[Senate Hearing 110-1206]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 110-1206

                         PROTECT PUBLIC HEALTH



                               BEFORE THE


                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION


                            OCTOBER 17, 2007


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

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                       ONE HUNDRED TENTH CONGRESS
                             FIRST SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming1
BERNARD SANDERS, Vermont             LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota             LAMAR ALEXANDER, Tennessee

       Bettina Poirier, Majority Staff Director and Chief Counsel
                Andrew Wheeler, Minority Staff Director
1Note: During the 110th Congress, Senator Craig 
    Thomas, of Wyoming, passed away on June 4, 2007. Senator John 
    Barrasso, of Wyoming, joined the committee on July 10, 2007.

           Subcommittee on Superfund and Environmental Health

               HILLARY RODHAM CLINTON, New York, Chairman
MAX BAUCUS, Montana                  JOHN BARRASSO, Wyoming
BENJAMIN L. CARDIN, Maryland         DAVID VITTER, Louisiana
BARBARA BOXER, California, (ex       JAMES M. INHOFE, Oklahoma, (ex 
    officio)                             officio)

                            C O N T E N T S


                            OCTOBER 17, 2007
                           OPENING STATEMENTS

Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New 
  York...........................................................     1
Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     3
Boxer, Hon. Barbara, U.S. Senator from the State of California...     4
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     7
Lautenberg, Hon. Frank, U.S. Senator from the State of New Jersey    10
Craig, Hon. Larry, U.S. Senator from the State of Wyoming........    41
Cardin, Benjamin L., U.S. Senator from the Stata of Maryland.....   102


Bodine, Susan Parker, Assistant Administrator, Office of Solid 
  Waste and Emergency Response, U.S. Environmental Protection 
  Agency.........................................................    11
    Prepared statement...........................................    13
    Responses to additional questions from:
        Senator Boxer............................................    19
        Senator Inhofe...........................................    25
Steinzor, Rena, Jacob A. France Research Professor of Law, 
  University of Maryland School of Law; Scholar, Center for 
  Progressive Reform.............................................    43
    Prepared statement...........................................    45
    Response to an additional question from Senator Boxer........    50
    Responses to additional questions from Senator Inhofe........    50
Porter, J. Winston, President, Waste Policy Center...............    50
    Prepared statement...........................................    53
    Responses to additional questions from Senator Inhofe........    57
Campbell, Bradley M., Principal, Bradley M. Campbell, LLC........    58
    Prepared statement...........................................    59
Steinberg, Michael, W., Senior Counsel, Morgan, Lewis and Bockius 
  LLP, and Outside Counsel, Superfund Settlements Project........    67
    Prepared statement...........................................    68
    Responses to additional questions from:
        Senator Boxer............................................    74
        Senator Inhofe...........................................    76
Siegel, Lenny, Director, Center for Public Environmental 
  Oversight......................................................    82
    Prepared statement...........................................    83
    Responses to additional questions from:
        Senator Boxer............................................    91
        Senator Inhofe...........................................    92

                          ADDITIONAL MATERIAL

Report; The Toll of Superfund Neglect, Toxic Waste Dumps & 
  Communities at Risk: Rena Steinzor and Margaret Clune..........   104

                         PROTECT PUBLIC HEALTH


                      WEDNESDAY, OCTOBER 17, 2007

                               U.S. Senate,
         Committee on Environment and Public Works,
                            Subcommittee on Superfund and  
                                      Environmental Health,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:34 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Hillary Rodham 
Clinton (chairman of the subcommittee) presiding.
    Present: Senators Clinton, Inhofe, Lautenberg, Craig, 
Boxer, Barrasso


    Senator Clinton. The hearing will come to order.
    I want to start by welcoming our newest member, Senator 
Barrasso, to the Subcommittee. We are delighted to have him. He 
is already a Ranking Member. That is a rapid ascent in the 
    I want to thank Chairman Boxer and our full Committee's 
Ranking Member, Senator Inhofe, for their support of this 
Subcommittee hearing.
    I want to thank our witnesses for appearing today.
    We will begin with 5 minute opening statements, and then we 
will hear testimony from EPA Assistant Administrator Bodine. 
The Superfund Program is such an important part of our 
environmental protection system in our Country, and I think 
this is a very significant opportunity to discuss what it is 
doing and what more it could do.
    Superfund has its roots in New York. Stemming from the 
discovery in 1978 by Niagara Falls resident Lois Gibbs that her 
neighborhood, known as Love Canal, had been built on a massive 
chemical dump. The effects of that chemical dump had been seen, 
but not understood for years. The impact on the people who 
lived there was tragic.
    Love Canal became a national story and helped spur Congress 
to enact the Superfund law, which was signed by President 
Carter in December 1980. The Love Canal site was finally taken 
off of the Superfund's national priorities list in 2004, but 
1,246 sites across the Country remain on the Superfund list 
today, including 86 in New York alone.
    So as we approach this 30 year anniversary of Love Canal, 
the Superfund site remains vitally important because it reminds 
us of why we went down this path. The importance is underscored 
by a report issued last year by the Center for American 
Progress and the Center for Progressive Reform. That report 
profiled 50 of the most dangerous sites still on the Superfund 
list scattered across 10 States. We will hear more about that 
report later in the hearing, but I want to highlight a couple 
of its findings.
    First, most of the 50 sites are locate in heavily populated 
areas. Second, many have been on the list for decades. Third, 
they contain a range of highly toxic chemicals such as PCBs, 
creosote, lead, arsenic, mercury and TCE. Sixty percent were 
located in neighborhoods where households reported median 
incomes in the range of $40,000, and some 26 percent were in 
the midst of populations comprised of 40 percent or more of 
racial or ethnic minorities.
    So this is both an environmental health issue and an 
environmental justice issue. That is why I am dismayed by the 
Bush administration's handling of this program. The number of 
cleanups has fallen dramatically from an average of about 75 
sites per year from 1993 to 2000, to an average of fewer than 
40 sites per year under this Administration. In Fiscal Year 
2007, only 24 cleanups were completed.
    When we have asked the Administration to explain this sharp 
drop in cleanups, they claim it is due to greater complexity of 
the sites left to be cleaned. I don't accept that point. But 
even if you take it at face value, it raises another important 
question. Why won't the Administration, therefore, ask for more 
money to get the program back on track to deal with the 
allegedly more complex sites? When asked that question, the 
Administration has tied itself into knots defending the absurd 
position that more money wouldn't help all that much.
    They have been extremely secretive about the program, 
keeping information from the public and stonewalling this 
Committee. Chairman Boxer submitted a series of questions, and 
I am delighted that she is here, because she submitted those 
questions to the EPA about Superfund 5 months ago. On Monday, 2 
days before this oversight hearing, she received a stack of 
documents in response. All but three of the documents were 
marked privileged. That is just simply unacceptable. What does 
the Administration have to hide? I thought we were all in this 
    I hope we can get beyond this pattern today. For the 
Administration to keep repeating mission accomplished about the 
Superfund Program doesn't square with reality. There are 11 
Superfund sites where human exposure to dangerous levels of 
toxic chemicals is not under control. There are 111 of those 
sites, because seven of them are in New York alone.
    In addition, EPA data indicates there are 160 other sites 
where EPA has insufficient information to determine whether 
human exposure to these toxic chemicals is under control. I 
will be pressing EPA today to explain their plans to get these 
sites under control and to explore the reasons for the slowdown 
in cleanups.
    I think it is clear this program needs additional funding. 
I think reinstating the polluter pays fee is a step we must 
take, both to provide additional funds for the cleanups and to 
make the program fairer. Ordinary taxpayers should not pay for 
cleanups, and that is what has been happening at orphan sites 
for the last 4 years.
    So we have a lot of ground to cover today. I want to turn 
now to Ranking Member, Senator Barrasso.


    Senator Barrasso. Thank you very much, Madam Chairman. 
Thank you very much for that very kind welcome to the 
Subcommittee. I look forward to working with all of the members 
and I appreciate you holding this hearing today. I appreciate 
the witnesses who are here to testify.
    I think that it is important that we engage in constructive 
dialog to find solutions to the tough problems that we need to 
answer. We have excellent witnesses. I look forward to what all 
of them have to say.
    There have been successes in the history of the Superfund, 
but like any Government-run program, there is always room for 
improvement. I am from Casper, Wyoming. It is known as the oil 
city, and I will tell you two short stories today. One is about 
Casper. In 1913, a refinery opened there. It was actually the 
first paved road in that community. The Amoco refinery at its 
height had 750 workers. It was on the bank of the Platte River 
on 340 acres. In 1991, when it closed, there were smokestacks, 
storage tanks, pipes, concrete, aging equipment and it was too 
expensive to be in compliance and they merely closed the 
refinery. It left behind a mess.
    There were about 10 million gallons of oil that went into 
the groundwater beneath the refinery, and that is about the 
same amount that was leaked in the Exxon Valdez. The oil was 
seeping into the Platte River and there was oil sheen on the 
riverbank. But together, local leaders, community leaders, 
government and an oil conglomerate all worked together. They 
came up with a plan. They put a 40 foot high steel wall that 
was then sunk into the bedrock along the riverbank. Groundwater 
was pumped through a series of filters and a filtering wetland 
at the rate of 700 gallons a minute.
    From this, they were able to get out a lot of the oil that 
was left under this abandoned refinery, 4,000 gallons of oil a 
month. They now have a world class golf course. We do in 
Casper, Wyoming. Robert Trent Jones, Jr., designed it, the same 
designer where they played the President's Cup 2 years ago in 
Manassas, VA. There is a restaurant. There are pathways. There 
are trees, picnic areas. There are ducks and deer, a few 
businesses that are there in offices.
    So what the folks have done working together, they have 
turned a rust-enclosed polluting eyesore into an economic 
development center that is giving us a clean environment. It is 
going to take a while to get all of this cleaned up, but as it 
continues, this is now useful and economic development and a 
tremendous asset for our community. This has become a model for 
closed refineries now all around the world.
    The second story is about red tape and government 
bureaucracy, how it at times prevents innovation from 
occurring. I think we need to encourage innovative solutions 
and provide a legal framework for that to happen. I think we 
have to get away from the philosophy that only the Federal 
Government can fix the problem. In Casper, with the refinery, 
it was much more than that. It was a cooperative effort.
    But sometimes, government programs have unintended 
consequences. To that, I want to tell you about my friend Russ 
Zimmer. Russ lives in Torrington, WY. He and Ila are still 
there today. For many years, he ran the local feed store. He 
was a good neighbor, helped out, and volunteered in the 
community, always lending a helping hand. Neighbors actually 
encouraged him to run for the legislature. He got into the 
Wyoming State Senate, and because he was such a good friend and 
a neighbor, he became President of the State Senate. But he ran 
the feed store.
    One day, to help out a lady in the feed store who was 
buying some dog food and some feed, she had a check that she 
got from turning in her battery to a battery disposal place, 
and he didn't want her to have to go to the bank and cash the 
check. So he took it as a third party check, signed the check, 
and kept it. He forgot about it for many years.
    Well, it turns out that the company that the check was 
written from ran this battery disposal company, and that 
company went bankrupt and there was some pollution that 
occurred as a result of the cleanup of the battery business. 
When folks went through the records of the defunct company 
looking for someone to be held liable for the damage at the 
site of the battery disposal business, they found this check 
that Russ Zimmer had cashed for the company.
    Russ Zimmer, good neighbor, innocent bystander, was named a 
potentially responsible party, they call the PRP. Well, for the 
common sense people of Wyoming, this was laughable. But yet, it 
cost Russ Zimmer nearly $10,000 to deal with his legal 
problems. People all around the State of Wyoming are aware of 
it because he was the President of the State Senate, and said, 
is this the way government should work, this government that 
can do all of this to some person who is just trying to be a 
good neighbor and helpful? But under joint and several 
liability, a person who contributed even a very little can be 
held responsible for the entire cost of the cleanup. We need 
some common sense in this.
    Thank you very much, Madam Chairman.
    Senator Clinton. Thank you very much, Senator. We certainly 
agree with that. We need common sense everywhere we can find 
it. It is not always apparent.
    I want to now turn to our Chair of the full Committee, who 
is doing a wonderful job, Senator Boxer.


    Senator Boxer. Thank you so much, Madam Chair. I am very 
proud of this Committee, members on both sides of the aisle. 
You have taken your responsibilities very seriously, and as a 
result I think we are making progress. I do say to our Ranking 
Member of the Subcommittee, welcome.
    So I thank Senator Clinton for holding this hearing on the 
EPA's management of the Superfund toxic waste cleanup program. 
We all know Superfund is a critically important program. It 
protects the health and safety of our families. Here is the 
point. One in four people in America lives within four miles of 
a Superfund site. Let me say that again because people forget. 
One in four people in America lives within four miles of a 
Superfund site, including 10 million children. Every politician 
says our children are our future. Well, if you mean it, then 
you have to protect them so they grow up healthy.
    Superfund sites are the most contaminated toxic waste sites 
in our Country. They are polluted with dangerous toxic 
substances including lead, arsenic, mercury, which are known to 
cause cancer, birth defects and harm the nervous system. 
Superfund was created to address these threats. It is a 
landmark environmental bipartisan law.
    We made great strides in protecting communities by cleaning 
up sites in the 1990's. Unfortunately, in the past several 
years, the pace of listing toxic waste sites and of actually 
cleaning them up has slowed to a crawl. As we have heard from 
Senator Clinton, cleanups have dropped by at least 50 percent, 
from 80 sites down to 40. And this year, EPA couldn't even meet 
its own goal of cleaning up 40 toxic waste sites. Instead, EPA 
now says it expects to clean up 24 sites. That is a drop from 
80 cleanups a year to 24, and it is unacceptable not only to 
members of this Committee, but it should be unacceptable to the 
American people.
    Based upon EPA's own documents and studies by outside 
experts, EPA is likely failing to list many toxic waste sites 
for cleanup that are posing health and environmental risks. The 
agency has failed also to quickly address sites at which human 
exposure is not under control. There are at least 111 of these 
sites, according to data from earlier this year.
    In addition, EPA hasn't even collected enough information 
to determine whether human exposure is under control at 160 
other Superfund sites. These figures are alarming and they are 
telling. Senator Clinton, that is why this hearing is so 
important. We will get out this message. EPA hasn't even 
collected enough information to determine whether human 
exposure is under control at 160 other Superfund sites and they 
admit that 111 of these sites human exposure is not under 
control. More must be done.
    In an effort to determine if EPA could do more work with 
more money, earlier this year I asked a series of questions 
about EPA's management of the program. In the last few days, 
EPA delivered a response, a large volume of paper. Could we 
just show the volume of paper that we received just in the last 
two nights? The vast majority, as Senator Clinton has pointed 
out, has been marked privileged.
    I again went over the laws that rule whether a document is 
in fact privileged and can be kept from the public. The good 
news for our Committee is that we can release all this 
information. It is up to us. It is at our discretion. Unless 
there is a trade secret issue involved in there, or some 
national security problem involved, and as far as we know at 
this point, none of that is the reason these documents are 
marked privileged.
    I just want you to know what I intend to do, because I am 
not going to do it today because we are going through these 
documents. I am going to share these documents with my 
colleagues from both sides of the aisle, and then I intend to 
make these documents public in accordance with the laws of the 
Country and the rules of this Committee.
    I have to ask rhetorically, since when does EPA have the 
right to withhold important information about toxic waste sites 
and cleanup from families whose health may be at risk from 
living near those sites? Who is the boss, the people or the 
EPA? I say the people. That is what this Country is about. They 
deserve to have the truth.
    Superfund is one of our landmark environmental laws. It has 
resulted in cleanup and it helped to protect the health of 
millions of Americans who live near these sites. I will not 
stand by, and I know members of this Committee on both sides of 
the aisle will not stand by while this crucial environmental 
law is undermined and information is kept secret from the 
    I will work with Senator Clinton to follow up on this 
hearing. We will carefully review the large volume of these so-
called privileged information documents that the agency has 
provided. I find it appalling that I would get those at the 
eleventh hour. If we have to have another hearing, I say to 
you, Madam Chair, I am sure you will be available, so we can 
let the people know what the truth is. We will get to the 
bottom of these issues.
    Thank you very much.
    [The prepared statement of Senator Boxer follows:]

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

    I would like to thank Senator Clinton for holding this 
hearing on the Environmental Protection Agency's management of 
the Superfund toxic waste cleanup program. Superfund is 
critically important to protecting the health of children and 
families who live in communities across our country.
    One in four people in America lives within four miles of a 
Superfund site, including 10 million children. Superfund sites 
are among the most contaminated toxic waste sites in the 
    They are polluted with dangerous, toxic substances, 
including lead, arsenic, and mercury, which are known to cause 
cancer, birth defects, and harm the nervous system.
    Superfund was created to address these threats. We made 
great strides in protecting communities by cleaning up sites in 
the 1990's. Unfortunately, in the past several years the pace 
of listing toxic waste sites for cleanup, and of actually 
cleaning up these sites, has slowed to nearly a crawl.
    As we have heard from Senator Clinton, cleanups have 
dropped by at least fifty percent, from 80 waste sites cleaned 
up per year down to 40. And, this year, EPA couldn't even meet 
its own goal of cleaning up 40 toxic waste sites.
    Instead, EPA now says it expects to clean up only 24 
sites--that's a drop from 80 cleanups a year down to 24. This 
is simply unacceptable.
    EPA has also listed far fewer sites for long-term cleanups 
under the program. The number of sites listed has dropped from 
30 per year to 17 per year--a 56 percent decline.
    Based upon EPA's own documents, and studies by outside 
experts, EPA is likely failing to list many toxic waste sites 
for cleanup that are posing health and environmental risks.
    The agency has also failed to quickly address sites at 
which human exposure is not under control. There are at least 
111 of these sites, according data from earlier this year.
    In addition, EPA hasn't even collected enough information 
to determine whether human exposure is under control at 160 
other Superfund sites. These figures are alarming and telling.
    More must be done.
    In an effort to determine if EPA could do more work with 
more money, earlier this year I asked a series of questions 
about EPA's management of the program.
    In the last few days EPA delivered a response, a large 
volume of paper--the vast majority of which is stamped 
    This is unacceptable. I have to ask: since when does EPA 
have the right to withhold important information about toxic 
waste sites and cleanup from families whose health may be at 
risk from living near those sites?
    Superfund in one of our landmark environmental laws. It has 
resulted in the cleanup and helped to protect the health of 
millions of Americans who live near toxic waste sites. It is 
the best and clearest example we have of ensuring that 
polluters pay for the messes they make, and that the public has 
a right to know about the toxic risks they face.
    I will not stand by while this crucial environmental law is 
undermined. I will work with Senator Clinton to follow up on 
this hearing, and will carefully review the large volume of so-
called privileged information the agency has provided. I 
anticipate that we will have to hold additional hearings to get 
to the bottom of these issues.
    Senator Clinton. Thank you very much, Senator Boxer.
    Senator Inhofe, thank you for being here.


    Senator Inhofe. Thank you, Madam Chairman. I appreciate 
having this hearing today.
    The Superfund program was enacted over 25 years ago to deal 
with sites that were endangering the health of citizens and of 
the environment.
    I also want to say before starting, Administrator Bodine, 
you are doing a great job and I appreciate your being here 
    I am happy to say that for the most part, this program has 
been a success. A great number of these sites have been cleaned 
up and we have established additional provisions in the law to 
guard against the creation of new sites and hold those 
accountable for any pollution to our environment.
    I anticipate discussion today regarding the pace of 
cleanups and the addition of new sites to the national 
priorities list. It is important to note that the cleanup rates 
from the previous Administration reflected completions of the 
simpler, the smaller Superfund sites, or the low-hanging fruit, 
as you might say. What we have left today are highly 
complicated sites. I know that in Oklahoma I have been 
concerned with the progress at Tar Creek Superfund site.
    It is very important to understand that, and it happened in 
my State of Oklahoma, we have the most devastating Superfund 
site anywhere in America. I think there was some competition 
for that title, but not anymore. So we are making progress 
    I have been concerned about the progress at the site, but 
over the last few years we have been pleased to see new 
collaboration among the Federal and State agencies involved in 
this site. Although I know there is still a lot left to be 
done, I appreciate your work and the work of the Regional 
Administrator Greene down in Dallas-Fort Worth and Region VI 
Superfund Director Sam Coleman. Both of them have spent a lot 
of quality time personally at this site.
    I might add also there is a very simple way of getting this 
off of high center. When I was chairing this Committee, we 
actually got people from DOJ and DOI and the EPA and the Corps 
of Engineers all in one room together. That is unheard of, but 
when they did, it is awfully hard to pass the buck from one to 
another. So we have made a lot of progress there.
    Within Superfund, we have to prioritize, and the protection 
of human health first. Once this is done, some sensible 
analysis should go into the cleanups of these sites. Cost 
considerations should be balanced with future intent of the 
land use and the risk of exposure. There needs to be modable 
cleanup alternatives considered for each site and this 
important decision should be made by high-level EPA officials, 
someone who can be held accountable, as opposed to someone who 
cannot be held accountable.
    In fact, it has been a focus of mine while I was Chairman, 
and I will continue to press for accountability of the EPA 
regions. All too often, the regions disregard their agency's 
own guidance and directives, making decisions that incur 
significant long-term costs for the agency without any type of 
review. For example, I have been most troubled to learn of the 
Federal creosote site in Manville, New Jersey.
    In this case, the EPA has acted contrary to its own 
guidance and excavated some 450,000 tons of dirt and shipped a 
significant portion of it to Canada for incineration. 
Amazingly, the decision was made by someone at the EPA to dig 
up a shopping mall parking lot and excavate 125,000 tons of 
dirt, only to be recovered by another parking lot. For this 50 
acre site, the price tag was around $300 million for the 
American taxpayers. This type of gold-plated cleanup makes no 
    Now, we hear from some that the Superfund tax should be 
reinstated because EPA lacks funding for cleanups. First of 
all, it is simply not true. But how can this assertion even be 
made when we hear such outrageous spending of money, as in the 
example that I just talked about. It only takes away the 
valuable resources from other sites. That is why I am working 
with Majority Leader Harry Reid on this issue, and the two of 
us will be requesting the GAO to investigate just how the 
Federal creosote site literally grew into a money pit for the 
American taxpayers.
    Some of my colleagues would like to see the Superfund 
corporate tax reinstated. I am strongly opposed to this tax. In 
fact, the Chairman made the statement that ordinary taxpayers 
should not have to pay for something for which they are not 
responsible. That is exactly what this is, this type of a tax.
    I have opposed this for quite some time. The tax does not 
distinguish the polluter from a company that is an 
environmental steward. In fact, when applied, this tax unfairly 
targeted the oil and chemical industries, penalizing companies 
who had no contact with any Superfund sites. The tax goes where 
the money is, not where the responsibility lies. This is not a 
targeted tax on polluters. This is an indiscriminate tax on 
    So the supporters of this tax simply imply that if we do 
not reinState the tax, we will not have enough money to clean 
up sites. This isn't true. There has never been a correlation 
between the amount of money raised by the tax and the dollars 
spent on cleanup.
    For example, in 1966, the tax fund was at its highest 
level, yet the amount spent by that Administration, the Clinton 
administration, for Superfund cleanup was at a 10 year low. 
While in 2004, the money spent by the Bush administration was 
at a 10 year high, while the fund was at a low point.
    So I look forward to discussing these critical items during 
the course of this hearing. I appreciate your holding this 
hearing, Madam Chairman.
    [The prepared statement of Senator Inhofe follows:]

       Statement of Hon. James M. Inhofe, U.S. Senator from the 
                           State of Oklahoma

    Today this Subcommittee will be addressing an important 
issue for Americans and that is the cleanup of toxic waste 
sites. The Superfund program was enacted over 25 years ago to 
deal with sites that were endangering the health of our 
citizens and the environment. I am happy to say that for the 
most part, this program has been quite a success. A great 
number of these sites have been cleaned up and we have 
established additional provisions in the law to guard against 
the creation of new sites and hold those accountable for any 
pollution to our environment.
    I anticipate discussion today regarding the pace of 
cleanups and the addition of new sites to the National 
Priorities List. It is important to note that cleanup rates 
from the Clinton administration reflect completions of simpler 
and smaller Superfund sites--the low hanging fruit. What are 
left today are highly complicated sites. I know that in 
Oklahoma, I have been concerned with the progress at the Tar 
Creek Superfund site. Over the last few years, I have been 
pleased to see a new collaboration among the Federal and State 
agencies involved in this site, and although I know there is 
still much left to do, I appreciate your work and the work of 
Regional Administrator Greene and the Region 6 Superfund 
director Sam Coleman.
    Within Superfund, we must prioritize the protection of 
human health first. Once this is done, some sensible analysis 
should go into the cleanups of these sites. Cost considerations 
should be balanced with future intent of the land use and risk 
of exposure. There needs to be multiple cleanup alternatives 
considered for each site and this important decision should be 
made by high level EPA officials--someone that can be held 
accountable rather than EPA bureaucrats.
    In fact, it has been a focus of mine while I was Chairman, 
and I will continue to press for accountability of the EPA 
regions. All too often the regions disregard their agency's own 
guidance and directives, making decisions that incur 
significant long term costs for the agency without any type of 
review. For example, I have been most troubled to learn of the 
Federal Creosote Site in Manville, New Jersey. In this case, 
the EPA has acted contrary to its own guidance and excavated 
450,000 tons of dirt and shipped a significant portion of it to 
Canada for incineration. Amazingly, the decision was made by 
someone at the EPA to dig up a shopping mall parking lot and 
excavate 125,000 tons of dirt only to be recovered by another 
parking lot. And for this 50 acre site, the price tag is around 
$300 million dollars for the American tax payers. This type of 
``gold plated'' cleanup makes no sense.
    We hear from some that the Superfund tax should be 
reinstated because EPA lacks funding for cleanups. First of 
all, this simply is not true. But how can this assertion even 
be made, when we hear of such outrageous spending with the 
money that they do have. Irresponsible spending at one site, 
like what I just described, only takes away valuable resources 
from other sites. That is why I am working with the Majority 
Leader Harry Reid on this issue and the two of us will be 
requesting the GAO to investigate just how the Federal Creosote 
Site literally grew into a money pit for the American 
    Some of my colleagues would like to see the Superfund 
corporate tax reinstated. I am strongly opposed to this tax as 
it is patently unfair. This tax does not distinguish a polluter 
from a company that is an environmental steward. In fact, when 
applied, this tax unfairly targeted the oil and chemical 
industries penalizing companies who had no contact with any 
Superfund site. The tax goes where the money is, NOT where the 
responsibility lies. This is not a targeted tax on polluters. 
This is an indiscriminate tax on business.
    Supporters of this tax imply that if we do not reinState 
the tax we will not have enough money to clean up sites. This 
is not true. There has NEVER been a correlation between the 
amount of money raised by the tax and the dollars spent on 
cleanup. For example, in 1996 the tax fund was at its highest 
level, yet the amount spent by the Clinton administration for 
Superfund cleanup was at a 10 year low. While in 2004, the 
money spent by the Bush administration was at a 10 year high, 
while the fund was at a low point.
    I look forward to today's hearing and hope that we discuss 
reasonable and fair reforms to the Superfund program.

    Senator Clinton. Thank you very much, Senator Inhofe.
    Senator Lautenberg.


    Senator Lautenberg. Thank you very much, Madam Chairman, 
for bringing this to the public discourse, because it is pretty 
obvious, as I think we look at the records of what has happened 
with Superfund, and we see it being criticized here for an 
action her or an action there. My work with Superfund began in 
1983 because New Jersey had the most Superfund sites of any 
State in the Nation.
    I believe in a pretty basic principle. If you dirty it, you 
clean it up. Polluters, those responsible, not everyday 
taxpayers, ought to pay for the cleanup. Based on their 
actions, it appears that the Bush administration doesn't share 
this logical view.
    I listen very carefully to my friends from the other side. 
They talk about low-hanging fruit. Well, low-hanging fruit got 
to be very expensive because in my hometown of Montclair, N.J., 
we had over $100 million spent on a single site. That doesn't 
sound like very available little fruit when it cost over $100 
    Now, this is the first Administration to oppose reinstating 
the Superfund tax on the oil and chemical industries. Yes, it 
is a broad-based tax, but those are the people who created 
these sites in the first place. Because of their opposition, 
taxpayers are paying to clean up the Nation's worst waste 
sites, rather than the industries that created these messes.
    When we look at who is paying for it now, we heard 
objections to imposing taxes on those who create the mess. But 
now it is John Doe taxpayer who is paying this. In Fiscal Year 
2005, it cost $1.24 billion. In Fiscal Year 2006, it was the 
same thing and in Fiscal Year 2007, $1.260 billion. So it goes 
    So the taxpayers are paying a heck of a price for the 
problems that others created, not to be that way. Cleanups 
under this Administration have plummeted from approximately 80 
per year to 40. Now, EPA estimates it will only cleanup 24 
sites in 2007 and 30 in 2008.
    It is unacceptable. Some witnesses on today's second panel 
will detail how the Administration's failure on Superfund has 
allowed cleanups in my State to languish. There are at least 15 
toxic waste sites in New Jersey where people face uncontrolled 
exposure to contamination. Many of these sites pollute the 
ground and surface water that we rely on for drinking, swimming 
and fishing. I am pleased that this Subcommittee is now 
conducting real oversight of the way EPA runs the Superfund 
program to make sure that it puts public health, not polluter 
profits, first.
    I look forward to hearing from today's witnesses, in 
addition to Ms. Bodine, particularly our witnesses with ties to 
my home State of New Jersey. Bradley Campbell is former 
Commissioner of New Jersey's Department of Environmental 
Protection, and Rena Steinzor is former Staff Counsel to New 
Jersey Representative and later Governor Jim Florio. Jim Florio 
was one of the authors of the Superfund program in 1980. It was 
done in a lame duck session and it was the best thing that came 
out of that session. At least we understand the problems we 
have. Now, what we have to do is figure out a way to make them 
work more efficiently.
    So I thank all of the witnesses for being here, Madam 
    [The prepared statement of Senator Lautenberg follows:]

     Statement of Hon. Frank R. Lautenberg, U.S. Senator from the 
                          State of New Jersey

    Madam Chairman, thank you for holding today's oversight 
hearing on the Superfund program--which the current 
Administration continues to neglect.
    My work to improve the Superfund program began in 1982. I 
got involved because New Jersey had the most Superfund sites of 
any State in the Nation.
    I believe in a pretty basic principle: Polluters--not 
everyday taxpayers--should pay for cleanups.
    But based on their actions, it appears that the Bush 
administration doesn't share this priority.
    This is the first Administration to oppose reinstating the 
Superfund tax on the oil and chemical industries.
    Because of their opposition, taxpayers are paying to clean 
up the nation's worst waste sites, rather than the industries 
that created these messes.
    Cleanups under this Administration have plummeted from 
approximately 80 per year to 40. Now EPA estimates it will only 
cleanup 24 sites in 2007--and 30 in 2008.
    That's unacceptable.
    Some witnesses on today's second panel will detail how the 
Administration's failure on Superfund has allowed cleanups in 
New Jersey to languish.
    There are at least 15 toxic waste sites in New Jersey where 
people face uncontrolled exposure to contamination.
    Many of these sites pollute the ground and surface water we 
rely on for drinking, swimming and fishing.
    I am pleased that this Subcommittee is now conducting real 
oversight of the way EPA runs the Superfund program, to make 
sure it puts public health--not polluter profits--first.
    I look forward to hearing from today's witnesses--
particularly our witnesses with ties to my home State of New 

     Bradley Campbell, former Commissioner of New Jersey's 
Department of Environmental Protection; and
     Rena Steinzor, a former staff counsel for New Jersey 
Representative and Governor Jim Florio.

    Thank you both for being here.

    Senator Clinton. Thank you very much, Senator Lautenberg.
    Now, we will turn to our first witness, Assistant 
Administrator, Office of Solid Waste and Emergency Response of 
the EPA, Susan Bodine.


    Ms. Bodine. Good morning, Madam Chairman, members of the 
Subcommittee. I am Susan Parker Bodine, the Assistant 
Administrator of EPA's Office of Solid Waste and Emergency 
    Thank you for the opportunity to appear before you today to 
talk about EPA's Superfund program and our efforts to protect 
human health and the environment from risks posed by toxic 
waste sites.
    I am going to briefly summarize the progress we are making, 
and I ask that my entire written statement be placed in the 
    Senator Clinton. Without objection.
    In December, the Superfund program will be 27 years old. 
During these 27 years, there has often been lively debate over 
how the program should be managed. But there has always been 
agreement on the goal of the program, to protect human health 
and the environment. I strongly believe in this goal and I know 
that achieving this goal is the deeply held mission of the more 
than 3,200 men and women who work in the Superfund program.
    I am extremely proud of what they have accomplished. To 
date, two-thirds of the sites listed on the national priority 
list have had cleanup construction completed. That is 1,030 
sites, and 95 percent of the sites have had cleanup work 
performed. Our Superfund removal program has conducted more 
than 9,400 removal actions at more than 6,900 sites across the 
Country to address immediate risks to human health and the 
    And just this year, EPA employees made an additional 64 
sites ready for reuse by making sure that the cleanup goals 
applicable to use of the land are met, and making sure that 
institutional controls that are needed are in place so members 
of the community don't have to worry that their child's day 
care center may have been a thermometer plant or their loft 
apartment may have been a former light bulb factory.
    We take our responsibility to the communities very 
seriously. The Superfund program has over 100 community 
involvement coordinators that work at each site with the local 
communities to provide information and help empower residents 
to become active participants in our Superfund cleanup 
decisions. Because we have learned from experience that 
involving the community improves the efficiency and the 
effectiveness of our cleanup remedies, particularly when we are 
getting information about choices with respect to future land 
use and with respect to institutional controls.
    We have also learned that by working with the community, we 
can design a cleanup that will create neighborhood assets. For 
example, at the Pacific Sound Resources site in Washington 
State, EPA worked with the local community, the State, the Port 
of Seattle, and the site owners to develop a cleanup remedy 
that not only protected human health and the environment, but 
also provided the Port of Seattle with the opportunity to 
expand their terminal facility, and it provided the community 
with property for a new waterfront park.
    Ironically, some of the most spirited criticism of the 
Superfund program is a result of over 20 years of progress. The 
current managers of the Superfund program are being criticized 
for no longer completing the construction of as many sites as 
in the 1990's, but that has nothing to do with the management 
of the program and everything to do with the fact that over 
1,200 sites were listed on the NPL before 1991. Of course, a 
large number of these sites completed remedy construction by 
2000. In fact, the sites listed before 1991 represent over 900 
or 90 percent of our completed sites.
    What we are dealing with today are 284 sites that were 
listed before 1991 that did not get finished in the 1990's. 
That is not because of any mismanagement on the part of the 
managers of the Superfund program at that time. It is because 
these are difficult sites. Generally, the sites that have been 
listed more recently, and this trend began in the 1990's, they 
no longer include the small easy sites. Instead, EPA lists 
sites that the States can't address under their State programs, 
and these tend to be more complex sites, sites with 
recalcitrant parties, or orphan sites.
    Again, this is a shift that began under my predecessors, 
particularly Tim Fields, a good cooperative relationship with 
States, and that changes the profile of the sites that we are 
dealing with today because, of course, the Superfund process 
isn't a 1-year or 2 year process. It goes through a series of 
    Now, the sites that are not complete have about 4.3 
separate projects per site. While the sites that have been 
completed had on average about 1.8 separate projects per site. 
Again, if you look at the remaining sites, a large number of 
Federal facilities, and a large number are mega-sites, which 
are sites that we estimate to cost more than $50 million. In 
fact, those two categories together constitute about 40 percent 
of our remaining workload.
    In addition, we are continuing to do work at the 1,030 
sites that are construction complete. We have to make sure that 
institutional controls are in place at those sites, and a lot 
of them have long-term response actions, particularly 
groundwater pump and treat actions that have to be managed.
    Now, one of the other criticisms we have heard is failure 
to list as many sites on the NPL. I can verify, yes, we no 
longer list as many sites as we used to. I already said that 
EPA listed more than 1,200 sites before 1991. At the beginning 
of the program, we were dealing with 150 years of 
industrialization. Since then, the Congress has enacted the 
Resource Conservation Recovery Act to deal with hazardous waste 
management, preventing creation of new NPL sites.
    In addition, States have developed their own cleanup 
programs which can deal with the, again, the easier sites, the 
ones that are less contaminated. So the fact that we are not 
listing more sites on the NPL is not a sign of failure. It is a 
sign of success.
    I realize I have gone over, so I ask that my complete 
statement be in the record.
    [The prepared statement of Ms. Bodine follows:]

 Statement of Susan Parker Bodine, Assistant Administrator, Office of 
   Solid Waste and Emergency Response, U.S. Environmental Protection 

    Good morning Madame Chairman and Members of the 
Subcommittee. I am Susan Parker Bodine, Assistant Administrator 
of the U.S. Environmental Protection Agency's Office of Solid 
Waste and Emergency Response. Thank you for the opportunity to 
appear today to discuss the Superfund program: the significant 
progress that has been made, the challenges that remain, and 
what EPA is doing to address those challenges.


    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 concerns over Love Canal and other 
hazardous waste sites.
    As it approaches its 27th anniversary, the Superfund 
program has evolved into a program that is very successful in 
protecting human health and the environment. Through fiscal 
year 7, remedy construction was complete at 1,030 sites. In 
other words, two-thirds of all sites listed on the National 
Priorities List (NPL) have had cleanup construction completed 
and of the remaining sites not yet completed, the majority of 
sites have cleanup work underway. In addition, EPA has 
conducted more than 9,400 removals
    at more than 6,900 sites to address immediate threats to 
human health and the environment. Further, EPA's long-term site 
management and post-construction efforts in fiscal year 
resulted in an additional 64 sites being made ready for 
anticipated use. My testimony will discuss both the process by 
which the Superfund program protects human health and the 
environment, as well as how the Superfund program has evolved 
over the years.
Site Discovery, Screening, and Assessment
    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 pre-screened. A 
majority of sites are screened out at this point because they 
pose little or no potential threat to human health or the 
environment. The remaining sites are entered into the 
Comprehensive Environmental Response, Compensation, and 
Liability Information System (CERCLIS). Following preliminary 
assessment by EPA or its State, Tribal or other Federal 
partners, more sites are screened out. After the site 
assessment process, only approximately 2 percent of sites 
remain to be considered for potential listing on the NPL. 
Through fiscal year 7, more than 47,000 sites have been 
assessed (both removal and remedial program assessments), 
including final remedial assessment decisions at 39,766 sites 
(395 in 2007, exceeding our goal of 350). In addition to site 
assessment conducted under the Superfund program, more than 
1000 sites are assessed each year under EPA's Brownfields 
program. EPA assessed 2,139 sites under the Brownfields program 
in 2006, the most recent year for which data are

Selection of Cleanup Program
    At its inception, the Superfund program was often the only 
program available to clean up a toxic waste site. That is no 
longer true. Accordingly, following site assessment, EPA and 
its State and Tribal partners identify the most appropriate 
program to address sites that require cleanup. This may be a 
State voluntary or enforcement program; it may be the RCRA 
corrective action program; it may be the Superfund removal 
program; it may be the Superfund remedial program either as a 
Superfund Alternative Site, or by listing on the NPL. Moreover, 
sites that meet certain statutory criteria are eligible for 
Federal Brownfields assistance.
    At sites that are addressed under the Superfund remedial 
program, the data developed from 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 
listing on the NPL. If listed on the NPL, a site becomes 
eligible for remedial funding. To date, EPA has listed 1,569 
sites on the NPL. The vast majority of NPL sites (1,211) were 
listed before 1991. Fewer sites are considered by EPA for 
listing on the NPL than in the early days of the program. 
However, that result is not surprising given the development in 
the 1990's of other programs, particularly State programs, to 
address site cleanup and shows the success of environmental 
programs nationwide.
    Currently, EPA proposes and finalizes sites on the NPL 
twice a year, generally in March and in September. In 2007, EPA 
finalized 12 sites on the NPL and proposed 17 sites.

Remedy Selection at NPL Sites
    After listing, EPA or responsible parties (including other 
Federal agencies) usually need to conduct further investigation 
to determine the most appropriate remedy for the site (called 
the remedial investigation/feasibility study). Once a remedy 
has been selected, EPA or responsible parties with EPA 
oversight then design the remedial action.
    Remedy selection also has evolved over the years. In 1995, 
EPA issued a policy on how the Agency considers reasonably 
anticipated uses of the land when selecting a remedy. In 
implementing this policy, EPA works with the community, 
property owners, and local governments to identify what the 
reasonably anticipated use of the property may be. EPA also may 
provide funds for community involvement in the remedy selection 
process through Technical Assistance Grants.
    EPA's community involvement programs help make the 
community valuable participants in the remedy selection 
process. By listening to the community's needs and concerns, 
EPA often is able to tailor remedies to address them. For 
example, at the MacAlloy Superfund site in North Charleston, 
South Carolina, a residential community was located next to the 
industrial facilities that were being remediated. A developer 
was interested in redeveloping the site. To help preserve the 
community, EPA worked with the responsible party and the 
developer on an additional parcel of property that was not 
adjacent to the community, relocating industry away from an 
existing neighborhood.
    Involvement in the remedy selection process also helps the 
community understand the tradeoffs associated with different 
remedy options and the basis for remedy decisions. For example, 
at the Department of Energy's Feed Materials Production Center 
in Fernald, OH, the community was originally reluctant to 
support any remedy that allowed waste to be left in place. 
However, by creating a Fernald Citizens Advisory Board that was 
fully engaged in the remedy decision process, the community 
came to accept and strongly support the selected remedy, which 
pursued a ``balanced approach,'' allowing low-concentration 
materials to be contained in an onsite disposal facility, 
thereby reducing both the time and cost of cleanup.
    To ensure that remedies are cost-effective and are 
employing the most recent technologies, in 1996, EPA assembled 
a group of experts from both Headquarters and Regional offices 
to review the technical merits of high cost remedies. 
Currently, the Remedy Review Board reviews all remedies 
expected to have costs above $25 million. This review normally 
takes place before a remedy is proposed. After a remedy is 
proposed and public comment is solicited, the remedy is 
documented in a Record of Decision (ROD).
    EPA has learned a great deal about how to clean up 
contaminated sites over the last 27 years. Beginning in 1996, 
EPA established a policy to improve cleanup effectiveness by 
reviewing earlier remedies. Through 2006, EPA has updated more 
than 700 remedies, improving both remedy effectiveness and 
reducing cost.
    In particular, EPA has learned a great deal about how to 
address groundwater contamination. Originally, EPA installed 
groundwater pumping and treatment operations at nearly every 
groundwater contamination site. However, over time, the Agency 
learned that pumping and treating was not always needed and 
that monitored natural attenuation also could achieve 
groundwater restoration goals. EPA clarified its policy on 
monitored natural attenuation in 1999. This policy 
clarification resolved remedy issues at a number of sites and 
allowed 42 sites to be considered construction complete between 
1999 and 2000. EPA also realized that already installed 
groundwater pumping and treating operations were not always 
operating as expected. Beginning in 2000, EPA began focusing on 
optimizing groundwater remedies. In some cases, optimization 
involves adding or moving extraction wells to more effectively 
capture the contaminated plume. In other cases, optimization 
involves turning off a pumping and treatment operation because 
the contamination is naturally attenuating. EPA has optimized 
more than 50 Superfund-financed groundwater remedies and 
anticipates optimizing at least four more in 2008.

Remedy Construction
    Once a remedy design is complete, EPA or the responsible 
parties with EPA oversight construct the remedy. In 1993, to 
measure interim progress of the Superfund program, EPA began 
tracking the number of sites where all remedy construction was 
complete. Currently, remedy construction has been completed at 
1030 sites (66 percent of the NPL), and is underway at an 
additional 318 sites (20 percent of the NPL). A site generally 
is considered construction complete when all the remedies at 
the site are operational and functional.
    At some sites, remedy construction has been underway for a 
great deal of time. In fact, of the 535 sites on the NPL where 
remedy construction is not complete (an additional four sites 
were differed to other programs), 284 have been on the NPL 
since before 1991. This does not mean that EPA had been 
neglecting these sites. It simply means that some sites present 
a greater cleanup challenge than others, often due to the size 
or complexity of the sites.
    In 1999, as part of a Resources for the Future study of the 
Superfund program, EPA characterized non-Federal facility 
Superfund sites as either ``mega-sites'' or nonmega-sites. A 
mega-site is a site that is expected to cost over $50 million 
to remediate. EPA has added this term to its Superfund data 
base, to help track the number of mega-sites. To date, 154 non-
Federal facility sites have been identified as actual or 
potential non-Federal facility ``mega-sites.'' Of these, 26 
achieved construction completion in the 1990's, 30 have 
achieved construction completion since 2000.
    Sites owned by the Department of Defense or the Department 
of Energy also frequently present significant cleanup 
challenges. To date, there are 172 Federal Facility sites on 
the NPL. Of these, 22 achieved construction completion in the 
1990's and 37 achieved construction completion since 2000.
    Given the challenges posed by ``mega-sites'' and Federal 
facilities, it is not surprising that remedy construction work 
remains at many of these sites. To date, of the sites that have 
all remedy construction completed, only 11 percent were ``mega-
sites'' or Federal facilities. However, of the 535 NPL sites 
with construction work remaining, 39 percent are either ``mega-
sites'' or Federal Facilities.

Addressing Immediate Risks
    Although completing remedy construction at large, complex, 
sites may take many years, the first step at each site is to 
address immediate risks. This is done through the EPA Removal 
program. For example, EPA has provided alternative water 
supplies to more than 2 million people so they are not drinking 
or using contaminated water. To date, the Removal program has 
conducted more than 9,400 removals at more than 6,900 sites 
(including 413 removals in fiscal year 7). Of these, more than 
2,400 have occurred at NPL sites. In fact, EPA has carried out 
removal actions at 56 percent of the sites on the NPL, 
including 142 removals at NPL sites not yet in the long-term 
construction phase. This means that 95 percent of NPL sites 
have had either removal or remedial cleanup work. For example, 
EPA did not wait to list the Omaha Lead site in Nebraska 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, EPA has 
completed cleanups of more than 3,500 residential yards through 
the end of fiscal year 7. Similarly, in 1999, EPA began removal 
actions in Libby, Montana. The Libby site was listed in 2002, 
and a final remedy has not yet been selected. However, EPA has 
been and continues to be actively working in Libby to reduce 
asbestos exposure. To date, EPA has carried out removal 
activities at 951 properties in and around Libby and has 
removed more than 500,000 cubic yards of contaminated soil.

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, EPA published its Post Construction 
Completion Strategy. The strategy was developed to improve site 
operations and maintenance, remedy performance tracking, 
institutional control (IC) 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. Site-specific 
information on ICs will be available on the EPA web site, 
including contacts to obtain additional information and a link 
to the IC instrument.
    In fiscal year 7, the Superfund program adopted a new 
measure to capture site progress beyond the construction 
completion milestone: Site-Wide Ready for Anticipated Use. This 
measure tracks the number of NPL sites where the remedy is 
constructed (construction complete), cleanup goals for 
anticipated uses of the land have been met, and any necessary 
institutional controls are in place. EPA exceeded its fiscal 
year goal of making 30 Superfund sites ready for anticipated 
use by achieving this milestone at 64 sites.

    EPA also has been very successful in leveraging Federal 
dollars to secure private party cleanups. EPA conducts searches 
for responsible parties throughout the response process and 
takes action to ensure cleanup work is conducted or paid for by 
those responsible parties, rather than by EPA using 
appropriated dollars. Potentially responsible parties (PRPs) 
have performed work at approximately 70 percent of Superfund 
site cleanups.
    Since 2001, EPA secured commitments (through fiscal year 6) 
from responsible parties to carry out cleanups and reimburse 
EPA for past costs worth nearly $6 billion. The cumulative 
value of private party cleanup commitments and cost recovery 
settlements (through fiscal year 6) is more than $25 billion. 
EPA's enforcement efforts have allowed the Agency to focus the 
Agency's appropriated funds on sites where responsible parties 
cannot be identified or are unable to pay for or conduct the 
    Superfund enforcement also has evolved over the years. In 
the early years of the program, most cleanup work was carried 
out by EPA, using appropriated funding and then seeking cost 
recovery. To leverage Federal funding and increase the number 
of sites being cleaned up, EPA adopted an ``enforcement first'' 
policy in 1991 to require PRPs to perform cleanups. As a 
result, more work is being done with responsible party 
resources up front, and EPA therefore needs to recover a 
smaller proportion of cleanup costs. PRP resources represent a 
greater proportion of cleanup than in the early years of the 
program. This includes work carried out by EPA using 
responsible party dollars, as well as work carried out by 
responsible parties themselves.
    In the 1986 amendments to CERCLA, Congress added a 
provision which allows EPA to retain and use funds received in 
settlement with responsible parties in site-specific accounts. 
The principal and any interest earned by these ``special 
accounts'' may be used to fund response actions at the site 
where the settlement dollars were received.
    When the Agency uses funds from a special account it allows 
the Agency to use its appropriated funding for cleanup at other 
sites were there are no viable or liable parties. To date, EPA 
has spent more than $1 billion from special accounts to fund 
cleanup actions and anticipates spending millions more to clean 
up sites where responsible parties have deposited funds for 
site-specific cleanups.
    EPA's enforcement tools also have evolved into significant 
tools to advance revitalization of Superfund sites, including 
encouraging private sector cleanup and development. At the Many 
Diversified Interests (``MDI'') site, a 36 acre former foundry 
facility listed on the NPL, EPA, working with the site's 
Bankruptcy Trustee, developed a proposed administrative 
settlement document which the Trustee published along with a 
request for bids to purchase the property. The effort to 
solicit bids for acquisition was successful, with the 
understanding that the winning bidder would undertake the 
cleanup remedy selected in EPA's Record of Decision (ROD), and, 
in return receive covenants not to sue for existing 
contamination. The site was purchased by a developer who agreed 
to perform the selected remedy. Today, the site is being 
cleaned up and its ultimate use will be development of a town 
house community.

Financial Management
    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;
     Aggressively deobligated funds from old contracts, 
grants, cooperative agreements and interagency agreements, 
resulting in approximately $740 million in additional resources 
for the program through fiscal year 6;
     Utilized special account resources from PRP settlement 

    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.
    In addition, 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 resources 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. In fiscal year 7, 
EPA funded all new cleanup construction projects that were 
ready for construction funding.

Public Information
    Over the last several years, EPA has greatly expanded the 
amount of information available to the general public regarding 
Superfund sites. For example, beginning in 2002, to more 
accurately reflect the environmental outcomes of the Superfund 
program, EPA began tracking the sites where a complete human 
exposure pathway to contaminants above levels of concern has 
been eliminated, as well as sites where migration of 
groundwater contamination has been controlled.
    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. 
The Superfund program has 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. EPA 
has posted a description of the exposure scenario on the 
Superfund Site Profiles web site, along with actions that are 
planned or underway to address the situation. This has been 
done to ensure that the public has access to current 
information regarding the human exposure status at each 
Superfund site that is listed as human exposure not under 
control. For each site where the Agency is still gathering data 
to make a human exposure decision (i.e., insufficient 
information to make a human exposure determination), EPA has 
posted on that site the reasons for the insufficient data 
determination, along with the actions planned or underway to 
gather the necessary data.
    In addition to the exposure information described above, 
EPA has enhanced the availability of information regarding 
Superfund sites in the following ways:

     Extensive information about all Superfund sites is 
available in site profiles which are typically updated each 
month on EPA's web site;
     EPA's community involvement coordinators regularly 
communicate site information to community members who live near 
Superfund sites through public meetings, mailings, and 
published notices;
     On its Superfund web site, EPA posts Records of Decision 
(RODs) and other key decision documents [ROD Amendments, 
Explanation of Significant Differences (ESD)] for NPL sites. 
More than 3,300 Superfund program documents are currently 
available on the web site;
     EPA has added information from its Institutional Control 
Tracking System to Superfund site profiles. This information 
provides the public with the status of a site's institutional 
controls (IC), including whether an IC is needed and what 
(legal) mechanism(s) will be used to implement the IC;
     To reach an even broader audience, EPA has been working 
with data providers such as Microsoft, Environmental Systems 
Research Institute (ESRI), and Google to develop the necessary 
links to allow these companies to access EPA site information 
and overlay it on maps and other geospatial displays (such as 
Google Earth).

                          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 tobeneficial 
economic, ecological, and societal uses. EPA is ensuring that 
cleanup programs protect public health, welfare, and the 
environment and also that the anticipated future uses of these 
lands are fully considered in cleanup decisions.
    EPA helps facilitate opportunities for integrating cleanup 
and reuse. Promoting community-driven site reuse planning and 
reuse is another way EPA can help to ensure protective and 
sustainable cleanups. EPA has supported privatization efforts 
recently undertaken at two Federal facilities on the NPL. At 
Department of Defense (DoD) Base Realignment and Closure (BRAC) 
sites, EPA recognizes that the privatization of the cleanup, 
where a developer or other organization rather than the 
military conducts the cleanup, can present an opportunity to 
integrate redevelopment planning with cleanup. The first such 
privatization occurred on August 27, 2007 at the McClellan Air 
Force Base, California. The second is expected to occur later 
this fall at Ft. Ord, CA. Privatizing cleanups at closing 
military Superfund sites provides another option to Federal and 
State agencies and local communities to help maximize cleanup 
and redevelopment resources to help move properties back into 
productive reuse more quickly.

                           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. Through FEMA funding, EPA's Emergency Response program 
was actively involved in the response to the events of 9/11 and 
in the response to Hurricanes Katrina and Rita.
    Although EPA was not involved in incidents of that 
magnitude this year, EPA's Emergency Response program was 
actively involved in responses and cleanups throughout the 
country, such as the tornado disaster in Greensburg, KS, and 
the Synthron Chemical plant explosion and fire in Morganton, 


    The Bush administration is 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.

       Responses by Susan Parker Bodine to Additional Questions 
                           from Senator Boxer

    Question 1. EPA has slowed or not conducted cleanups due to 
funding considerations for several years. Looking at the past 5 
fiscal years, how did EPA determine which contaminated sites to 
slow down or not cleanup due to funding issues?
    Response. I want to assure you of the U.S. Environmental 
Protection Agency's (EPA's) continuing commitment to clean up 
sites that pose risks to human health and the environment. The 
appropriated funding levels for the Superfund program have 
remained steady over the past five fiscal years, between $1.2 
and $1.3 billion dollars. Moreover, EPA supplements its annual 
appropriated funding with resources deobligated from prior 
fiscal year contracts, settlements with responsible parties, 
and State cost share contributions. There has not been a 
significant decrease in Superfund cleanup work. Superfund 
construction work has remained relatively steady over the 
years; however, work is now concentrated on more costly, 
complex sites. While there have been years in the past five 
fiscal years that EPA did not fund all of the new site 
construction projects ready for construction, we are pleased to 
report that in fiscal year 2007, EPA funded all new 
construction projects that were ready for funding, therefore, 
there is no backlog of unfunded Superfund site construction 
    EPA prioritizes funding for Superfund construction projects 
in the following manner: the highest priority is given to 
funding emergencies which pose immediate threats to human 
health or the environment. The next priority is for ongoing 
construction actions that have already begun and require 
additional resources. Ongoing actions receive a high priority 
for funding for several reasons: Once an action is started, the 
best management practice is to complete it so contamination is 
not left exposed or allowed to re-contaminate an areas; and, 
significant additional costs could be incurred if these 
projects were to be shut down in the middle of cleanup 
    After emergencies and ongoing construction actions are 
funded, EPA looks to fund new construction projects. New 
construction projects are ranked according to the risk-based 
criteria established through EPA's National Risk-Based Priority 
Panel evaluation process (http://epa.gov/superfund/programs/
nrbpp/index.htm). In addition, EPA considers the timing of when 
a project is ready to begin as well as EPA's goals under the 
Government Performance and Results Act.
    Question 2. The Government Accountability Office (GAO) in 
2007 released an investigation of EPA's public notification 
efforts at sites that received asbestos-contaminated material 
from Libby, Montana. GAO concluded, ``The extent and 
effectiveness of EPA's [public] notification efforts varied 
across the 13 states for which EPA had lead responsibility to 
conduct cleanups. . .  At 8 of the sites, EPA regional offices 
did not implement key public-notification provisions of the 
NCP. . .  [Although EPA's public-notification guidance strongly 
emphasizes that meeting NCP provisions is often insufficient to 
meet community needs for public notification, EPA officials did 
not conduct notification activities beyond those provisions at 
4 sites in EPA region 9.'' Two of these four sites are located 
in California, in the towns of Glendale and Newark.
    Describe why EPA failed to conduct any recommended 
notification activities at sites in California, including 
Glendale and Honolulu, Hawaii, and Phoenix, Arizona.
    Response. EPA did not fail to conduct notification 
activities. EPA relies on the discretion afforded in the 
National Contingency Plan (NCP) to make case-by-case decisions 
on whether to exceed required public notification and outreach 
activities. The referenced sites in Glendale CA, Honolulu HA, 
and Phoenix AZ, are discussed below.
    The sites in California, Hawaii, and Arizona were all 
conducted as time critical Responsible Party (RP) lead removals 
under an Administrative Order on Consent. The removal actions 
were small in scope and in each case the RP was willing to 
conduct the response action. The EPA OnScene Coordinator (OSC) 
provided Federal oversight and was the designated spokesperson 
for the site. The OSC interacted with the industrial site 
occupants and owners. A repository for local information was 
established at local libraries. An Administrative Record was 
established and updated up onsite completion. Public notice was 
made at the start of the removal per the NCP when the 
Administrative Record was received by the repositories (Region 
9 Superfund Records Center and local Library). Also, public 
notices were made in the local press (Glendale NewsPress, The 
Argus, Honolulu Advertiser and Arizona Business Gazette). A 
public comment period was held for 30 days and for each of 
these sites no public comments were received. The State Health 
Departments were all notified at the time of the site 
    EPA is committed to its mission of protecting human health 
and the environment and recognizes that it is important to 
communicate with the community and State and local government 
officials regarding cleanups in their areas. EPA always strives 
to inform the public on human health and environmental impacts 
associated with an EPA cleanup activity. EPA is reviewing 
carefully the findings of the GAO report and considering the 
lessons learned from the responses of State and local 
government officials and community focus groups.

    Question 3. Explain the reason that EPA rejected each of 
the recommended actions at the ten other sites located in 
Dearborn, Michigan, Denver, Colorado, Great Falls, Montana, 
Hamilton Township, New Jersey, Minneapolis, Minnesota, Minot, 
North Dakota, Salt Lake City, Utah (Intermountain Insulation 
and Vermiculite Intermountain), and Wilder, Kentucky.
    Response. EPA does not believe it rejected actions 
recommended in the GAO report. EPA continually strives to 
provide the public with early and meaningful opportunities for 
involvement in cleanup decisions. In doing so, we comply with 
the public outreach requirements under the National Contingency 
Plan (NCP).
    EPA understands that it is important to communicate with 
the community and State and local Government officials 
regarding cleanups in their areas. Sections of the National 
Contingency Plan (NCP) are specifically designed to allow rapid 
action by EPA responders when there is an urgent threat to 
human health and the environment. Included in the NCP are 
requirements for public notification and outreach.
    The ten sites referenced in your question varied greatly in 
scope of cleanup which can have a significant impact on the 
type and extent of public outreach efforts. For example, the 
Great Falls, MT site in Region 8 was a single residence where a 
former worker at an exfoliation plant had taken asbestos wastes 
and placed them in the driveway. For this site, EPA chose to 
meet with State and local officials and with neighbors in the 
near vicinity rather than distributing fact sheets and holding 
public meetings.
    Conversely, the Region 5 site in Minneapolis, MN involved 
hundreds of residences where residents had taken home 
contaminated ``free crushed rock'' from the exfoliation plant. 
Region 5 provided extensive outreach in identifying those 
contaminated properties and communicating with hundreds of 
potentially affected homeowners. The Dearborn, MI site in 
Region 5 which involved sampling of hundreds of homes also 
resulted in extensive community outreach. The Hamilton Township 
Site in EPA Region 2 is an example where, due to growing public 
interest, community outreach was increased after Phase I 
activities at the site. The Region prepared and distributed 
fact sheets and provided information to residents, businesses, 
local and State officials, interested stakeholders and the 
press to keep them fully informed of all sampling activities. 
In addition, the EPA On-Scene-Coordinators (OSCs) visited many 
residents to talk about the ``Off--Site Sampling'' and local 
businesses to discuss the Phase II removal action.

    Question 4. Describe what steps EPA has taken since the GAO 
report was issued to improve its public notification activities 
at the sites listed above?
    Response. Work at the sites listed above had been completed 
prior to the issuance of the GAO report. It should be noted 
that these cleanups were all conducted as ``time-critical 
removal actions,'' where the threat to public health was 
determined to be urgent and cleanups were initiated and 
completed quickly. EPA OSCs and, in some cases, Community 
Involvement Coordinators remain available to the public to 
answer questions onsite actions. EPA may conduct additional 
public notification and outreach activities should there be a 
need for follow--up site activities.

    Question 5. Describe what analysis EPA has done of the 
public notification activities at other sites that may have 
received asbestos-contaminated material from Libby, Montana. 
Please describe the site, type of analysis, and EPA's 
conclusion regarding the adequacy of notification.
    Response. In response to the multi-phase GAO review leading 
to the issuance of the report, ``EPA May Need to Reassess Sites 
Receiving Asbestos-Contaminated Ore from Libby, Montana and 
Should Improve Its Public Notification Process'' (GAO--08--71), 
EPA headquarters and regional offices reviewed available site-
specific information on the GAO list of271 vermiculite sites. 
Based on best available information, EPA reviewed GAO data (or 
provided data) on facility location, type of facility, tonnages 
of venniculite received and EPA actions. The review was helpful 
in establishing a current baseline of site activities including 
activities at sites not specifically addressed by the GAO 
report. For instance, Region 2 visited 24 sites and developed 
reference fact sheets documenting EPA activities for each of 
these sites. Of these Region 2 sites, only the Hamilton 
Township, NJ site investigation resulted in the need for a time 
critical removal action. Public notification and outreach 
activities at the Hamilton Township, NJ site are well--
documented in the GAO report and supporting regional 
submissions. EPA complies with the public notification and 
outreach requirements under the National Contingency Plan 
(NCP). Should any new sites be identified that require 
cleanups, EPA will be diligent to follow all NCP requirements 
for public notification.

    Question 6. Has EPA conducted additional sampling and 
testing using modern methodologies at other sites to determine 
if the agency should take additional cleanup actions now, 
rather than to wait until after 2010 when the agency is 
scheduled to complete studies on asbestos' risk? If so, please 
list the sites, the results of the sampling, and any additional 
cleanup or notification actions planned by EPA.
    Response. Due to the concern for public health risk 
associated with asbestos exposure, EPA is not waiting for more 
definitive tests on asbestos toxicity to be completed in 2010. 
Rather, since empirical data strongly relates asbestos exposure 
to increased risk of cancer and plural disease, EPA is 
aggressively proceeding with site investigations using 
appropriate and best available techniques and science. Further, 
EPA is gathering data that, although not currently used in risk 
evaluation per the Integrated Risk Information System (IRIS), 
may be useful for the updated risk model. Specifically, EPA is 
enumerating the full body of asbestos structure size fractions. 
Doing so should allow for improved risk calculations.
    The Asbestos Committee of the EPA led Technical Review 
Workgroup supports and promotes consistent application of the 
best science in the field of risk assessment for asbestos at 
contaminated sites nationwide. The asbestos committee provides 
site consultation in support of regional requests and develops 
technical guidance. It has developed a draft guidance document, 
``Framework for Investigating Asbestos-Contaminated Superfund 
Sites'' currently in draft and undergoing external peer review. 
The draft document provides (l) a recommended flexible 
framework for investigating and evaluating asbestos 
contamination that can be used for removal and remedial actions 
within the Superfund program, and (2) detailed recommended 
standard operating procedures (SOPs) for collecting data on the 
nature and extent of asbestos contamination at Superfund sites. 
The draft Framework discusses specific strategies and methods 
that are based on the best available science for characterizing 
exposure and risk from asbestos. Activities at the below 
mentioned sites helped inform development of the draft 
    The following are examples of sites where best available 
sampling and testing techniques (e.g., activity-based-sampling) 
have been applied or are planned:

     N-Forcer (Dearborn, MI): Asbestos was detected at levels 
of concern. In 2005 contaminated soil was removed to a depth of 
18 inches, an impermeable barrier was installed, and the site 
was backfilled to prevent exposure. No additional cleanup or 
notification actions are planned.
     Vermiculite NW Inc (Spokane, WA): In 2000 and 2001, EPA 
determined that there was asbestos contamination in the soil 
and that it could become airborne if disturbed. In 2004, EPA 
turned the site over to the State of Washington for oversight 
of the cleanup activities under the Model Toxics Control Act 
Voluntary Cleanup Program. No further actions are planned by 
     Intermountain Insulation (Salt Lake City, UT): EPA 
sampling results showed unacceptable levels of asbestos in the 
air. EPA completed a removal action at the site in 2004. No 
additional actions are planned by EPA.
     Vermiculite NW, Inc (Portland, OR): EPA testing showed 
unacceptable levels of asbestos in soil and in the former 
processing building. The responsible party cleaned the soil and 
the building with EPA oversight. No further action is planned.
     Big Tex Grain (formerly Texas Vermiculite/WR Grace) San 
Antonio, TX: EPA testing indicated unacceptable levels of 
asbestos in the soil, in the processing building, and in the 
air monitoring onsite. Activity based sampling has started. 
Pending the results of the sampling a removal may be done on 
the property.
     EPA is planning a site assessment at the Zonolite Co/WR 
Grace in New Orleans, LA. This site is located at 4729 River 
Road and the assessment is planned for the summer of 2008.

    Question 7. Does EPA have any plan to conduct additional 
sampling and testing at other sites to determine if the agency 
should take additional cleanup actions not, rather than waiting 
until after 2010 when the agency is scheduled to complete 
studies' on asbestos' risks? If so, please describe the plan, 
including specific actions, timeline, and anticipated funding 
    Response. EPA is not waiting until the results of further 
studies to conduct additional sampling and testing, including 
possible cleanup activities at sites where asbestos-
contaminated Libby vermiculite may be present. EPA is committed 
to protecting communities from hazards associated with asbestos 
contamination. EPA agrees that, more sensitive-risk-based 
sampling methods have been developed and we have experience 
using these methods. We have developed procedures for 
conducting activity-based sampling, which allow us to better 
measure human exposure. These procedures and a decision making 
framework for assessing asbestos--contaminated sites are 
described in a draft report titled, ``Framework for 
Investigating Asbestos--Contaminated Superfund Sites''.
    We agree it would be prudent to take another look at the 
completed site assessments to determine whether some of the 
previously assessed sites may benefit from a reassessment. EPA 
is currently developing a strategy (in Fiscal Year 2008) to 
reassess, as necessary, and prioritize these sites.
    In addition to the planned activities described in our 
answer to question 3A and with regard to sampling and testing 
at specific sites--EPA has approved an Action Memorandum to 
conduct a time critical removal at a site in Ellwood City, PA. 
EPA Region III does not plan to conduct any additional sampling 
or testing using activity-based sampling at the site given that 
cleanup actions are scheduled to begin in May, 2008.

    Question 8. Describe the number of workers potentially 
exposed to dangerous levels of asbestos at the 271 sites 
described in the 2007 GAO report.
    Response. See combined answer for questions 9 and 10 below.

    Question 9. Describe the number of people, including the 
number of children, who may have been exposed to dangerous 
levels of asbestos at the 271 sites described in the 2007 GAO 
    Response. EPA does not currently have information on 
numbers of people who may have been exposed at the 271 sites 
described in the GAO report. However, there is an ongoing 
project of the Agency for Toxic Substances and Disease Registry 
(ATSDR) whic1:l is producing this kind of information for 
selected sites. ATSDR is working with other Federal, state, and 
local environmental and public health agencies to evaluate 
public health impacts at 28 sites that processed Libby 
vermiculite. The evaluations focus on the processing sites and 
on human health effects that might be associated with possible 
past or current exposures. For each site evaluated, ATSDR is 
issuing a report, known as a health consultation. These reports 
generally include a description of the numbers of workers and 
other populations that may have been exposed to asbestos at 
these sites.
    ATSDR posted the health consultation reports for the 28 
sites on the Internet at http://www.atsdr.cdc.gov/asbestos/
sites/national--map/. ATSDR is evaluating the sites that 
processed Libby vermiculite by (1) identifying ways that people 
could have been exposed to asbestos in the past or ways that 
people could be exposed now, and (2) determining whether the 
exposures represent a public health hazard. ATSDR will use the 
information gained from the site-specific investigations to 
recommend further public health actions as needed.
    EPA encourages local, state, and Federal public health 
agencies to launch outreach efforts to locate and assist former 
workers and other highly exposed individuals.

    Question 10. Describe the number of people who live within 
one mile of the 19 sites that the 2007 GAO report discusses.
    Using facility site address information, Census data, GIS 
tools and information in the draft ATSDR Summary Report 
mentioned above, EPA developed the table below describing the 
number of people estimated to live within one mile of the 19 
sites discussed in the GAO report.

    Question 11. Describe the date that EPA first learned that 
substances containing less than 1 percent asbestos, including 
areas that received asbestos-contaminated material from Libby, 
Montana and products made of such material, could present a 
threat to human health. Please provide all relevant records 
that demonstrate EPA had such information.
    Response. Asbestos-related risk and human health effects 
are measured in terms of airborne fibers, that is, the number 
of fibers released into the air that could be contained in the 
breathing zone. Measurements of fibers are made using electron 
microscopy. Bulk measurement, such as the 1 percent (1 percent) 
threshold, is not a health based measurement. Rather, it 
measures the amount of asbestos contained in materials in a 
bulk state.
    The 1 percent asbestos threshold is a Clean Air Act 
regulatory criterion used for asbestos-containing material 
(ACM) as defined in Subpart M of the National Emission 
Standards for Hazardous Air Pollutants (NESHAP). EPA issued a 
Superfund program memorandum on August 10,2004 that indicated 
the 1 percent threshold may not be reliable for assessing 
potential human health risk from asbestos contaminated soils at 
hazardous waste sites and that a risk-based, site specific, 
action level was more appropriate when evaluating response 
actions for asbestos.
    With respect to the tremolite asbestos contamination of 
vermiculite, EPA first learned in 2001 that W.R. Grace, owner 
and operator of the Libby Montana vermiculite mining 
operations, had tested its vermiculite attic insulation in the 
late 1970's and found that it released six times the OSHA 
permitted level at the time. Subsequent to these findings, 
discussions during the EPA conference, ``EPA's Asbestos Site 
Evaluation, Communication, and Cleanup Workshop, Keystone, 
Colorado'' held September 23--26, 2003 helped to drive the 
decision to issue the August 10,2004 memorandum ``Clarifying 
Cleanup Goals and Identification ofNew Assessment Tools for 
Evaluating Asbestos at Superfund Cleanups'' (OSWER Directive 
9345.4-see attached). This 2004 memorandum directed that 
Regions should, ``develop risk-based, site-specific action 
levels to determine if response actions should be taken when 
materials containing less than 1 percent asbestos. . . are 
found on a site.''

    Question 12. Describe the actions, other than those 
discussed in the 2007 GAO report, which EPA took to alert the 
public about the potential health threats in areas that 
received asbestos-contaminated material from Libby, MT.
    Response. In its report, GAO was asked to determine the 
extent and effectiveness ofEPA public notification efforts 
about cleanups at sites that received Libby ore. The focus of 
the GAO review on public notification efforts covered the 13 
sites where EPA conducted removal actions. GAO research was 
extensive in documenting its assessment of EPA's public 
notification and outreach efforts. However, there were many 
actions taken by EPA that were not specifically discussed in 
the GAO report. EPA Headquarters and regional offices maintain 
web sites with updated information on asbestos, potential 
health threats and the status of activities in Libby, MT and 
other asbestos-contaminated vermiculite sites. Also, many of 
the detailed records of EPA interaction with the public, State 
and local officials onsite assessments and activities by EPA at 
vermiculite sites are available at Regional Superfund Records 
    For example, the On-Scene-Coordinators for the Western 
Minerals (including Gluek Park) site in Minneapolis, MN, and 
the N-forcer site in Dearborn, MI established websites on 
EPAOSC.net for public viewing that include site cleanup 
details/progress, public meeting information, site fact sheets, 
flyers, news releases, sampling plans, sampling results, maps, 
and health consultation reports.
    More recently, several public meetings have been conducted 
in San Antonio, Texas for the Big Tex Grain Site. The last 
meeting was held in January 2008. The public was notified of 
this meeting via a mailed flyer. The results of sampling 
studies were discussed, as well as, the plans for further 
sampling and potential cleanup actions.
    EPA Region 3 is conducting public notification activities 
at the Ellwood City, Pennsylvania site consistent with the 
requirements of the NCP including the designation of a 
spokesperson, establishment ofAdministrative Record, 
notification of the Administrative Record with a public comment 
period, as well as a fact sheet to be delivered to the 
surrounding community.

    Question 13. Describe the actions that EPA has taken or 
plans to take to alert the public to the potential health 
threats posed by products made from asbestos-contaminated 
materials from Libby, Montana. Please provide all relevant 
records that demonstrate EPA actually took such actions or 
plans to take such action. For any future activity, provide a 
timeline describing the steps that EPA plans to take.
    Response. In May 2003, EPA and the Agency for Toxic 
Substances and Disease Registry (ATSDR) co-authored the 
consumer outreach brochure, Current Best Practices for 
Vermiculite Attic Insulation. In addition, EPA worked 
cooperatively with home improvement centers (Lowes, Home Depot, 
and Sears) to assist in our effort to educate consumers about 
concerns relating to vermiculite attic insulation. EPA's 
website provides information largely taken from the outreach 
brochure, including information about asbestos and how it may 
affect health; products and areas in the home where asbestos 
may be found; how to identify materials that may contain 
asbestos; how to manage and address asbestos; do's and don'ts 
for homeowners; how to find and work with an asbestos 
professional; and references to additional information. Please 
see: www.epa.gov/asbestos.
    On May 21, 2003, EPA and ATSDR held a press briefing 
announcing the EPA-ATSDR public awareness campaign on 
vermiculite attic insulation which may contain asbestos. An EPA 
press release was also issued that day. Additionally, the EPA's 
Regional offices helped inform State agencies about the issue 
and provided extensive information. Most, if not all states 
have vermiculite information on their appropriate State agency 
    In addition to posting information regarding asbestos and 
vermiculite attic insulation (VAI) on the EPA website, the 
Agency conducted an extensive outreach effort to the major home 
improvement stores including, Sears, Home Depot and Lowes. 
Beginning in 2003, Sears displayed the VAI brochure in the 
information kiosks of most Sears stores nationwide. However, 
Sears later went through a major reorganization in their stores 
where all of the information kiosks were removed, along with 
our brochures. Home Depot decided not to display the brochure 
in their stores due to stocking issues and display placement 
issues, but did agree to link their website to the EPA's VAl 
website. Lowes made a similar decision and agreed to work with 
their partner, the Home Safety Council, to display EPA's 
information on their website. http://www.homesafetycouncil.org/
safety guide/sg poison w003.aspx.
    EPA also conducted an extensive mailing to various 
associations and organizations, including home building and 
repair magazines, newsletters, and a number of home and garden 
television shows, to share information about VAL The Agency 
sent approximately 60 letters as part of its outreach efforts 
to provide information on asbestos and vermiculite attic 

       Responses by Susan Parker Bodine to Additional Questions 
                          from Senator Inhofe

    Question 1. Do you agree with the conclusions of the report 
authored by Professor Steinzor ``The Toll of Superfund 
    Response. EPA does not agree with Professor Steinzor's 
conclusions that the Superfund program no longer cleans up 
hazardous waste sites because of funding shortages and neglect. 
The report ignores the extensive cleanup construction and risk 
reduction measures taken at the sites identified as not being 
cleaned up.
    The appropriated funding levels for the Superfund program 
have remained steady over the past five fiscal years, between 
$1.2 and $1.3 billion dollars. Moreover, EPA supplements its 
annual appropriated funding with resources deobligated from 
prior fiscal year contracts, settlements with responsible 
parties, and State cost share contributions. The report fails 
to account for these resources. There has not been a 
significant decrease in Superfund cleanup work. Superfund 
construction work has remained relatively steady over the 
years; however, work is now concentrated on more costly, 
complex sites. We are pleased to report that in fiscal year 
2007, EPA funded all new construction projects that were ready 
for funding, therefore, there is no backlog of unfunded 
Superfund site construction projects.
    Far from neglecting Superfund site cleanup, through fiscal 
year 2007, 1,030 Superfund sites had cleanup construction 
completed, that represents 66 percent of the sites listed on 
the National Priorities List (NPL). Moreover, through fiscal 
year 2007,95 percent of NPL sites have had remedial or removal 
cleanup construction work performed.
    Significant work has occurred at the 50 sites identified in 
Professor Steinzor's report. Construction has been completed at 
2 of the sites; UGI Columbia Gas Plant and ALCOA Lavaca Bay. 
However, ``Construction Complete'' is an interim measure of 
site cleanup progress and much work occurs at a site before 
this milestone is achieved. At 22 of the 50 sites in the 
report, construction work is underway. At another 6 sites, 
engineering design work is underway in preparation for 
construction. At 17 other sites, important studies are in 
progress to determine how the sites should be cleaned up. In 
addition, at 3 of the 50 sites, although studies have not yet 
begun, early response actions have been taken.
    Although completing remedy construction at large, complex, 
sites may take many years, EPA often addresses immediate risks 
at sites through its Removal program. For example, EPA has 
provided alternative water supplies to more than 2 million 
people so they are not drinking or using contaminated water. 
Through fiscal year 2007, the Removal program conducted more 
than 9,400 removals at more than 6,900 sites. Of these, more 
than 2,400 have occurred at NPL sites.
    In fact, EPA has carried out removal actions at 56 percent 
of the sites on the NPL, including 142 removals at NPL sites 
not yet in the long-term construction phase.
    Ten of the 50 sites in Professor Steinzor's report are 
known as mega sites--NPL sites where the final cleanup remedy 
is expected to cost more than $50 million. Mega-sites typically 
take a longer time to clean up because they are more complex 
than the average NPL site. Of 535 sites that are not 
construction complete (as of end of fiscal year 2007), nearly 
40 percent are either Federal facility sites or are mega-sites, 
where cleanup costs are expected to exceed $50 million. This 
compares to 1,030 sites that are construction complete (through 
fiscal year 2007) of which only 11 percent are Federal facility 
or mega-sites. Today the remaining number of sites to be 
completed is much smaller, but a greater percentage of those 
remaining sites are the larger, more complicated, mega-sites 
which take more time to complete.
    The Iron Mountain Mine Superfund site, one of the fifty 
sites in Professor Steinzor's report, is a good example sofa 
mega-site where a significant amount of cleanup work has been 
achieved. Iron Mountain Mine covered 4,400 acres in northern 
California and operated from 1860 to 1962. Annual rains and 
surface waters washed through the abandoned, exposed mine and 
created acid mine drainage (AMD) that flowed into the 
Sacramento River--making it the largest discharger of heavy 
metals to surface waters in the United States. After being 
added to the NPL in 1983, EPA has studied the source of the AMD 
and carried out several emergency response (removal actions) 
and long-term cleanup actions (remedial actions) to reduce the 
AMD discharging from the mine to the Sacramento River by 95 
    The report also mischaracterizes the purpose of the 
Superfund Hazard Ranking System (HRS). The HRS has never been 
an indicator of relative risk among sites. A site need only 
score above 28.5 to be eligible for listing on the National 
Priorities List. It is not necessary to score beyond this, and 
inappropriate to use the scores as indicators of relative risk. 
In setting cleanup priorities, the Superfund program focuses 
attention and resources on the sites that present the greatest 
imminent risk.

    Question 2. Do you agree with the characterization of the 
Superfund program found in Bradley Campbell's hearing 
    Response. EPA does not agree with Bradley Campbell's 
conclusions that Superfund program completions have dropped 
because of funding shortages and lack of enforcement. These 
assertions are simply untrue. The appropriated funding levels 
for the Superfund program have remained steady over the past 
five fiscal years, between $1.2 and $1.3 billion dollars. 
Moreover, EPA supplements its annual appropriated funding with 
resources deobligated from prior fiscal year contacts, 
settlements with responsible parties, and State cost share 
    Superfund program work has remained relatively steady. 
Through fiscal year 2007, 1,030 Superfund sites had cleanup 
construction completed, that represents 66 percent of the sites 
listed on the National Priorities List (NPL). Moreover, through 
fiscal year 2007,95 percent ofNPL sites have had remedial or 
removal cleanup construction work performed. Annual site 
completions have been affected by the composition of sites that 
have not yet reached construction completion. These sites are 
generally more complex than the sites we have completed in the 
past. Of 535 sites that are not construction complete (as of 
end of fiscal year 2007), nearly 40 percent are either Federal 
facility sites or are mega-sites, where cleanup costs are 
expected to exceed $50 million. This compares to 1,030 sites 
that are construction complete (through fiscal year 2007) of 
which only 11 percent are Federal facility or mega-sites.
    In addition, EPA continues its vigorous Superfund 
enforcement efforts. Through aggressive enforcement, EPA has 
been able get responsible parties to conduct cleanups, and has 
collected settlement dollars to clean up sites. Since the 
beginning of the program, the value of Superfund settlements 
has exceeded $25 billion. In fiscal year 2007 alone, EPA 
secured more than $1 billion in settlements for cleanup or cost 
recovery. EPA currently has more than $1 billion in site 
specific special accounts that can be used to clean up sites, 
and since 2002, more than $535 million has been used for 
cleanup work.

    Question 3. Would reinstating the lapsed Superfund taxes 
provide additional funding for the Superfund program?
    Response. The lapsed Superfund taxes did not dictate the 
annual level of congressional appropriations for the Superfund 
program. Neither taxes nor the balance in the Superfund Trust 
fund governed annual levels of congressional funding. EPA never 
had direct? access to tax revenues or to Trust Fund balances. 
The Superfund program has always relied on appropriated funding 
to fund Superfund program activities.

    Question 4. Mr. Michael Steinberg suggested in his 
testimony at the Committee hearing on October 17, 2007 that 
there historically has not been coordination between senior EPA 
headquarters policymakers and the regional staff on major 
clean-up and funding decisions. What input did EPA headquarters 
have into the Manville Site decisions and what process did EPA 
follow to ensure that the cleanup decisions were effective but 
also reasonable?
    Response. To ensure that the cleanup decisions were 
effective and reasonable, EPA followed the statutory 
requirements for CERCLA remedies and the process established in 
the National Oil and Hazardous Substances Pollution Contingency 
Plan (NCP) for meeting these requirements.
    EPA headquarters was kept informed and involved during the 
remedy selection process for the Federal Creosote site. In 
March 1999, comments on the Operable Unit 1 (OU1) proposed plan 
were solicited and received from EPA Headquarters/the Office of 
Solid Waste and Emergency Response (OSWER). Comments received 
from OSWER were incorporated into the proposed plan. Also in 
March of 1999, the proposed remedial action for the Federal 
Creosote Site was presented before the National Remedy Review 
Board (NRRB), which is chaired by OSWER. The NRRB reviews 
proposed Superfund cleanup decisions projected to cost greater 
than $30 million at this time to assure that they are 
consistent with Superfund regulations and guidance, and to 
verify that remedy selection is cost effective. The NRRB 
focused on the nature and complexity of the site, health and 
environmental risk, cost, the range of alternatives that 
addressed site risks and other relevant factors. The 
recommendations that NRRB provided were followed by the Region. 
EPA Headquarters provided additional solicited input on the 
draft Record of Decision (ROD) for OU1, which were incorporated 
into the final OU1 ROD. In addition, EPA headquarters was 
engaged and provided input on proposed plans and the draft RODs 
for the two subsequent operable units at the site.
    EPA Headquarters was kept informed and provided support 
during the implementation of the remedy. Remedial action 
funding was prioritized through the National Risk-Based 
Priority Panel process and all funding requests were developed 
in conjunction with Headquarters throughout the entire period 
of the remedial action at the site.

    Question 5. It has historically been EPA's policy to 
identify and pursue as many potentially responsible parties 
(PRPs) as possible to contribute to site clean-up costs. To 
date EPA has focused on only one PRP at the Manville Site. Is 
EPA going to investigate fully and pursue other PRPs?
    Response. EPA's enforcement efforts at this site have been 
substantial. EPA evaluated the liability of and sent notice 
letters to two parties, who were the owners/operators of the 
facility at the time of disposal. EPA has also sent numerous 
104(e) Information Request letters to parties to assess 
potential liability that those parties may have for the 
transactions that their companies had at the site. To date, EPA 
has received no information that has justified issuance of 
notice letters to these parties. Although EPA's PRP 
investigation is in its last stages, EPA is in the process of 
evaluating information from two additional parties.

    Question 6. EPA has not ranked the Federal Creosote site 
high on its ranking list of priority sites. In addition, the 
Federal Agency for Toxic Substances Disease Registry (ATSDR) 
and New Jersey health officials concluded that there were no 
significant health risks at this site, unless long-buried 
materials were dug up. Do you believe that spending close to 
$300 million (approximately 25 percent of EPA's average annual 
Superfund appropriation) to respond to one site that apparently 
posed no significant public health risk is a wise use of 
limited taxpayer dollars?
    Response. By definition, a site on the National Priorities 
List is a priority. The Federal Creosote site was placed on the 
NPL in 1999. Prior to listing, the Site was operated as a coal 
tar wood treatment facility from 1911 to 1956. After operations 
ceased and the wood treatment facility was dismantled, the 
property was purchased by a developer. In the 1960's, 137 
single family homes were built on 35 acres of the Site. This 
residential area became known as the Claremont Development. The 
remaining 15 acres of the site was developed into the Rustic 
Mall which consists of commercial and retail establishments.
    A review of historical information revealed that, during 
its operation, the facility treated railroad ties with 
creosote. Wood treatment activities at the Site resulted in the 
production ofcreosote--contaminated sludge, sediments, process 
residuals, preservative drippings, and spent process liquid. 
The most prominent features of the wood treatment operations 
included two unlined canals that conveyed creosote waste to two 
unlined lagoons that were used to hold concentrated creosote 
waste sludge.
    Investigations by EPA revealed that creosoting materials 
and contaminated soils associated with the wood treating 
facility were not removed prior to construction of the 
Claremont Development and Rustic Mall. The former lagoons are 
located from 2--5 feet below ground surface; the waste from one 
lagoon extends approximately 25 feet below ground surface while 
the other extends over 35 feet to bedrock. At several 
properties, the former lagoons and associated sludge were found 
to abut and/or underlie existing residences. The material in 
the lagoons was concentrated creosote sludge; on at least one 
occasion, creosote sludge seeped into a residential basement 
sump, was pumped onto the residential street, and flowed into 
the storm sewer system. The creosote waste in the canals is 
shallower--extending approximately 14 feet below ground 
surface. The material found in the buried canals range from a 
dry, crusty creosote/soil mixture to flowable creosote waste 
    EPA conducted extensive surface soil sampling in the spring 
of 1998 to determine whether there was any immediate threat to 
current residents. This sampling revealed that surface soil at 
approximately 11 homes with the highest overall levels of 
carcinogenic polycyclic aromatic hydrocarbons (material 
associated with wood treating chemicals) posed an unacceptable 
risk over the long-term and EPA took immediate action at those 
properties. The lagoon sludge and canal waste is highly 
contaminated source material which poses a risk to current and 
future residents. The primary routes of exposure included 
dermal contact with contaminated sludge and soil (present and 
future risk). Source material contaminated groundwater which 
could result in a future risk associated with ingestion of 
contaminated groundwater.
    EPA concluded, based on its investigations, that the site 
did pose a significant public health risk. Following the 
Remedial InvestigationlFeasibility Study, the proposed remedial 
activities were reviewed by the National Remedy-Review Board 
and later, the National Risk--based Priority Panel for funding. 
The site work was considered as the highest prioritized new 
construction project in 1999 and was allocated funding that 
fiscal year.
    ATSDR did not conclude that there was no significant public 
health risk at this site. At the time of its review, ATSDR 
concluded that ``past and present exposures to surface soil 
represent no apparent public health hazard.'' ATSDR followed up 
this conclusion by stating: ``However, this conclusion does not 
rule out the need to continue remedial activities''. 
Furthermore, based on their conclusions, ATSDR made the 
following recommendation in the Public Health Assessment for 
the Federal Creosote site: ``The NJDHSS (New Jersey Department 
of Health and Senior Services) and ATSDR recommend that the 
USEPA continue its remedial plans to remove source material 
from the site.'' ATSDR was fully supportive ofEPA's selected 
remedies for the site.
    The decision to take remedial action at the Federal 
Creosote Site is consistent with the risk-based approach as 
mandated by the National Contingency Plan (NCP). As stated in 
the NCP, the acceptable risk range for site-related exposures 
is 10-4 and 10-6 . EPA conducted a Baseline Human Health Risk 
Assessment (BHHRA) to estimate the potential risks associated 
with the Federal Creosote site. The BHHRA demonstrated that the 
site-related exposures exceeded EPA's acceptable risk range 
which triggered EPA's response action.

    Question 7. EPA removed more than 450,000 tons of soil from 
the Federal Creosote site-almost 300,000 tons more than EPA 
originally estimated. If the scope and cost of a selected 
cleanup changes as fundamentally as this did during the 
cleanup, shouldn't EPA re-evaluate the choices it has made for 
the site? Was that done in this instance?
    Response. While the increase in quantity from EPA's 
original estimate was significant, the quantities provided in 
the statement above are incorrect. EPA's original quantity 
estimate was approximately 250,000 tons at the ROD stage not 
150,000 as indicated above.
    EPA re-evaluated its remedial decisions at several points 
during the remedial process; however, site constraints limited 
the available remedial choices, and EPA concluded that the 
increase in volume did not justify a change in remedy. After 
the OUI ROD, additional investigations led to an increase in 
the estimated quantity of OUI waste. This increase in quantity 
and resulting cost was evaluated in the remedy selection 
process and was documented in the OU2 ROD.
    The remedial action differed significantly from the remedy 
selected in the OUl, OU2 and OU3 RODs with respect to cost. In 
accordance with the NCP, EPA consulted with the New Jersey 
Department ofEnvironmental Protection and published an 
Explanation of Significant Differences (ESD). The ESD made an 
explanation of these significant cost differences and 
supporting information available to the public in the 
administrative record established for the site and published a 
public notice that summarized the ESD, including the reasons 
for such differences, in a local newspaper.

    Question 8. EPA's ``presumptive remedy' guidelines direct 
EPA's regional offices to use bioremediation or low temperature 
treatment on former wood-treating sites. EPA's guidance also 
advises against selecting a remedy that would incinerate large 
volumes of soil because ``incineration of large volumes of 
contaminated media may be prohibitively costly.'' Do you 
believe an EPA decision to ship more than 150,000 tons of soil 
from the Federal Creosote site to Canada to be incinerated is 
consistent with EPA's own policy and guidelines in this area?
    Response. EPA implemented the remedy in accordance with its 
policy and guidelines, considering site-specific conditions 
such as space constraints and the residential nature of the 
    The presumptive remedy guidance document is intended to 
assist EPA in determining appropriate cleanup technologies. The 
guidance document states that ``EPA officials may decide to 
follow the guidance provided in this document or to act at 
variance with the guidance, based on an analysis of specific 
site circumstances.'' Recognizing that there is no such thing 
as a ``one--size fits all'' remedy for sites, the NCP requires 
the agency to formulate different remedial alternatives 
``taking into account the scope, characteristics, and 
complexity of the site problem that is being addressed'' 40 
C.F.R.  300.430.(e)(2).
    EPA's presumptive remedy guidance considered three 
technologies effective in treating creosote wastes that contain 
organic contaminants: bioremediation; thermal desorption; and 
    On-site and offsite applications of these technologies as 
well as additional technologies were given consideration during 
the remedy selection process for the Federal Creosote site.
    The site-specific evaluation of treatment alternatives 
required by the NCP resulted in EPA's determination that site 
conditions were such that onsite treatment using either 
bioremediation, thermal desorption, or incineration was not 
appropriate. In additional to the practical concerns regarding 
the operation of a hazardous waste treatment facility in the 
town center and within a housing development, there were 
technical concerns regarding the ability of bioremediation and 
a thermal desorption system to treat the high concentration of 
contaminants present in the soil and address the types of 
material encountered at the site.

    Senator Clinton. Thank you so much, Administrator Bodine. 
It certainly will be, without objection.
    I have some specific questions, but I want to make just a 
general comment. As I said in my opening remarks, you know, the 
glass is half full, the glass is half empty. People look in, 
see the same set of facts and draw different conclusions.
    I think what we are interested in on this Subcommittee is 
what we can do together to help make progress in dealing with a 
lot of these complex sites in a more expeditious way. My ears 
perked up when Senator Inhofe talked about targeted funding 
sources. What targeted funding sources would be acceptable to 
the Administration to begin to get more money into the process? 
Because certainly if we are dealing with more complex sites 
that certainly does for me argue that there is a higher level 
of technical skills required; it is more painstaking. And yet 
the amount of money requested has not increased to reflect the 
complexity of those cleanups.
    So I hope that the EPA will work with this Committee to 
come up with some solutions for these complex sites.
    I want to specifically draw your attention to a site called 
Lawrence Aviation Industries. It is a 160 acre site in Suffolk 
County which is on Long Island in New York where huge 
quantities of TCE and acid sludge were dumped into two large 
lagoons. The site is located on a hill and the waste has 
leached toward wells and the Long Island Sound.
    Now, this is a case where we do have a responsible party, 
and yet the site has a status of human exposure uncontrolled, 
more than 7 years after it was listed in 2000. I would like to 
ask why the EPA has not controlled human exposure to pollution 
at this site and when can we expect the EPA to get it under 
    Ms. Bodine. Thank you.
    Actually, I am glad that you brought up this site because 
it illustrates a broader point. We are dealing with sites and 
determining whether the human exposure is under control or 
whether we have sufficient data to make that determination. 
That is a determination that can change as our information 
about the site changes over time. So a site can be under 
control, and then we can learn about a new exposure pathway and 
it could be not under control or insufficient data until we 
have learned what is going on.
    So at Lawrence Aviation, it is one of many sites around the 
Country where we have become aware of a pathway related to TCE, 
which is vapor intrusion. By no means is that the only site. 
There are a lot of sites around the Country where we have 
recognized that there is this new exposure pathway, vapor 
intrusion, that wasn't thought of. In the 1990's, we were 
dealing with these sites, and we thought if we dealt with the 
groundwater, we were done. We have discovered, no, there is 
another pathway. We have to go back and check because we need 
to protect human exposure.
    So that is why a large number of sites either are not under 
control, or particularly a large number of sites are 
insufficient data because we are going back. We think there may 
be a vapor intrusion problem. We don't know yet. We will 
collect the data.
    Specifically at Lawrence Aviation, we did do the sampling, 
and to date we have not found a vapor intrusion problem, but we 
need to go back and verify that. Again, the groundwater problem 
was taken care of at the site a long time ago. The local 
residents were hooked up to a public water supply system, and 
on the vapor intrusion site we have conducted the sampling and 
I will have to get back to you on the record on what the 
results are.
    Senator Clinton. Well, Ms. Bodine, I would like for a full 
status report on all the 111 sites where there is a finding of 
human exposure to dangerous levels of toxic chemicals. 
Obviously, I would like to know the status of that. I 
understand the vapor intrusion problem. We have that 
unfortunately at a number of sites in New York. But I would 
appreciate your submitting that to the Committee.
    I also want to just clarify something. In your written 
testimony, you talk about how the potentially responsible 
parties have performed work at 70 percent of the sites. I have 
a letter from Chairman Dingell in the House to Administrator 
Johnson asking whether 50 percent is a more accurate figure. 
The EPA responded, ``We cannot accurately predict what the 
percentage will be in the future. However, some believe that 
there will be more orphan sites where there are no viable PRPs 
in the future, and thus the percentage of PRP participation may 
    May I ask you, what do you think the future holds? Is it 
likely that the PRP share will increase or decrease?
    Ms. Bodine. Well, you are looking just at NPL sites.
    Senator Clinton. Right.
    Ms. Bodine. We are not listing as a proportion of the sites 
as many sites that are PRP-lead, because oftentimes there will 
be a highly qualified State program that can manage and oversee 
the responsible parties action. So those sites don't 
necessarily get listed. So again, the sites that are being 
listed have the recalcitrant PRPs, the complex sites, or the 
orphan sites.
    So yes, going forward, the proportions of the cleanup 
actions that are orphan are larger than they had been in the 
past, because we don't list every responsible party.
    Senator Clinton. Well, but then of course that raises the 
question that we now think there are nearly 400 orphan sites. 
Since the Superfund trust expired 4 years ago, that does mean, 
as Senator Lautenberg pointed out, that totally innocent 
parties, namely American taxpayers, are paying for all of these 
cleanups, and they are in a sense carried as unfunded 
liabilities on the Superfund program.
    So I would like also in writing what you think the 
liability is; how much the total cleanup costs at these so-
called orphan sites currently on the NPL will be. I think it is 
an important question for us to try to get to the bottom of 
together because it will help inform the debate about what to 
do with respect to reinstating the Superfund fees or trying to 
get some targeted funding to help us cleanup.
    So if I could, Administrator Bodine, I would appreciate 
that. And then I would ask unanimous consent to submit the 
letters and the backup to my questions for the record.
    Let me now turn to Senator Barrasso.
    Senator Barrasso. Thank you very much, Madam Chairman and 
thank you for being here today. I appreciate your time.
    Senator Boxer referred to some privileged documents. I 
think we saw a big pile in the possession of the Committee. Is 
this information that needs to be privileged because EPA is 
bound by laws to do that? Could you just help clarify that a 
little bit for me?
    Ms. Bodine. We generally claim a privilege for our 
deliberative processes, as have all Administrations before us, 
as well as other agencies, because you need to be able to 
preserve the candor in the communication within an agency as we 
are dealing with whatever complex situations that is under our 
    So of course, you are our oversight Committee. We are 
sharing documents with the oversight Committee, but when it 
involves, again, privileged internal debate discussion draft 
deliberative material, we ask that this not be made public 
because if it were, it would then chill the ability to have 
those kinds of discussions with our staff within the 
Administration about how to deal with situations.
    Senator Barrasso. I have read through the testimony of the 
second panel as well, and if I could just refer to one of those 
and visit with you about it, because you are testifying now and 
they are later. Mr. Steinberg says that there is a need for the 
EPA to manage its annual appropriations differently, that some 
of the money that is going into what people might think is 
Superfund activities is actually being used for other 
administrative and other purposes. What would you think about 
    Ms. Bodine. The Superfund program is a large program. As I 
talked about, we have over 3,200 Federal employees, men and 
women who are working every day on the program. So yes, we are 
paying their salaries. We do manage a large construction budget 
for sites where we are overseeing the cleanup directly. So we 
do have to have staff that deal with management of contracts.
    So there is, as there is in the private sector, you have 
your base core program costs and then you do have 
administrative overhead costs that are associated with that, 
but those costs are necessary to get the work done.
    Senator Barrasso. And then the final question, we talked a 
little bit about the Amoco refinery and a partnership, and I 
know you talked a little bit about the local communities and 
what they are doing. So I think it shouldn't be a surprise that 
there are maybe fewer things going on the list because of the 
efforts that are being done at a local level and private-
Government partnerships.
    Ms. Bodine. Absolutely. EPA and the Superfund program is 
not the only game in town at all. Where local communities can 
manage their problems, where the State can deal with the 
situation that is good news. That is success.
    Senator Barrasso. Thank you very much.
    Thank you, Madam Chairman.
    Senator Clinton. Thank you very much, Senator.
    Senator Boxer.
    Senator Boxer. Thanks, Madam Chairman.
    Ms. Bodine, you said that we have always had a lively 
debate on how the program should be managed. I would 
respectfully disagree that this is what the debate is about. 
You can always have a disagreement on management. I think the 
debate is much more fundamental. It is about the priority that 
is given to the Superfund program and the lack of priority that 
is given to it under this Administration, and the seeming lack 
of concern for the people who are impacted.
    With that in mind, I would call to your attention a 2004 
EPA report where there is an acknowledgment that, ``current 
resources appropriated to the Superfund program may be 
insufficient to fully implement the program.'' Do you disagree 
with these statements?
    Ms. Bodine. I would have to look at the report that you are 
referring to.
    Senator Boxer. OK. Grant? This is your own agency, cleaning 
up the Nation's Waste Sites, 2004 edition, and this is where 
that comment is made. We will send it over. Could you send that 
over to the Administrator?
    Do you agree or disagree whether or not you see it there? 
Do you believe that there is in fact a shortfall coming of $100 
million to $200 million over a 10 year period?
    Ms. Bodine. I know that in 2004 there were some analyses 
that were looking forward in terms of what we may be expecting 
for sites that were coming and what we were expecting for 
funding. I don't know exactly what you are referring to, but I 
do know that our out-year estimates of costs are not 
particularly reliable, so whatever numbers there would be a 
degree of uncertainty associated with those.
    Senator Boxer. Forget the uncertainty. Do you feel 
comfortable with the funding as far as the Superfund site and 
what we need? Do you feel comfortable that you have the 
resources that you need now and into the future for your people 
who are coming after you, assuming we just kept the same 
funding stream?
    Ms. Bodine. We are continuing to make progress in cleaning 
up sites, and we have funding to continue to make that 
progress. We are part of the whole unified budget.
    Senator Boxer. I know you are part of the unified budget, 
and I am not asking about the unified budget. I don't have a 
lot of time here, so the point is you are answering me not yes 
or no, but you are giving me a story. The story is just very 
confusing to people, because either you have it or you don't. 
EPA in 2004 said you don't have it. You seem happy, and you 
seem to think the debate we are having is about management, 
when a lot of us believe it is much more than management. It is 
about a fundamental decision made by this Administration to 
short the program.
    Now, you are familiar with Region VI, correct, which is 
Oklahoma, Texas, are you not?
    Ms. Bodine. Yes.
    Senator Boxer. OK. I am going to ask you something here. 
You in your opening statement were very positive about working 
with the community. You mentioned it several times, working 
with the community, working with the State, working with our 
tribal partners. Are you aware that in Region VI that part of 
your budget has been decimated in order to take money out of 
those so you can have money for other matters? Are you aware of 
    Ms. Bodine. No, ma'am, I am not.
    Senator Boxer. Well, you should be aware of it because it 
is a document I got, and it is a document that says it is for 
oversight. So I am talking to you about this. Do you know how 
much was cut from technical assistance in order to have money 
for the NPL site in this region?
    Ms. Bodine. I don't.
    Senator Boxer. Well, it was 64 percent in 2003. And then 
community involvement, you know how much that was cut? About 56 
percent, State, tribal management assistance was cut 32 
percent. State, tribal grants were cut 100 percent. EPA site 
assessment was cut 48 percent. State, tribal core grants were 
cut 88 percent. Contracts, program management were cut 66 
percent. Other support assistance was cut 25 percent. And the 
statement is made, and there are no names on this document. 
This is nothing to do with confidentiality here. This is the 
taxpayers' money, how it is being spent or not spent. And it 
says by reducing these categories, Region VI was able to keep 
its NPL site work progressing.
    So this Administration is destroying this program just to 
keep the facade of the last dollar you can eke out to keep 
things moving.
    So I would just simply say to you, and my time is running 
out, the debate is a lot more than the way you are portraying 
it. It is very serious. In my State, EPA failed to use health-
based standards when assessing risks. At 271 sites that 
received asbestos-contaminated material from Libby, Montana, 
and 36 of those sites are in my region, including my State. How 
are you responding to that? I know Senator Baucus has a great 
deal of concern about this. Do you agree with the GAO study of 
October, 2007 that said you failed to use health-based 
standards when assessing the risks; you failed to follow your 
own regulations and guidance in notifying the public about 
potential dangers? Do you agree?
    Ms. Bodine. We know more about asbestos than we did when we 
were going out and looking at the sites where Libby material 
was sent. Since then, we have developed better methodologies. 
Again, it was since that work was done. We have improved our 
technologies and improved our methodologies. And so, yes, we 
understand that we need to go back and look at sites where----
    Senator Boxer. So you agree with the criticism of the GAO 
study of 2007?
    Ms. Bodine. I don't agree with the conclusion that we 
failed to follow regulations with respect to informing the 
public. Those actions were under removal actions and under the 
national contingency plan, under our regulations the degree of 
public involvement, whether you would need a public hearing, 
for example, is scaled to the level of effort, to the size of 
the cleanup. So in some cases, you could have had a single home 
that we were addressing and you wouldn't have a large-scale 
public meeting for a situation like that. In other cases, we 
did have public meetings.
    So again, it was scaled to the relative degree of----
    Senator Boxer. So do you agree or disagree with this 
    Ms. Bodine. I agree we need to go back and evaluate the 
sites using our better methodology, as well as when we complete 
the toxicity assessment of the Libby amphibole, look at the 
data, and evaluate against that. That is all new methodologies 
and new information that we are developing, that we didn't have 
when we did the work originally.
    Senator Boxer. So you agree with this report?
    Ms. Bodine. There are two parts. I agree with the 
recommendation we need to go and look further, and I disagree 
with the conclusion that we failed to follow our regulations 
with respect to it.
    Senator Boxer. OK. Well, the GAO said you agreed with the 
whole report. So I don't know whether you told them that or 
not, but I will send this over. It said GAO expressed general 
agreement on the notification. Are you planning to go out and 
notify my people as far as what they have been exposed to? Do 
you have plans to remediate the problem?
    Ms. Bodine. Again, we will go back and evaluate and notify 
the public as we go back and as we do the work, as we find out 
    Senator Boxer. Madam Chair, I find this response very 
unsatisfactory because it is halting. It is not clear. Whenever 
we raise anything to do with Libby and asbestos, this is what 
we get. I would hope if we could through the Subcommittee and 
the full Committee, get a response from you to the GAO 
investigation, and how you are going to go back to my people 
and people all over this Country, tell them what they were 
exposed to, and what precautions they ought to take about this 
    Thank you. Sorry I went over.
    Senator Clinton. Thank you very much, Senator Boxer.
    Administrator Bodine, we will submit very specific 
questions along the lines of Senator Boxer's concerns to try to 
get very specific answers, because clearly this is important to 
all of us that have these sites in our States and are trying to 
figure out how to protect the people that we represent.
    Senator Inhofe.
    Senator Inhofe. Thank you, Madam Chairwoman.
    Administrator Bodine, you heard my opening statement. I 
referred to the fact that Senator Reid and I are actively 
looking into the Federal creosote site in New Jersey and we 
will be requesting a GAO investigation into the site, 
particularly the cleanup methods used leading to over $300 
million for a 50 acre site.
    I think this is a good thing to talk about because all the 
finger-pointing that is here and which Administration did what, 
first of all, you weren't here when that happened so you are 
off the hook. This is something that started in 1999, so both 
Administrations were involved in it.
    Now, at the Federal creosote site, EPA dug up 450,000 tons 
of dirt and shipped more than 150,000 tons to Canada to be 
incinerated, raising the cleanup costs of this site 
dramatically. This was done when there were other remedies 
available. The EPA's own guidance, which says that incinerating 
anything over 5,000 would be cost-prohibitive.
    Now, you weren't here, but do you have any insight into why 
the EPA used such a costly remedy as they did at this site?
    Ms. Bodine. Sorry, Senator Inhofe. I don't have any insight 
into that. I can go back.
    Senator Inhofe. Well, I would like to have you do that for 
the record because specifically they say that you should not 
use this methodology if it is over 5,000. This was way over, 
and so something got into that decision, and I would kind of 
like to know what it is.
    Now, up until I became Chairman of the EPW Committee, and 
that was four and a half years ago, the Federal Government 
spent $130 million on Tar Creek. This is over about a 20 year 
period. Tar Creek is the site I referred to in the State of 
Oklahoma. And the results weren't good. Once we got all the 
Federal agencies to work together and to work on this with the 
State agencies in a new cooperative manner, we found that sound 
solutions for the site addressing the environment, the 
residents, and the cost. Is there some way that you could have 
used this model of cooperation for the Federal creosote site or 
for some of the other Superfund sites?
    Now, what we did was something that is unheard of in 
government. We got everybody in one room--DOJ, DOI, EPA, the 
Corps of Engineers, the State agencies. And we ended up doing 
this in a cooperative way with Oklahoma University, the State 
of Oklahoma, and I must say with a lot of cooperation from our 
Democrat Governor out there. We worked on this thing, but we 
worked with all the Federal agencies and we got it done.
    Now, I would ask you, if you are familiar with this and if 
this is a model that could be used for other sites?
    Ms. Bodine. Yes, I am familiar with the collaborative work 
among the agencies at Tar Creek. And yes, in situations where 
you have other Federal agencies involved, then I think in fact 
you need to follow that model. You need to get all the Federal 
agencies at the table.
    Senator Craig is not here, but there is a site in Idaho 
that is phosphate mining where they brought----
    Senator Inhofe. He and I have argued in the past over which 
is the most devastating site, and I have won that argument, 
    Senator Clinton. Why am I not surprised?
    Ms. Bodine. No debate. Thank you.
    It is not Bunker Hill that I was talking about, but there 
is a phosphate mining site which has a lot of the land 
management agencies involved in addition to EPA, in addition to 
the State, and exactly the kind of model that you described for 
Tar Creek is very helpful at that site as well, where you bring 
folks together. You have different jurisdictions and different 
responsibilities, but to make progress you all have to work 
    Senator Inhofe. And there is a propensity that seems to be 
inherent in Government not to do that. It is a turf thing. 
Anyway, you have probably not noticed that in your years.
    We have been referring to that site in New Jersey. That is 
a site that health officials concluded there weren't any 
significant health risks. I would like to know, if that is the 
case, then why did that have such a high priority? Why were we 
spending so much on it?
    Ms. Bodine. Well, I know that we are nearly done with this 
site, so I wouldn't be surprised that it no longer has health 
risks because we have addressed them. Now, how it was at the 
beginning, I would have to go back and find out. But that site 
is nearly complete.
    Senator Inhofe. OK. You said something, and I unfortunately 
didn't read your written testimony. I normally try to do that, 
but I believe you said that there were 1,200 sites prior to 
    Ms. Bodine. That were listed.
    Senator Inhofe. That were listed at that time.
    Ms. Bodine. Right. The vast majority of sites on the NPL 
were listed before 1991.
    Senator Inhofe. OK. Now, those that were listed before 
1991, of those, how many would you say are still not treated? I 
think you said 284. Is that correct?
    Ms. Bodine. I think it was about 284. Yes.
    Senator Inhofe. OK. Yes, it is 284. All right, what 
characteristics are in those 284 that were in the other 1,000 
    Ms. Bodine. Some of them, if you look at the sites that we 
are still working on, they are really the famous sites. What I 
would like to do is provide you with that list for the record, 
but they are sites that have either had contentious litigation 
or they are just very large complex sites.
    Senator Inhofe. I think that would be a good idea, because 
the argument we keep hearing, and I know it is sincerely posed, 
is that there is not a great difference in the ones that were 
done during the 1990's as opposed to during this 
    Ms. Bodine. Right. You have to look at the ones that aren't 
    Senator Inhofe. OK. One last thing, very occasionally 
Senator Lautenberg and I agree on some things.
    Senator Inhofe. And one statement that he made that I agree 
with, he said, and it is very simple, and he has a way of 
putting in terms that even I understand. He said, if you 
pollute it, you should clean it up. And I agree with that. 
Frankly, I think we all agree with that. But I think the whole 
concept that if you are in a particular industry, should you be 
taxed, even though you don't have any relationship or any 
responsibility, have never operated in an area where there is a 
Superfund site, why should you and the stockholders of that 
company be responsible for something that you had nothing to do 
    Now, in so far as policies that you take, I would like to 
have you keep that in mind. Look for areas, yes, if you can 
find the polluter that polluter should clean it up. We all 
agree with that, so this should not be a contentious issue.
    Ms. Bodine. We have a very strong enforcement program for 
cleanup work or commitments to clean up work of over $25 
billion, with the work done by people who actually caused the 
    Senator Inhofe. Yes. Good for you.
    Thank you, Madam Chair.
    Senator Clinton. Thank you very much.
    Senator Lautenberg.
    Senator Lautenberg. Thanks, Madam Chairman.
    I enjoy my opportunities to be with Senator Inhofe. He 
always makes me think of a response, but I will forego that 
    Ms. Bodine, you seem to take some delight in the fact that 
we have a bunch of sites that are left, and you excuse them by 
saying they are a greater cleanup challenges than others. Does 
that mean that they are not dangerous in any way?
    Ms. Bodine. No, I didn't say that.
    Senator Lautenberg. Well, you said it in your remarks. I 
will remind you: ``This does not mean that EPA has been 
neglecting these sites. It simply means that some sites present 
a greater cleanup challenge than others.''
    Does a greater cleanup challenge mean that these sites 
might be dangerous to the people in the area?
    Ms. Bodine. If there is an immediate risk, we go out, do a 
removal action, and address any----
    Senator Lautenberg. But you used the word complicated, and 
that suggests that there is something big and terrible in 
    Ms. Bodine. At a site, you can have addressed substantial 
engagement associated with the site and still have a 
complicated remedy that is technically complicated where the 
work needs to obviously continue and will take a long period of 
    Senator Lautenberg. You remind me of a doctor who was 
visiting with a patient and says I have good news for you. Your 
heart is fine, but your cancer is overtaking your body. So here 
is the good news for you, that one part of you is terrific and 
the other part of you is terrible. You are taking some high 
degree of satisfaction out of the fact that we don't have money 
with which to pursue the cleanup of these sites.
    Do you approve of the fact that the taxpayers are paying 
$1.25 billion to clean up these sites?
    Ms. Bodine. We would like to have the responsible parties 
pay for the entire cleanup. There are some sites where the 
responsible parties are not there.
    Senator Lautenberg. Yes, but that is why we had the 
Superfund reserve at some three some billion dollars in 1996. 
Now it is zero. There are many sites that need attention, but 
Senator Boxer was interested in some of the materials, some of 
the text that was withheld from the public at large. Now, our 
former Commissioner Bradley Campbell is going to testify on the 
second panel. I will give you that notice, that he 
inadvertently receives e-mails in which EPA directed its 
technical staff to make up excuses why a cleanup could not take 
place to cover for the real reason, which was lack of 
sufficient funds. Are you aware of that incident?
    Ms. Bodine. No, I am not.
    Senator Lautenberg. Is there a practice at EPA that says 
whatever you do, don't admit that things have slowed up because 
we have insufficient funds; we don't have the resources; we 
don't have the staff?
    Ms. Bodine. I am not aware of that practice, no.
    Senator Lautenberg. You are not? So you have sufficient 
staff to do all these cleanups and all the tools that you need 
to do them with?
    Ms. Bodine. We manage our program and we manage it tightly. 
We scrutinize the sites. We require all of our projects to go 
through value engineering. We require the projects to be ranked 
by a national risk-based priority panel before we fund them. So 
we are closely managing this program, and indeed we are also 
managing the funds so that we are not putting too much money on 
a project, because in fact we have been able----
    Senator Lautenberg. Are you short at all? Do you find any 
shortages of direct resources, personnel, equipment, or 
anything like that as a result of not having enough money? You 
have plenty of dough?
    Ms. Bodine. We have been able to de-obligate. In other 
words, we put money on a project. It wasn't needed. We have 
been able to de-obligate $740 million since 2001 from sites. So 
we are managing our resources more closely now. Before, we had 
a tendency to over-obligate. We put too much money on a 
project. That gave us the opportunity when the project is done 
to take the unused money and go and use it at other sites.
    We are managing our projects more closely now so that we 
are not over-obligating. We are not putting too much money on a 
    Senator Lautenberg. Even though they might need it to get 
it cleaned up. My good friend, Senator Inhofe, talked about, or 
others talked about the low-hanging fruit and how the early 
sites were easy cleanups. That creosote site cost $300 million 
by your own statements. So how low was that fruit hanging?
    Senator Inhofe. Would the Senator yield for a comment?
    Senator Lautenberg. Sure. It is not my time.
    Senator Inhofe. Yes. I would only comment, and that is my 
point, that so much was spent in a way that violated the normal 
rules of what you should spend in terms of the incineration, 
particularly when it was a site that apparently posed no health 
risk. That is the point I was making.
    Senator Lautenberg. Thank you very much, Madam Chairman. I 
assume the record will be held open and we can expect prompt 
returns from EPA on any questions that we submit in writing.
    Senator Clinton. I am sure that is the case. We will leave 
the record open and we will look for those prompt responses.
    I just have one final question, and that concerns the TCE 
standard. Last year, the National Academy of Sciences Board on 
Environmental Studies and Toxicology returned its review of TCE 
to EPA, and recommended that you act expeditiously to release a 
new TCE health risk assessment that includes vapor intrusion 
and indoor air standards.
    As we were talking earlier, this vapor intrusion problem 
from TCE is a serious one that we have to address. We have 10 
Superfund sites in New York alone with TCE contamination that 
is already in the groundwater. We have evidence of vapor 
    Has EPA set that standard yet, Administrator Bodine?
    Ms. Bodine. What you are referring to is a new IRIS, 
integrated risk information system, standard that the Office of 
Research and Development is working on. What the NAS said was 
that the Office of Research and Development could take not the 
data that they had used before to set a draft standard, which 
was based on mouse livers or mouse kidneys, but could take data 
based on rats and set a standard expeditiously. If the agency 
did that, then the conclusion would be that TCE is far less 
potent a risk than folks would have assumed based on data 
derived from mice as opposed to rats.
    So the Office of Research and Development is carefully 
looking at all of these issues with respect to what data set 
they are looking at. So an expeditious setting of a standard 
and doing perhaps what was issued by the NAS could result in a 
standard that says, no, you can be exposed to much more TCE. So 
obviously, that Office of Research and Development is being 
very careful before they draw any conclusions.
    Senator Clinton. Well, Administrator Bodine, I would very 
much appreciate the chance to have our experts sit down with 
the EPA staff tasked on this because the NAS found that the 
evidence on carcinogenic risk and other health hazards from 
exposure to TCE has strengthened since 2001. Hundreds of waste 
sites are contaminated. It is well documented that individuals 
in many communities are exposed to the chemical with associated 
health risks.
    It is very clear in the report that was issued that the 
Federal agencies were urged to finalize their risk assessment 
with currently available data so risk management decisions can 
be made expeditiously. I am now hearing that this is not how 
the EPA is viewing the data that is available, and I wish to 
have a thorough briefing on this, and have our experts meet 
with the requisite staff at the EPA to try to understand what 
happened between the NAS recommendation and where we are today 
based on your testimony. Is that appropriate?
    Ms. Bodine. That is very appropriate, because the fact that 
there is a stronger relationship or stronger showing that it is 
a carcinogen doesn't mean that it is more potent. There is a 
    Senator Clinton. I understand that.
    Ms. Bodine. And that is why we will get those folks 
    Senator Clinton. We need to get them together because the 
National Academies, which I believe have a full understanding 
of the difference that you are referring to, urged expeditious 
action. So I think that it is time that we got expeditious 
about this, because I have a lot of people in my State who are 
suffering from and worried about the vapor intrusion.
    Any other questions?
    Senator Boxer.
    Senator Boxer. Yes, I do, if no one else does.
    Again, I want to get back to the budget. You sort of make a 
dismissive nod. Our budget is important to the people of the 
United States of America, and the budget of the Superfund 
program is very important to the 10 million that live within 
four miles of a Superfund site, and who are suffering, getting 
sick, dying early, getting cancer and all of that. And that is 
why I ask a lot about the budget.
    Do you ask division directors to recommend cuts in the 
Superfund program?
    Ms. Bodine. No. We ask them to manage their sites and 
manage their resources carefully.
    Senator Boxer. You don't ask them to come up with cuts?
    Ms. Bodine. We ask them to carefully review what their 
projects are and how much money they need and at what point in 
    Senator Boxer. Well, Madam Chair, I have a document here 
given to me by the EPA which shows that in fact the division 
directors were called to a meeting in 2006. They were asked to 
recommend cuts. Now, you mentioned State grants as you gave 
your very optimistic opening statement. Are you aware that they 
are continuing to cut the State grants so that they can come up 
with more money for remedial actions?
    Ms. Bodine. I am aware that we fund State programs through 
cooperative grants. We also fund State programs through the $50 
million that comes out of Brownfields, and that a lot 
preliminary work onsites can be done using either source.
    Senator Boxer. Are you aware that people were called 
together for a fly in meeting and asked how they could cut 
their budget? You said you were not aware. How could you not be 
aware? Aren't you in charge of the Superfund program?
    Ms. Bodine. I am not micro-managing the Superfund program.
    Senator Boxer. Oh, OK. So cuts coming from your division 
directors would not be of concern to the person at the top? Is 
that right? Is that what I am hearing?
    Ms. Bodine. That is not.
    Senator Boxer. So you don't know. It doesn't sound like you 
know what is happening, because your own documents that you 
made available to me show possible disinvestments, asking 
people how they could cut. They said, well, in order to 
continue cleanups, we have to cut, slow down the remedial 
investigations, remedial designs, State programs, the C 
program, which as I understand it brings in retired people to 
help with these matters, and across the board cuts.
    Madam Chair, this program is not in good shape right now. 
We have someone here who doesn't even know that the district 
directors are asked how to cut funds. That says to me, this 
isn't about micro-managing. These are district directors. These 
are the people who are close to the problem. I would just 
suggest to you, we are all Senators here. We have to go back to 
our States. One of the things we are very aware of is not to 
lose touch with people. Don't lose touch with your district 
directors or you cannot do your job.
    Thank you.
    Senator Inhofe. Madam Chairman.
    Senator Clinton. Senator Inhofe.
    Senator Inhofe. Well, first of all, you may not be aware of 
that, but if you would pass on to whomever made the decision to 
ask the district directors to find places to cut their budgets, 
that I applaud them for doing that. I think all government 
should be doing that, so I think they are doing a good job.
    I would say, Madam Chairman, that we have been joined by 
the Senator from Idaho. Before he is recognized for his 
questions, I would say to him that we had a discussion between 
the Superfund sites in Idaho and Oklahoma, and the one in 
Oklahoma was much more devastating than the one in Idaho. I am 
sure you will have a chance to ask some questions.
    Senator Clinton. Welcome, Senator Craig.


    Senator Craig. Madam Chairman, thank you very much.
    Susan, it is great to have you with us today.
    Almost from the time I began my service in the U.S. 
Congress, a great mining district of Idaho went from being 
highly profitable and productive to slumping into a depressed 
metals market that spun it ultimately into a Superfund site. So 
Madam Chairman, literally for 22 years, I have worked with one 
of the largest Superfund sites in the Nation, and the EPA our 
of Region X in Seattle, so thorough and so competently that 
they even brought people out to establish permanent residency 
in Idaho to work specifically on that site.
    We have had our troubles. It has not all gone well. There 
were major human factors involved, Madam Chairman, because it 
was an old smelter site and there was heavy lead in the 
environment. Over the years and with the frustration involved, 
I went so far as to ask the National Institute of Health to 
come in and review. The National Academy of Sciences has been 
in to review.
    I must tell you that EPA in almost every way met the 
standards. They didn't meet them in the time we would have 
liked, largely because it was not their fault. It was the fault 
of the litigation and the law that made it so complicated and 
so cumbersome that it was in many instances because we were 
always trying to find the bad buy because of legacy 
environments, that we spent more time in litigation and in 
court than we did in cleanup for a time. If we hadn't been 
looking for bad guys and our purpose was to go out and clean it 
up and bring everybody in to participate, my guess is the great 
Silver Valley of Idaho and the Coeur d'Alene mining basin would 
have been cleaned up years ago.
    Having said that, Ms. Bodine, I am very pleased with the 
progress that EPA is making, and very pleased with the 
relationship that EPA has with the State of Idaho now. We have 
established some landmark environments out there, some 
cooperative relationships that really ought to be a template on 
how you solve problems, in my opinion. I know that Tony 
Hardison has worked very hard on this issue. We have what is 
called the Basin Environmental Improvement Project Commission, 
State and Federal cooperatively working together.
    This is not just a Federal responsibility. We have shown 
that there is a State responsibility. There is a cooperative 
effort that can in fact streamline and make things very 
productive. So I want to thank you for that.
    Talk to me, if you would, and the Committee for a few 
moments about how you view the relationship between EPA and the 
Basin Environmental Improvement Project Commission, because in 
my opinion, that is where a lot of our approaches toward 
resolution of these Superfund sites ought to move, not just in 
Idaho, but nationwide.
    Ms. Bodine. Thank you, Senator. It is a very good 
relationship. In fact, it is critical. When you look at the 
Coeur d'Alene site, in size it is absolutely enormous. It deals 
with multiple watersheds, multiple basins. When you are 
addressing a situation like that, it is not just the mine 
tailings and the environmental impacts. It is the ecological 
impacts, the human health impacts. It is the entire community 
involved there. Therefore, you have to have the State as a 
partner to deal with and to engage, as well as the local 
community. That is the only way you can address one of these 
watershed-wide issues. So yes, it is not only a good 
relationship. It is an absolutely critical relationship.
    Senator Craig. Madam Chair, let me address one other issue 
if I may, and I think, Susan, before I got here, touched on it. 
Clear across the State and over in the toe, in the top of the 
boot of Idaho, is another major mining area.
    Ms. Bodine. Yes.
    Senator Craig. It is one of the last major phosphate mining 
areas in the United States. There are a lot of interests out 
there trying to shut it down, plain and simple. I have been 
blunt about it, and said, fine, if you want all of your 
phosphate fertilizers to grow America's food crops imported 
from China, so be it. That is what will happen if we can't get 
this right.
    EPA, the U.S. Forest Service, because it is Federal land, 
permitted for the purpose of phosphate mining, with three major 
mining companies in there, providing a huge supply of America's 
phosphate fertilizers. And EPA has worked with them.
    The downside, Madam Chairman, is one of the minerals that 
comes from the process is selenium. Selenium in concentrate is 
poisonous. It has caused some problems. There are tremendous 
plans, tremendous efforts to bring all of that together with 
multiple agencies and to keep a phosphate mining industry in 
the United States.
    Can you speak to us about how that cooperative and 
coordinated effort has gone on?
    Ms. Bodine. Again, having that cooperation is critical, 
particularly as you pointed out, the land is Federal land. Our 
mission is protection of human health and the environment. We 
also have to work cooperatively with the Federal land managers. 
When it is their land, they in fact have the lead with respect 
to that property.
    So again, dealing with this phosphate mine situation, all 
of the agencies and the State agencies as well, have to work 
cooperatively together, and that is the case in the phosphate 
mine cleanups.
    Senator Craig. Thank you, Madam Chairman.
    Susan, thank you.
    What I find in Idaho that is an active agriculture State, 
mining State, now a new technology State, is that we have a 
cooperative and coordinated relationship with EPA that has at 
times been rocky, but in most instances highly successful. In 
all instances where we have come together cooperatively, we 
have improved the environment and the condition of human health 
and life quality substantially from what it was originally.
    So I am extremely pleased to date. I would like to redo the 
Superfund law. I think it is a complicated, cumbersome system 
that is reflective of the past, and not the current 
environment. We all ought to be oriented toward cleanups, 
instead of finding bad guys and sometimes legacies exist that 
you can't find the bad guy anymore. He or she or they simply 
don't exist. Our mission ought to be to clean, instead of to 
    Thank you.
    Ms. Bodine. Thank you, Senator.
    Senator Clinton. Thank you very much, Senator Craig.
    We will keep the record open.
    Administrator Bodine, I at least will have additional 
questions for the record. Thank you very much for being here.
    We are moving now to our second panel. Obviously, we are 
pleased to have such a broad cross section of panelists here 
for this important issue. We are going to move immediately into 
the statements from the panelists. We would appreciate you 
keeping to the 5-minute rule. We have your written testimony, 
and of course it will be in the record. So if you could 
summarize the high points of what you wish the Committee to 
hear, that would be extremely helpful.
    We will go in the following order. We will start with Rena 
Steinzor, then Dr. Porter, then Bradley Campbell, then Michael 
Steinberg, then Lenny Siegel. So as soon as people are settled 
in, we will begin with Rena Steinzor, the Jacob A. France 
Research Professor of Law, University of Maryland School of 
Law, and a scholar at the Center for Progressive Reform.
    Thank you very much, Professor Steinzor, for being here.

                     FOR PROGRESSIVE REFORM

    Ms. Steinzor. Madam Chairwoman and members of the 
Committee, thank you for inviting me.
    Superfund badly needs your attention, and I congratulate 
the Committee for reviving the constitutional check and balance 
of rigorous oversight. I request that our report, The Toll of 
Superfund Neglect, be included in the hearing record.
    Senior EPA political appointees and industry 
representatives may or may not understand how Superfund is 
supposed to work. They should understand how it does work. 
Unfortunately, they are not sharing either explanation with 
    The truth is that Congress intended the program to be a 
three-legged stool: one, identification of the worst sites; 
two, a multi-billion dollar fund to prime the pump for cleanup 
and pay costs at orphan sites; and three, strict joint and 
several liability to give parties compelling incentives to 
initiate cleanups.
    Over the last several years, EPA's political leadership has 
sawed the first leg in half, dumping many Superfund sites into 
the laps of underfinanced States; removed the second leg of 
public funding; and left the third leg, enforcement, to rot to 
its core. No wonder the program is in trouble.
    To obscure this dismal reality, EPA officials and industry 
representatives have created five legends about Superfund. The 
first legend is that long-neglected Superfund sites are not 
harming anybody and can safely be neglected. These assertions 
are ludicrous. Indeed, if the people who advance them truly 
believe they are true, we would have a more honest debate if 
the question was whether we should abolish Superfund. No one 
wants to go there, and for good reason.
    Thousands of uncontrolled Federal and State Superfund sites 
plague communities across the Nation. Most sites are located in 
or near heavily populated urban or suburban neighborhoods. Many 
have languished on the Superfund national priorities list for 
two decades. Often, no more than holes in the ground, they are 
filled with a noxious mix of chemicals leading into the air, 
soil or water. The sites sit stop aquifers used for drinking 
water, spill into rivers and streams used for swimming and 
recreation, and contaminate soil where children play. Millions 
of people live close to the sites, including hundreds of 
thousands of children. Many of these communities are low income 
and comprised of people of color.
    The second legend, contending that cleanup has slowed 
because EPA did the easy sites first, is half true. It is 
difficult to complete cleanup at the biggest sites, but up 
until a few years ago our government rolled up its sleeves and 
deployed with fervor when confronted with a difficult job. 
Agencies did not come to Congress urging you to decrease their 
    This bizarre development brings us to the third legend, 
that EPA has all the money it needs. The broad-based industry 
taxes that support the program expired in 1995. President 
Clinton asked Congress to extend them every year he was in 
office. The Bush administration not only opposed extension of 
the tax, it has addressed chronic shortfalls by drawing on 
general taxpayer revenue and steadily lowering annual 
appropriations. In constant dollars, Superfund appropriations 
are 40 percent lower than the amount specified in the last 
    Glossing over the implication of these missing resources, 
EPA and industry representatives argue that Superfund taxes are 
not only unnecessary, but onerous. The truth is that before the 
taxes expired, they raised revenues that amount to 1.79 percent 
of the 2006 profits of just six of the Nation's largest oil and 
petrochemical companies.
    As for the last legend, that responsible parties are 
already shouldering the Superfund burden, we confront another 
half-truth. At sites where orders were issued before today's 
enforcement doldrums, responsible parties are moving cleanup 
along. But at countless other sites, the Nation's most 
prominent and richest corporations have ignored or stonewalled 
their obligations. For the sake of those living near these 
sites across the Country, I urge you to support the 
reinstatement of Superfund taxes and continue your rigorous 
oversight of EPA implementation.
    [The prepared statement of Ms. Steinzor follows:]

Statement of Rena Steinzor, Jacob A. Francis Research Professor of Law, 
 University of Maryland School of Law; Scholar, Center for Progressive 

    Madam Chairwoman and members of the Committee, thank you 
for inviting me to testify today. Superfund badly needs your 
attention, and I congratulate the Committee for reviving the 
constitutional check and balance of rigorous oversight.
    I have worked on Superfund for 25 years. I was subcommittee 
counsel for Representative James J. Florio, widely perceived as 
the ``father'' of Superfund, when Congress last reauthorized 
the program. I served as a senior staff person on the National 
Commission on Superfund, which included the CEOs of all major 
stakeholders and negotiated a consensus reauthorization of the 
Superfund statute,\1\ only to have its work washed away by the 
Contract with America. I have represented clients liable at 
Superfund sites and counseled clients who wanted to avoid that 
fate. I teach Superfund law to students and have written five 
scholarly articles on the subject, as well as a report entitled 
The Toll of Superfund Neglect, which is the focus of my 
testimony today.\2\ The report was released by the Center for 
Progressive Reform\3\ and the Center for American Progress\4\ 
and is available at http://www.progressivereform.org/articles/
Superfund--061506.pdf. The report analyzes the environmental 
conditions and demographics of 50 of the worst sites in the 
nation's ten most populous states.\5\ A list of the sites we 
studied is attached as Appendix A to my testimony. I 
respectfully request that the report and its attachments be 
included in the record for this hearing.
    \1\Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C.   9601 et seq.,
    \2\I appreciate the assistance of Margaret Clune, CPR policy 
analyst, in preparing the original report and my research assistants, 
Michael Wright and Xochitl Strohbehn, students at the University of 
Maryland Law School, who helped me prepare this testimony.
    \3\The Center for Progressive Reform (CPR) is an organization of 45 
academics who specialize in the legal, economic, and scientific issues 
that surround Federal regulation to protect public health, natural 
resources, and worker safety. One component of the Center's mission is 
to circulate academic papers, studies, and other analyses that promote 
public policy based on the multiple social values that motivated the 
enactment of our nation's health, safety and environmental laws. We 
seek to inform the public about scholarship that envisions government 
as an arena where members of society choose and preserve their 
collective values. We reject the idea that government's only function 
is to increase the economic efficiency of private markets. For more 
information, please see http://progressivereform.org.
    \4\The Center for American Progress is a progressive think-tank 
dedicated to improving the lives of Americans through ideas and action. 
It is committed to creating a long-term, progressive vision for 
America--a vision that policymakers, thought-leaders and activists can 
use to shape the national debate and pass laws that make a difference. 
For more information, please see http://www.americanprogress.org.
    \5\The report selected the 50 sites on the basis of the severity of 
contamination, their proximity to people, whether construction has been 
completed at the facility, and other criteria. See pages 157-162 of The 
Toll of Superfund Neglect for a full description of our selection 
methodology. In the year since the report was issued, construction has 
been completed at two sites on the list: the ALCOA (Point Comfort)/
Lavaca Bay in Texas and the UGI Columbia Gas Plant in Pennsylvania.


    Senior EPA political appointees and industry 
representatives may or may not understand how Superfund is 
supposed to work. They should understand how it does work. 
Unfortunately, they are not sharing either explanation with 
you. Instead, they have created five Superfund legends that 
have little relationship to history or reality:

    1. Few if any sites endanger public health.
    2. Because EPA has only recently gotten down to the worst, 
most complex sites, cleanup has slowed, with the construction 
phase of remedial action\6\ completed at only 24 sites in 2007, 
as compared to 87 sites in 2000.\7\
    \6\As the Subcommittee is aware, completing construction does not 
mean that a site is finished, and does not pose a risk to the public. 
Especially where remedies are temporary, long-term monitoring, 
operation and maintenance are essential to ensure that risks remain 
    \7\An EPA chart submitted to the subcommittee shows 47 
``construction complete'' sites in 2001, 42 in 2002, 40 annually in 
2003-2005, and 24 in 2007. These numbers are substantially less than 
annual figures for the preceding 6 years which were 68 (1993), 61 
(1994), 68 (1995), 64 (1996), 88 (1997), 87 (1998), 85 (1999), and 87 
    3. EPA has enough money without renewal of the Superfund 
    4. Superfund taxes are onerous.
    5. Companies that created the sites are paying to clean 
them up.


    The truth is that Superfund's creators intended it to be a 
three-legged stool:
    1. systematic identification and prioritization of 
abandoned toxic waste sites all over the country that require 
    2. creation of a multi-billion dollar fund supported by 
industry taxes to both prime the pump for cleanup and pay for 
so-called ``orphan'' sites; and
    3. strict, joint, and several liability that gives 
responsible parties that created the sites compelling 
incentives to clean them up and allows Government to recover 
most of the money spent upfront.

    Over the last several years, EPA's political leadership has 
sawed the first leg in half, removed the second leg, and left 
the third leg to rot to its core. No wonder the program is in 
    The assertion that long-neglected Superfund sites are not 
harming anybody and can safely be neglected is ludicrous. 
Indeed, if the people who advance this legend believe it to be 
true, we would have a more honest debate if we discussed 
whether we could safely wind down Superfund, ending the program 
within some fixed timeline. No one wants to go there, and for 
good reason.
    Thousands of uncontrolled Federal and State Superfund sites 
plague communities across the Nation. Our report offers a 
snapshot of these conditions. Most of the 50 sites we studied 
are located in heavily populated urban or suburban 
neighborhoods. Many have languished on the Superfund National 
Priorities List for two decades. Often no more than holes in 
the ground, they leak toxic soups comprised of hundreds of 
chemicals into the air, soil, or water, including PCBs, 
creosote, lead, polycyclic aromatic hydrocarbons, chromium, 
copper, zinc, cadmium, arsenic, mercury, and trichloroethylene. 
The sites sit atop aquifers used for drinking water, leak toxic 
chemicals into rivers and streams used for swimming and 
recreation, contaminate soil where children play with hazardous 
wastes, and in one particularly tragic and egregious case, 
provide the foundation for an apartment building that is still 
    \8\See page 71 of The Toll of Superfund Neglect for a description 
of the Normandy Park Apartments site in Hillsborough County, FL.
    Millions of people live in the census tracts\9\ where the 
sites are located, including hundreds of thousands of children. 
Many of these communities are low income and comprised of 
people of color. Of the 50 sites we studied, 60 percent were 
located in neighborhoods where households reported median 
incomes in the range of $40,000 and some 26 percent were in the 
midst of populations comprised of 40 percent or more racial or 
ethnic minorities.
    \9\Census tracks are small geographic areas averaging 4,000 people. 
See https://ask.census.gov.
    The second legend, contending that cleanup has slowed 
because EPA did the easy sites first, is half true. It is 
difficult to complete cleanup at the biggest, most contaminated 
sites, such as (1) the Operating Industries site, a 190-acre 
municipal landfill in the Los Angeles suburbs where millions of 
gallons of liquid hazardous waste was poured over densely 
packed household garbage, producing leachate that contains 
vinyl chloride, benzene tetrachoroethylene, and heavy 
metals\10\ or (2) the 160-acre Lawrence Aviation Industries 
site in Suffolk County, New York, where the owner poured 
unknown quantities of TCE and acid sludges onto the ground and 
into two unlined lagoons.\11\
    \10\See page 38 of The Toll of Superfund Neglect for a description 
of the Operating Industries site.
    \11\See page 60 of The Toll of Superfund Neglect for a description 
of the Lawrence Aviationsite.
    But up until a few years ago, our Government rolled up its 
sleeves and deployed the complicated technology and significant 
resources that are required to get difficult jobs done. 
Agencies in charge of such efforts did not come to Congress 
demanding fewer resources as these challenges became more 
daunting, as EPA now does.
    This bizarre development brings us to the third legend: EPA 
has all the money it needs to complete cleanup. The broad-based 
industry taxes that support the program expired in 1995. 
President Clinton asked Congress to extend them every year he 
was in office, and every year, the Congress refused the 
request. The Bush administration opposes extension of the tax 
and has made up chronic shortfalls by drawing on general 
taxpayer revenues and steadily lowering annual appropriations. 
In fiscal year 3, EPA ran through all the money left over from 
the years when the program was supported by industry taxes and 
the program has been exclusively supported by general revenues 
ever since.
    Not only are the wrong people paying to support a program 
that is starved for resources, crucial tasks are increasingly 
left undone. In constant dollars, revenues appropriated for the 
Superfund program now stand at levels 40 percent lower than the 
amounts Congress specified when it last reauthorized the 
program in 1986.\12\
    \12\See page 3 of the testimony of Katherine N. Probst, Senior 
Fellow and Director, Risk, Resource, and Environmental Management, 
Resources for the Future, before this Committee at a Superfund 
oversight hearing held on June 15, 2006, available at http://
    As any businessperson knows, it takes money to make money. 
Not only are there hundreds of sites at the Federal level that 
need investigation so cleanup plans can be made, thousands of 
additional sites have ended up in the states' laps. Even if 
they wanted to, EPA and the states cannot go to court to demand 
responsible party cleanups without first completing these 
investigations and writing cleanup plans and, without more 
money, they have little hope of cleaning up orphan sites where 
no responsible party is available. Yet EPA has precipitously 
cut the funding for states to do the technical analysis 
necessary to determine what should be done about these 
hazards.\13\ The result is that the sites are swept out of 
sight, getting worse and worse as their public health and 
environmental implications are buried in a sea of mind-numbing, 
``don't-worry-be-happy'' EPA statistics.
    \13\For information on State funding shortfalls, see EPA, Office of 
the Inspector General, Evaluation Report No. 2004-P--00027, Some States 
Cannot Address Assessment Needs and Face Limitations in Meeting Future 
Superfund Cleanup Requirements (September 1, 2004), available at http:/
    Let me give you another example. I teach at the University 
of Maryland School of Law in Baltimore. This past spring, Dr. 
Joshua Sharfstein, the City's Public Health Commissioner, 
closed a popular baseball field called Swann Park after old 
documents came to light revealing that in the late 1970's, 
arsenic from a nearby Allied Signal pesticide plant had blown 
onto the park, insinuating itself into the soil at toxic 
levels. The Maryland Department of the Environment managed to 
overcome the funding gap that has paralyzed its State Superfund 
efforts, and ordered that the park be remediated. Undoubtedly, 
the saga of Swann Park is but the dusting of snow on top of the 
iceberg, as we will learn over the next decades unless we 
resuscitate both the Federal and State Superfund programs.
    The fourth legend is that Superfund taxes are too onerous 
and corporate responsible parties are already paying their fair 
share through cleanups ordered by past consent decrees. 
Glossing over the implications of these missing resources, EPA 
and industry representatives argue that the Superfund tax would 
amount to double dipping against these responsible parties.
    The truth is that before they expired in 1995, Superfund 
taxes raised revenues of approximately $1.5 billion annually, 
or $4 million daily, from taxes on crude oil and chemical 
feedstocks and through a broad-based corporate tax. As the 
following chart shows, annual Superfund tax revenues amount to 
1.79 percent of the 2006 profits of just six of the nation's 
largest oil and petrochemical companies. The CEO salaries of 
these six companies alone would cover almost 6 weeks of missing 


    .epsAs for the assertion that responsible parties are 
shouldering the large majority of the burden for cleaning up 
Superfund sites, we confront yet another half-truth. At sites 
where cleanup orders were issued well before today's 
enforcement doldrums, responsible parties are moving cleanup 
along, often at a clip faster than government-funded cleanups. 
But at countless other sites, some of the nation's most 
prominent corporations have backed off their obligations, 
apparently waiting for Federal and State enforcement officials 
to come compel them to address their responsibilities.
    An analysis by the Center for Public Integrity completed in 
2007 relied on confidential EPA enforcement material to compile 
a list of the 100 large companies that have the most Superfund 
sites, breaking down this data to show the numbers of sites on 
the list that remain unaddressed years and even decades after 
    \14\See Center for Public Integrity, Wasting Away, Superfund's 
Toxic Legacy (2007), a series of reports, all of which are available at 
    For example, the 75-acre Universal Oil Products site in 
East Rutherford, New Jersey was first listed in 1983 and is 
heavily contaminated with 4.5 million gallons of waste solvents 
and solid chemical wastes. Honeywell, the only responsible 
party at the site, is leading cleanup efforts, which have 
crawled along for a quarter century. According to the most 
recent EPA site description posted on the web this past 
February, an investigation into contamination of onsite 
wetlands and creek areas did not begin until 2005 and still are 
not completed.\15\
    \15\Universal Oil Products, New Jersey, EPA ID# NJD002005106, 
available at http://www.epa.gov/region02/superfund/npl/0200101c.pdf.


    More than any other environmental program, Superfund is a 
victim of compassion fatigue and political doublespeak. The 
Federal Government and responsible parties have dragged their 
feet on cleanup for so long that it has been impossible for the 
public at large to maintain the level of outrage that propelled 
the birth of the program in 1980 and Congress' decision to 
increase Superfund resources sixfold in 1986. In many 
locations, cosmetic changes have been made ? rusting barrels 
have been removed from the surface and vegetation has reemerged 
on what were moonscapes 20 years ago. Beneath the surface, 
though, little has really changed. The toxic stews continue to 
circulate, moldering and spreading, adding chemicals to 
aquifers, rising to the surface of the soil as the land freezes 
and thaws, and releasing methane and other volatile gases.
    For the sake of those living in the census tracts 
containing the 50 sites detailed in this report, as well as the 
untold other people living near hazardous waste sites across 
the country, CPR urges this Committee to support the 
reinstatement of Superfund taxes and continue its rigorous 
oversight of the implementation of this vital program.
    Thank you again for inviting me.

    [GRAPHIC] [TIFF OMITTED] T3576.175
        Response by Rena Steinzor to an Additional Question 
                           from Senator Boxer

    Question. Your 2006 report found that some si1es with 
potentially responsible parties have waited the longest for 
cleanup. In your opinion, what accounts for this, since EPA 
knows who should be responsible for cleaning up these sites?
    Response. Our report concludes, and I continue to believe, 
that EPA lacks the political will and the resources to mount an 
effective enforcement effort, undermining the liability track 
of the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA or Superfund) and congressional intent 
that the polluter should pay for cleanup. EPA lacks the 
political will in the sense that too many career staff believe 
that they do not the support of political appointees to demand 
that responsible parties undertake the financial and 
operational responsibility for cleanup and to go to court if 
those parties refuse to sign enforceable agreements. The Agency 
lacks the resources because Superfund taxes expired in 1995, 
and EPA too often Jacks the funds to assemble the technical in 
formation to support its case in court.

          Responses by Rena Steinzor to Additional Questions 
                          from Senator Inhofe

    Question 1. One Thousand two hundred and eleven of the 
1,569 sites on the NPL were listed prior to 1991. The Superfund 
program has been successful at cleaning up many of these sites. 
Isn't it a result of the program and the addition of State 
programs that the number of new sites listed in declining?
    Response. I believe that EPA and the states have 
consciously decided not to list additional sites because they 
do not want to increase their Superfund responsibilities. These 
decisions are made not on the basis of environmental 
conditions, but rather on the basis of bureaucratic 
convenience. The program has achieved notable success. The 
trend toward lower numbers of listings do not provide reliable 
evidence that the need for a robust program to continue is 

    Question 2. In your testimony you comment of the argument 
(sic) that 10 reinstate the Superfund taxes on the oil and 
chemical industries would be ``double dipping. `` To rebut this 
you point to the salaries of the CEOs as justification. Do you 
believe because these companies pay their CEOs high salaries, 
they should be subject to unfair taxes?
    My testimony observes that requiring specific companies to 
pay to clean up sites, and also asking some of those same 
companies to pay taxes to support the program, is exactly the 
scheme that Congress in tended and does not constitute ``double 
dipping'' as some industry representatives have argued. 
Congress decided that it was fair to impose costs on industry. 
especially the oil and chemical industries, because they played 
a large role in creating the sites initially and avoided the 
costs of safer waste disposal. Congress rejected the idea that 
these costs should be borne primarily by the general taxpayer. 
Oil companies are enjoying a period of enormous, windfall 
profits, and pay their CEOs very large salaries. The large size 
of those profits and salaries shows that they can easily afford 
reinstatement of Superfund taxes.

    Question 3. In your testimony, you refer to a ``bunch of 
mind numbing 'don't-worry-be-happy' EPA statistics'' that EPA 
allegedly uses to conceal risks to human health. Can you give 
some specific examples of this?
    Response. Ample examples of this phenomenon can be found in 
fiscal year Superfund Annual Report, Building on Success: 
Protecting human Health and the Environment, available at 
http://www.epa.gov/oerrpage/superfund/accomp/pdfs/sf annual 
report 2007.pdf

    Senator Clinton. Thank you very much, Professor.
    We move now to Dr. J. Winston Porter, President of the 
Waste Policy Center.

                      WASTE POLICY CENTER

    Mr. Porter. Thank you, Madam Chairman.
    It is a real pleasure to be here today. I used to run this 
program, as some of you know, a number of years ago, including 
Senator Lautenberg certainly. I want to talk a little bit about 
what I see needs to be done to improve the program.
    Certainly, ever since my day, there has been an issue of 
the pace of the program. I would say in general sites take too 
long and cost too much to get cleaned up. My background is 
project management engineering and things of that nature, so I 
want to come at it from that angle in terms of my remarks.
    Superfund is not an exact science and a lot of engineering 
judgment is required to clean up the sites. So I am going to 
talk about three phases, very briefly: the study phase of 
Superfund; the selection of remedy phase; and the construction 
    Now, at two thirds of the sites, construction is complete, 
so we have done something right because two thirds of the sites 
have been actually completed. On the study phase, the most 
important thing is to set deadlines. Amazingly, on a program of 
this type, we don't seem to have firm deadlines for cleaning up 
the site. I think that is fundamental. I grew up in the 
engineering world, and I think we should share with the world, 
and I tried to do it in my way, is to put in memo form for 
everyone to see what is my deadline for site X, Y, and Z. I 
have a lot of respect for Susan, and I think I would like to 
see them do more of that.
    It is very important to identify alternatives. There are 
only three or four alternatives in a Superfund site, or maybe 
five or six. There are not thousands. It is important early in 
the game to identify the alternatives and for the responsible 
parties and others to get together and set deadlines to deal 
with the work.
    Let me give you a couple of quick examples of catching 
somebody doing something right, as they used to say. The Rocky 
Flats site near Denver is a large Federal facility site. It was 
scheduled to finish in something like 2040 or 2030, and cost 
billions and billions and billions of dollars. The engineering 
firm got together with the Department of Energy and the State 
and others and they agreed to finish in 2005. So from 1995 to 
2005, they worked toward a specific deadline. They made it. 
Everyone was happy and they saved billions of dollars. So it 
can be done.
    I would like to see us actually work harder at identifying 
where things have gone right. Some things have gone right. So 
that is a good example.
    We need to have much more sense of urgency. The PRPs, 
responsible parties, should do the work. I would like to make a 
little bit of a sad commentary on the industrial people. That 
is, I would like to see more senior management involved with 
these companies. When I go to these sites, I see a lot of 
scientists and a few engineers and lots of lawyers, and that is 
all fine. We need all those people, but I think those sites 
would move much more quickly if the senior management of those 
companies was more involved in the cleanup. The theme I am 
trying to weave here is responsibility put on real individuals. 
That is the way you finish projects.
    I believe the removal program, as Susan said, is very 
important because it has in fact worked. Nine thousand removals 
have been done. That means going out and dealing with obvious 
problems. There is often an obvious problem at these sites, 
leaking barrels or things of that nature.
    As far as selection of remedy, I would like to also make 
another suggestion in terms of responsibility. Since my day and 
others' days, the decisionmaking power has been delegated down 
further and further into the EPA regions. I would like to see 
the regional administrators, the political appointees by the 
President, be it Clinton or Bush or whomever, to have a person 
who is their agent to get that site cleaned up and to deal with 
that site. I think we need to go back to that. That person 
should have a broad overview. That person may not be able to 
deal with all the technical factors, the micro-management, but 
the Superfund law requires things like community acceptance, 
like cost-effectiveness, State impacts, et cetera. They can 
talk about the role of land use.
    Another quick example is the Rocky Mountain Arsenal near 
Denver that I worked at quite a few years ago. The Army decided 
they were going to make that huge arsenal into a wildlife 
refuge, as opposed to putting houses there. That immediately 
made the site much more quickly cleaned up. If you go out to 
Denver nowadays, you will find a very nice wildlife refuge at 
that site. It would probably not be finished until now if we 
had tried to put houses there.
    The construction phase let me close with that. The $1.2 
billion which was mentioned this morning has been around for a 
while, and Rena is certainly right. In constant dollars, it is 
not as great as it used to be, but we have also cleaned up two 
thirds of the sites. This program doesn't need to have a flat 
budget in perpetuity. We need to put more and more focus on 
finishing the sites.
    I would like to be sure that Susan and others are really 
doing it, and I am a big fan of hers, but really doing a good 
job of being sure that the money is going toward cleanups. 
There are 3,000 staff members at EPA working on Superfund. That 
is one out of every four or five EPA employees working on 
Superfund. I am not sure it is one fourth of the problems in 
this Country environmentally speaking, so that caught my 
attention a little bit.
    Congress might want to consider supplemental appropriations 
for specific projects if they need it, but I don't think a 
wholesale more money is needed. If anything, Superfund has had 
a lot of money over the years. I used to get $2 billion year in 
and year out for that and other hazardous waste programs. What 
I think we have done is frankly created a fairly large 
bureaucracy in the program and we need to be much more focused 
on the job at hand.
    In summary, I want to offer results over process. Speeding 
the pace has many benefits. The public is much happier. 
Hundreds of times I have heard in my official capacity and my 
consulting practice how upset the public is. Why does it take 
so long, in California or New York or wherever? I think they 
will be much happier if we look like we are really focusing on 
finishing. The costs to industry and taxpayers are less. Time 
is money. Sites that take 10 or 15 or 20 years obviously cost 
more than a site that is completed in three or four or 5 years.
    And finally, the benefits. If these sites are so bad, and 
some of them are, why do we take forever to clean them up? It 
seems to me kind of counter-intuitive. If a site is bad enough 
to get on the NPL, the national priorities list, we should try 
to move in a matter of years, not decades, to get it cleaned 
    So that is my testimony, Madam Chairman. Thank you.
    [The prepared statement of Mr. Porter follows:]

     Statement of J. Winston Porter, President, Waste Policy Center

    Madame Chairman, my name is J. Winston Porter, and I am 
president of the Waste Policy Center in Leesburg, VA. 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 matters. From 1985 to 1989, I was the EPA's 
Assistant Administrator for Solid Wastes and Emergency 
    It is a pleasure to be here today to provide testimony on 
the pace of the cleanup of Federal Superfund sites. I will make 
a number of recommendations to improve this pace.
    In my testimony I will draw on over 20 years of Superfund 
experience, including management of the EPA program as well as 
consulting activities with various Federal agencies and 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 in relation to 
improving the pace of the cleanup program.


    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, about 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 directly and cost 
effectively deal with obvious problem areas. This program has 
been perhaps Superfund's biggest success story.
    It is also important to note that the EPA has a significant 
number of Superfund sites in the remedy construction phase for 
which both potentially responsible party (PRP) and Federal 
funds are limited.
    In addition to the EPA, both the Departments of Energy and 
Defense have major Superfund-related programs underway. The DOE 
work primarily involves a few dozen very large facilities, most 
of which have been components of the nuclear weapons program. 
The DOD sites are much more numerous, although usually less 
complex, and include both Superfund and base closure 
    So, a large amount of work is underway or has been 
completed by dedicated Federal and State personnel as well as 
PRPs and various private contractors. 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 Superfund program, let me first 
make several general observations 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 remedial 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. The voluntary cleanup programs 
should, in particular, be emphasized.
    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 
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 public health and the environment. The FS 
part involves identification 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 become 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 
    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 non-cost-effective remedy selection. 
Frankly, part of this lengthy process has to do somewhat with 
the fact that Superfund has become something of a ``jobs 
program'' for various consultants, lawyers, and governmental 
agencies. All of these specialists are needed, but their work 
needs to be more directed toward results rather than complex 
    Stated differently, there is often little sense of urgency 
in completing the study phase due, in part, to the lack of a 
senior ``champion(s)'' to complete the work. This is, or 
course, very frustrating to the communities involved. I would 
like to see such ``completion champions'' developed in both the 
governmental and private sectors at Superfund sites.
    Some very complex Federal and private sites will require 
longer study periods, but for most sites about 2-3 years should 
be adequate to produce a sound RI/FS.
    To improve matters, 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 are 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 many 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.
    During this phase 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.
    The selected 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 may not be needed. Also, since the data 
collection is often not focused on comparing alternative 
remedies, the key information to compare such alternatives is 
sometimes missing.
    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, such as precise levels of contamination for dozens of 
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 complex 
draft and final work plans, for example, should be expedited. 
This is also true of dozens of other ``deliverables'' which 
take so much time at Superfund sites, many of which should be 
quite standard by now. It might be helpful to revisit the need, 
or at least the complexity, of such deliverables.
    To increase the pace of Superfund site cleanups, we need to 
develop a ``culture of completion,'' as opposed to a ``culture 
of deliverables.'' It might even make sense to develop 
incentives of some type to encourage such completions.
    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 about 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 PRPs 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 the 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.
    A key aspect of PRP-conducted studies has to do with 
selection of appropriate consulting firms to conduct the 
necessary RI/FS activities. Such contractors have a difficult 
role in that they need to be responsive to their client, the 
PRPs, but must also provide the objective and professional work 
needed by EPA to allow selection of a sound and cost-effective 
remedy for the site in question.
    The key is for the EPA, the relevant state, and the PRPs 
and their consultants to develop a cooperative and results-
oriented relationship for the site work.

                     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 
    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 usually 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 daycare 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, so 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, not residential housing. 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 implementation phase, and a important wildlife 
refuge is the result.
    Another DOD example may also be instructive with respect to 
the land use issue. This has to do with the DOD's Superfund-
related remediationsites 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 

                         THE CONSTRUCTION PHASE

    As noted earlier, the major activity these days has to do 
with the construction phase at Superfund sites. About 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 
    The following are my recommendations on these construction-
phase issues:

    1. The roughly $1.2 billion dollars 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 by ensuring that Superfund sites are completed.
    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 selected 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 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 measures should be pursued in the future 
to minimize costs and to develop more creative financing. A 
good example is the joint EPA and Army Corps of Engineers eight 
pilot programs 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 
    8. Finally, it was mentioned earlier in this testimony that 
the emergency removal 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 

    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 requiring 
directly responsible parties at a site to fund the necessary 
work at that site is the best approach. For those sites, where 
responsible parties are not available, willing, or able 
financially to conduct the work general revenues are the most 
equitable approach, given the widely varied causes of 
contamination at such sites. EPA also has strong legal 
authorities to seek reimbursement from known responsible 
parties who are able, but not willing, to do the work in 
    Madame Chairman, I hope my remarks will be helpful to 
Congress in dealing with this important program, and I will be 
happy to answer any questions which you might have.

        Responses by J. Winston Porter, to Additional Questions 
                          from Senator Inhofe

    Question 1. Do you believe there are certain decisions 
related to Superfund sites that shouldbe made by high level EPA 
officials rather than career staff in the regions?Why?
    Response. Yes, I do believe that certain decisions related 
to Superfund should be made by highlevel EPA officials, usually 
the Assistant Administrator or Regional Administrators.These 
officials have much more authority to set priorities than the 
career staff and abetter overview of the situation. Having said 
that, the input of the career staff is veryimportant and should 
be listened to carefully by the senior officials.

    Question 2. Why do you think the pace of cleanups was 
apparently faster during the ClintonAdministration?
    Response. The pace of the cleanups was somewhat faster 
during the Clinton Administration for two primary reasons: (a) 
The Assistant Administrator during much of the Clinton 
Administration was Tim Fields who made it clear that his major 
priority was completing construction at Superfund sites. Tim, 
who formerly reported to me when I was the AA during the Reagan 
Administration, is very knowledgeable about Superfund and 
pushed hard with the staff to complete sites and (b) the push 
to complete sites during the Clinton days did lead to 
concentration on "easier" sites to finish. Many of the current 
sites are more complex ones.

    Question 3. Would more money for EPA be a significant 
factor in speeding up cleanups?
    Response. I don't think more money would make much 
difference in the pace of Superfund cleanups. It is more 
important in my opinion to place more emphasis on completing 
sites and to be sure significant funding is not spent on non-
site, administrative activities, which are usually large in the 
Superfund program. Also, the number of remaining sites in 
Superfund are getting smaller and $1.2 billion, or so, annually 
is still a lot of money. I am somewhat afraid that more money 
will yield more bureaucracy, not faster cleanups.

    Question 4. What are the one or two items which you think 
would be the most helpful inincreasing the pace of Superfund 
    Response. The two items which would be most helpful in 
increasing the pace of Superfundcleanups are: (a) setting 
visible deadlines for completing sites, and (b) having senior 
EPAofficials directly involved in pushing the pace of cleanup, 
and held accountable for theresults.

    Senator Clinton. Thank you very much, Dr. Porter.
    Next, Bradley Campbell. Mr. Campbell was very active at the 
EPA and the Council of Environmental Quality in the 1990's. We 
appreciate your being here.

                         CAMPBELL, LLC

    Mr. Campbell. Thank you, Madam Chair.
    Senator Clinton. And the Commissioner of New Jersey.
    Mr. Campbell. Thank you, Madam Chair and members of the 
Subcommittee. It is a pleasure to be here, and I am grateful 
that this Subcommittee is focused on what I view as a vital 
program for protecting public health in our communities.
    As the Chairman suggested, my background includes more than 
18 years of work on this program in various roles as regional 
administrator and White House lead counsel for the Clinton 
administration Superfund reforms, and as a State commissioner 
having to work cooperatively with EPA to get sites cleaned up.
    I think from those perspectives, I can say with some 
certainty that the flaws that the members of this Committee 
have identified in this hearing are very clearly the flaws of 
the program today. It is badly managed, it is underfunded, and 
enforcement is on the wane in the last 6 years of this 
    With all due respect to Administrator Bodine and certain 
members of the Committee in terms of the pace of cleanup, the 
composition of the national priorities list and the list of 
sites and actions that are in the funding queue didn't change 
overnight in 2000. However, the management of the program did 
and the pace of cleanup did, going in half from more than 85 
site completions over the 4-years immediately preceding, to 42 
or less ever since. That is an enormous change. The list didn't 
change, but the management did.
    Second, on funding, it is obviously very difficult to 
decipher sometimes the language of Superfund. You have to know 
the code. There are numerous times when sites are ready to 
fund, simple excavations are ready to fund, but you will see on 
an EPA site that is in engineering or in design. Frankly, in 
New Jersey at some of the sites I will discuss, there are 
simple excavation remedies that have been in design for the 
length of time it would take a high school senior to get an 
engineering degree.
    I think in those cases, it is fair for members of this 
Committee in their oversight, and as Senator Lautenberg knows 
well, to infer that something else is going on, and that 
something else is typically a funding shortfall obscured by the 
bureaucratic language suggesting that there is still work to be 
done before it is ready to fund.
    Of course, these are reinforced by failures of enforcement, 
which has occurred at numerous sites in New Jersey, which I 
discuss in my testimony.
    Each of these factors--the failures of enforcement, the 
failures of funding, the failure to manage, to complete 
protection of the community at these sites--is mutually 
reinforcing. If management isn't sending the message from the 
top that these sites have to be completed, there is little 
institutional incentive to take needed enforcement action. 
There is little need for funding because essentially management 
is not sending the signals. Those failures have very real 
impacts for public health and the environment.
    I highlight in my testimony a number of sites where cleanup 
actions are ready to fund, but the communities are still 
waiting after years and years for cleanup to begin. The 
Imperial Oil facility, which I mention in my testimony, 
repeatedly EPA representations that a simple excavation remedy, 
removing contaminated soils that are adjacent to densely 
populated communities, are still being designed; in that case, 
8 years to design a simple remedy. It is simply not credible.
    In the case of the Cornell-Dubilier site, with open dumps 
of capacitors containing PCBs in the midst of an area where 
there are hundreds of families. I have a chart that just gives 
you some sense of the levels of contamination. These are onsite 
soils. The offsite soils are relatively similar. This is the 
State standard to protect public health. These are the levels 
at the site, and yet there are numerous actions at the site 
that are waiting to be done and are unfunded.
    At the Roebling Steel site, literally a site that has been 
in hiatus for years, very simple remedy, not a complex 
complicated remedy that takes years to decide, but one where 
the cleanup actions have been decided and have been decided for 
years. And yet for 4 years, the cleanup actions that were ready 
to go simply were in the funding queue and the public was told 
that they were awaiting design, even more devastating, in those 
sites that affect low-income and minority communities. I 
applaud the Chair for her bill linking the environmental 
justice issues to the Superfund cleanup issues.
    In the Ringwood site, which Senator Lautenberg has visited 
numerous times, a Native American community waited and waited 
for EPA to respond to its calls to remove contamination from in 
and around their homes. When EPA failed to enforce, I took 
action and in 3 days we removed more material under State law 
from around the homes than EPA had been able to remove in 30 
years. And even now, as the community has asked for more 
actions by the Ford Motor Company, EPA, to my chagrin, 
continually sides with the company over the community and over 
my successor, Commissioner Jackson, in terms of the studies 
that are needed; in terms of the needed actions to protect 
human health.
    An even sadder story on the Passaic River. We have levels 
of dioxin that are creating enormous risks for low-income, 
mostly non-English speaking communities along the Passaic 
River. And yet year after year, EPA's decision is to do more 
studies. Only after the State took action under its enforcement 
authorities, funded its own remedy, did EPA begin to move away 
from a schedule that contemplated a decision no earlier than 
2011, with remedies coming in 2013.
    Each of these circumstances I think highlights those three 
flaws of this program. They are not a function of more complex 
sites. They are not a function of the changed nature of the 
NPL. They are functions of bad management and a failure to 
commit to the funding that is needed and the enforcement that 
is needed to protect public health in our communities.
    [The prepared statement of Mr. Campbell follows:]

 Statement of Bradley M. Campbell, Principal, Bradley M. Campbell, LLC

    Madam Chairman and Members of the Subcommittee, I am 
pleased to appear before you this morning to testify on the 
Superfund program's capacity to protect public heath. I am 
Bradley M. Campbell, currently an environmental attorney and 
consultant and president of Bradley M. Campbell LLC and 
Minotaur Consulting LLC.
    My testimony today is informed by more than 18 years of 
work with the Superfund program spanning the administrations of 
three Presidents. As an attorney with the United States 
Department of Justice from 1990 to 1995, I tried or 
participated in many of the seminal liability cases under 
statute, and also served as the Department's lead attorney for 
Superfund reauthorization and reform during the 103d Congress. 
As Associate Director of the White House Council on 
Environmental Quality (CEQ), I helped coordinate the Clinton 
administration's positions on Superfund and brownfield 
legislation during the 104th Congress. While at CEQ, I also 
worked directly with the Environmental Protection Agency to 
develop and implement the Clinton administration's Superfund 
reform and brownfields initiatives.
    In 1999, President William Jefferson Clinton appointed me 
Regional Administrator of EPA's Region 3, where I was 
responsible for oversight and implementation of the Superfund 
program in Delaware, Maryland, Pennsylvania, Virginia, West 
Virginia, and the District of Columbia. I served as regional 
administrator until the change of administration in 2001.
    In 2002, I was nominated by the Governor of New Jersey and 
confirmed by the New Jersey Senate as Commissioner of New 
Jersey's Department of Environmental Protection, a position in 
which I served for 4 years ending in January 2006. In this 
role, I was responsible for protection of human health and the 
environment in a State that has more sites in Superfund's 
National Priority List (NPL) than any other.
    Currently, I am in private practice as an attorney and 
consultant, where I continue to interact with the program on 
behalf of municipalities, responsible parties, and 
environmental and community organizations.
    In these varied roles, I have seen firsthand how important 
the Superfund program can be in protecting communities from 
toxic threats, in returning contaminated sites to productive 
use, and in renewing the economy and fabric of communities. I 
also have understood, through the work of Members of this 
Committee and the testimony of those who live near Superfund 
sites, many distinct failures of the program throughout its 


1. Overview
    There has been a common thread in both Superfund's 
successes and its failures. Simply put, this is a program that 
is highly sensitive to EPA's agency leadership on cleanup pace, 
to levels of funding, and to the program's enforcement 
    In the first years of the Superfund program, Congress 
responded directly to program failures of leadership, funding, 
and enforcement in the Superfund Amendments and Reauthorization 
Act of 1986. Four years later, Administrator William K. Reilly 
initiated the ``90-day review,'' which resulted in additional 
reforms and the start of an ``enforcement first'' policy that 
accounted for the first significant increase in the pace of 
remedial work under the program.
    When the 103d Congress failed to enact President Clinton's 
broadly supported proposals for Superfund reauthorization and 
reform legislation, Administrator Carol Browner implemented a 
sweeping set of management and policy reforms to address the 
broad range of challenges identified during the legislative 
process. This second wave of reform included, among other 
achievements, EPA's highly successful Brownfields Program.
    While the number and scope of these reforms are beyond the 
scope of this testimony, they can be fairly described in the 
mantra that all of us working on those reforms heard and 
repeated often: Superfund cleanups had to be faster, cheaper, 
and fairer. The success of the effort was easy to document, 
however, in the sustained increase in the pace of Superfund 
cleanups that resulted unfortunately, over the last six and a 
half years, the program has suffered from the current 
administration's approach to management, funding, and 

     Pace of Cleanup: EPA has effectively abandoned any 
management focus on maintaining a reasonable pace of cleanup 
completion. By EPA's own statistics, the pace of cleanup 
progress has been cut roughly in half as measured by 
construction completions. While the use of this program measure 
has had its critics, the agency's failure to manage the program 
to maintain the pace of cleanup is documented by other measures 
as well.
     Funding: Closely linked to the pace of cleanup is the 
level of funding. Over the past 6 years, shortfalls in funding 
at sites where remedial work is ready to start have been more 
numerous and more pronounced. As a consequence, bureaucratic 
delay in the cleanup process has been encouraged, or has been 
used as a veil to obscure funding shortfalls.
     Loss of enforcement ethic: In the absence of clear and 
transparent goals for cleanup completion, and in the absence of 
funding for the agency to assume the lead for cleanups when 
responsible site polluters are uncooperative, EPA has been far 
less willing to use the powerful enforcement tools the statute 
confers on the agency, and less willing to compel responsible 
polluters to perform more thorough or more comprehensive 
2. Pace of Cleanup
    Through a combination of Administrator Browner's program 
reforms, imposition of clear management goals, and the full 
funding of the Superfund through the Superfund tax, EPA 
achieved a remarkable pace of 85 or more construction 
completions each year in the 4 years ending in fiscal year 
2000. In the preceding 4 years, as a consequence of 
Administrator Reilly's ``enforcement first'' program and 
Administrator Browner's early leadership, the annual number of 
construction completions averaged more than 65.
    By contrast, in the 4 years ending in 2006, the current 
administration has achieved construction completion at 41 or 
fewer sites each year.\1\
    \1\Source: EPA 2007. See also Katherine N. Probst and Diane 
Sherman, Success for Superfund: A New Approach for Keeping Score 
(Resources for the Future, 2004)(Probst & Sherman) at 2 (``the number 
fo new construction complete sites has decreased quite dramatically in 
the new millennium'').
    This decline in program efficacy was as sudden as it has 
been stunning in magnitude. In response, EPA leaders and others 
have suggested that the decline in construction completions is 
attributable to the fact that remedial remaining NPL sites 
cleanups are larger and more complex than those in preceding 
    This explanation is deficient for a number of reasons. 
First, the composition of the NPL did not change overnight in 
2000, but the pace of cleanup and the agency leadership clearly 
    Second, some of EPA's most ambitious and complex site 
cleanups, such as the Hooker Chemical or Love Canal site, were 
among the sites at which the agency achieved construction 
completion and, in the case of Love Canal, deletion from the 
    Third, any change in the complexity or scale of cleanup 
challenges at sites where communities still await construction 
completion is offset by EPA's increasing reliance on 
institutional or engineering controls in lieu of permanent 
remedies, compared to earlier phases of the program. 
Institutional controls typically reduce both the cost and time 
required for major cleanups to achieve construction completion. 
While EPA's dependence on institutional controls gives rise to 
serious concerns about the reliability of Superfund remedies 
and long-term protection for affected communities,\2\ it is 
beyond dispute that the expanded use of institutional controls 
enables EPA to maintain the pace of cleanup even if, as current 
agency leaders assert, remaining cleanup challenges are more 
complex or larger in scale.
    \2\See Jophn Pendergrass and Katherine N. Probst, Estimating the 
Cost of Engineering Controls (Environmental Law Insitute and Resources 
for the Future 2005).
    Fourth, as some of the examples in the second half of my 
testimony help illustrate, many of the cleanups that await 
completion are utterly commonplace in nature, presenting no 
unusual challenges of complexity or scale.
    I acknowledge that ``construction complete'' is an 
imperfect measure of program success in protecting public 
health, as some of the programs most trenchant analysts have 
noted.\3\ Yet whatever the limitations of ``construction 
complete'' as a program measure, it is the only readily 
available and transparent indicator of program success. It 
remains the measure that the current administration itself 
holds out as an appropriate measure of success, and so it 
should remain among the standards by which the performance of 
the agency leadership is judged.
    \3\Probst & Sherman 6--9.
    Moreover, other significant indicators of program efficacy 
reinforce this measure. In New Jersey, for example, more than 
half of the sites that lack construction completion have 
uncontrolled human exposure pathways or uncontrolled 
groundwater migration, risks that are almost always eliminated 
by construction completion. While there is no longitudinal data 
to determine how this figure has changed over time, it tends to 
reinforce the virtue of using ``construction complete'' as a 
milestone of program efficacy.
    These broad observations about the changed pace of the 
program are borne out by the very different approaches to the 
program that I experienced first as an EPA Regional 
Administrator in 1999--2001 and that I experienced later as DEP 
Commissioner from 2002-2006 in New Jersey, the State with more 
Superfund NPL sites (140) than any other.
    During my tenure as an EPA regional administrator, EPA's 
national Superfund program goals were clearly communicated by 
the agency's national leadership and incorporated in regional 
and site-specific management of the program. These goals also 
were reflected in our cooperative work with our State 
counterparts. As a consequence, everyone at EPA from 
headquarters to the field learned to focus on resolving 
impediments to clean up and, where consistent with public 
health protection, to accelerate the pace of cleanup.
    When I became DEP commissioner in 2002, it was apparent in 
working with the Superfund program that EPA had little or no 
agency initiative or senior management emphasis on maintaining 
or improving the pace of cleanup. New Jersey's requests for EPA 
to step up the pace at particular sites were generally 
unproductive. Conversely, EPA rarely requested State action to 
hasten cleanup progress or accelerate construction completion, 
requests I made often during my own tenure at EPA.
3. Funding Shortfalls
    The pace of cleanup is closely tied to the availability of 
funding. There has been long recognition due to EPA's success 
in the late 1990's at achieving a construction completion rate 
of 85 or better that the Superfund would have to be replenished 
and funding expanded. This was reflected both in President 
Clinton's repeated calls to reinState Superfund taxes, and in 
budget proposals that included significant expansion of program 
funding to meet the accelerated pace of cleanup.
    During my tenure as a Regional Administrator, I never had 
to delay or defer cleanup actions because funding was 
unavailable. During my later tenure as DEP Commissioner, EPA 
repeatedly told me that cleanup would be delayed because of 
funding shortfalls. In addition, there were numerous occasions 
in which proposed remedies were rejected for trivial or 
pretextual reasons because funding was not available to proceed 
with cleanup. In one case, EPA staff shared with me internal 
emails in which they were directed to find a technical basis to 
reject a remedy because funding was not available. In other 
cases, the message was less explicit but no less clear, as some 
of the examples in the second half of my testimony illustrate.
4. Diminished Enforcement
    Even with clear management goals for cleanup pace and 
adequate funding, the pace of the Superfund program depends 
vitally on strong enforcement.
    This principle was embedded in EPA policy as ``enforcement 
first'' during the tenure of Administrator Reilly, and this 
policy shift transformed the program from one in which 
approximately two-thirds of cleanups were led by EPA using 
Superfund resources, to one in which responsible polluters took 
the lead in funding and performing cleanup at two thirds of NPL 
    With responsible parties in the lead at the majority of NPL 
sites, use of enforcement tools is essential to maintaining the 
pace and quality of cleanup. EPA must be willing to use its 
unilateral order authority to compel responsible polluters to 
perform protective and expeditious cleanups, and must be 
prepared to use the threat of treble damages if EPA must assume 
control of the cleanup in place of the responsible party.
    EPA's willingness to use its enforcement tools is critical 
not merely for completing cleanups, but also to compelling 
interim measures to control hazardous substances and to cutoff 
pathways to human exposure. My experience in dealing with EPA 
as New Jersey's DEP Commissioner was that EPA's willingness to 
use the enforcement tools Congress has given the agency has 
waned significantly over the past 6 years. At several New 
Jersey NPL sites, I had to threaten enforcement action under 
State law in order to prompt responsible parties to enter a 
consent order with EPA to implement interim measures to stop 
ongoing pollution to ground and surface waters.
    Of course, the agency's enforcement posture in the cleanup 
context is difficult to quantify and generally opaque to the 
public. My experience, both as New Jersey DEP Commissioner and 
subsequently as a private attorney, as the examples in the 
second part of my testimony suggest, has been that the current 
EPA leadership is rarely willing to order responsible parties 
to perform remedial activities at an accelerated pace or to 
order remedies that are more protective than those that the 
responsible polluters are willing to perform.
    Of course, these three failings of the current program are 
closely related. In the absence of clear management oversight 
to maintain or accelerate the pace of cleanup, there is little 
institutional incentive at EPA to take aggressive enforcement 
action. When funding is short, the resources to support 
potential enforcement litigation are more limited, the ability 
to resolve enforcement disputes through the use of mixed public 
and private funding is eliminated, and the credibility of EPA's 
most potent threat, that of taking over the disputed cleanup 
and asserting treble damage liability against the responsible 
polluter, is greatly diminished.


    The combination of management failure, funding shortfalls, 
and diminished enforcement now manifest in EPA's administration 
of the Superfund program are not abstract failures to meet 
bureaucratic program measures. Rather, they are failures that 
have direct and grave implications for public health in our 
communities, for economic growth and renewal in communities 
saddled with contaminated sites, and for the quality of life in 
communities that already have waited far too long for 
Superfund's promise of protective cleanups.
    Moreover, there is a ``downstream'' effect of these 
failures on hundreds of sites beyond those on the NPL. For 
years, State agencies like New Jersey had enormous leverage to 
compel prompt cleanup at NPL-caliber sites because responsible 
polluters sought to avoid the greater cost, public attention, 
and stigma associated with NPL listing and remediation under 
Federal requirements of the National Contingency Plan (NCP). As 
the Federal program has become less focused on cleanup 
completion, hampered by funding shortfalls, and less willing to 
use enforcement tools, the potential for listing on the NPL is 
no longer a strong driver for responsible polluters to complete 
protective cleanups under State law.
    The following examples, drawn from my experience over he 
past 6 years, should highlight how the broad program trends 
outlined in the first part of my testimony directly and 
adversely impact New Jersey's communities.
1. Passaic River Dioxin (Diamond Alkali)
    Nearly 27 years after the passage of Superfund, and more 
than 23 years after site listing on the NPL, dioxin 
deliberately and unlawfully dumped in the Passaic River from 
the Diamond Alkali site in Newark, New Jersey continues to 
spread down the river and throughout the Newark Bay estuary. 
With each tide, the dioxin spreads further throughout the 
system. With each tide, and with each year of sediment, the 
cleanup challenge becomes more difficult and more expensive. To 
date, EPA has proposed no interim or final action to address 
the dioxin contamination in the river.
    The toxic threat presented by this site has not been cured 
by fish advisories, even though DEP took the lead in posting 
more effective warning signs, and in funding extensive outreach 
to communities to make them aware of dioxin risks. Scores of 
New Jerseyans, predominantly in non-English-speaking 
communities, continue to take the crabs as subsistence, failing 
either to understand or to heed warnings in multiple languages. 
On the New York side of the estuary, no warnings or take 
prohibitions are posted at all. Levels of dioxin in blue claw 
crabs are such that one could only safely eat one crab in 20 
years. In a risk estimate developed at DEP and reviewed by EPA, 
cancer risks for those taking the crabs for consumption were 
estimated to exceed one hundred percent, meaning the exposed 
populations were at risk of multiple cancers over their 
lifetime. Prior to my start at DEP, neither EPA nor DEP made 
any significant effort to publicize these risks or to compel 
the responsible companies to address the dioxin contamination.
    For decades, EPA's pattern had been to do years of studies, 
take years to review the studies, and then order additional 
rounds of studies on the basis that newer data was needed, 
never asking more than the responsible polluter was willing to 
do early in my tenure as Commissioner of DEP, I joined with EPA 
and other Federal agencies in a ``Passaic River Restoration 
Initiative'' or PRRI, authorized by Congress with the stated 
intention of accelerating remedial work on the river. In the 
context of that initiative, New Jersey repeatedly urged EPA to 
accelerate the development of remedial options, to no avail. 
EPA consistently interposed the need for more study, and cited 
the failure to fund the legislative initiative as an additional 
cause of delay.
    I then personally met with the leading regional scientists 
who had studied the contamination. They presented a clear and 
strong consensus that the data needed for a remedial decision 
was available and delay for further study would only allow the 
extent of contamination to expand. When I renewed my press for 
early action to address the contamination, EPA circulated a 
revised draft schedule promising a remedial decision in 2013 
and remedial action in 2015.
    New Jersey then made clear to EPA that we intended to issue 
our own order under State authority requiring the principal 
responsible party to develop, design and engineer an 
appropriate remedial measure to reduce dioxin loadings within a 
year, making clear that our decided preference was for EPA to 
act or for EPA and the State to develop an order together. 
Again, EPA refused, even as they asserted that their own 
intention was to develop remedial options within a year.
    Throughout the process, EPA cited the lack of funding 
available to proceed with the process if a major dispute were 
to arise with the responsible parties, and exhibited a 
steadfast unwillingness to use its enforcement tools to compel 
the responsible parties to design remedial measures within a 
reasonable timeframe.
    Only after New Jersey issued its independent order, 
retained outside counsel to enforce the order, and committed 
its own funds to the design of a remedy, did EPA finally begin 
to pursue a reasonable schedule for the cleanup they had 
neglected for nearly thirty years. Happily, Governor Jon 
Corzine took office and expanded the funding for this effort 
under my able successor, Commissioner Lisa Jackson.
    But the pattern of delay has not ended. Just recently, EPA 
once again postponed long-overdue remedial action on the river 
by deferring, until next spring, a review of its remedial 
options by the agency's remedy review board. The dioxin will 
spread further, remedial options will be made more expensive by 
another year of sedimentation, the day when fish and shellfish 
will be healthy to eat will recede further into the future. 
And, most tragically, the health of scores of New Jerseyans 
will remain at great risk for years to come.
2. Ringwood Mines
    For years, the Ford Motor Company dumped paint sludge from 
its manufacturing operations in old mine shafts and 
uncontrolled dump sites in Ringwood, New Jersey, leaving waste 
bearing lead and other toxins over more than 500 acres in the 
small Borough of Ringwood. The population of Ringwood numbers 
13,000, and still fewer--less than a hundred ? live in the 
immediate vicinity of the waste, but runoff from the sites 
migrates to the Wanaque Reservoir, which serves more than 2 
million New Jersey residents.
    Ringwood and the predominantly low-income families living 
near the waste had long complained about the adequacy of Ford's 
cleanup effort, but EPA and DEP ignored these complaints for 
years.\4\ As a result of effective advocacy by the Borough and 
local residents, and a superb investigative series by the 
Bergen Record newspaper, the community called my attention to 
the failures of the cleanup at the site. New Jersey DEP 
undertook a renewed investigation, and found enormous volumes 
of paint waste left in plain sight, adjacent to and inside the 
yards of local families, where toxic exposure has been a fact 
of life for these residents for decades.
    \4\I must note my disagreement with the recent conclusion, by EPA's 
Inspector General, that the past failures had nothing to do with 
minority and low-income composition of the community.
    The regulatory failure at both the Federal and State levels 
that allowed this site to be de-listed from the NPL is a 
tragedy of terrible proportions, and one not attributable to 
the current program. I credit EPA and its Regional 
Administrator, Alan Steinberg, for responding to our calls to 
visit the site, for promptly recognizing that this site should 
be re-listed on the NPL, and for requiring Ford to initiate a 
new and more comprehensive cleanup.
    Yet even in the aftermath of extraordinary agency failure, 
and EPA's recognition of the programmatic failure that left a 
distressed community at risk for years after the site was 
deleted from the NPL, the cleanup process at Ringwood is 
hampered in this second cleanup by funding shortfalls and lax 
    Despite the earlier failure to give the community an 
adequate voice in the cleanup, EPA from the outset refused our 
request for technical assistance grants that would enable to 
community effectively to participate in the cleanup. Despite 
Ford's clear responsibility for the site and its earlier 
failures to perform an adequate cleanup, EPA has repeatedly 
sided with Ford and against the citizens and the Borough in the 
cleanup process.
    For example, both the community and current DEP 
Commissioner Lisa Jackson have asked for seismic studies to 
determine the impact of the waste and the cleanup process on 
local ground stability, because local residences have been 
plagued with sinkholes in the area of the contamination. Rather 
than compel Ford to perform this needed work, EPA sided with 
Ford and against DEP and the community in deeming the work 
    When Ford responded to the re-listing of the site by 
asserting liability against the tiny Borough that had helped 
bring the egregious failures by Ford and EPA to light, EPA 
again sided with Ford, and to this day has failed to enter a 
settlement that would appropriately limit the Borough's 
exposure to hostile litigation by Ford.
    Here as elsewhere, EPA has demonstrated little willingness 
to compel more cleanup work than the responsible polluter is 
willing to offer its taxpayers, has been unwilling to use its 
enforcement tools to ensure complete cleanup or to protect the 
Borough, and has not provided or required Ford to provide the 
funding needed for the community to participate fully in the 
    The long-suffering Borough of Ringwood and its residents, 
it appears, will suffer still longer.
3. Imperial Oil
    The Imperial Oil/Champion Chemical site encompasses 15 
acres surrounded by residential neighborhoods in Monmouth 
County, New Jersey. Past operations at the site included waste 
oil reprocessing and agricultural chemical production, and the 
legacy of those operations include waste oil, PCBs, and arsenic 
contamination. This contamination has extended offsite and into 
a nearby creek. While there has been some removal of 
contaminated soils from areas outside the fenced-in boundary of 
the site, the remediation of the onsite contamination at the 
site of the former Imperial Oil facility has been continually 
postponed due to lack of funding. EPA has relied primarily on a 
fence to protect the local community and curious children from 
onsite contamination at the facility.
    The impact of funding shortfalls in the Superfund program 
has been especially apparent in EPA's management of the third 
phase or ``operable unit'' of the cleanup (Operable Unit 3 
(OU3). The Record of Decision (ROD) for OU3, which finally 
determines the cleanup plan, was signed in 1999. New Jersey DEP 
assumed the lead for the design and engineering of OU3, and 
this work was substantially completed in 2001.
    From 2002 onward, EPA continually rejected completed design 
work for OU3 on trivial or pretextual grounds, while making 
clear the funding was unavailable for the site even if EPA were 
to approve the designs. EPA staff inadvertently forwarded to 
DEP staff internal correspondence in which EPA technical staff 
were directed to find a technical basis to reject DEP's OU3 
design, because funding would not be available for some time. 
Over time, New Jersey's complaint over this impasse and the 
funding shortfall became more vocal, joined by members of New 
Jersey's congressional delegation.
    In 2006, EPA simply took over the lead for the site. 
Notably, but not credibly, the agency reports on its website 
that it is still ``designing'' the relatively straightforward 
excavation remedy provided by OU3.
    This is a site that is entirely dependent on adequate 
funding by the Superfund program, the responsible parties being 
largely insolvent or defunct. While EPA's public descriptions 
of the site suggest that it has taken the last 8 years for two 
different agencies to design and agree to a remedy for a simple 
soil excavation, the reality is that the cleanup delays are 
attributable to inadequate funding and failure to manage for 
construction completion.
4. Roebling Steel
    Another site where cleanup depends entirely on program 
funding and has been delayed repeatedly is the sprawling 
Roebling Steel site, encompassing five hundred acres along the 
Delaware River in Florence Township, New Jersey. All of the 
funding available from the responsible party was recovered in a 
Chapter 11 bankruptcy proceeding in 1992.
    The site is at the heart of the Township's plans for 
economic redevelopment, a fact highlighted by EPA's award of a 
$100,000 planning grant for reuse of the site and its stated 
willingness to enter a prospective purchaser agreement (PPA) 
with potential redevelopers. But neither the modest planning 
grant nor a PPA can overcome the principal obstacle to 
redevelopment of the site: protracted delays in EPA's cleanup 
of the site.
    Despite repeated requests by DEP and the Mayor of Florence 
to EPA to fully fund cleanup at the site, remedial activity at 
the site went into an extended hiatus throughout my 4 years as 
commissioner. EPA staff privately attributed the hiatus to 
funding shortfalls, whereas EPA's public summaries of cleanup 
progress suggest that delays are due to design of the 
relatively straightforward remedial action selected for the 
site. Here again the remedy ``design'' process serves as a veil 
to obscure the agency's current failures of management and 
funding. Here again, the remedy still-to-be funded is a simple 
excavation, presenting no unusual complexity.
    As at Imperial Oil and Cornell-Dubilier (discussed below), 
the relatively uncomplicated nature of the remedial work that 
remains to be funded belies EPA's claims that construction 
completions have slowed due to the nature of the remedy rather 
than management failure or funding shortfalls.
    EPA's own portrayal of the site on its web pages 
illustrates starkly the extent of delay. The third remedial 
action selected for the sight was completed in 1994. EPA 
currently projects that design, not construction, of the fourth 
remedial action will be completed in the fall of 2007 ? 13 
years later. While other work, including a revetment along the 
river, has been completed in the interim, little or no work 
occurred for more than 5 years.
    Given this pattern of funding shortfalls and cleanup delays 
over the past 6 years, the Township of Florence can have no 
optimism as to whether and when the site will be available for 
redevelopment and returned to productive use. Prospective 
purchasers have little or no reason to choose redevelopment of 
this site over available greenfield sites. And the site 
continues to be a source of toxic loadings to the adjacent 
Delaware River.
5. Berry's Creek/Universal Oil Products
    As the Passaic River example illustrates, the failures of 
management, funding, and enforcement that mark the current 
Superfund program appear especially pronounced at contaminated 
sediment sites, even where (as on the Passaic) the 
contamination at issue is primarily attributable to a single 
polluter. Current program failures at these sites adversely 
affect not only surrounding human and natural communities, but 
also hamper the good-faith efforts of responsible companies to 
complete their cleanup work and resolve their liability.
    The Berry's Creek Superfund provides a New Jersey example 
of this problem. At this site, remedial actions for the land 
portion of the site progressed, but the cleanup process for the 
mercury contamination of marsh and river sediments has 
languished for years. At this site, one of the responsible 
parties repeatedly sought to accelerate the pace of remedial 
investigation and feasibility studies, but found that after 
many years EPA had done little more than have the responsible 
party fund a literature search.
    In response, the responsible party took the unusual step of 
asking New Jersey DEP to assume the lead for the cleanup and 
undertake an accelerated remedial effort. While New Jersey 
DEP's own program for hazardous site cleanup already was 
overburdened, the good faith of the company in making this 
overture persuaded me to make the request of EPA, either to 
have the State take over the lead or to jointly develop an 
accelerated approach with EPA. EPA flatly rejected this 
request, but the fact of the request demonstrates the level of 
frustration with the current program pace even among 
responsible parties.
    EPA did finally begin remedial investigation of the marsh 
and creek in 2005, but there is little prospect of a remedial 
decision in this decade if current program approaches continue.
5. Cornell-Dubilier
    The severity of Superfund funding shortfalls is further 
illustrated by the fact that even sites with ongoing human and 
ecological suffer long delays in the queue for funding.
    Located in South Plainfield New Jersey, the Cornell-
Dubilier Electronics site has more than 540 residents living 
within one quarter of a mile of the site, and the site includes 
direct surface water connections to ecologically sensitive 
tributaries of the Bound Brook.
    EPA has undertaken numerous emergency response and remedial 
actions at the site, but funding shortfalls have delayed a 
number of major remedial actions called for by the record of 
decision signed in 2004. In particular, there is an open and 
uncontrolled dump of capacitors that comprises, by EPA's own 
description, the most contaminated portion of the site.
    This phase of the cleanup should have proceeded no later 
than 2005, but due to funding constraints and the cleanup of 
the capacitor disposal area is not projected by EPA to take 
place until later this year. In addition, expanded cleanup of 
commercial and residential areas has progressed at an unduly 
slow pace ? by all accounts because of inadequate funding.
    In the interim, both the public and sensitive natural 
resources are being exposed to PCBs, heavy metals, and toxic 
organic compounds.


    Both broad statistics and the experience of states on the 
ground are consistent: the Superfund program has lost its focus 
on completing cleanup work, is hamstrung by funding shortfalls, 
and is unwilling to make full use of the enforcement tools 
Congress as given the agency.
    The consequences for public health and the economy of 
affected communities in New Jersey are profound. So too, are 
the consequences for New Jersey DEP, already managing far more 
hazardous sites than its resources permit.
    I am grateful to the subcommittee for focusing its 
attention on this vital public health and environmental 

    Senator Clinton. Thank you very much, Mr. Campbell.
    Next, Michael Steinberg, Senior Counsel of Morgan, Lewis 
and Bockius, and Outside Counsel to the Superfund Settlements 

                      SETTLEMENTS PROJECT

    Mr. Steinberg. Thank you, Madam Chairman and members of the 
Subcommittee. It is a pleasure to be here this morning on 
behalf of the Superfund Settlements Project.
    Superfund is far from perfect, but I believe it functions 
more effectively today than it has during most of its life. 
Today, responsible parties are cleaning up most of the sites on 
the NPL and they are paying the full cost of those cleanups. It 
hasn't always been that way. At the orphan sites, where there 
are no responsible parties, EPA uses the so-called trust fund 
to pay for cleanups.
    This morning, I would like to address three issues: health 
risks, financial management, and listing sites on the NPL.
    First, Superfund is doing a better job than you might think 
in reducing risks to public health. In fact, most NPL sites no 
longer pose current health risks. How do we know this? Because 
Superfund has already eliminated human exposure to unsafe 
levels of contamination at those sites. Without exposure, there 
is no risk.
    Now, that is a pretty basic point, but it sometimes gets 
overlooked. For example, the report issued last year by 
Professor Steinzor looked at 50 NPL sites and said that they 
all posed major health risks. In fact, that report looked at 
proximity, not exposure. Again, proximity alone is not the same 
as exposure. Half of those 50 sites are listed by EPA as having 
human exposure under control. That means EPA found no exposure 
to unsafe levels of contamination at those sites--not in the 
air, not in the soil, and not in the groundwater or the surface 
water or the sediment. Again, without exposure, there is no 
    Of course, no one is suggesting that we walk away from 
those sites. They still need to be cleaned up. But when we look 
at the competing needs of other Federal programs that protect 
public health and we try to establish priorities for getting 
things done, we need to remember that most NPL sites no longer 
pose current health risks.
    Second, if we look at how EPA runs the Superfund program, I 
would echo some of the comments made earlier that there is a 
pressing need for stronger financial management. My written 
statement offers a few recommendations that would conserve 
EPA's appropriation for use at sites where there are no 
responsible parties. I would like to focus this morning on just 
one of those recommendations.
    A big chunk of EPA's Superfund appropriation each year is 
consumed by support offices that are not involved in cleanup. I 
am not talking about administrative overhead. I am talking 
about things like the Office of Inspector General, and the 
Office of the Chief Financial Officer. These offices provide 
what are basically shared services to all of EPA's programs. 
Superfund alone has its appropriation raided to pay for those 
services, and these raids add up to some $200 million each 
year, again some 15 percent of EPA's budget for Superfund, 
going to offices that are not involved in cleanups.
    We would urge that this spending be sharply reduced 
beginning in Fiscal Year 2008. This is the most direct and 
logical way to free up more money for the program's core 
mission of working on NPL sites that lack responsible parties.
    Third and last, let's look at the NPL. Listing a site on 
the NPL creates a long-term financial obligation for Superfund. 
So before a site is listed, we should ask whether other 
approaches might work just as well or even better. For example, 
the State's voluntary cleanup program might encourage 
responsible parties to move forward with a faster and more 
efficient cleanup. EPA agrees in concept, and that is why they 
call the NPL the tool of last resort. But it is difficult to 
tell whether EPA is looking at those other approaches before it 
lists a site.
    If you open the Federal Register and you look at a proposed 
listing, you will notice that EPA never says why it wants to 
list the site. It doesn't say whether it has looked at other 
approaches. This means that communities and interested parties 
can't submit meaningful comments on proposals to add sites to 
the list.
    Whatever EPA's reasons for listing sites, the real need 
here is for transparency. Every proposed listing should say why 
EPA wants to list the site and whether it looked at other 
approaches besides the NPL. This way we will ensure that EPA is 
considering alternatives and we will avoid using Superfund 
resources for sites that can be addressed effectively through 
other programs.
    Thank you very much.
    [The prepared statement of Mr. Steinberg follows:]

 Statement of Michael W. Steinberg, Senior Counsel, Morgan, Lewis and 
    Bockius LLP, and Outside Counsel, Superfund Settlements Project

                           executive summary

    Superfund today is a mature program that has addressed most 
of its original workload. Construction of the remedy has been 
completed at most of the sites on the National Priorities List, 
and even more NPL sites have human exposure under control.
    Today, private parties are cleaning up most of the sites on 
the NPL, and they are paying the full cost of those cleanups. 
The Trust Fund is used to pay for the ``orphan sites'' where no 
responsible parties can be found to perform the work.
    Despite Superfund's many accomplishments, there is still 
room for improvement. By strengthening its financial management 
controls, EPA can and should do more with its annual Superfund 
    Specifically, EPA should conserve more of its annual 
appropriation for the core mission of the Superfund program--
completing long-term cleanup at NPL ``orphan sites.'' Among the 
key steps EPA should take are these:

     spend less money on support services from EPA offices 
that are not involved in actual site cleanups;
     provide all stakeholders a meaningful opportunity to 
comment on proposed additions to the NPL;
     exercise centralized management control over remedy 
selection decisions that shape Superfund's long-term financial 
     spend less money on oversight of work performed by 
experienced private parties; and.
     spend less money on non-emergency removal actions.


    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 major 
companies from various sectors of American industry. It was 
organized in 1987 in order to help improve the effectiveness of 
the Superfund program by encouraging settlements, streamlining 
the settlement process, and reducing transaction costs for all 
    The members of the Project share an extraordinary degree of 
practical, hands-on experience with the Superfund program. They 
have been involved at literally 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, the Project's members have spent well over 
six billion dollars onsite 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 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.


    Superfund is a mature program that has largely accomplished 
its goals, albeit at a cost that was not always justified by 
the risks being addressed.\1\ 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. Given the substantial deterrent effect of those statutes, 
Congress has a right to expect that fewer sites are being 
created that will require remediation in the future, and this 
is consistent with our experience.
    \1\EPA considers ``cost-effectiveness'' only to a limited extent. 
40 C.F.R. 300.430(f)(1)(ii)(D) (2006). EPA does not consider the more 
fundamental questions as to the relative costs and benefits of 
alternative remedial actions. See generally State of Ohio v. United 
States EPA, 997 F.2d 1520, 1532 (D.C. Cir. 1993) (``there is nothing in 
section 121 [of CERCLA] to suggest that selecting permanent remedies is 
more important than selecting cost-effective remedies'').
    Today, private parties are cleaning up most of the sites on 
the National Priorities List (``NPL''), and paying the full 
cost of those cleanups. The Superfund Trust Fund is paying for 
cleanups at the ``orphan sites'' where no responsible party 
    \2\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 
    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.
    In this statement, we first describe the evolving 
partnership between EPA and industry that has enabled the 
Superfund program to achieve notable successes, particularly 
since EPA's announcement of major administrative reforms in 
October of 95. Then we turn to some of the pressing challenges 
currently facing Superfund.
    The central theme that connects all of these challenges is 
the need for EPA to manage its annual appropriation more 
effectively than it does today.\3\ Currently, EPA:
    \3\The Superfund budget is about 50 percent bigger than the budget 
for the Food Safety and Inspection Service, which protects the nation's 
meat, poultry, and egg products.

     transfers a significant fraction of its appropriation 
each year to EPA support offices that are not involved in 
actual cleanup work;
     assumes new long-term financial obligations each year 
with little transparency and limited review by senior 
management; 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 its Superfund ``income'' or 
``expenses'' as well as it can. In the spirit of constructive 
criticism, we offer today a series of recommendations aimed at 
helping EPA address these challenges. In particular, EPA 

     conserve more of its annual Superfund appropriation for 
long-term cleanup work at NPL sites that have non-performing 
     provide greater transparency for its new NPL listings;
     exert greater management control over the key cleanup 
decisions that increase Superfund's long-term financial 
obligations; and
     reduce unnecessary spending on oversight and non-
emergency removal actions.

                             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 performs a critical function in society. To be 
more specific:

     tens of thousands of contaminated sites have been 
     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;
     construction is underway at most of the remaining NPL 
sites; and
     human exposure is under control at most 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 that 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. At site after 
site across the country, 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 be more efficient 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 
``orphan sites.'' Importantly, all of the measures that we 
recommend here are steps that EPA can take without the need for 
legislative action or rulemaking.

                   CLEANING UP NPL ``ORPHAN 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 
     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 to other EPA 
offices that are not actually involved in cleaning up any 
Superfund sites. Congress should find this unacceptable, for 
several reasons.
    First, $200 million is a lot of money, particularly in 
comparison to the total amount that EPA actually spends on 
cleanup work. For example, the amount transferred to other 
offices in fiscal year was about the same as the total amount 
that EPA spent that year on Remedial Design and Remedial Action 
at NPL sites--the core mission of the Superfund program. In 
essence, Superfund has been spending about as much on indirect 
support in non-Superfund offices as it has been spending 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 sound 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, which is why 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.
    For all of these reasons, we recommend that EPA scrutinize 
its use of the annual Superfund appropriation and conserve more 
of that money for the core mission of the Superfund program.


    Each new site listed on the NPL 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 specific 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 fully on the listing. We address these two points in 
    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; 
     the strengths and weaknesses of the Superfund NPL 

    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 affected 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 instead of ``making a 
Federal case'' out of each site, the framework for response 
should emphasize state, local, and private efforts, rather than 
``making a Federal case'' out of each site.
    Second, there are now more ways to address contaminated 
sites than 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 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, 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.
    \4\See, e.g., U.S. General Accounting Office, Environmental 
Protection ? Meeting Public Expectations With Limited Resources 17--18 
(1991) (GAO/RCED--91--97) (health risks from contaminated sites ranked 
relatively low by EPA scientists, but relatively high by the public).
    In light of this experience, it is clear that the NPL 
should 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''--some years ago as its 
unofficial policy, 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 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'' include sites that:

     are severely contaminated; and
     pose immediate or severe risks; and
     have no near-term prospect of cleanup by viable PRPs.

    Apart from the sites that meet the above criteria for NPL 
listing, nearly all other sites should be managed under other 
programs, including 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\
    \5\This same approach should also govern NPL delistings or 
deletions. It makes little sense to keep a site in the NPL universe 
once it no longer meets the listing criteria.
    Importantly, it is fully expected that PRPs--private 
companies, as well as governmental departments and agencies--
will continue to perform and fund cleanups at sites they have 
contaminated. The point here is simply that Superfund is not 
the appropriate mechanism to address most of these sites.\6\
    \6\Similarly, EPA should discontinue its ``Superfund Alternative 
Approach,'' which brings sites into a parallel program where they 
compete with NPL sites for resources.
    We now turn to the process that EPA uses to list sites on 
the NPL, with a focus on the need for transparency regarding 
the reasons why sites are being listed at all.
    When it comes to transparency in government, more is 
better. Yet considering the importance of NPL listings, EPA's 
approach is relatively opaque--EPA never explains why it lists 
sites on the NPL.
    EPA adds sites to the NPL each year. Yet EPA does so 
without offering any explanation of what it seeks to accomplish 
by listing the new sites, what other option(s) it considered 
for addressing those sites, or why it believes the other 
option(s) were inadequate.\7\ Because EPA refuses to reveal its 
thinking, local communities and other interested parties have 
no opportunity to submit meaningful comments on proposed NPL 
    \7\EPA's Federal Register notices give the names and locations of 
the sites EPA proposes to list on the NPL, but they never explain what 
EPA hopes to accomplish by listing the sites. See, e,g., 72 Fed. Reg. 
53,5--(September 19, 2007) (proposing to list 12 new sites on the NPL 
without giving any reasons for doing so).
    To address this deficiency, EPA should include in each 
proposed NPL listing a statement that describes the other 
approaches that EPA considered for addressing the site (e.g., 
State voluntary cleanup program). EPA should also explain why 
it believes NPL listing is the best approach for each site.
    Based on that statement, the public could then submit 
comments that address the full range of possible approaches to 
a site. 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, without any added cost or delay.
    In sum, strong centralized management of the NPL listing 
process will help insure that the NPL remains ``the tool of 
last resort,'' so the Superfund will be conserved for orphan 
sites. Second, greater transparency in the listing process will 
help ensure that EPA has considered all viable options for 
addressing a site.


    After NPL listings, the next most important decisions in 
the Superfund program are the selection of final cleanup plans 
for NPL sites. Each year, EPA issues new Records of Decision 
(``RODs'') that select remedies for NPL sites around the 
    As a practical matter, each new ROD 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. Given the high cost of some cleanups, these 
``commitments'' can amount to tens of millions of dollars.
    Because the RODs are so important in shaping Superfund's 
long-term financial needs, the senior program officials at EPA 
Headquarters should review them closely 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.
    Specifically, under an EPA delegation of authority dating 
back to 1994, most new RODs are signed by Division Directors in 
the 10 Regional Offices. Review by senior program management at 
EPA Headquarters is typically quite limited. For all practical 
purposes, 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 

     revise its delegation of authority so that senior 
managers at EPA Headquarters review new RODs before they are 
     expand its National Remedy Review Board so the Board can 
review more sites and help insure that future remedy decisions 
are consistent with decisions at similar sites, technically 
sound, and, as required by section 121(a) of CERCLA, cost-
effective; and
     revisit and 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.

                            PRIVATE PARTIES.

    A decade ago, then-EPA Administrator Carol Browner 
recognized that EPA devotes excessive contractor dollars and 
excessive full-time equivalent personnel to duplicative 
technical work and 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, or even institute a tracking system for its own 
oversight spending. In fact, EPA only recently embraced 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.\8\ In our experience, EPA typically performs the 
same amount of oversight of PRPs that have successfully 
performed numerous cleanups at other sites as it did many years 
ago when those PRPs were just beginning to work on Superfund 
sites. Clearly EPA could free up additional resources for 
remedial construction at NPL sites by fulfilling its 10-year 
old pledge to reduce substantially its oversight of work 
performed by experienced private parties.
    \8\See Using RCRA's ``Results-Based Approaches and Tailored 
Oversight Guidance'' When Performing Superfund PRP Oversight (December 
22, 2006). Having belatedly embraced the policy of ``tailored 
oversight,'' EPA now needs to develop training and communications tools 
to ensure that this new policy takes hold in the 10 Regional offices. 
This will be made more difficult by the bureaucratic reality noted 
earlier: the EPA Regions are accustomed to a highly decentralized 
system where Headquarters has delegated most of the key decisionmaking 


    The Superfund removal action program was designed primarily 
to address emergency situations that required an immediate 
response. Yet today, relatively few removal actions involve 
    In fact, most removal actions now consist of so-called 
``time-critical'' actions, where EPA believes that work should 
be commenced within 6 months, and ``non-time-critical'' 
actions, where there is even less urgency involved. Of the 
2,440 removal actions that EPA selected during the period from 
fiscal year through fiscal year 9, a total of 1,892 (77.5 
percent) were either ``time-critical'' or ``non-time-critical'' 
actions.\9\ Thus, less than one-fourth of all removal actions 
involved emergency situations.
    \9\K. Probst, et al., Superfund's Future--What Will It Cost? at 25, 
Table 2--4 (2001).
    Given the availability of other Federal and State cleanup 
programs, it appears that spending some $250 MM/yr to perform 
primarily non-emergency actions is not a wise use of the 
Superfund budget. Superfund removal actions should focus on 
those sites, orphan or otherwise, that need immediate action to 
address actual emergencies.
    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 definitions, do not involve 
emergencies in any sense of the term. Accordingly, the removal 
program should be refocused on its original purpose.

      Response by Michael W. Steinberg to an Additional Question 
                           from Senator Boxer

    Question 1. The Superfund statute gives EPA the role of 
helping to protect the public interest by ensuring that 
cleanups are done right, so that families can safely raise 
their children and communities can safely use their land. In 
your testimony, you call for reducing such oversight. How would 
inadequate cleanups be addressed if reduced oversight results 
in problems with cleanup?
    Virtually all potentially responsible parties (``PRPs'') 
recognize and agree that appropriate oversight of investigative 
and cleanup work performed by PRPs constitutes an essential 
safeguard toward assuring proper performance of the work and 
enhancing public confidence. That said, however, the manner in 
which oversight has been performed under Superfund has long 
been a source of friction between EPA and PRPs.
    EPA's Superfund program grants to the Remedial Project 
Managers in the Regions extremely broad discretion to tailor 
their level of oversight activities based on a host of site-
specific variables, including the complexity of the site, the 
particular phase of the Remedial Investigation of Feasibility 
Study (``RlfFS'') or Remedial Design of Remedial Action 
(``RDfRA'') work involved, and the caliber of the PRP technical 
team that is performing the work. Despite this inherent 
flexibility, however, EPA oversight spending has frequently 
reached excessive levels in relation to the scope and cost of 
the work being performed. Of particular concern are direct 
contract expenditures to pay for the services of EPA's 
oversight contractors.
    In general-and recognizing that major differences exist 
from Region to Region and from site to site--EPA project 
managers have failed to maintain effective control over the 
outside contractors who actually perform the vast majority of 
oversight activities. Those contractors often determine how 
much oversight, and what kind of oversight, is performed--even 
though the contractors have a direct financial interest in 
maximizing such oversight.


    The clamor for oversight reform was one of the reasons that 
EPA's 1995 Superfund Administrative Reforms featured a reform 
entitled ``Reduce Oversight for Cooperative Parties.'' 
Specifically, Administrator Carol M. Browner declared that EPA 
would ``reward [cooperative] parties by significantly reducing 
or tiering oversight while continuing to exercise sufficient 
oversight to ensure that the work is performed properly and in 
a timely manner.''
    In explaining this reform, EPA stated:
    As the Superfund program has matured, parties have 
developed a considerable body of experience in conducting 
response activities at sites. Some not only have used this 
experience to perform high quality work but have acted 
cooperatively with EPA throughout the cleanup and enforcement 
processes. In recognition of this development, and to promote 
further cooperativeness, EPA will reward such parties by 
significantly reducing or tiering oversight while continuing to 
exercise sufficient oversight to ensure that the work is 
performed properly and in a timely manner. Reduction of such 
oversight will result in decreased transaction costs for EPA 
and cooperating parties.
    On July 31, 1996, EPA's two lead Superfund offices jointly 
issued guidance on the implementation of this new reform. The 
guidance contained several key directives.
    First, it established a specific numerical goal for 
reducing oversight. According to the oversight activities.'' 
Moreover, ``EPA's overall goal is for a nationwide 25 percent 
reduction in oversight costs over the next year at these 100 
    Second, the 1996 gUidance also called for expanding the 
reform beyond the initial 100 sites. It directed the Regions to 
evaluate ``every site where the PRP is performing the RifFS, 
the RD/RA, or the [EE/CA] and response action for non-time-
critical removals'' to determine whether ``the level of 
oversight can be reduced without reducing the level of 
protection at a site.'' Where such reductions could be 
achieved, the guidance specifically directed that ``[reductions 
in oversight costs should be implemented as soon as possible.''
    Third, the 1996 guidance directed that ``[a]t the time of 
annual billing, Regions should provide PRPs with an estimate of 
the oversight costs for the next year.''
    In May of 1997, the General Accounting Office (``GAO'') 
reported to Congress on EPA's implementation of the 1995 
administrative reforms. With respect to the ``Reduced 
Oversight'' reform, GAO stated:

    According to EPA's annual report on administrative reforms 
and other agency documents, EPA has reduced or plans to reduce 
its oversight of potentially responsible parties at over 100 
sites. Although EPA stated that such reduced oversight lowers 
litigation costs for EPA and cooperating parties, EPA officials 
could provide us with no data to demonstrate such results to 

    At about the same time that GAO issued its report, Dr. J. 
Winston Porter, former Assistant Administrator of the Office of 
Solid Waste and Emergency Response (``OSWER''), issued a 
proposal for ``Simplifying Superfund.'' Dr. Porter described 
the oversight problem (and the solution) as follows:

    Another prime reason why site studies take so long is that 
regulators, particularly EPA and their contractors, conduct 
overly tedious and lengthy reviews of every aspect of work by 
PRPs or others. These reviews include such repetitive 
``process'' items as work plans, sampling plans, and quality 
assurance plans.

    It is first recommended that the amount of money allocated 
to regulatory oversight be reduced in order to truncate the 
    Second, EPA should sharply curtail the number of documents 
requiring EPA or other regulatory review.
    That was more than a decade ago. Today, EPA still does not 
track how much it spends on oversight. As a result, it is 
impossible to determine whether oversight has actually been 
reduced, as Administrator Browner pledged in 1995.

                           TAILORED OVERSIGHT

    To its credit, EPA did issue Superfund guidance last year 
that incorporated a ``Tailored Oversight'' guidance document 
previously issued by the RCRA corrective action program. 
Conceptually, tailoring oversight to the needs of particular 
sites ensures that cleanups are done right, while freeing some 
of EPA's limited resources for other important tasks.
    It remains to be seen what impact this recent Headquarters 
guidance document will have in a program as heavily 
decentralized as Superfund. It would be important to know, for 
example, whether program managers at EPA Headquarters have 
undertaken any concrete initiatives to encourage the Regions to 
apply the Tailored Oversight approach, or to monitor and track 
future Regional decisions regarding oversight.

                        RELATIONSHIP TO CLEANUPS

    With this background, it must be emphasized that the 
possibility of an ``inadequate cleanup'' being performed at a 
site is not a sound reason to maintain the current regime of 
virtually unlimited oversight. First, most PRPs already have 
every incentive to develop and perform sound cleanups. They 
seek to be responsible corporate citizens and community 
members. PRPs also know full well that their legal liability 
does not end when they finish the cleanup.
    Second, if a cleanup is ``inadequate,'' it is apt to be 
because new information has come to light that was previously 
unknown to both EPA and the PRPs. Perhaps some contamination 
was not detected, or perhaps new scientific information is 
released about a particular compound that was detected. This 
sort of thing happens occasionally, but infrequently. The key 
point is that it cannot be prevented by piling on oversight 
resources on the front end.
    Third, if a cleanup is found to be ``inadequate,'' the PRPs 
typically remain legally responsible for any additional work 
that is needed. Section 122(f) of CERCLA severely limits the 
terms of cleanup.

      Response by Michael W. Steinberg to an Additional Question 
                          from Senator Inhofe

    Question 1. Many think that when the Superfund tax was in 
effect it was some kind of ``polluter pays'' tax. Is this how 
the Superfund tax worked and if reinstated today how would it 
    Response. In answering this question, we first address the 
rationale for the Superfund taxes, and then explain why 
Superfund today is a ``polluter pays'' program even though the 
taxes expired over a decade ago.


    When Congress enacted Superfund in 1980, it was generally 
expected that EPA would perform most of the cleanups, using 
public funds to pay for them. A typical Superfund site was 
expected to be an abandoned dumpsite.
    In that context, the Superfund taxes seemed a natural 
mechanism to shift financial responsibility for the cleanups to 
the sectors of society that were perceived to have largely 
caused the problem. In the early 1980's, EPA in fact did most 
of the investigations and cleanups. For many companies, their 
tax payments in those years far exceeded their payments for 
work at sites, and EPA used its Superfund budget to clean up 
many sites that had been contaminated mainly by industry.
    During the 1980's, however, EPA began to successfully use 
the law's Draconian liability provisions both to recover its 
costs from PRPs and, more importantly, to require PRPs to 
perform cleanup work themselves. This evolution in EPA's 
enforcement approach led to a better understanding of the 
problems that gave rise to Superfund sites in the first place.
    As EPA began to identify and confront the responsible 
parties at sites, it became evident that the original 
assumption that Superfund sites were created by oil, chemical, 
and large manufacturing and service companies was clearly in 
error. In fact, the responsible parties include many medium and 
small businesses and many industrial sectors not subject to 
substantial--or any--Superfund taxation, as well as local and 
State governments, defunct and unidentifiable parties, and, in 
a surprising number of cases, the Federal Government itself.
    In 1989, a Senate committee report urged EPA simply to find 
a few deep-pocket PRPs at each site and force them to do the 
work, using the strong-arm liability power of Superfund. At 
about that same time, EPA issued its ``Enforcement First'' 
policy, which was intended to put the responsibility for 
investigation and cleanup on the PRPs at every site where 
viable PRPs could be found, thereby saving the Superfund budget 
for sites without viable PRPs.
    EPA's dramatic change in practice is documented in the 
table below, which is reprinted from page 43 of Superfund's 
Future: What Will it Cost?, published in 2000 by Resources for 
the Future (``RFF''). From 1980 to 1986, PRPs performed the key 
RifFS studies at only 24 percent of the sites, and they 
performed the cleanup remedy at only 33 percent of the sites. 
But from 1991 through 1999, when EPA's ``Enforcement First'' 
policy was in effect, these figures roughly doubled. PRPs 
performed 46 percent of the RIfFSs, and 73 percent of the 
actual cleanups. EPA understood that this trend allowed it to 
leverage its Superfund budget far more effectively, and so EPA 
has worked hard to have PRPs do the work at every site where 
liable parties can be found.


    As a result of ``Enforcement First,'' PRPs perform the 
cleanups and reimburse EPA for its response costs at most 
sites. For a smaller number of sites that have viable PRPs, EPA 
has done the work and the PRPs have reimbursed EPA for its 
expenditures, including its oversight costs and its indirect 
    Today, virtually the only NPL cleanups that EPA actually 
pays for are those where no viable PRPs exist--the so-called 
``orphan'' sites. These sites generally were not contaminated 
by the companies formerly targeted by the three Superfund 
taxes. Instead, these sites were contaminated by companies that 
are defunct or insolvent, or by other types of generators, such 
as municipalities. EPA's narrowly limited role in paying for 
cleanups is a fundamental change from the original 
expectations. It has resulted from the tenacious and successful 
efforts of EPA to implement its ``Enforcement First'' policy. 
And it has eroded the basic rationale for imposing the 
Superfund taxes in the first place.


    For more than a decade, companies whose wastes contaminated 
sites have been held directly responsible for cleanup costs, 
one site at a time. Through payments to investigate and 
remediate sites at which they are PRPs, such companies are 
paying their fair share to address the national problem. In 
fact, at many sites they are paying far more than their fair 
share, due to the joint and several liability feature of 
    At most sites, it is impossible to identify the origin of 
much of the waste, so the PRPs that are identified must divide 
up the total costs among themselves. This means that each 
viable PRP typically pays far more than its proportionate, fair 
share of the costs to investigate and remediate the site.
    Another factor that increases each PRP's liability is that 
the allocations of responsibility usually take place 30 to 50 
years after the waste disposal occurred and a number of the 
identified PRPs no longer exist. The wastes generated by such 
defunct parties are referred to as the ``orphan'' share. Under 
joint and several liability, the viable companies have to pay 
that share.
    In 1995, EPA partially recognized the inequity of that 
result and agreed to absorb part of the orphan share, subject 
to severe limitations. EPA now absorbs part of the orphan share 
in certain settlement agreements, but only up to 25 percent of 
the cost of the work to be performed under the settlements, and 
only if that amount can be written off against EPA's claim for 
past costs at the same site. The Agency recognized that these 
constraints meant that responsible parties would still be asked 
to pay excessive shares. EPA, ``Interim Guidance on Orphan 
Share Compensation for Settlors of Remedial Design/Remedial 
Action and Non-Time-Critical Removals'' (June, 1996).
    At the same time, EPA also committed to join parties in an 
equitable manner rather than focus on a few deep-pocket PRPs. 
But in our experience, EPA enforcement efforts continue to 
focus mainly on the larger private sector parties alleged to be 
involved at sites.
    In a nutshell, existing large corporations responsible for 
past disposal of hazardous waste are typically required to pay 
the full costs of cleaning up the sites where their wastes were 
sent--including the ``orphan'' share. Under this approach, 
their obligations are discharged in full and then some. Indeed, 
at least some of these companies have paid three times--once as 
PRPs to remediate their sites, again as the larger viable 
parties forced to absorb the orphan shares, and yet again as 
corporate taxpayers to support the general Superfund program. 
They have more than paid their fair share.


    Because viable PRPs are already paying for cleanups, the 
Superfund taxes are not needed to maintain the ``polluter 
pays'' principle. Superfund is already overwhelmingly a 
``polluter pays'' program. It is typically only at ``orphan'' 
sites, where no responsible parties exist, that EPA performs 
cleanups using general revenues. This is entirely fair, because 
the companies formerly targeted by the Superfund taxes did not 
create those ``orphan'' sites.
    It must also be recognized that there are other important 
respects in which the ``polluter pays'' principle has been 
departed from under Superfund. That is because EPA and Congress 
have elected to release certain groups of responsible parties 
from their full liability as PRPs, either by providing 
preferential settlements (as in the case of municipalities or 
very small private parties) or by granting full exemptions (as 
in the case of scrap dealers, certain small businesses, and 
lenders). In many instances the shares of liability that would 
have fallen on these parties have been imposed on the remaining 
PRPs. These dynamics have distorted any pure application of the 
``polluter pays'' principle. They have instead substituted a 
``Deep Pocket-Easy Target'' policy. Government should not 
further compound this distortion of ``polluter pays'' by 
reimposing the taxes on a group that has paid, and is paying, 
more than its fair share.
2. When the Superfund tax was in effect, did it correlate to the amount 
        of money that EPA spent on cleanups?
    The short answer is ``no.'' This fact was documented by the 
U.S. Government Accountability Office, which in 2005 reported 
that ``total funding for the Superfund and
    Brownfields programs and the Superfund-related programs of 
the ATSDR and NIEHS, in current year dollars, remained 
relatively constant from fiscal year 1993 to fiscal year 
2005.'' U.S. Government Accountability Office, Hazardous Waste 
Programs: Information on Appropriations and Expenditures for 
Superfund, Brown fields, and Related Programs 2 (June 30,2005) 
(GAO-05-746R) (emphasis supplied). In other words, Congress 
appropriated roughly the same amount for Superfund in each of 
those 13 consecutive fiscal years, from fiscal year to fiscal 
year 5. For example, Congress appropriated almost the same 
amount (in current year dollars) in fiscal year 5, the last 
year that the three Superfund taxes were still in effect, as it 
did in fiscal year 6, a decade after those taxes had expired.
3. Why do you think there is a decline in the number of cleanups from 
        the 1990's?
    There has certainly been a decline in the average number of 
sites listed by EPA each year as being ``Construction 
Complete,'' i.e., physical construction of the remedy has 
occurred. This decline is widely misunderstood.
    First, the enactment and implementation of the Resource 
Conservation and Recovery Act, the Toxic Substances Control 
Act, and other environmental statutes that impose liability for 
releases of hazardous substances has already achieved the 
desired end result: fewer sites that require remediation are 
being created. To presume that the number of sites requiring 
cleanup under CERCLA should remain constant, or even increase, 
is to ignore the positive effects of these other environmental 
    Second, investigating and cleaning up a site on the 
National Priorities List (``NPL'') typically takes about a 
decade and, for complex sites, several decades. That process is 
sometimes referred to as the ``remedial pipeline.'' EPA has 
calculated that the average duration of this process from start 
to finish (not counting post-construction operation and 
maintenance) is 8.1 years. RFF, on the other hand, found that a 
more accurate average duration is over 11 years. And even when 
``Construction Complete'' is achieved, long years of operation 
and maintenance still lie ahead.
    Thus, the number of sites that reach ``Construction 
Complete'' in any given year is only one measure of progress, 
and frequently not the most useful one. An exclusive focus on 
that factor can obscure an accurate evaluation of total 
progress being made, including the full range of intermediate 
and ultimate milestones being reached, at all of the Superfund 
sites where work is underway.
    Superfund in fact has made great progress in cleaning up 
the sites on the NPL. After many years of tedious efforts to 
move sites through the initial stages of the remedial pipeline, 
EPA has achieved ``Construction Complete'' at more than 1,000 
NPL sites. With over two-thirds of the NPL sites now having 
accomplished this objective, it should come as no surprise that 
at some point there would be a reduced number of sites crossing 
that particular checkpoint each year. This in no way suggests 
that there has been a decline in the overall level or pace of 
cleanup activity.
    Another factor, perhaps less obvious, helps to explain the 
reduced numbers of ``Construction Completes'' in recent years. 
EPA made a deliberate policy choice in the early 1990's to 
focus first on those NPL sites that could be completed 
relatively quickly--the ``low-hanging fruit'' of the Superfund 
program--and to defer work on many of the larger, more complex 
NPL sites.
    The payoff from this policy choice was record high numbers 
of ``Construction Completes'' throughout the 1990's. But in a 
way, EPA was robbing Peter to pay Paul. EPA now faces a smaller 
portfolio that is dominated by larger and more complex NPL 
sites--and a public that has grown accustomed to those 
atypically high completion rates.
    The numbers can be looked at in many ways. In the first 20 
years of the program, 757 sites reached the point of 
``Construction Complete,'' 411 of them in the 5 years from 1996 
through 2000. Those statistics yield an average of 82 
completions per year for those 5 years, but an average of 38 
completions per year for the 20-year period as a whole. Neither 
``average'' is very meaningful, however, because at any given 
point in time, so much work is being done at so many sites that 
simply is not reflected in the number of sites that happen to 
reach any single milestone in any particular year.
4. What are some ways that EPA could better manage their current budget 
        of $1.24 billion dollars?
    The Superfund program today faces a range of financial 
management challenges. The central theme that connects them is 
the pressing need for Superfund to live within its means. 
Currently, the Superfund program:

     loses a large part of its annual appropriation each year 
to other EPA offices that do not perform cleanups;
     takes on new long-term financial obligations each year 
without strong management review, as new NPL sites are listed, 
new Superfund Alternative (``SA'') sites are designated, and 
new Records of Decision are signed;
     spends money each year on projects that are not high 
priorities and activities that are not essential; and
     fails to maximize the use of private sector funds by 
failing to offer incentives for private companies to perform 

    Taken together, these weaknesses mean that the Superfund 
program is not yet effectively managing either its ``income'' 
or its spending to the extent necessary for the program to live 
within its means. The following recommendations fall into 
categories that match up closely with these weaknesses.
    Specifically, EPA should:

                      1. CONSERVE FUNDS FOR OSWER

    Currently, some $220 MM/yr of EPA's annual Superfund 
appropriation is transferred to other EPA offices that provide 
varying degrees of support for the Superfund program.
    These include:

     Office of Research and Development (``ORO'');
     Office of Administration and Resource Management 
     Office of the Chief Financial Officer (``OCFO'');
     Office of Inspector General (``OIG'');
     Office of Policy and Environmental Information; and
     Office of General Counsel.

    The net effect of these transfers is that nearly one-fifth 
of the total Superfund appropriation is redirected ``off the 
top'' to other EPA offices that are not involved in cleaning up 
sites. This is deeply troubling, for several reasons.
    First, the amount of money involved here is very large, 
particularly in comparison to the total amount that EPA 
actually spends to clean up sites. For example, the amount 
transferred to other offices in fiscal year is about the same 
as the total amount that EPA spent on RD/RA at NPL sites, the 
most important elements of the Superfund cleanup program. To 
put it another way, Superfund is spending as much on 
administration and indirect support--most of it provided by 
offices outside of OSWER--as is spent on actual cleanups of NPL 
    Second, the dollar amounts of these transfers were 
established years ago, and have not been revisited in light of 
the level of program support currently provided by these other 
offices. Thus, there is no basis to believe that the 
allocations reflect current program needs.
    Third, and last, there is no sound policy reason for the 
Superfund program to pay for the support services of OARM, 
OCFO, and OIG, among others. These support offices provide 
shared services to EPA's many programs, and so they are 
directly funded by Congress as part of EPA's annual 
appropriation. The practice of having the Superfund program pay 
for these 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 currently open--ended, in the 
sense that funds not actually used by the offices receiving the 
transfer remain available for their use subsequent fiscal 
years. Any unused funds should be returned to OSWER at the end 
of each fiscal year so they can be used for cleanups.

                         THROUGH OTHER PROGRAMS

    Each new site listed on the NPL--and each new site 
designated as a SA site pursuant to EPA guidance--effectively 
imposes long-term financial obligations on the Superfund budget 
for years to come. New sites should not be listed or designated 
absent a clear showing that no viable PRPs are willing to 
perform or fund the work; the sites require Federal 
intervention; and no other alternative programs will work 
(``the tool of last resort'').
    Currently, EPA lists sites on the NPL (and designates sites 
as SA sites) without making these findings. Sites are added to 
the Superfund docket even though viable PRPs exist. Sites are 
added based upon very limited data. Sites are added without 
attempting to quantify the actual risks they may pose.
    Moreover, EPA's current NPL listing process is not very 
transparent. As a result, some 20-30 sites are typically added 
to the NPL each year with little explanation of what other 
options were considered or why those options were judged 
inadequate. (EPA recently began including in the docket a brief 
statement about the ``Need for NPL Listing,'' but this alone 
does not permit stakeholders to evaluate, or comment on, EPA's 
decision--making.) Similarly, the SA designations are made 
pursuant to poorly defined criteria and are shielded from 
public review and scrutiny.
    Greater EPA Headquarters management control over the NPL 
listing process and the SA designation process is mandatory in 
order to control the growth of the Superfund docket, which is 
an essential element of managing Superfund's total ``debt'' 
load into the future. Greater transparency in both processes is 
also critically needed.

                     3. REDUCE UNNECESSARY SPENDING

    The total amount actually available for cleanup each year 
is further limited by the fact that EPA spends more money than 
is necessary on remedial actions and on oversight. This 
situation could be improved in several ways.
    A. Remedial Actions
    Each new Record of Decision (``ROD'') selects a remedy for 
a Superfund site, effectively imposing long--term financial 
obligation on the Superfund budget for years to come. Yet 
dozens of new RODs are issued each year, and they are signed by 
EPA's Regional Offices (pursuant to delegations of authority), 
with little involvement by the Superfund program management at 
EPA Headquarters. In practical terms, then, program management 
is not managing the rate at which the program takes on new 
financial obligations each year.
    EPA should take several actions to address this problem:

     EPA Headquarters should review most new RODs before they 
are signed;
     the National Remedy Review Board should be given more 
authority to ensure that future remedy decisions are both 
technically sound and, as required by section 121 (a) of 
CERCLA, cost-effective;
     EPA should expand its use of the Fund-balancing 
Applicable or Relevant and Appropriate Requirement (``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;
     Superfund's approach to risk assessment should emphasize 
current land uses, realistic exposure scenarios, and sound 
    B. Oversight of Cleanups Performed by Private Parties
    As discussed above at pages 1-4, EPA could quickly free up 
additional resources for remedial construction by fulfilling 
its 12-year old pledge to reduce its oversight of work 
performed by PRPs.

                   4. FOCUS ON PUBLIC HEALTH THREATS

    CERCLA authorizes the President to take actions to protect 
public health and the environment. Section 104( a)( 1) of 
CERCLA, however, directs the President to ``give primary 
attention to those releases . . . [that] may present a public 
health threat.'' Despite this statutory directive, the 
Superfund program continues to devote some of its scarce 
dollars to projects that present no ``public health threat,'' 
and indeed may pose no significant risks to human health at 
all, but instead pose purely ecological risks. EPA should 
prioritize its spending so that all of the NPL sites with 
significant human health risks are addressed before any 
resources are directed toward sites that present only 
ecological risks.


    Finally, the success of the Superfund program is heavily 
dependent upon leveraging the resources of PRPs so that most 
cleanups are performed by PRPs rather than by EPA. Although EPA 
has made progress in this regard, it has yet to maximize the 
use of PRP resources. Indeed, given recent court decisions that 
restrict the ability of private PRPs to file contribution 
claims against other liable parties, EPA needs to do far more 
than it has done in the past simply to maintain the current 
level of PRP-Iead cleanups.
    To maximize the number of PRP-Iead cleanups, EPA should 
provide PRPs with greater incentives to reach settlements. 
Among the many potential incentives are the following:

     meaningful orphan share funding, where EPA agrees to 
either pay part of the costs, or to waive some or all of its 
claim for past costs, in order to account for orphan shares;
     expanded access to special site accounts, which typically 
contain money collected from small parties that should be 
disbursed to the performing parties at the site;
     ``carve-outs'' whereby EPA pursues non-settlers for 
portions of site work and/or EPA past costs; and
     consent decree language that is more flexible and 
balanced than the provisions of the Model RD/RA Consent Decree.
    In closing, it was a pleasure to be able to testify before 
the Subcommittee at the October 17, 2007 hearing. If you or 
your colleagues have any questions about this letter, or 
require any additional information, I would be pleased to be of 

    Senator Clinton. Thank you very much, Mr. Steinberg.
    Our final witness is Lenny Siegel, Director of the Center 
for Public Environmental Oversight.


    Mr. Siegel. Senator Clinton, members of the Subcommittee, I 
appreciate the opportunity to appear before you today to relate 
what I have learned about Superfund from communities throughout 
the United States.
    Last week, when I contacted grassroots activists from the 
communities that I am featuring in my testimony, they responded 
promptly, and were in fact excited that their stories might be 
told in the Nation's Capital.
    Over the past quarter century, the Comprehensive 
Environmental Response, Compensation and Liability Act, 
commonly known as Superfund, has been an important instrument 
for protecting public health and the environment in the United 
States. Today, with the Superfund account depleted, seriously 
contaminated sites suffer from inadequate cleanup, 
inefficiencies, and inequities.
    I highlight four sites in my community plus three others, 
which I have visited within the past year, to illustrate what 
the shortage of fund money means to the people who live, work 
or attend school on or near some of the Nation's most 
contaminated properties. These include sites on the Superfund 
national priorities list, as well as many that should be. My 
focus today is onsites that are dependent upon the Superfund 
    At the Orion Park Military Housing Area in Mountain View, 
California, the shortage of resources has severely handicapped 
U.S. EPA's ability to address offsite sources, preventing it 
from requiring the Navy to conduct onsite cleanup, and forcing 
NASA's adjacent Ames Research Center to expend its own 
resources on contamination migrating from the site.
    Contamination prevented the development of new military 
housing on the site, and the military personnel at the planned 
Armed Forces Reserve Training Complex will be a long-term risk 
from vapor intrusion and the migration of subsurface 
contamination into buildings.
    I might add there are no current exposures there. They 
evicted all the residents. A local paper wrote, ``the Army's 
plan to build a huge training center at Moffett Field on a site 
it knows is contaminated with carcinogenic gas should be halted 
at least until warnings from local environmentalists are 
acknowledged and the dangers are mitigated.''
    In Victor, NY, trichloroethylene from apparent illegal 
dumping has poisoned private wells and released toxic vapors 
into homes. A fund-led cleanup could protect the impacted 
families, but the Superfund does not have enough money for it 
to make much sense even to add the site to the NPL. Earlier 
this month, Jackie Barry, whose family home has been directly 
impacted, recently sent a message to ``anyone who cares'' on 
the Internet: ``it has been 6 months since news broke of the 
contamination. It has been 17 years that it existed. Why would 
we think that anything could be accomplished? I sit here in my 
home with my family and pray every day that someone will 
listen. For God's sake, there has been death and illness and 
who knows what else is here.''
    In Ambler, PA, EPA successfully capped two asbestos waste 
piles 14 years ago, but exposed piles not on the National 
Priorities Listed are slated for redevelopment, with neighbors 
fearing that the current exposures will be increased with the 
release of development-associated asbestos dust, and would like 
EPA to list the site and fund the response. But as long as the 
fund is depleted, this appears unlikely. In my written 
testimony, I have a picture of what they call a removal action 
at that site. It says ``don't create dust.'' It is a sign.
    Sharon McCormick, who lives within breathing distance of 
the piles, asked: ``If you can make your presentation to the 
Senate, now would be a good time because we are desperate down 
here. Development on asbestos waste of this magnitude has never 
been done before. Please help me.''
    There is consensus support for the dredging of 
polychlorinated biphenyls from New Bedford Harbor, 
Massachusetts, a Superfund mega-site. This is a place where I 
have been in a room where all the agencies do get together. 
However, inadequate funding has forced an inefficient start-
and--stop cleanup that is currently slated to stretch out a 
quarter century. Henry Bousquet, who grew up near the harbor, 
explained: ``My little girls, Phoebe and Payton, are very 
young, 3 years and 11 months respectively. At the current rate 
of $15 million a year for the Acushnet River Superfund 
remediation, Phoebe will be 29 years old, just 3 years younger 
than I am now, before it is clean enough for parents to feel 
safe about it.''
    Today, both sites are already dependent upon EPA funding, 
and those that should be added to the National Priorities List, 
cleanup is slow and inefficient, and expenses are often borne 
by third parties. Replenishing the fund would be a giant step 
forward in recognizing, investigating and remediating the most 
contaminated sites in America.
    I think it is important to go beyond the statistics, go out 
and visit these communities, see what it means to people's 
homes, to their families, to their property, the fact that we 
are not acting quickly enough to remediate these sites. We 
aren't even putting them into the pipeline because there is not 
enough money. Go out and talk to them and then come back and 
decide whether we need money in the Fund or not.
    Thank you.
    [The prepared statement of Mr. Siegel follows:]

        Statement of Lenny Siegel, Director, Center for Public 
                        Environmental Oversight

                           EXECUTIVE SUMMARY

    Over the past quarter century, the Comprehensive 
Environmental Response, Compensation, and Liability Act 
(CERCLA), commonly known as Superfund, has been an important 
instrument for protecting public health and the environment in 
the United States. Its tools--addressing response, 
compensation, and liability--are like the proverbial three-
legged stool. At many sites, CERCLA collapses when one of those 
tools is missing. Across the country, since the Superfund 
account was depleted, seriously contaminated sites have 
suffered from inadequate cleanup, inefficiencies, and 
    I highlight four sites, all of which I have visited within 
the past year, to illustrate what the shortage of Fund money 
means to the people who live, work, or attend school on or near 
the some of the nation's most contaminated properties.
     At the Orion Park Military Housing Area, Mountain View, 
California, the shortage of Fund resources has severely 
handicapped U.S. EPA's ability to address offsite sources, 
preventing it from requiring the Navy to conduct onsite cleanup 
and forcing NASA to expend its own resources on contamination 
from the site. Contamination prevented the development of new 
military housing on the site, and military personnel at the 
planned Armed Forces Reserve training complex will be at long-
term risk from vapor intrusion, the migration of subsurface 
contamination into buildings.
     In Victor, New York trichloroethylene (TCE) from apparent 
illegal dumping has poisoned private wells and released toxic 
vapors into homes. A Fund-led cleanup could protect the 
impacted families, but the Superfund does not have enough money 
for it to make much sense even to add the site to the National 
Priorities List (NPL).
     In Ambler, Pennsylvania, EPA successfully capped two 
asbestos waste pile sites 14 years ago, but remaining piles, 
not on the NPL, are slated for redevelopment. Neighbors, 
fearing that current exposures will be increased with the 
release of development-associated asbestos dust, would like EPA 
to list the site and fund the response, but as long as the Fund 
is depleted, this appears unlikely.
     There is consensus support for the dredging of 
polychlorinated biphenyls (PCBs) from New Bedford Harbor, 
Massachusetts, a Superfund ``mega-site.'' However, inadequate 
funding has forced an inefficient start-and-stop cleanup that 
is currently slated to stretch out a quarter century.

    Today, both at sites already dependent upon EPA funding and 
those that should be added to the National Priorities List, 
cleanup is slow and inefficient, and expenses are often borne 
by third parties. Replenishing the fund would be a giant step 
forward in recognizing, investigating, and remediating the most 
contaminated sites in America.

                      CERCLA: A THREE-LEGGED STOOL

    The Comprehensive Environmental Response, Compensation, and 
Liability Act, commonly known as Superfund, is imperfect, but 
over the past quarter century it has been an important tool for 
protecting public health and the environment in the United 
States. It provides tools for determining environmental cleanup 
strategies and technologies, assessing and assigning 
responsibility, and providing the resources to remove, treat, 
and prevent contact with hazardous substances.
    All three tools--addressing response, compensation, and 
liability--are necessary. Like the proverbial three-legged 
stool, CERCLA collapses when one of its legs is missing. Across 
the country, since the Superfund account was depleted, 
seriously contaminated sites have suffered from inadequate 
cleanup, inefficiencies, and inequities.
    From my recent visits to communities with seriously 
contaminated sites, I have selected four examples. In each of 
these cases, community members have strong reason to believe 
that public health and the environment are at risk, and--
whether or not the site is currently on the NPL--that the 
insufficiency of the Superfund is a major factor. I believe 
that these four case studies each represents many more sites in 
the NPL universe.


    This site, in my own community of Mountain View, 
California, is particularly complicated. Originally part of the 
Moffett Naval Air Station, its 72 acres sit between NASA Ames 
Research Center and Stevens Creek. It was transferred to the 
Air Force as a result of the 1991 Base Realignment and Closure 
(BRAC) round and re-transferred to the Army after BRAC 1995. 
Despite the earlier discovery of other local groundwater plumes 
of (VOCs), the Orion Park plume escaped detection until 1999, 
when NASA detected trichloroethylene under its adjacent, 
downgradient property. Subsequent sampling found widespread TCE 
readings in the hundreds of parts per billion range, in the top 
two aquifers.
    Though the Navy argued that the contamination did not pose 
a risk to the hundreds of military families who lived above the 
plume, U.S. EPA conducted its own sampling, demonstrating that 
vapors from the groundwater plume were rising into an unknown 
percentage of the homes. This probably contributed to the 
Army's decision to replace the housing in partnership with a 
private builder, under the Residential Communities Initiative. 
However its private partner decided not to build homes at Orion 
Park, because of the contamination.
    As an alternative, the Army proposed--and the 2005 BRAC 
Commission agreed--to construct an Armed Force Reserve Center 
training complex--on thirty acres at Orion Park. 413 full-time 
employees will staff the facilities, which will also sup port a 
total of 1,500 Soldiers for weekend classroom and 
administrative training. To resist the intrusion of toxic 
vapors, the Army plans to build engineering controls into all 
of its new buildings, but there is no cleanup planned for the 
site. In fact, no complete investigation is planned. Meanwhile, 
NASA is planning a major treatment system, an air--sparging 
barrier to intercept the toxic chemicals as they flow onto Ames 
Research Center property y. This will cost over $1 million, 
plus long-term operation and maintenance expenses.


    Why has the Orion Park response stalled? After all, within 
a few miles of my house there are at least a dozen National 
Priorities List sites, including Moffett Field. At those sites, 
the regulators, responsible parties, and the community have 
worked together successfully to address the contamination. But 
Orion Park is an exception.
    For one, the Navy does not accept EPA's determination that 
Orion Park is part of the Moffett NPL site. More important, it 
argues that all of the contamination originates offsite, south 
of Bayshore Freeway (U.S. 101), probably from abandoned 
businesses. Most of the other stakeholders, including NASA, 
EPA, and community activists, have concluded from site sampling 
that TCE and other poisons were released both at Orion Park and 
south of 101. Before EPA considers trying to force the Navy to 
follow CERCLA at the site, it believes the offsite area needs 
to be thoroughly assessed. The Navy says it cannot legally 
conduct upgradient groundwater sampling, so the task has fallen 
to EPA.


    And that's where the Superfund comes into play. EPA must 
pay for any sampling it conducts from the Fund. But there isn't 
enough money to pay for the required investigation. And for 
sure, there is not enough money to prevent additional 
contamination from migrating under the freeway to Orion Park. 
EPA cannot insist that the already recalcitrant Navy--or the 
current owner, the Army--undertake cleanup until it addresses 
the offsite source.
    Thus, the long-term protection of Army personnel who will 
work above a shallow groundwater plume on an NPL site is 
handicapped because the Superfund cupboard is bare. 
Furthermore, NASA's Ames Research Center continues to spend its 
own Federal money to address contamination that should have 
been captured and treated by other Federal agencies.


    Earlier this year, the Rochester, New York Democrat and 
Chronicle headlined that private wells in Victor, New York were 
still contaminated by TCE. Furthermore, as at Orion Park and 
many other sites across New York State and across the country, 
contamination was also volatilizing into local homes. The 
contamination, apparently caused by illegal dumping at the 
Syracusa Sand & Gravel mine, was first detected and confirmed 
in 1999!
    This year New York's Department of Environmental 
Conservation (NY DEC) began to pay more attention to the site. 
But progress has been handicapped by the absence of a viable 
responsible party, to pay for required investigation and 
cleanup. That is, DEC has finally interrupted the most 
egregious pathways, but actual cleanup is a long way off.


    In March, therefore, the area's Congressman called upon EPA 
to step in and ``take the lead.'' EPA, according to the 
newspaper, said that it was ``poised to help if the situation 
warranted it.'' An impacted resident reported: ``We recall a 
meeting that I held at my home with our State Senator. In this 
meeting he described his experience in several environmental 
litigation cases as a lawyer (prior to being an elected 
official) and his knowledge of the EPA, National Priorities 
List and the Federal Superfund. He wondered why the site hadn't 
been put on the NPL and then went on to suggest that even if we 
had, that right now it was best to have the DEC doing the work 
because of minimal resources in the Federal Superfund.''
    In Victor and many other sites in the U.S., people are 
exposed in their own homes to serious levels of harmful 
substances released by polluters, in many cases decades ago. We 
have a program for dealing with that: CERCLA. But today 
impacted communities are told time and time again: Joining that 
program won't help because Superfund has no money.


    Ambler, Pennsylvania, 15 miles northwest of Philadelphia, 
is the birthplace of the American asbestos industry. Ambler 
itself grew up as a company town for the Keasby and Mattison 
Company (K&M), one of the nation's leading manufacturers of 
asbestos products such as electrical insulation, brake linings, 
piping, roofing shingles, and cement siding. K&M operated in 
Ambler from 1897 to 1962. K&M disposed of defective products 
and manufacturing wastes at several locations within the 
community. In 1986 EPA placed the piles on Locust Street and at 
the K& M main plant on the NPL--listed aptly as the Ambler 
Asbestos Piles--and it completed the response, primarily cap 
ping, in 1993.



    However, no action was taken at the similar 38-acre BoRit 
site, three parcels along the eastern bank of Wissahickon 
Creek, less than a mile from the piles on the NPL. A developer 
owns a six-acre parcel just across a small creek, Tannery Run, 
from three commercial buildings: Sons of Italy, an auto repair 
shop, and McDonalds. The second parcel is a reservoir currently 
owned by the Wissahickon Watershed Authority. The Wissahickon 
Valley Watershed Association hopes to acquire the reservoir and 
improve it as a waterfowl preserve. To the northwest of the 
reservoir is the former Wissahickon Whitpain Park, owned by the 
adjacent township of Whit pain. This triangular park was closed 
more than twenty y years ago because of asbestos releases.


    Over the past year or so, EPA's Environmental Response Team 
and the Pennsylvania Department of Environmental Protection 
have been investigating the site. Residents have told me that 
the entire site is proposed for redevelopment, and that the 
environmental response would take place under the brownfields 
model. Frequently passing signs warning not to create dust, 
they are concerned that any earth movement would release 
hazardous chrysotile asbestos into their neighborhood as well 
as the creeks, which feed into Philadelphia's water supply. 
They favor capping, as at the nearby NPL site. But there is no 
plan to place the piles on the NPL, apparently because EPA 
doesn't have the money to contain the risk. A local activist 
explained, ``I was told both by my Congresswoman and by my EPA 
region that listing BoRit on the Superfund list wouldn't help, 
because Superfund has no money.''
    EPA did its job at the nearby NPL site, but it doesn't have 
the resources to do it here. Inadequate Superfund funding is 
forcing a brownfields-type response, placing the public at 


    One of the nation's Superfund ``mega-sites,'' the 18,000-
acre New Bedford Harbor's sediment contains high concentrations 
of polychlorinated biphenyls (PCBs) in several areas. Over 
100,000 people live within three miles of the site. Though 
there were many sources, the largest appears to have been 
Aerovox, a manufacturer of electrical capacitors and 
transformers, which operated on the harbor's edge from about 
1940 to 1977. There are supposed to be signs along the 
waterfront warning people not to eat fish, but they often 
disappear and must be replaced.
    Each summer sediment is dredged, de-sanded, de-watered, and 
shipped to a licensed PCB-landfill in Michigan. The Army Corps 
of Engineers, under contract to U.S. EPA, started dredging 
harbor hotspots as early as 1994. The Corps is just finishing 
its fourth year of full-scale dredging, with only about 40 days 
in the field each year. Based upon the numbers I was given when 
I visited, this year the Corps removed 25,000 cubic yards of 
contaminated sediment, treated 20-million gallons of water, and 
shipped 16,000 tons of residue by train to Michigan.
    There is consensus support for the remedy, but this is far 
from a success story. Community members express serious concern 
at the anticipated duration of the project. At the current 
rate, dredging will continue for an estimated 25 years. The 
problem isn't capacity or weather, but money.


    Over the life of the project, EPA has spent over $235 
million for ``planning, engineering, and construction'' at New 
Bedford Harbor. Reportedly, over $100 million has come from 
private responsible parties. However, the remaining funding--
nearly $300 million more--will have to come from EPA's depleted 
Superfund. At $15 million per year, the project proceeds slowly 
and suffers significant inefficiencies from the imposed start-
and-stop response.
    Activists are concerned about continuing public exposures 
to PCBs through water, air, and food chain pathways. Even 
though the entire inner harbor and thousands of acres of the 
outer harbor have been closed to shellfish harvesting and 
fishing since 1979, residents are known to harvest and eat 
fish, lobster and shellfish from the harbor, exposing 
themselves to potential risks from PCB ingestion. Local 
residents would like subsistence fishing to resume safely. And 
they point out that as long as the harbor is contaminated, the 
once valuable lobster fishery and hard shell clam industry--
which brought in some five million dollars to the regional 
economy--will remain sidelined and the comprehensive 
redevelopment of otherwise attractive shoreline brownfields 
properties will be difficult in New Bedford and other 
communities on the harbor.


    While U.S. EPA`s CERCLA program has always had significant 
room for improvement, it has protected public health and 
improved the natural environment in hundreds of communities 
across the United States. Today, however, both at sites already 
dependent upon EPA funding and those that should be added to 
the National Priorities List, cleanup is slow and inefficient, 
and expenses are often borne by third parties. Many vapor 
intrusionsites--with completed pathways but without responsible 
parties--are not getting the attention they deserve. 
Replenishing the fund would be a giant step forward in 
recognizing, investigating, and remediating the most 
contaminated sites in America.


           Responses by Lenny Siegel to Additional Questions 
                           from Senator Boxer

    Question 1. Please describe your experience in working with 
EPA and State cleanup programs on the need to address vapor 
intrusion at toxic waste sites?
    Response. The practice of the various states, and even EPA 
regions, vary significantly. For example, New York State and 
EPA Region Nine activity evaluate hazardous waste sites--even 
sites with remedies in place--to determine whether a full vapor 
intrusion study is necessary. Other states, such as Texas and 
Michigan, seem unwilling to consider vapor intrusion even when 
preliminary data suggest a need to investigate.
    There seem to be two primary reasons for the foot--dragging 
in certain jurisdictions:
    First, in the absence of detailed policies in most states, 
the only pertinent guidance is U.S. EPA's 2002 Draft Vapor 
Intrusion Guidance. Some agencies are unwilling to rely upon 
that because it was never finalized. For example, at a state--
led Superfund site in Arizona, the State Department of 
Environmental Quality reportedly told community members that a 
proposed vapor intrusion investigation could not move forward 
because EPA's 2002 guidance remained in draft form. I have 
heard that EPA has decided not to finalize that guidance, 
despite its important as policy and the ongoing technical work 
that agency staff have carried out in support of that goal.
    Second, the most common contaminant at sties that appear to 
pose the greatest vapor intrusion risk is trichloroethylene 
(TCE). EPA has not only failed to complete its 2001 draft Human 
Health Risk Assessment, but it provides no national interim 
guidance for screening levels for TCE in indoor air. This 
allows some states to use enormously unprotective standards, 
and it creates confusion at many other sites. The absence of 
standards based upon current science is more than a theoretical 
problem. People are being exposed to TCE at levels that I 
consider unsafe, in their homes, schools, and workplaces.
    For years I have been attending workshops and conferences 
about vapor intrusion. Usually I'm the only community 
representative there, among scores or even hundreds of 
consultants, regulators, and others, I have therefore urged EPA 
to organize forums for public stakeholders, in which members of 
impacted communities would learn about the state--of--the--
science in vapor intrusion and offer grounded--in--reality 
feedback to the experts. EPA recently agreed, inviting five 
representatives of impacted neighborhoods to the first National 
Stakeholders' Forum on Vapor Intrusion in San Diego in March 
2008. The event was a success, but most of those present were 
the ``usual suspects'' from consulting firms, Government 
agencies, and universities. I am working with other at EPA to 
organize a larger conference, hopefully to be held in Fall 
2008. However, thus far we have not identified a source for 
essential funding for travel scholarships.

    Question 2. Do you believe that EPA has lived up to the 
National Academy of Sciences' recommendation in 2006 ``that 
Federal agencies finalize their risk assessment with currently 
available data so that risk management decisions can be make 
    Response. Clearly EPA has not moved forward expeditiously. 
The public has seen nothing substantive from EPA since the 
Academy recommendation. Part of the problem is that since 2003 
the risk assessment mission has been moved from EPA to an 
Ineragency Working Group, which is made up of representatives 
from the White House, EPA the three Federal polluting agencies: 
NASA, the Defense Department, and the Energy Department. This 
working group sponsored the Academy study; in fact, the 
Academy's recommendation, cited in the question, mistakenly 
ascribes EPA's statutory responsibility to ``Federal 
Agencies,'' presumably NASA, DOD, and Energy, all of which have 
a conflict of interest. EPA should stop meeting privately with 
the other agencies, and it should develop interim screening and 
action levels for TCE in indoor air while it accelerates the 
timeline of studies required to issue a final risk assessment.

           Responses by Lenny Siegel to Additional Questions 
                          from Senator Inhofe

    Question 1. It is actually a misrepresentation to call the 
Superfund a ``trust fund'' since the money collected from it 
went directly into the general treasury and then EPA received 
funding through the appropriations process. If reinstated what 
assurances do we have that the money would go directly to 
Superfund cleanup?
    Response. It's my understanding the EPA has spent more on 
the Superfund program than it collected in Superfund taxes. I 
have no reason to believe that would change after 
reinstatement. If the point of the question is whether the 
money will go directly to site remediation, I believe that the 
program expenditures on research, technology transfer, 
technical assistance, and cooperation with State and tribal 
Governments, as well as other entities, are a wise use of 
funds. Were it not for such expenditures, EPA would be throwing 
money at the cleanup program without the benefit of all the 
technological and policy developments that have occurred since 
enactment of CERCLA.

    Question 2. Historically, can you point to a correlation 
between the money received from the Superfund tax and the money 
spent on cleaning up Superfund [sites]?
    Response. I have not done a statistical analysis, but I 
know that a large share of money spent at National Priorities 
List (NPL) sites comes from both Federal and non-Federal 
responsible parties, EPA-funding activity--sometimes recovered 
after the fact--makes such efforts possible. I know anecdotally 
that since the Fund was depleted that cleanup has been slowed--
creating financial inefficiencies at sites such as the New 
Bedford Harbor, Masschussetts--and there has been significant 
pressures to keep Superfund-caliber sites off the NPL because 
there isn't enough money to address them properly.

    Question 3. Do you agree that the sites left today are 
larger and more complicated, requiring more time and attention 
to ensure community acceptance of the remedies and proper 
    Response. Most of the large, complex sites that have been 
on the NPL for some time have a long way to go before 
completion. At some of these sites, interim measures have 
provided temporary protection of public health and the 
environment, but significant contamination remains. In 
particular, sites with contaminated groundwater can be made 
safe for surface use, especially if vapor intrusions is 
investigated and mitigated, but full groundwater cleanup is 
technically challenging and lengthy in most geologic settings. 
However, there are other, smaller or simpler sites that have 
been added to the NPL relatively recently, either because the 
level of contamination was recently discovered or remediation 
under other programs has not been adequate.
    Senator Clinton. Thank you very much, Mr. Siegel. You raise 
a very important additional aspect of this. I ask unanimous 
consent that we submit all the written testimonies of the 
panelists for the record.
    Senator Clinton. I would like to ask several of the 
witnesses to respond to what they have heard, both from 
Administrator Bodine and from the other panelists. It would be 
helpful if it were possible to give us your top three 
recommendations about what you think needs to be done with 
respect to Superfund. It may be hard to fit all of that in, but 
having heard what you have heard, I think it is important that 
the Committee get guidance as to what you believe we should be 
focusing on.
    Professor Steinzor, would you start please?
    Ms. Steinzor. That is a great question. First and foremost, 
reinState the tax; second, prioritize enforcement. There are 
too many sites where potentially responsible parties who have 
ample resources are not working to clean the sites up. And 
third, change the attitude toward Superfund, because that is 
actually the root of its problems. This program is the one that 
everybody loves to hate. It has no respect and no credibility, 
and yet everybody should acknowledge that the problems it 
addresses are real and profound. This change in attitude needs 
to start at the top, because the States are struggling with the 
sites that have been dumped in their laps and the ones they 
have found. The EPA needs to changes its fundamental 
    Senator Clinton. I would ask unanimous consent to submit 
Professor Steinzor's report, along with Margaret Clune, 
entitled, The Toll of Superfund Neglect, for the record.
    [The referenced document can be found on pages 102-258.]
    Senator Clinton. Professor Steinzor, when you refer to 
reinstating the Superfund polluter pay tax, would you do it 
exactly the same way as it was done before? Or do you have a 
specific set of suggestions as to how it could be better 
targeted or better structured?
    Ms. Steinzor. I think the rate may need to be raised. It is 
a very broadly based tax. It focuses on the oil and chemical 
industries, which are the two industries most involved at 
Superfund sites. There also is a broad-based corporate tax that 
spreads the burden across many firms.
    I have real questions in my mind whether more money is 
needed than was committed in the last reauthorization. As I 
said in my testimony, in constant dollars that amount is 40 
percent lower than what Congress said.
    Senator Clinton. Thank you very much.
    Dr. Porter.
    Dr. Porter. Yes, Madam Chairman. I would say my big three 
would be, No. 1, set deadlines, whether they are studies or 
completion, but very visible deadlines. Projects tend to get 
done when there are deadlines, or at least people know what is 
the reason it is not being done.
    I would like to coin a term this morning. I would like to 
see these sites as kind of a subset of the first point. I would 
like to see more of a culture of completion at sites. What we 
have now is a culture of deliverables. There are 15 or 18 
reports due at every site, and those are all important 
documents, but it has gotten to be a very legalistic process-
oriented situation where it is a culture of deliverables. It is 
like, you can't blame me because I got the work plan done on 
time, or you can't blame me because I did something else on 
    No, we can blame you because you were supposed to get the 
whole project done in 3 years or whatever. So the first one is 
set deadlines.
    The second is fix responsibility a little more clearly. It 
thinks the regional administrator is the primary person. Susan 
obviously is in a key role. In fact, she may need to make some 
of those decisions herself. In my day, I made the Love Canal 
decisions, because I felt that was a nationally significant 
job. I made the Times Beach decision personally because I felt 
like that was nationally significant, and a few others.
    And then finally, I would say more dollars for cleanup, not 
necessarily what Rena is saying that we need more dollars, 
period, but within the budget, try mightily within the budget 
we now have, which in the PRP work I would try to get more 
dollars directly related to clean up. I am a little taken aback 
by this 3,000 people at EPA working on Superfund. I know you 
have to go one by one through and decide if everybody is doing 
something useful, because I am sure they are all doing 
something useful, but I do think that we need to be sure that 
money is going to clean up.
    As kind of a subset of that is have the PRPs take more 
responsibility for their own sites and setting their own goals. 
They should be, it seems to me, time is money and I would like 
to see the responsible parties step up themselves, the CEO or 
someone says we are going to get that site cleaned up and let's 
do it in 3 years or 4 years or whatever.
    Senator Clinton. Thank you.
    Mr. Campbell.
    Mr. Campbell. Thank you.
    My recommendations would track very closely those of the 
previous speakers, but let me give you a level of detail. First 
in terms of fully funding the program, I think that is 
essential. I think it requires reinstating the tax, as members 
have recognized.
    I also think it means recognizing the other agency roles in 
this process, not just EPA's budget, but for example there is 
currently a statutory prohibition on using the fund to do 
ecological risk assessments by Fish and Wildlife Service and 
the like. I think expanding that funding to ensure cleanups are 
fully funded is essential.
    Second, in terms of the efficiency of the program, is 
really making sure EPA is more transparent about the status of 
these cleanups. They are simply not forthright in terms of 
saying that the cleanups that remain are too complex and that 
funding is adequate currently. When it is fully funded, you 
will see that there are many, many actions in the cleanup queue 
that are ready to start.
    And third, to make sure that this funding extends to 
enforcement. In the current climate, there has been too little 
enforcement and too often EPA or the Department of Justice 
asserts that it is because the funding isn't there. I think 
fully funding the enforcement program is going to be a critical 
    And the other critical key I think is one of leadership. 
You need different leadership in this program that is going to 
set completion of protective cleanups as a foremost goal, as it 
was during President Clinton's Administration, as it was under 
Administrator Reilly before that.
    Senator Clinton. I am over my time. I want to ask both Mr. 
Steinberg and Mr. Siegel to submit your top three priorities in 
writing for the record, if you would.
    Senator Barrasso.
    Senator Barrasso. Thank you very much, Madam Chairman.
    So I am wondering, this is a fascinating thing, saying, 
give me your best three. And even though it takes too long, I 
think that is a great way to approach that stuff, so I would go 
to Mr. Steinberg and Mr. Siegel for those top three.
    Mr. Steinberg. Thank you, Senator.
    The theme that connects my top three is financial 
management. First: is direct more of the current appropriation 
to clean up. A very large amount of the current appropriation 
does not go to clean up or to things that are related to clean 
up. I mentioned the $200 million that goes to support offices. 
Again, that is an easy place to look for money to redirect.
    There is also duplicative spending on technical studies 
that are being done by PRPs at the sites. EPA does shadow 
studies that don't need to be done in many cases. There is 
oversight that is excessive. There are lots of dollars spent 
from the appropriation that could be better spent. So doing 
more with what we have would be step one.
    Second, I think there is a disconnect between the senior 
management of the program here in Washington and the 
fundamental decisions that are made at sites around the country 
about what kind of cleanup plan is appropriate and how much 
money we are going to commit to be spent. Whether it is fund 
spending or PRP spending, those are important decisions that 
shape the long-term financial picture for Superfund. They are 
being made today in the regions, not here in Washington. There 
is no political accountability in Washington for those 
decisions. So I would echo Dr. Porter's recommendation that we 
restore centralized management over remedy selection decisions.
    Third and last, as I mention in my testimony, listing a 
site on the NPL should be the last resort. We should be looking 
aggressively at other options, not simply moving sites that are 
problematic or awkward onto the NPL, because that again bogs 
down the program in long-term financial obligations.
    Thank you.
    Mr. Siegel. Thank you.
    First, obviously I think the fund should be replenished. It 
is not just at the remediation phase where funds are important, 
but in the whole idea that sites aren't even being ranked 
because there is no money to clean them up even if we 
investigate them.
    Second, Senator Clinton you mentioned trichloroethylene, 
there is a problem where standards are being set under this 
Administration in consultation with the world's largest 
polluters, the Departments of Defense and Energy. I think they 
are entitled to come to the table like I am, but they have a 
conflict of interest. The Interagency Working Group should be 
dropped so that trichloroethylene and other chemicals can be 
regulated in a normal way.
    Third, and this is what I work on, is community 
involvement, technical assistance. On Monday, I visited the 
Information Technology High School in Long Island City in 
Queens. This is a school that was built on a toxic site. It is 
not on the NPL right now, but the community was given these 
tables showing what the indoor air sampling showed for the 
trichloroethylene and perchloroethylene in the building. They 
had no idea what it meant. They were scared.
    I came and I tried to interpret it for them, pro bono, but 
the fact is if communities are going to intelligently and 
constructively take part in the process, as they have in my 
community where we have more expertise, where we have EPA 
technical assistance grants, they are going to need that kind 
of support. You can't only fund the actual cleanup. You have to 
fund the communities. Otherwise, they are just going to sit in 
the audience and throw tomatoes at EPA and whatever responsible 
parties are there.
    Senator Barrasso. Mr. Steinberg, people, I think, believes 
that it is really a polluter pay system, but I am not convinced 
that the tax actually worked that way. Could you explain to me 
how the tax worked and if the Superfund tax was in effect, when 
it was in effect, did it really correlate to how the money was 
spent on EPA and on cleanups?
    Mr. Steinberg. The taxes that were in place correlated 
poorly with the industry sectors involved at Superfund sites. 
In particular, the corporate excise tax surcharge aspect is 
keyed to how profitable and how structured a company is, not 
even to what industry sector it is in. So companies that paid a 
high corporate excise tax automatically paid more into 
Superfund, whether they ever had any connection to waste 
generation or waste dumping at all.
    The point was made earlier that the balance in the trust 
fund in any given year had no connection to the amount of the 
appropriation, which has stayed relatively level in constant 
dollars over much of the life of this program. So the notion 
that there would be more money spent on Superfund if the taxes 
were reinstated I think is essentially illogical.
    Senator Barrasso. Mr. Porter, following up on your firm 
deadlines in getting things accomplished, would more money for 
the EPA really be a significant factor in speeding this up?
    Mr. Porter. I don't think so, Senator. I really believe 
they have a fair amount of money. They have a lot of people 
working on the program. Certainly, there may be selected areas 
where they need more money, but I am just a little afraid if 
you throw too much more money at it, you just get more 
bureaucracy. I think right now with two thirds of the sites 
cleaned up, we need to focus like a laser on those that aren't 
cleaned up. Most of them, as Mike as indicated, are begun by 
private parties. They have the money to pay for it.
    So I am not a big fan of just sending money. They need some 
targeted money. I certainly agree with several of my colleagues 
here that I would like to see the money more directed toward 
cleanup within the money you are giving them.
    Senator Barrasso. Thank you.
    Thank you, Madam Chairman.
    Senator Clinton. Thank you very much, Senator.
    I am going now to turn to Senator Lautenberg. He will 
continue to chair the hearing. I thank the panelists very much 
for being here.
    Senator Lautenberg.
    [Presiding] Thanks very much, Madam Chairman. Thank you for 
having done the good job that you did during your question 
    We seem to be running, and I won't need this. They are an 
orderly group.
    Senator Lautenberg. Thanks.
    The conflicting views of whether or not more money is going 
to be useful, there is kind of a trite expression used around 
here, well, look at all the waste. And that is the way you 
cover up things that you can't explain in direct language, just 
look at all the waste.
    Winston Porter, it is nice to see you again. I didn't 
realize how much we disagreed.
    Mr. Porter. Not on everything, Senator.
    Senator Lautenberg. You are a good person to have on the 
team, I can say. And all of you had testimony that triggered 
thoughts and, in many cases, I think conflict of views.
    Mr. Steinberg, you point to the fact that a lot of the 
money that is available is not used on cleanup directly. You 
say it is used on other areas. You identify some of the areas 
where funds are used. Would you abolish those functions?
    Mr. Steinberg. No, Senator. I think that the support 
services that benefit Superfund as well as other EPA programs 
should be funded independently. Other EPA programs don't 
contribute a share of their budget to fund, for example, the 
Office of Inspector General. Congress funds the IG directly. 
The same should be true with the IG employees who work on 
Superfund. There is no reason that money should come from the 
Superfund appropriation.
    Senator Lautenberg. Well, I think it gets us down to the 
basics that we have heard from several of your table mates, and 
that is that the program needs more money. No matter how it is 
disguised and how it is identified, the fact is that there has 
not been enough money to conduct the programs that are 
    Mr. Steinberg also, you made a fairly bold statement. You 
said there are no health risks at any of the Superfund sites. 
Am I correct?
    Mr. Steinberg. No. What I said was that most of the NPL 
sites do not pose current health risks. That is based on the 
fact that EPA has listed some 85 percent of them as meeting the 
indicator called human exposure under control, meaning no 
exposure to unacceptable levels in any environmental medium.
    Senator Lautenberg. Well, I thought I heard you be more 
specific than saying most. I thought you were using a much 
broader term than that.
    Mr. Steinberg. Well, it is a very high percentage, but it 
is not all.
    Senator Lautenberg. But those that do pose health risks, 
should these things be approached on the kind of a basis that 
we alert fire alarms, alarms for other threatening conditions? 
Shouldn't there be some haste associated with these things? I 
have been to Ringwood, as Brad Campbell says. That is I think 
the only site that was de-listed and now is re-listed.
    Mr. Steinberg. Correct.
    Senator Lautenberg. The site is awful. You walk through 
there and you have these paint slugs all over the place, and a 
lot of cancer. People are frightened for their children, but 
they can't afford to go other places. This was largely a Native 
American community. One of the things that happened is, in my 
conversations with a couple of people there, is that they said 
they couldn't even fish in the reservoir anymore because it was 
so contaminated, but also security was keeping them out of 
there. It was a source of nutrition for them and their 
    So there are broader effects on those who are even some 
distance from the Superfund site, and affect public health in a 
very significant way.
    Mr. Steinberg. And even at that site, Senator, we know that 
the Inspector General spent $500,000 after the fact to issue a 
report criticizing the cleanup. So that comes out of 
Superfund's appropriation--criticism.
    Senator Lautenberg. Well, we can't restructure EPA at this 
moment. But the fact of the matter is that shouldn't there be 
someone looking over--we have people in IG jobs who look over 
people's shoulders as their function.
    Mr. Steinberg. Certainly, but the other programs that the 
IG looks at don't pay for the IG's work force. And the IG has a 
very large work force now devoted to Superfund, and the 
question is why are we using Superfund dollars to fund that 
large work force?
    Senator Lautenberg. Well, I don't want to get hung up on 
    Professor Steinzor.
    Ms. Steinzor. I would just point out that I am not sure 
that we can have much confidence in EPA's declaration that the 
sites don't pose a health risk, when it is very clear that the 
same people that are making that declaration are very committed 
to tamping the program down, making do with less money, 
explaining that really they don't need any more resources. So I 
would question that statistic. I think that it would be better 
if the agency had more credibility and was really making an 
honest effort to assess what the problems were.
    One of the subjects that came up is State funding. The 
States don't even know themselves what the status is. I asked 
the people in Maryland to help me by telling me what their 
funding levels had been. They could tell me Maryland's level, 
but they couldn't tell me what had been going on around the 
    In the absence of EPA funding for the States to do site 
assessments, we have no idea if the sites are being addressed 
at all under other authorities, much less under Superfund. We 
found increasing numbers of abandoned properties that have 
reemerged, just like that site was re-listed, the one that you 
    So I would just urge us to have some caution about these 
don't worry, be happy statistics.
    Senator Lautenberg. They can't make me happy.
    Senator Lautenberg. Brad, you were with Jim Florio, I 
think, at the time. He authored much of the Superfund law and 
that was 1980. Again, it was a lame duck session I think in 
which this was passed, and a very important contribution to 
America's well-being.
    Brad, your experience with EPA regarding public 
notification and communication with the State about the 
asbestos contamination at the Hamilton Township, New Jersey 
site, how would you assess EPA's communications with State and 
public notification at other Superfund sites in the State of 
New Jersey?
    Mr. Campbell. I would give it a very poor ranking in terms 
of the level of communication. I think there is often a link 
between that issue and funding. They are much less willing to 
recognize a problem if it looks like it may be an expensive 
problem, or if it may require, as in the case you know at 
Ringwood, funding the community with a technical assistance 
grant to give them a voice in the cleanup.
    One of the concerns I have, Senator, and here I think there 
is some common ground among the panelists. Many of my panelists 
have talked about efficiency, while Professor Steinzor and Mr. 
Siegel and I have talked about cleanup. Well, there is nothing 
more inefficient than a stop and start cleanup. At the Roebling 
site or Imperial Oil or Cornell-Dubilier, which thanks to your 
leadership was highlighted recently. You have the agency 
mobilizing to do one bit of cleanup, demobilizing, and then 
waiting to re-mobilize. That is enormously inefficient and it 
shows that this under-funding and management failure that has 
occurred over the last 6 years is only making these problems 
worse and making the cleanups more inefficient because they are 
stop and start.
    Senator Lautenberg. It is very difficult to understand how 
Ms. Bodine was so content with the funding level, and refused 
to give any credence to my question about were more funds 
necessary. I think that pervades the agency. They are there to 
protect themselves from public scorn or question.
    So, the people who are largely voiceless, powerless, who 
live in these communities because many of them, as we have 
discussed here, are low-income minority communities. I have 
lived in a couple of them. The Passaic River was our river. My 
mother swam in that river in her younger days. Now, you can 
just about walk on it.
    Mr. Campbell, I want to ask you a question. In response to 
the claims that the Superfund tax was inefficient, that had 
little purpose in its being, and Professor Steinzor or Mr. 
Siegel also, any of you who would like to comment on that 
assertion about the fact that this tax really wasn't 
appropriate as a source. Is it inappropriate?
    Mr. Campbell. I would like to comment. I think it is very 
appropriate. Let me explain, and certainly others know the 
legislative history as well or better than I do, but when 
Superfund was crafted, the polluter pays principle essentially 
had two components: the liability scheme, strict joint and 
several; and the tax. They weren't created in isolation. There 
were a lot of cross-connections between the two. I will give 
you one.
    One is that the oil and petrochemical industry bear a large 
portion of the tax when it was in place. On the other side of 
the ledger, they got the petroleum exclusion in the liability 
scheme. Now, they are off the hook both on the liability scheme 
and in the tax structure.
    There are many ways you can design a tax, as you know. 
There may not be one that achieves all virtues. But to suggest 
that the polluter pays principle is only in the liability 
scheme and the tax is unrelated to that really flies in the 
face of the legislative history and the way the burden of these 
cleanups has been distributed.
    Senator Lautenberg. Mr. Siegel.
    Mr. Siegel. Yes. Senator, I pay local taxes that go to my 
fire department, and yet the fire department has never been out 
to my house. Is that inequitable? It is not a fee for a 
service. It is a tax, so you never know exactly which taxpayer 
is going to benefit from the funding. Nevertheless, that is the 
way we have to fund services when you don't know over a period 
of time that is actually going to need it.
    Mr. Steinberg. May I respond to Mr. Siegel briefly?
    Senator Lautenberg. Yes.
    Mr. Steinberg. I want to endorse his comment that this is a 
tax and not a fee, and we should be straightforward and call it 
a tax, because that is what it is.
    I also think it is important to realize that when we are 
looking at sites that have no responsible parties, that there 
is no basis on which to say that a particular industry or a 
particular segment of industry was responsible for the creation 
of that site. In many cases, there is little information about 
where the waste originally came from. In many cases, these were 
open dumps that were used widely by people in a community, and 
for that to be treated as a shared societal cost seems to me to 
be totally equitable. So no polluters are off the hook.
    Mr. Campbell. If I can respond just briefly to Mr. 
    Senator Lautenberg. Yes, please do, before I do.
    Mr. Campbell. Senator Inhofe earlier identified a site in 
New Jersey that had extensive oil and petrochemical 
contamination in soils, and the reason those soils were removed 
was to avoid vapor intrusion in the homes of innocent residents 
who lived nearby. I don't think there is any doubt from which 
industry sector the oil and petrochemicals came from. There is 
doubt because of the liability exemption that you can recover 
from those parties. The legislative bargain that was created at 
the time was that the petroleum exclusion was justified because 
we had the tax on the other side of the ledger. The tax has now 
fallen out and it is the public, including the residents 
immediately threatened by that pollution that are picking up 
the tab.
    Mr. Steinberg. The exemption that my colleague is referring 
to was an exemption intended to cover crude oil and petroleum 
product. It does not exempt all----
    Senator Lautenberg. What would you suggest, Mr. Steinberg, 
as a funding source to clean up these sites? Or shouldn't there 
be any?
    Mr. Steinberg. I would say that if you believe that more 
money is needed, and that is not a belief that I am prepared to 
endorse at this time, but if you believe more money is needed--
    Senator Lautenberg. How about the flat world? Do you go for 
    Mr. Steinberg. I believe that within the current $1.24 
billion appropriation, there is money available to be 
redirected toward more important goals than it's currently 
being used for.
    Senator Lautenberg. Is it enough?
    Mr. Steinberg. Well, I heard numbers like $100 million and 
$200 million a year mentioned earlier. There certainly is that 
much money within the current appropriation.
    Senator Lautenberg. Well, there is lots of disagreement. 
The fund was at one point $3.8 billion, and it was used to 
accelerate the pace of cleanup and became a very effective 
program. It took a long time to train the people to the 
assignments they had. It was new venture for us. If you 
remember when there was a threat that Superfund was going to 
close down and people took off and found themselves other jobs 
so that they could take care of their families. It was hard to 
get ramped up again.
    Professor Steinzor.
    Ms. Steinzor. Yes, I would just like to point out a couple 
of things. First of all, from a historical perspective, the 
design of the tax was advocated by industry. It was ARCO that 
invented the broad-based corporate tax.
    Second, the alternative that nobody is saying is that the 
people that will pay for the orphaned sites are the general 
taxpayers, so we are being told the paradoxical statement that 
on the one hand we shouldn't be asking industries that were not 
involved to pay, and on the other hand it is OK to ask the 
general taxpayer to pay.
    And the third thing I would just like to say is, as our 
report tried to point out, this tax is so small in comparison 
to the profits, particularly in the oil sector. The broad-based 
tax is so small that its portrayal as a burden is really 
    Mr. Porter. Senator, could I just add one point here? As 
somebody who has followed this program a long time, if you look 
at all the Superfund sites in the Country, individuals have 
caused Superfund sites. We have thrown people in jail in 
various States who all by themselves caused a Superfund site, a 
very bad one. Cities have caused Superfund sites. States have 
caused Superfund sites. Federal facilities have caused sites.
    So as Mike Steinberg is saying, I would largely want to 
associate myself with, and that is I want the polluter to pay, 
but what we are saying with respect to the chemical industry is 
the polluter must pay twice. You pay for your own site and you 
pay for the automobile industry site down the street, or the 
city site.
    Senator Lautenberg. We can find, in my view, isolated 
examples of where there is not a direct cost for the activity 
of a company or individuals, but it is good for the general 
population. It is for the health of the Country. And you can't 
always isolate these things as being responsible for health 
problems. If you look at global warming right now, you see that 
we are going to have to spend a heck of a lot more money than 
we ever thought we would in order to get rid of greenhouse 
gases. Everybody is going to pay, the average citizen, the 
companies, the building owners, et cetera.
    So life changes. As a consequence, and I was naive, I am 
not a lawyer, and I didn't understand how since there was no 
law about companies that were polluting the environment, how 
they could be taken to task. I found out that under common law 
that there is, and it was upheld in the courts. So there is no 
question about their sharing liability for spoiling their 
neighbors' lake.
    Mr. Siegel. Senator.
    Senator Lautenberg. Yes.
    Mr. Siegel. Senator, yesterday I visited the Hopewell 
Precision Superfund site in Hopewell Junction New York. There 
is a company there. It is still in business. It is the 
polluter. EPA is not recovering money from that company because 
they say the company can't afford it. What do you do?
    Well, the idea is to go after the company that sold the 
trichloroethylene through the tax to that company, because that 
trichloroethylene is ending up in the home of my friend. I 
think under the circumstances, you not only have to look at 
what is equitable, but where you can get the money. You can't 
squeeze it out of these companies, the polluters that don't 
have money, so you have to go after the ones that do.
    Senator Lautenberg. That is why we have the orphan fund.
    Mr. Siegel. The company is still there, but EPA says, OK, I 
don't want to put them out of business. That is fair, but you 
have to get the money from someplace, rather than from the 
health and safety of the people down the gradient.
    Senator Lautenberg. Yes. They pay for their poor health if 
they have any money, and they pay much more serious price than 
    Mr. Steinberg, and I want to close with this because while 
we are all having such a good time here, we have other things 
that we have to do, how many Superfund sites, Mr. Steinberg, 
are members of the Superfund Settlements Project and directly 
responsible for the pollution and for their contribution to the 
Superfund condition?
    Mr. Steinberg. If I understood the question, how many sites 
are on the dockets of the members of the Project?
    Senator Lautenberg. Yes.
    Mr. Steinberg. It is hundreds and hundreds. I don't have a 
precise number. That would include Federal NPL sites, Federal 
removal sites, State sites, voluntary cleanup sites, brownfield 
sites, and underground storage tank sites.
    Senator Lautenberg. We are going to call this hearing to a 
close. The questions for the record will be submitted, and we 
would ask your response as quickly as you can be. I thank each 
of you for your testimony, even if it is obvious that I don't 
agree with everything you say.
    The hearing is concluded.
    [Whereupon, at 12 p.m. the subcommittee was adjourned.]

        Statement of Hon. Benjamin L. Cardin, U.S. Senator from 
                         the State of Maryland

    Madame Chairman, thank you for holding this hearing today.
    The Superfund Program is important to the health and safety 
of the American public. Superfund sites are scattered across 
the nation's landscape. The old industrial backbone of our 
country, though, was centered in the Northeast and Midwest. 
These parts of America have a disproportionately large number 
of Superfund sites as part of that legacy.
    In Maryland, for example, we have 17 sites on the Superfund 
National Priorities List and dozens of additional sites where 
removal actions have taken place. The majority of these sites 
are located in close proximity to some my state's biggest 
population centers.
    For the health and safety of Maryland's 5.6 million 
residents, we need a Superfund program that is well funded and 
well managed. I fear that we don't have that today.
    Madame Chairman, I am concerned:

     that the Superfund program is being starved for cash,
     that the pace of cleanups is declining rapidly, and
     the health of our citizens continues to be at risk.

    EPA's mid-Atlantic region encompasses five states, 
including Maryland. In this region, total funding for 

     response programs,
     enforcement programs, and
     management is at a 17 year low.

    The peak funding was $360 million annually in 1992. Funding 
for Region III leveled off at $350 million annually through the 
1990's. Since 2000--under the current administration--that 
figure fell to $319 million in 2007.
    Human exposure to potentially dangerous chemicals and 
others substances is not yet under control at 111 Superfund 
sites in 33 states.
    Maryland has 2 such sites: Ordnance Products in Cecil 
County and Aberdeen Proving Ground--Edgewood in Harford County.
    This hearing is a timely one, Madame Chairman:

     We need a Superfund program that is protecting our 
citizens' health.
     We need a program that is restoring our environment.
     And we need a program that is actively returning old 
Superfund sites back to productive economic use.

    In short, Madame Chairman, America needs--and Maryland 
needs--a Superfund Program that is healthy.
    I am anxious to hear from EPA about the current pace of 
    I also want to hear from our other witnesses about how that 
rate can be accelerated and how we can put this program put 
back onto firm footing. And then I hope we will move quickly to 
put those recommendations into action.
    Thank you, Madame Chairman.

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