure from the normal 
practice, both at EPA and throughout the Federal Government.
    Finally, apart from the magnitude of these transfers to other 
offices, the transfers are open-ended, in the sense that any funds not 
actually used by the offices receiving the transfer apparently remain 
available for their use in subsequent fiscal years. Any funds not 
actually used in a given year should be returned to OSWER at the end of 
that year, so that they may be used on cleanups. In sum, we recommend 
that EPA carefully scrutinize its use of its Superfund budget so as to 
conserve more for the core mission of the Superfund program.
IV. The NPL Listing Process Should be Focused and Transparent
    Each new site listed on the NPL effectively imposes long-term 
financial obligations on the Superfund budget for many years to come. 
We believe that new sites should be listed on the NPL only after (1) a 
finding that they require Federal intervention because no other options 
will work (``the tool of last resort''), and (2) a transparent process 
that allows the public to comment on these issues. We address these two 
points in turn.
            A. The NPL Should Remain the ``Tool of Last Resort''
    In thinking about the purpose and scope of the NPL, it is helpful 
to bear in mind the lessons learned during the past 25 years in three 
main areas:
     the universe of contaminated sites;
     the alternatives available for addressing those sites; and
     the strengths and weaknesses of the Superfund program.
    We briefly address each of these points below, before explaining 
why the NPL is, and should remain, the ``tool of last resort.''
    First, experience has dramatically changed our knowledge about the 
number and character of contaminated sites throughout the country, as 
well as the risks associated with them. Rather than facing a few 
hundred sites, each of which was initially believed to pose severe 
threats to public health, it now is clear that we have a great many 
sites, most of which pose relatively small, if any, risks. For example, 
one EPA count of potential Brownfield sites indicated over 600,000 
sites perceived to be impacted by contamination, the great majority of 
which either are being addressed through State programs or pose no 
severe or immediate risk to human health or to the environment. These 
factors mean that contaminated sites should be managed by leveraging 
all appropriate private and public resources. The framework for 
response should emphasize State, local, and private efforts, rather 
than ``making a Federal case'' out of each site.
    Second, the choices available to society to address contaminated 
sites are far greater today than those in existence when Superfund was 
enacted in 1980. Virtually all states have developed their own ``mini-
Superfund'' programs and voluntary cleanup programs that have achieved 
success. In addition, at the Federal level, EPA's RCRA corrective 
action program governs thousands of operating facilities, and another 
program covers underground storage tanks.
    Third, Superfund's strengths and weaknesses as a cleanup program 
can be seen more clearly today based on 25 years of experience. As to 
its strengths, Superfund has focused attention on the need to remediate 
sites contaminated due to the inadequacies of pre-1980 disposal 
requirements. It has galvanized cleanup efforts, and it has achieved 
cleanups at most of the roughly 1,500 sites listed on the NPL. 
Superfund has also performed many successful emergency removal actions, 
most of them at non-NPL sites.
    As to its weaknesses, Superfund has attached a lasting stigma to 
some sites and the communities that surround them. In many cases, 
Superfund has also imposed excessive operational, legal, and financial 
restrictions on these sites that will interfere with their future reuse 
or redevelopment. Moreover, the cost at which Superfund has achieved 
results--some $35 billion in EPA appropriations alone since 1980, and 
at least that much more in private sector spending--is widely viewed as 
far higher than necessary or justified in light of the risks being 
addressed.
    In hindsight, at least, it seems clear that many sites addressed 
under Superfund did not present major risks to human health or the 
environment.\4\ Instead, sites were listed on the NPL based on fairly 
crude assessments of their potential risks. Once a site is listed on 
the NPL, however, the focus shifts from risk reduction to ``cleanup,'' 
where progress is much slower and completion is maddeningly elusive. 
Ironically, this focus on ``cleanup'' often delays or limits the risk 
reduction that should be Superfund's focus.
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    \4\ See, e.g., U.S. General Accounting Office, Environmental 
Protection-- Meeting Public Expectations With Limited Resources 17-18 
(1991) (GAO/RCED-91-97) (risks from contaminated sites ranked 
relatively low by EPA scientists, but relatively high by the public).
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    In light of this experience, it is clear that the NPL should 
continue to be the tool of last resort--a tool that because of its 
unique nature should only be used in those situations that require such 
a high-cost, inefficient mechanism. EPA adopted this term--``the tool 
of last resort''--as its unofficial policy some years ago, but then 
failed to communicate this policy clearly in its actual NPL listings. 
As we show below, the resulting lack of transparency makes it difficult 
for the local communities or other interested parties to understand why 
some sites are listed and others are not.
    The circumstances warranting use of the Superfund NPL as ``the tool 
of last resort'' might include sites that:
     are severely contaminated; and
     pose immediate or severe risks; and
     have no near-term prospect of cleanup by viable PRPs.
    But apart from the sites that meet the above criteria for NPL 
listing, nearly all other sites should be managed under other programs. 
This would include the RCRA corrective action program and the full 
range of state cleanup programs. If those other programs are viewed as 
deficient in some respects, then those programs should be improved 
rather than shifting sites to Superfund and thereby removing the 
incentive to remedy the perceived shortcomings of those other Federal 
and State programs.\5\
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    \5\ This same approach should also govern NPL delistings or 
deletions. The core idea is that if the studies and cleanup work 
performed at an NPL site have brought it to the point where the 
remaining risk would no longer justify application of ``the tool of 
last resort,'' then EPA should find a way to remove that site from the 
NPL so it can be addressed in a more appropriate way. Whatever the 
criteria for NPL listing, it makes little sense to keep a site in the 
NPL universe once it no longer meets those criteria.
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    It is fully expected that PRPs--mostly private companies, as well 
as governmental departments and agencies--will continue to perform and 
fund cleanups, either individually or in conjunction with regulatory 
agencies, at sites they have contaminated. The point here is simply 
that Superfund is not the proper mechanism to address most of these 
sites.
    We now turn to the process used to list sites on the NPL, with a 
focus on the need for greater transparency regarding the reasons why 
sites are being listed.
B. NPL Listings Should Be Transparent
    When it comes to transparency in government, more is better. Yet 
for a process with such high stakes, EPA's NPL listing decisions are 
somewhat opaque.
    EPA adds sites to the NPL each year. It does so without offering 
any public explanation of what other options EPA considered for 
addressing those sites, or why EPA decided that the other options were 
inadequate.\6\ This means that the local communities and other 
interested parties have no way, as a practical matter, to submit 
meaningful comments on proposed NPL listings, because EPA has never 
said why it wants or needs to list the sites.
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    \6\ EPA's Federal Register notices provide the names of the sites 
that are proposed to be listed, but no explanation of what EPA hopes to 
accomplish by listing them on the NPL. See, e.g., 71 Fed. Reg. 20052 
(April 19, 2006) (proposing to list 6 sites on the NPL without 
explaining what EPA hopes to accomplish by listing them).
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    To address this deficiency, EPA should include a brief statement 
along with each proposed NPL listing. In that statement, EPA should 
note any other approaches it has considered for addressing the site 
(e.g., state voluntary cleanup program). EPA should also explain why it 
believes the NPL is the best approach for this particular site.
    Based on EPA's brief statement, the public could then submit 
comments that address these issues. Such comments might point out the 
availability of other approaches to getting the site cleaned up. EPA 
would then consider those comments before making a final decision on 
whether or not to list the site. The net result would be a huge 
increase in transparency.
    In sum, two aspects of the NPL listing process present room for 
improvement. First, strong Headquarters management of the NPL listing 
process will help insure that the NPL remains ``the tool of last 
resort.'' Second, greater transparency in the listing process is also 
critically needed.
V. EPA Headquarters Should Have A Major Role in Making the Key 
        Decisions About Cleanups
    After NPL listings, the next most important decisions in the 
Superfund program are the selection of final cleanup plans for those 
NPL sites. Each year, EPA issues new Records of Decision (``RODs'') 
selecting remedies for NPL sites around the country.
    As a practical matter, each of these new RODs effectively imposes 
financial obligations on the Superfund budget for years to come. If a 
site has no viable PRPs, or if the PRPs fail to step forward, then EPA 
eventually ends up paying for the cleanup. In this way, each new ROD 
effectively controls some of Superfund's future spending.
    Because the RODs are so important to Superfund's budget, it would 
seem important to have Superfund management at EPA Headquarters review 
them closely in advance before the final decisions are made. But that 
is not the norm today. Instead, EPA's Regional Offices usually have the 
final say on these cleanup decisions.
    Under a delegation of authority dating back to 1994, most new RODs 
are signed by Division Directors in EPA's Regional Offices. Review by 
Superfund program management at EPA Headquarters is typically very 
limited. For all practical purposes, then, EPA Headquarters does not 
actively manage the rate at which the Superfund program takes on new 
financial obligations each year.
    We recommend that EPA take several actions to address this problem:
     EPA should revise its delegation of authority so that 
Superfund managers at Headquarters review all, or virtually all, new 
RODs before they are signed;
     EPA should expand the National Remedy Review Board so it 
can review more sites and help insure that future remedy decisions are 
both technically sound and also (as required by section 121(a) of 
CERCLA) cost-effective; and
     EPA should expand its use of the Fund-balancing ARAR 
waiver, the ``inconsistent applications of state standard'' ARAR 
waiver, and the Technical Impracticability ARAR waiver to facilitate 
the selection and prompt implementation of cost-effective remedies.
VI. EPA Should Reduce its Spending on Oversight of Work Performed by 
        Experienced Private Parties
    A decade ago, then-EPA Administrator Carol Browner recognized that 
EPA devotes excessive contractor dollars and excessive FTEs to 
monitoring the studies and cleanup work performed by private parties 
(``oversight''). In a 1995 Administrative Reform, and again in guidance 
a year later, Administrator Browner pledged a 25 percent reduction in 
oversight at sites with capable and cooperative PRPs.
    Despite that 1995 proclamation, however, EPA has yet to implement 
the necessary across-the-board reduction in oversight spending. In 
fact, EPA has yet to embrace the general policy of tailoring oversight 
levels to reflect the experience of the private party and its 
contractor, the complexity of the site, the nature and strength of any 
public concern, etc.\7\
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    \7\ EPA's RCRA corrective action program, on the other hand, 
embraced the policy of tailored oversight some years ago. See 65 Fed. 
Reg. 58,275 (Sept. 28, 2000) (announcing release of guidance document 
entitled ''Results-Based Approaches to Corrective Action: Tailored 
Oversight'').
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    Moreover, EPA does not separately track its own spending on 
Superfund oversight, thereby limiting the potential for sound financial 
management. What is clear is that EPA could free up additional 
resources for remedial construction by fulfilling its 10-year-old 
pledge to reduce its oversight of work performed by experienced private 
parties. Accordingly, we recommend that EPA take the necessary actions 
to reduce its oversight spending.
VII. The Removal Program Should be Refocused on Its Original Purpose of 
        Addressing Emergency Situations
    The Superfund removal action program was designed primarily to 
address emergency situations. Yet today, emergencies account for barely 
one-fourth of all removal actions taken by EPA. The other three-fourths 
consist of ``time-critical'' actions, where EPA believes work should be 
commenced within 6 months, and ``non-time-critical'' actions. Of the 
2,440 removal actions commenced during the period from FY 1992 through 
fiscal year 1999, a total of 1,892 (77.5 percent) were either ``time-
critical'' or ``non-time-critical'' actions.\8\
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    \8\ K. Probst, et al., Superfund's Future--What Will It Cost? at 
25, Table 2-4 (2001).
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    Many of these non-emergency actions are undoubtedly beneficial. But 
it is unclear why a continuing $250 MM/yr Federal program is needed to 
perform primarily non-emergency actions. Superfund removal actions 
should focus on those sites, orphan or otherwise, that need immediate 
action to address an actual emergency.
    The point here is not to launch a debate over the precise contours 
of the term ``emergency.'' Rather, the idea is to limit the removal 
program to sites that present an emergency under some reasonable 
definition of that term. Most Superfund removal actions today, by EPA's 
own definition, do not involve emergencies in any sense of the term. 
Accordingly, the removal program should be refocused on its original 
purpose. As with all of the measures that we are recommending today, 
EPA can accomplish this change as a matter of policy, without the need 
for legislative action or rulemaking.
                               __________
        Statement of Robert Spiegel, Edison Wetlands Association
    Thank you for the opportunity to testify here before you. I am here 
to tell the committee about how the funding shortfall in the Federal 
Superfund program is putting people in danger and hurting our shared 
environment. Since 1989, I have worked as the founder and executive 
director of Edison Wetlands Association (EWA), the only non-profit 
organization in New Jersey working to get toxic sites cleaned up in a 
thorough and timely manner. I personally have worked actively to ensure 
the remediation of over 75 toxic sites in New Jersey, including over 20 
Federal Superfund sites. With EWA's increasing success, we have also 
been brought in to help on toxic sites in other States, including New 
York, Nebraska and California.
    As you know, funds have all but dried up for Orphan Sites, or sites 
that lack a viable Responsible Party. While the U.S. Environmental 
Protection Agency (USEPA) publicly states that their cleanups are on 
track, it is clear at many sites I work on that work is proceeding at a 
far slower pace or not at all. This is especially troubling because 
many of New Jersey's Superfund sites are located in densely populated 
residential areas, and thus their impacts to public health and the 
environment are immediate and direct.
    The residential factor makes the Superfund program all the more 
vital. As home to the industrial corridor that helped build the entire 
Nation, New Jersey holds approximately one-eighth of all Federal 
Superfund sites, despite being the fourth smallest State in the Nation. 
In fact, we can claim a number of unfortunate titles. New Jersey is No. 
1 in its 18,000 known contaminated sites, No. 1 in population density, 
and No. 1 in the prevalence of cancer. As a parent and lifelong 
resident of New Jersey, I cannot help but wonder how much these factors 
are related.
    To illustrate the problem at hand, I would like to talk about one 
site in particular, less than a mile from my home: the Cornell-Dubilier 
Superfund Site in South Plainfield, New Jersey. On the USEPA's own Web 
site, Cornell-Dubilier is listed as a site where public exposure is not 
under control. Now called Hamilton Industrial Park and home to 
approximately 15 active businesses, the site is approximately 26 acres 
and sits in a working-class residential and industrial area.
    From 1936 to 1962, Cornell-Dubilier manufactured electrical 
components and capacitors, and they allegedly dumped PCB-containing 
materials directly onsite. In addition to PCBs, there are still 26 
other contaminants of concern onsite, including metals and 
trichloroethene. The contamination impacts onsite soil, groundwater 
both onsite and offsite, and stream sediments in the Bound Brook, which 
flows into the Raritan River and ultimately Raritan Bay. PCB capacitors 
labeled ``Cornell-Dubilier'' were also found buried in the nearby 
Woodbrook Road dumpsite, which is now a separate National Priority List 
Superfund Site.
    Even in the State with more contaminated sites than any other, 
Cornell-Dubilier stands out. The U.S. EPA's own risk assessment found a 
cancer risk in excess of 3 out of 100. At public meetings for this 
site, we are constantly approached by residents living nearby who ask 
how they can get cancer studies for their neighborhoods, which have 
very high prevalence of cancer and other illnesses. Likewise, some of 
the highest levels of PCBs in the State are found in fish caught in the 
Bound Brook adjacent to the site. Many local residents still 
unknowingly fish these waters, primarily low-income residents who fish 
to feed their families. Some cannot read the few signs warning of the 
dangers of fish consumption, which are posted in English only.
    EWA first got involved at this site after we received a phone call 
that children were riding their bikes around the disposal areas in the 
rear of the property. We also learned that a truck driving school was 
operating on one of the site's most contaminated areas, creating toxic 
dust clouds that moved through the adjacent community. What amazed us 
is that it seemed to be common knowledge by the site owners, elected 
officials and regulators that this area was highly contaminated. Yet no 
one seemed willing to take the lead to protect the children or relocate 
the truck driving school.
    We walked the site with USEPA personnel, who recognized the site's 
public exposure and wanted to work with us to have a fence installed 
and urge the Township to relocate the truck driving school. Yet 21 
years after USEPA first got involved with the site, the scope of the 
contamination remains staggering. Following are some of the current 
exposures at the site:
     People still work inside the contaminated onsite 
buildings, including women of child-bearing age. Dust inside the 
building is contaminated with high levels of PCBs, lead and other 
chemicals. The USEPA calculated the Hazard Index for PCBs alone at 150. 
To give you an idea of what that means, anything above 1 requires USEPA 
action--and PCBs alone are 150!
     Local families continue to consume fish caught from the 
adjacent Bound Brook, even though they contain the some of the highest 
levels of PCBs in the State of New Jersey.
     Children continue to trespass on the site regularly, due 
to poor site security and a lack of adequate sign postings.
     Groundwater remains highly contaminated with chlorinated 
solvents, PCBs and many other chemicals. USEPA still does not know the 
extent of the groundwater plume, its direction or how much of an impact 
it has on public health.
     Homes around the site still contain unacceptable levels of 
PCB and require additional testing and remediation. Daycare centers and 
other buildings around the site were found to be contaminated enough to 
require remediation.
    These public health risks are even more sobering when you realize 
that the USEPA has had 21 years to address them. Yet after all this 
time, the best plan USEPA could come up with was to leave the majority 
of PCB contamination onsite, while ignoring large amounts of soil that 
New Jersey considers a residential hazard. We believe the USEPA has 
refrained from planning a more comprehensive cleanup because of their 
lack of funds.
    Our engineering expert, Richard Chapin of Chapin Engineering, holds 
over 25 years experience in remediating contaminated sites. On our 
behalf, he has reviewed USEPA plans and the underlying contamination 
issues at this site. His review of the Agency's Record of Decision 
(ROD) has noted the following problems:
     The ROD addresses approximately 278,000 cubic yards of 
PCB-contaminated onsite soil. Yet the only soil that will definitely be 
removed is 7,500 cubic yards of soil with PCBs at greater than 500 
parts per million. Less than one-half of the balance will be treated, 
if possible, to reduce the PCB level to below 500 parts per million. 
The overwhelming majority of the soil will simply be left onsite under 
a ``cap.'' Since the estimated cost of this ``cleanup'' is over $90 
million, it certainly seems like a lot of money to do little more than 
covering the site.
     The ROD assumes the cap will be maintained for a 30-year 
period by an undefined person or corporation, and assumes that entity 
will readily take responsibility for a massive deposit of PCB 
contamination. After that 30-year period is over, the site simply falls 
into an undefined void. In essence, the USEPA is creating a major PCB 
landfill.
     Site buildings are highly contaminated with PCBs, and 
demolition and offsite disposal is the preferred long-term solution. 
Yet nothing has been done to clean up the immediate hazards to current 
workers in the buildings.
     Highly contaminated groundwater is not delineated and 
offsite contamination of the Bound Brook has yet to be addressed. Given 
the potential magnitude of these problems, an additional $50 million 
could easily be required to complete the cleanup.
    Rather than wait indefinitely for the USEPA's next action, EWA 
recently tested the Bound Brook both upstream and downstream of 
Cornell-Dubilier. Our findings were alarming, to say the least. While 
no PCBs or volatile organic compounds were found in surface water 
upstream, TCE was found in surface water downstream of the site at over 
200 times the New Jersey Surface Water Quality criteria. Cornell-
Dubilier's contaminated groundwater is uncontrolled and apparently 
discharging significant amounts of TCE into the Bound Brook. Finally, 
we also found PCBs in the soil of a publicly accessible bank of the 
Bound Brook downstream of the site at a concentration exceeding State 
criteria. This area is not even addressed by USEPA's proposed cleanup.
    While USEPA maintains that the cleanup is moving forward, this 
illusion is just a house of cards ready to collapse. As the following 
concerns indicate, the Agency is making a promise they cannot deliver.
     The remediation of the onsite soils and building alone is 
estimated to cost $90 to $100 million. With the site cleanup in final 
design, the USEPA has publicly stated that they expect to begin work 
this fall, and that funding is available to cover the costs. Yet the 
Potential Responsible Parties have already indicated to the Agency that 
they do not have such funds. So where will the funds come from to begin 
a nearly $100 million cleanup? Privately, the USEPA acknowledges that 
they are unsure where those funds will come from, let alone the 
additional millions needed to address the groundwater and offsite 
contamination.
     USEPA and their sister Agency, the Agency for Toxic 
Substances and Disease Research (ATSDR), continue to allow people work 
in the onsite buildings despite the extremely high levels of 
contaminated dust in the building. If the cleanup must be delayed, 
USEPA and ATSDR should at least protect public health by immediately 
closing down the building.
     Instead of this common-sense solution, USEPA has relied on 
cheap, unregulated institutional controls, putting the health of the 
workers and their families at risk by letting operations continue in 
these toxic buildings. USEPA's lone action to address the public health 
concerns was to direct the property owner to have the workers wash 
their hands and clean their shoes before leaving the buildings. They 
implemented no oversight, and to this day, the Agency has not checked 
with the tenants to ensure their recommendations are being followed. As 
a result, USEPA is continuing to allow unsuspecting workers to track 
toxic dust out of the buildings to potentially contaminate their homes.
     With USEPA's glaring lack of transparency about the 
funding for Cornell-Dubilier's cleanup, we can only wonder how many 
communities around the country are being led to believe there is 
funding available, when the Agency clearly knows funds are scarce.
    My organization is not sitting back and waiting for USEPA to win a 
$100 million lottery so the cleanup of Cornell-Dubilier can begin. We 
are closely monitoring the cleanup process for this disgusting 
nightmare of a site, and working with the New Jersey Department of 
Environmental Protection, local community groups and other non-profits 
like the Work Environment Council to ensure USEPA protects public 
health here, as we do at other sites across New Jersey. At the Ringwood 
Mines/Landfill Superfund Site, we have been successful in jump-starting 
the cleanup and re-listing of this Ramapough Mountain Indian Tribe 
community and a State Park where Ford Motor Company dumped toxic lead 
paint sludge, but this only occurred because Ford is a viable Potential 
Responsible Party. And at the former Chemical Insecticide Corp. 
Superfund Site (CIC) in Edison, where children once played in 
contaminated creeks and ``green rabbits'' once roamed with fur tinged 
green by a herbicide manufactured onsite, our advocacy and a successful 
USEPA cleanup now has the site so clean it is slated to become a 
community park.
    The CIC cleanup, I should note, occurred just before the Superfund 
ran dry. Since then, we have noticed an alarming trend within USEPA for 
slower and less protective cleanups, along with fundamental and 
institutional changes within the Agency. Among them are:
     A Shroud of Secrecy.--USEPA appears to have gone into a 
bunker mentality when it comes to limiting public access to documents 
with information that impacts public health. My organization submitted 
a Freedom of Information request for a list of sites in Region 2 where 
exposure is not under control, but USEPA failed to comply. While USEPA 
continues to mislead the public about the funding shortfall that is 
affecting sites across New Jersey and the Nation, my organization works 
to protect health around other Superfund sites, such as Imperial Oil in 
Marlborough, Martin Aaron in Camden, and Horseshoe Road in Sayreville. 
But with so many other Superfund sites across the State, we simply 
cannot serve as watchdog for all of them.
     Institutional Failure.--USEPA insiders have told us that, 
except under the most egregious situations, the Agency no longer 
utilizes interim remedies at Superfund sites. While interim remedies 
often protect human and environmental health in the short-term, USEPA 
fears that taking an interim action will lower their chances of 
receiving funding for their final remedies. In addition, no matter how 
bad the contamination levels or the public exposure, USEPA no longer 
finds an imminent health threat on their sites, as that would force 
immediate remediation for which there is no real funding.
     Misleading the Public.--As the Cornell-Dubilier case 
indicates, Agency's public stance has become one solely based on crisis 
management. From speaking to a number of USEPA case managers, while 
they say whatever is necessary to pacify members of the public and 
elected officials, privately they admit that the funding source for all 
of these pending site cleanups is one giant question mark.
    While we look at the vast array of environmental problems like 
global warming and overdevelopment, we must not forget another 
inconvenient truth. Without the Superfund tax reinstated, there will 
not be funding available to clean up all the Cornell-Dubiliers, and the 
Ringwoods, and the Omaha Leads, in the United States. I invite you to 
join us in touring these sites to see their first-hand impact on 
children and families, or even to tour similar Superfund sites in your 
State.
    It is a real shame that in a country as wealthy as the United 
States, we cannot protect the health of our children, our most valuable 
resource. With the recent record profits for the ultra-wealthy chemical 
and oil industries, it is not asking too much for polluters to pay for 
the cleanups of their contamination.
    Superfund was a promise the Federal Government made to clean up 
toxic nightmares left by industry. I come before you today to ask that 
you keep that promise. Without that tax and a strong commitment from 
you, our Nation's trusted leaders, the promise is broken again and 
again--one community at a time.
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