[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                   FEDERAL AND STATE PARTNERSHIP FOR 
   ENVIRONMENTAL PROTECTION ACT OF 2013; REDUCING EXCESSIVE DEADLINE 
             OBLIGATIONS ACT OF 2013; AND FEDERAL FACILITY 
                       ACCOUNTABILITY ACT OF 2013 

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

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           MAY 17 & 22, 2013

                               __________

                           Serial No. 113-43


      Printed for the use of the Committee on Energy and Commerce
                        energycommerce.house.gov

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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman
RALPH M. HALL, Texas                 HENRY A. WAXMAN, California
JOE BARTON, Texas                      Ranking Member
  Chairman Emeritus                  JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky                 Chairman Emeritus
JOHN SHIMKUS, Illinois               EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania        FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon                  BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska                  ANNA G. ESHOO, California
MIKE ROGERS, Michigan                ELIOT L. ENGEL, New York
TIM MURPHY, Pennsylvania             GENE GREEN, Texas
MICHAEL C. BURGESS, Texas            DIANA DeGETTE, Colorado
MARSHA BLACKBURN, Tennessee          LOIS CAPPS, California
  Vice Chairman                      MICHAEL F. DOYLE, Pennsylvania
PHIL GINGREY, Georgia                JANICE D. SCHAKOWSKY, Illinois
STEVE SCALISE, Louisiana             JIM MATHESON, Utah
ROBERT E. LATTA, Ohio                G.K. BUTTERFIELD, North Carolina
CATHY McMORRIS RODGERS, Washington   JOHN BARROW, Georgia
GREGG HARPER, Mississippi            DORIS O. MATSUI, California
LEONARD LANCE, New Jersey            DONNA M. CHRISTENSEN, Virgin 
BILL CASSIDY, Louisiana                  Islands
BRETT GUTHRIE, Kentucky              KATHY CASTOR, Florida
PETE OLSON, Texas                    JOHN P. SARBANES, Maryland
DAVID B. McKINLEY, West Virginia     JERRY McNERNEY, California
CORY GARDNER, Colorado               BRUCE L. BRALEY, Iowa
MIKE POMPEO, Kansas                  PETER WELCH, Vermont
ADAM KINZINGER, Illinois             BEN RAY LUJAN, New Mexico
H. MORGAN GRIFFITH, Virginia         PAUL TONKO, New York
GUS M. BILIRAKIS, Florida
BILL JOHNSON, Missouri
BILLY LONG, Missouri
RENEE L. ELLMERS, North Carolina
              Subcommittee on Environment and the Economy

                         JOHN SHIMKUS, Illinois
                                 Chairman
PHIL GINGREY, Georgia                PAUL TONKO, New York
  Vice Chairman                        Ranking Member
RALPH M. HALL, Texas                 FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky               GENE GREEN, Texas
JOSEPH R. PITTS, Pennsylvania        DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania             LOIS CAPPS, California
ROBERT E. LATTA, Ohio                JERRY McNERNEY, California
GREGG HARPER, Mississippi            JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana              JANICE D. SCHAKOWSKY, Illinois
DAVID B. McKINLEY, West Virginia     JOHN BARROW, Georgia
GUS M. BILIRAKIS, Florida            DORIS O. MATSUI, California
BILL JOHNSON, Missouri               HENRY A. WAXMAN, California, ex 
JOE BARTON, Texas                        officio
FRED UPTON, Michigan, ex officio



                             C O N T E N T S

                              ----------                              

                              MAY 17, 2013

                                                                   Page
Hon. John Shimkus, a Representative in Congress from the State of 
  Illinois, opening statement....................................     1
    Prepared statement...........................................     3
Hon. Paul Tonko, a Representative in Congress from the State of 
  New York, opening statement....................................     4
    Prepared statement...........................................     5
Hon. John D. Dingell, a Representative in Congress from the State 
  of Michigan, opening statement.................................     6
    Prepared statement...........................................     7
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, prepared statement..............................   148

                               Witnesses

Carolyn Hanson, Deputy Executive Director, Environmental Council 
  of the States..................................................     9
    Prepared statement...........................................    11
    Answers to submitted questions...............................   163
Jeffery Steers, Director, Central Office Division of Land 
  Protection and Revitalization, Virginia Department of 
  Environmental Quality, on Behalf of the Association of State 
  Territorial Solid Waste Management Officials...................    22
    Prepared statement...........................................    25
Daniel S. Miller, Senior Assistant Attorney General, Natural 
  Resources and Environment Section, Colorado Department of Law..    34
    Prepared statement...........................................    36
    Answers to submitted questions...............................   165
Abigail Dillen, Coal Program Director, Earthjustice..............    54
    Prepared statement...........................................    56
    Answers to submitted questions...............................   167
Thomas Duch, City Manager, Garfield, NJ..........................   105
    Prepared statement...........................................   107

                           Submitted Material

Prepared statement of Hon. Mathy Stanislaus, Assistant 
  Administrator, Office of Solid Waste and Emergency Response, 
  U.S. Environmental Protection Agency...........................   111
    Answers to submitted questions...............................   169
Discussion drafts................................................   135
Letter of May 22, 2013, from public interest groups regarding 
  RCRA and CERCLA to the Subcommittee, submitted by Mr. Shimkus..   149
Letter of May 22, 2013, from public interest groups regarding 
  CERCLA to the Subcommittee, submitted by Mr. Shimkus...........   157
Letter of May 21, 2013, from Headwaters Resources, Inc. and Boral 
  Material Technologies, Inc. regarding RCRA to the Subcommittee, 
  submitted by Mr. Shimkus.......................................   161

                              MAY 22, 2013
                               Witnesses

David M. Bearden, Specialist in Environmental Policy for the 
  Congressional Research Service.................................   198
    Prepared statement...........................................   202
    Answers to submitted questions...............................   251
David Trimble, Director of Natural Resources and Environment, 
  Government Accountability Office...............................   208
    Prepared statement...........................................   210
    Answers to submitted questions...............................   263


FEDERAL AND STATE PARTNERSHIP FOR ENVIRONMENTAL PROTECTION ACT OF 2013; 
   REDUCING EXCESSIVE DEADLINE OBLIGATIONS ACT OF 2013; AND FEDERAL 
                  FACILITY ACCOUNTABILITY ACT OF 2013

                              ----------                              


                          FRIDAY, MAY 17, 2013

                  House of Representatives,
       Subcommittee on Environment and the Economy,
                           Committee on Energy and Commerce
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 9:30 a.m., in 
room 2123, Rayburn House Office Building, Hon. John Shimkus, 
(chairman of the subcommittee) presiding.
    Present: Representatives Shimkus, Whitfield, Pitts, Murphy, 
Latta, Harper, Cassidy, McKinley, Bilirakis, Johnson, Barton, 
Tonko, Green, McNerney, Dingell, Schakowsky, and Barrow.
    Staff Present: Nick Abraham, Legislative Clerk; Charlotte 
Baker, Press Secretary; Matt Bravo, Professional Staff Member; 
Jerry Couri, Senior Environmental Policy Advisor; David 
McCarthy, Chief Counsel, Environment/Economy; Brandon Mooney, 
Professional Staff Member; Tina Richards, Counsel, Environment; 
Chris Sarley, Policy Coordinator, Environment & Economy; 
Jacqueline Cohen, Minority Senior Counsel; Greg Dotson, 
Minority Staff Director, Energy and Environment; and Caitlin 
Haberman, Minority Policy Analyst.

  OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ILLINOIS

    Mr. Shimkus. We call the hearing to order, and the chair 
recognizes himself for 5 minutes. Here in the Environment and 
Economy Subcommittee, our goal is to modernize some of the 
environmental laws that we oversee and make sure that the 
states are playing a significant role in implementing them. To 
do that, we began this Congress with a hearing on the role of 
states in protecting the environment. state environmental 
protection officials shared their experience and expertise with 
us and helped us better understand the complex partnership 
between states and the Federal Government as states implemented 
Federal laws such as the Solid Waste Disposal Act and EPA 
implements the Comprehensive Response Compensation and 
Liability Act, CERCLA, or the Superfund law, and the relation 
to state and environmental protection laws.
    Today we consider three bills that are a logical outgrowth 
of that discussion. One, the Federal Facility Accountability 
Act, would bring CERCLA waiver of sovereign immunity into 
conformity with Solid Waste Disposal Act, and for that matter 
the Clean Air Act, by requiring that all Federal Superfund 
sites comply with the same state laws and regulations as a 
private entity. This is not a new concept. Legislation has been 
introduced previously by my friends across the aisle to ensure 
that Federal agencies comply with all federal and state 
environmental laws.
    The second bill, the Federal and state Partnership for 
Environmental Protection Act, does exactly what the title 
implies and would go a long way toward making the states 
partners with EPA in cleaning up hazardous waste sites. CERCLA 
is implemented by the EPA, but often states are in the best 
position to understand the sites in their state. This bill 
would allow states to play a larger role in the CERCLA process 
in several ways. The bill would allow states to list a site it 
believes needs to be on the National Priorities List every 5 
years and would provide transparency to the states if they 
suggest a site for listing. The bill would also allow states to 
be consulted before EPA selects remedial action. The states are 
on the front lines, understand at the ground level how to 
prioritize in taking environmental action within their state, 
and they often come up with innovative solutions that better 
fit the local problem.
    We heard examples in our earlier hearing on the role of the 
states in protecting the environment. CERCLA is a key example 
of a statute passed more than 30 years ago that we are in the 
perfect position to now update, and to strengthen the federal-
state partnership and get these sites cleaned up. Besides, the 
states are required to sink their money in these cleanup 
projects, and while we understand there are budget constraints 
at all levels of government, if states have a significant cost, 
they should have more of a say in how the cleanup money is 
spent.
    Continuing the theme of updating our environmental statutes 
passed in the 1970s and 1980s, the third bill, the Reducing 
Excessive Deadline Obligation, or the REDO Act of 2013, would 
give EPA flexibility by correcting a couple of arbitrary action 
deadlines that were written into the Solid Waste Disposal Act 
and CERCLA years ago. The mandate that EPA review and, if 
necessary, revise all RCRA regulations every 3 years has proven 
unnecessary and unworkable. The bill would allow the 
Administrator to review and, if necessary, revise regulations 
she thinks appropriate. It also reduces the requirement that 
only seems to be good for generating lawsuits against the EPA. 
In fact, they did some testimony, I would have people look at 
the testimony provided by the Environmental Protection Agency, 
and I quote that, ``the current statutory provisions requiring 
review every 3 years can pose a significant resource burden on 
EPA, given the complexity and volume of EPA's RCRA 
regulations.'' So they are in agreement that this is overly 
burdensome and costly.
    Shimkus and the EPA on the same side. It is a beautiful 
thing.
    The bill also lists an action deadline in CERCLA requiring 
EPA to identify prior to 1984 classes of facilities for which 
to develop financial assurance regulations. More than 30 years 
passed without action from EPA. As we approach the 30th 
anniversary of the original deadline in CERCLA, a lawsuit and 
court order finally prompted EPA action of a few years ago; 
however, the states have long since acted, putting in place 
strong financial assurance requirements of their own. That is 
why the bill also provides that if EPA does get around to 
establishing Federal financial assurance regulations, the state 
requirements should not be preempted.
    We regret that it was not possible for a friend of this 
committee, Mr. Stanislaus, Assistant Administrator of the EPA, 
to be with us today, but as I quoted, we have his written 
statement and we will consult with him and his staff as these 
bills move through the legislative process.
    Throughout that process, we also welcome suggestions from 
our witnesses today and other experts in the field, and that is 
why we are having this legislative hearing.
    I want to lastly thank our witnesses for being with us 
today, and appreciate your willingness to travel to Washington 
to share your opinions on the three bills before us.
    With that, the chair now recognizes the gentleman from New 
York, Mr. Tonko.
    [The prepared statement of Mr. Shimkus follows:]

                Prepared statement of Hon. John Shimkus

    Here in the Environment and the Economy Subcommittee our 
goal is to modernize some of these environmental laws that we 
oversee and make sure the states are playing a significant role 
in implementing them. To do that, we began this Congress with a 
hearing on the role of the states in protecting the 
environment. state environmental protection officials shared 
their experience and expertise with us and helped us better 
understand the complex partnership between the states and the 
federal government as states implement federal laws, such as 
the Solid Waste Disposal Act and EPA implements the 
Comprehensive Response, Compensation, and Liability Act (CERCLA 
or Superfund law), and the relation to state environmental 
protection laws.
    Today we consider three bills that are a logical outgrowth 
of that discussion.
    One, the Federal Facility Accountability Act, would bring 
the CERCLA waiver of sovereign immunity into conformity with 
the Solid Waste Disposal Act and for that matter, the Clean Air 
Act, by requiring that all federal superfund sites comply with 
the same state laws and regulations as a private entity. This 
is not a new concept. Legislation has been introduced 
previously by my friends across the aisle to ensure that 
federal agencies comply with all federal and state 
environmental laws.
    The second bill, ``The Federal and state Partnership for 
Environment Protection Act'' does exactly what the title 
implies and would go a long way toward making the states 
partners with EPA in cleaning up hazardous waste sites. CERCLA 
is implemented by EPA, but often states are in the best 
position to understand the sites in their state. This bill 
would allow states to play a larger role in the CERCLA process 
in several ways. The bill would allow states to list a site it 
believes needs to be on the National Priorities List every five 
years and would provide transparency to the states if they 
suggest a site for listing.
    The bill would also allow states to be consulted before EPA 
selects a remedial action. The states are on the front lines 
and understand at the ground level how to prioritize in taking 
environmental action within their state and they often come up 
with innovative solutions that better fit the local problem. We 
heard examples in our earlier hearing on the ``Role of the 
states in Protecting the Environment.'' CERCLA is a key example 
of a statute passed more than 30 years ago that we are in the 
perfect position to now update and strengthen the federal-state 
partnership and get these sites cleaned up.
    Besides, the states are required to sink their own money in 
these cleanup projects and while we understand there are budget 
constraints at all levels of government, if states have a 
significant cost they should have more of a say in how the 
cleanup money is spent.
    Continuing the theme of updating environmental statutes 
passed in the 70s and 80s, the third bill, ``the Reducing 
Excessive Deadline Obligations (REDO) Act of 2013'' would give 
EPA flexibility by correcting a couple of arbitrary action 
deadlines that were written into the Solid Waste Disposal Act 
and CERCLA years ago. The mandate that EPA review and, if 
necessary, revise all RCRA regulations every three years has 
proven unnecessary and unworkable. The bill would allow the 
administrator to review and, if necessary, revise regulations 
as she thinks appropriate. It also reduces a requirement that 
only seems to be good for generating lawsuits against EPA.
    The bill also lifts an action deadline in CERCLA requiring 
EPA to identify, prior to 1984, classes of facilities for which 
to develop financial assurance regulations. More than 30 years 
passed without action from EPA. As we approach the 30th 
Anniversary of the original deadline in CERCLA, a lawsuit and 
court order finally prompted EPA action a few years ago. 
However, the states have long since acted, putting in place 
strong financial assurance requirements of their own. That is 
why the bill also provides that if EPA does get around to 
establishing federal financial assurance regulations, the 
states requirements would not be preempted.
    We regret that it was not possible for a friend of this 
committee, the Honorable Mathy Stanislaus, Assistant 
Administrator of EPA, to be with us today, but we welcome his 
written statement and will consult with him and his staff as 
these bills progress through the legislative process. 
Throughout that process we also welcome suggestions of our 
witnesses today and of other experts in the field.
    I want to lastly thank our witnesses for being with us 
today and appreciate their willingness to travel to Washington 
to share your opinions on the three bills before us.

                                #  #  #

   OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEW YORK

    Mr. Tonko. Thank you, Mr. Chairman. Good morning to our 
witnesses.
    And let me begin by saying how pleased I am that we were 
able to come to an agreement and that we will have an 
opportunity to receive testimony on the Superfund program from 
additional witnesses before we mark up our bills. I appreciate 
your willingness to accommodate the desire of the subcommittee 
members to hear from witnesses about the current status of this 
program.
    The Comprehensive Environmental Response Compensation and 
Liability Act, commonly known as Superfund, is an important 
statute guiding the cleanup of contaminated sites throughout 
our country. It is fair to say that this law had a rough start. 
Over the years, it has been shaped by amendments, agency 
guidance, regulations and extensive litigation. Much of the 
dust has now settled. Cleanups are proceeding across the 
country. Many communities are safer as a result of this law, 
and contaminated, abandoned sites have been returned to 
productive reuse.
    I want to thank the witnesses for appearing before our 
subcommittee this morning and for offering their views on the 
three bills before the subcommittee.
    Mr. Chair, you characterized the bill as reforms to 
Superfund, and I am new to the committee but not new to the 
contamination problems that Superfund was enacted to address. 
``Simple'' is not an adjective I usually associate with 
Superfund, and I hope we are not embarking on an effort that 
will negate the progress we have made on site cleanups and the 
reuse of brown fields.
    One bill we will consider today, for instance, is couched 
as legislation designed to repeal so-called, I quote, excessive 
deadlines. Section 2 of this bill appears to be designed to 
block a lawsuit from coal ash recyclers to bring some certainty 
to their markets. Those recyclers have gone to court over EPA's 
failure to meet a statutory deadline that they say has, and I 
quote, constrained the recycling of coal ash with the attendant 
result of wasted resources, adverse economic impacts, and 
increased environmental impacts that would otherwise be avoided 
through beneficial reuse, close quote.
    Many of us support the beneficial reuse of coal ash, which 
is what the coal ash recycling industry does. This industry has 
gone to court to protect their rights and seek a legal remedy 
for their plight. We should not throw their case out of court 
by legislative fiat.
    Other provisions we will consider today will delay cleanups 
in favor of litigation, will decrease the funding available for 
cleanup efforts, and will divert resources so that the most 
dangerous contaminated sites are not cleaned up first.
    There are many questions that surround these bills. They 
may delay efforts to adopt financial responsibility 
requirements for environmentally damaging mining and they could 
preempt those requirements once adopted, but again I look 
forward to hearing what everyone has to share with us today.
    And with that, I yield back, Mr. Chair.
    [The prepared statement of Mr. Tonko follows:]

                 Prepared statement of Hon. Paul Tonko

    Good morning.
    Mr. Chairman, I am pleased that we were able to come to an 
agreement, and that we will have an opporiunity to receive 
testimony on the Superfund program from additional witnesses 
before we markup these bills. I appreciate your willingness to 
accommodate the desire ofthe Subcommittee members to hear from 
witnesses about the current status of this program.
    The Comprehensive Environmental Response, Compensation, and 
Liability Act--commonly known as Superfund--is an important 
statute guiding the cleanup of contaminated sites throughout 
the country.
    It is fair to say, this law had a rough start. Over the 
years, it has been shaped by amendments, Agency guidance, 
regulations, and extensive litigation. Much of the dust has now 
settled. Cleanups are proceeding across the country. Many 
communities are safer as a result of this law. And 
contaminated, abandoned sites have been returned to productive 
use.
    I want to thank the witnesses for appearing before our 
Subcommittee this morning and for offering their views on these 
three bills.
    Mr. Chailman, you characterized the bills as simple reforms 
to Superfund. I am new to the Committee, but not new to the 
contamination problems that Superfund was enacted to address. 
``Simple'' is not an adjective I usually associate with 
Superfund. I hope we are not embarking on an effort that will 
negate the progress we have made on site cleanups and reuse of 
brown fields.
    One bill we will consider today is couched as legislation 
designed to repeal so-called ``excessive deadlines.'' Section 2 
of this bill appears to be designed to block a lawsuit from 
coal ash recyclers to bring some certainty to their markets. 
Those recyclers have gone to court over EPA's failure to meet a 
statutory deadline that they say has ``constrain[ed] the 
recycling of [coal ash], with the attendant result of wasted 
resources, adverse economic impacts, and increased 
environmental impacts that would otherwise be avoided through 
beneficial reuse.''
    Many of us support the beneficial reuse of coal ash, which 
is what the coal ash recycling industry does. This industry has 
gone to court to protect their rights and seek a legal remedy 
for their plight. We should not throw their case out of court 
by legislative fiat.
    Other provisions we will consider today will delay clean-
ups in favor of litigation, will decrease the funding available 
for clean-up efforts, and will divert resources so that the 
most dangerous contaminated sites are not cleaned up first.
    I have many questions about these bills. They may delay 
efforts to adopt financial responsibility requirements for 
environmentally-damaging mining, and they could preempt those 
requirements once adopted.
    Mr. Chairman, the basic policy behind Superfund is that 
polluters should pay to clean up their pollution. I think we 
should be very careful about potentially creating new avenues 
for litigation that can allow polluters to delay cleanups and 
argue for weaker protections. They have a financial incentive 
to do so, but that does not align with the public interest.
    I appreciate the opportunity for the Subcommittee to 
examine the Superfund Program. The citizens living in 
communities with these sites are anxious to have them cleaned 
up and returned to safe, productive use. The responsible 
parties, whether public or private, want to accomplish those 
clean-ups in a cost-effective manner. These are goals we can 
all support, and the lens through which we should consider 
these three bills.

    Mr. Shimkus. The gentleman yields back his time. Is there 
anyone on my side seeking time for an opening statement?
    The chair now recognizes the Chairman Emeritus, Mr. 
Dingell, for 5 minutes.

OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Dingell. Mr. Chairman, thank you for your courtesy. I 
am giving a statement on behalf of myself, but I am using Mr. 
Waxman's time.
    I have some familiarity with the subject matter before us 
today since I have chaired both the committee and the 
conference committee which lasted some 8 months when we 
considered the Superfund Amendments and Reauthorization Act of 
1986. For many of the members of this subcommittee on both 
sides of the aisle that were not in the Congress in 1986, I 
would like to recall some of the events of that legislative 
effort resulting in the 1986 act and to describe the result of 
more than 3 years of legislative hearings and 5 years of 
oversight hearings.
    The issue was enormously complex and bitterly 
controversial. It was also a fully bipartisan effort on the 
committee, and we worked very closely with the Reagan 
administration, which I saw was present at all the conference 
meetings. And the then chairman--rather, the then head of EPA 
was of valuable assistance to the committee and the conference 
committee in writing the final legislation. The Senate at that 
time was under Republican control. President Reagan signed the 
act on October 17, 1986, after overwhelming votes of 386 to 27 
in the House and 88 to 8 in the Senate.
    One of the interesting things about that was my difficulty 
was to see to it that the legislation was considered in a 
balanced and thoughtful way, but the pressures ofttimes were to 
go too far.
    I am unaware that this committee has, or any of the 
subcommittees have conducted any oversight that has identified 
problems necessitating the amendments before us today. I 
believe every member of this committee can point out things 
that need to be done with regard to the legislation. I have 
some of my own.
    The Superfund program, after a rocky start, has become a 
very successful and an enormously important public health 
program, cleaning up some devastatingly dangerous situations 
all around the country. And I would note that some of the worst 
difficulties that that agency confronts in administering this 
legislation is that there is no money. We have been both stingy 
in seeing to it that appropriated funds are available, but 
worse than that, we have allowed the tax revenues, which funded 
the original Superfund, to dry up so the money is not available 
to see to it that the matter is properly handled.
    And these are hideously technical and politically difficult 
questions. And I would suggest that before heading headlong 
into the resolution of problems that don't find any support in 
a factual record at this time, that the committee should gather 
the evidence from the states, from EPA, from local governments, 
from industry, and I think industry's comments will be very 
important, from the communities and from ordinary citizens so 
that we can understand what, if any, problems need to be 
addressed and how the interlocked and difficult questions, 
political, technical, environmental and financial, work 
together.
    And I think that the tools necessary to ensure that Federal 
sites are properly listed and expeditiously cleaned up are 
available to us and can be perfected by a thoughtful and a 
decent approach to the legislation before us. And we can 
understand then perhaps why it has taken more than 25 years of 
fighting on all of these matters to establish financial 
responsibility requirements for industries that deal in 
hazardous substances.
    My district is an industrial district where we have large 
numbers of old industrial sites, and these curse us all and 
require enormous amounts of effort, cooperation and 
understanding for us to solve the problems and clean them up, 
but we are making progress, and we will continue to do so if we 
don't screw these matters up by legislating in an unwise and 
irresponsible fashion.
    I hope that my colleagues will try to understand the 
purpose of this hearing and the purpose of legislation and 
legislative change. And these are more than just to provide 
work for us or work for the staffs. And I think we have to 
worry, because the committee, or the subcommittee, seems to be 
doing well in creating a lot of staff work, but not a lot of 
thoughtful effort or understanding of the problems so that we 
can legislate well.
    This is a massive health problem, a massive environmental 
concern, it is a tremendous financial problem, and it is 
something that does need our attention, but that attention must 
be thoughtful, it must be considerate of the concerns of 
everybody, but it must also address the question of facts and 
what really has to be done to achieve a balanced and perfected 
approach to this matter in which we will do the job better than 
we did the first time.
    I yield back the balance of my time.
    [The prepared statement of Mr. Dingell follows:]

               Prepared statement of Hon. John D. Dingell

    Mr. Chairman, I have some familiarity with the subject 
matter before the Subcommittee today since I chaired the eight 
month long conference committee that resulted in the Superfund 
Amendments and Reauthorization Act of 1986. With one exception, 
the discussion draft amendments before the Subcommittee today 
are seeking to amend that Act.
    For the many members on the Subcommittee on both sides of 
the aisle where were not in the Congress in 1986, I wish to 
inform them that legislative effort resulting in the 1986 Act 
was the result of more than three years of legislative hearings 
and five years of oversight hearings. It was a fully bipartisan 
effort on the Committee and we worked very closely with the 
Reagan Administration which was present at all conference 
meetings. The Senate, at the time, was under Republican 
control. President Reagan signed the Act on October 17, 1986 
after overwhelming votes of 386-27 in the House and 88-8 in the 
Senate.
    I am unaware that this Subcommittee has conducted any 
oversight that has identified problems necessitating the 
amendments before us today. The Superfund program, after a 
rocky start, has become a very successful and important public 
health program. At the non-federal Superfund National Priority 
Sites, the program completed all necessary construction 
activities at over 70 percent of the sites. At thousands of 
other sites, emergency or shorter-term removal actions have 
been completed.
    Many of these amendments appear unnecessary and are without 
a factual basis or predicate. Others, such as the amendment to 
Section 113(h) of CERCLA, expand the opportunities for 
litigation before protective cleanup measures are taken. Such 
actions will delay cleanup for years while a federal judge 
sorts through the technical merits of a selected cleanup 
remedy. In 1986, the Conference Committee adopted a policy to 
put cleanups before lawsuits so communities would have relief 
while preserving the right to challenge agency action of the 
cleanup did not meet legal requirements or relevant standards.
    If states had the capacity or financial ability to clean up 
these most seriously contaminated sites they would not be on 
the National Priorities List. states always have the first 
crack at cleaning up sites. To authorize lawsuits between the 
states and the federal government before cleanup is a fine idea 
if your goal is more litigation and lengthy cleanup delays--all 
coming at the expense of citizens and communities living nearby 
the site.
    A number of the amendments seem to rest on the premise that 
EPA and state agencies are not communicating with each other. 
Where is the evidentiary record in support? These amendments 
appear to be solutions in search of a problem. I call my 
colleagues attention to Section 121(f) of the existing statute 
which sets forth in detail requirements for ``substantial and 
meaningful involvement by each state in initiation, 
development, and selection of remedial actions.''
    Then there is an amendment in an amendment to Section 108. 
In this section, Congress wanted EPA to establish financial 
responsibility requirements for various classes of facilities 
so they would ``maintain evidence of financial responsibility 
consistent with the degree and duration of risk associated with 
the production, transportation, treatment, storage, or disposal 
of hazardous substances.'' The agency has been extremely 
dilatory in implementing this provision. However, instead of 
calling EPA to task for failing to act, my republican 
colleagues' only goal seems to be to eliminate the one 
provision that was a mandatory duty forcing EPA to initiate 
action.
    Before charging headlong into solving problems that are not 
backed up with a factual record, I recommend this Subcommittee 
gather a body of evidence from EPA, states, local governments, 
industry, and communities to better understand what, if any, 
problems need to be addressed regarding the state-federal 
relationship, the tools necessary to ensure federal sites are 
properly listed and expeditiously cleaned up, and why it has 
taken more than 25 years to establish financial responsibility 
requirements for industries that deal in hazardous substances. 
I fail to understand the purpose of this hearing or legislation 
other than to provide work for its members and staff. On that 
point, the Subcommittee has succeeded wonderfully.

    Mr. Shimkus. The gentleman yields back his time. And I 
would just quickly note that, you know, I am not a spring 
chicken on this committee either, and my first piece of 
legislation was a response to the Superfund. When we got small 
business out of the liability regulations, the de minimis 
parties, and that was a successful piece of legislation that we 
were able to pick out what was wrong and how we could fix it 
and the like. And I would just refer folks to the EPA's 
testimony where it says, the current statutory provisions 
requiring review every 3 years can pose a significant resource 
burden on the EPA, given the complexity and volume of EPA's 
RCRA regulations. So it is not just us; it is even the EPA 
saying that this might be helpful.
    So with that, I would like to recognize and welcome our 
witnesses, and I will just go in order. I already talked to you 
about votes being called soon. We will get through as many 
witnesses as we can, so then we can come back and go back to 
questions.
    So first I would like to welcome Ms. Carol Hanson, Deputy 
Executive Director at Environmental Councils of the states. 
Your full testimony's in the record, and you are recognized for 
5 minutes.

   STATEMENTS OF CAROLYN HANSON, DEPUTY EXECUTIVE DIRECTOR, 
ENVIRONMENTAL COUNCIL OF THE STATES; JEFFERY STEERS, DIRECTOR, 
CENTRAL OFFICE DIVISION OF LAND PROTECTION AND REVITALIZATION, 
VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY, ON BEHALF OF THE 
    ASSOCIATION OF STATE TERRITORIAL SOLID WASTE MANAGEMENT 
OFFICIALS; DANIEL S. MILLER, SENIOR ASSISTANT ATTORNEY GENERAL, 
NATURAL RESOURCES AND ENVIRONMENT SECTION, COLORADO DEPARTMENT 
 OF LAW; ABIGAIL DILLEN, COAL PROGRAM DIRECTOR, EARTHJUSTICE; 
          AND THOMAS DUCH, CITY MANAGER, GARFIELD, NJ

                  STATEMENT OF CAROLYN HANSON

    Ms. Hanson. Thank you. Thank you for inviting me here today 
to talk about our organization's views on the bills before the 
committee. I am representing the Environmental Council of the 
states, or ECOS, whose members of the leaders of the state and 
territory----
    Mr. Shimkus. Can you pull your microphone just a little bit 
closer and maybe lift it up?
    Ms. Hanson. Sorry.
    Mr. Shimkus. And pull it closer. There you go.
    Ms. Hanson. I am representing--it is not staying on. There 
we go.
    I am representing the Environmental Council of the states, 
ECOS, whose members are the leaders of the state and 
territorial environmental protection agencies. My main points 
today are, first, that ECOS supports concepts found in the 
three bills addressing RCRA and CERCLA issues. Second, in 
particular, ECOS supports the expansion of consultation with 
states as described in the bills, and also that ECOS especially 
acknowledges that the bills directly address concerns expressed 
by the states in two of ECOS's resolutions on Federal 
facilities' operations under RCRA and CERCLA. These resolutions 
were attached to our written testimony.
    We are pleased that the committee has taken an interest in 
addressing RCRA and CERCLA in a manner that focuses on 
implementation issues that states and EPA regularly face. We 
are in an era where funds to implement our Nation's 
environmental statutes are tight, but the sites needing 
remediation these days are more complex than when the program 
started. We are in need of flexibility and efficiency more than 
ever both at the state and Federal level.
    Overall, we support the changes that these bills seek and 
we believe they will improve the implementation of RCRA and 
CERCLA and help achieve the goals of those statutes more 
quickly.
    First I will address the bill entitled the Reducing 
Excessive Deadline Obligations Act of 2013. Simply put, this 
bill allows EPA to emphasize the administrative priorities that 
warrant its attention and to establish in statute a 
longstanding practice at EPA regarding matters that it may 
undertake at its discretion.
    The next bill I will address is entitled the Federal and 
state Partnership for Environmental Protection Act of 2013. The 
first part of this bill addresses consultation with the states. 
ECOS strongly approves this section, which addresses issues 
outlined in several ECOS resolutions. The second part of this 
bill addresses state credit for other contributions. It is our 
understanding that this bill does not expand the state's cost 
share for removal actions beyond what is currently required, 
and our comments are made with this understanding. This change 
will greatly assist during this time of tight budgets and 
should help move these projects along more quickly. 
Furthermore, assuming the legislation does not intend to create 
an additional cost share in removal actions, ECOS supports the 
legislation, because if a state performed an action, such as 
site stabilization, that the EPA later classified as a removal 
action, then there may be an opportunity to get credit for 
those state expenditures.
    We also endorse Section 4. Placing the site on the National 
Priority List is important to a state, as its action must go 
all the way to the Governor's office. ECOS believes that EPA's 
policy has been to seek state concurrence when listing a site 
for the NPL; however, this is a policy, and we believe the 
nation would be better served if it were a requirement.
    The last bill I will discuss is the Federal Facility 
Accountability Act of 2013. ECOS is especially pleased to see 
the committee address this longstanding issue. This bill 
directly addresses the concerns ECOS described in two of our 
resolutions. ECOS believes this legislation will help states 
assure environmental compliance on current and former Federal 
facilities.
    The most important aspect of this legislation is that it 
sends a strong and appropriate message to all Federal agencies: 
you must follow the Nation's environmental rules the same as 
everyone else.
    The legislation amends CERCLA to eliminate most, if not 
all, of the barriers that states have experienced in dealing 
with Federal agency compliance with the act. It is especially 
useful to states to see that compliance and cost sections 
change to conform with the experiences that non-Federal 
entities face every day.
    Finally, we support the ability for a state to request a 
review by EPA to ensure consistency of some Federal action with 
the guidelines, rules, regulations or criteria established by 
EPA under Title I of CERCLA. The section closes a potential 
loophole in advance.
    In summary, ECOS sees that these bills will assist in many 
ways, including holding Federal facilities to the same 
standards as other regulated entities, clarifying regulations 
and procedures, improving state-Federal communications, 
improving cleanup financing, and implementing state EPA 
concurrence on how to treat Superfund sites, to name a few.
    Mr. Shimkus. Thank you.
    [The prepared statement of Ms. Hanson follows:]

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    Mr. Shimkus. The chair now recognizes Mr. Jeffery Steers, 
Director of Central Office Division of Land Protection and 
Revitalization from the Virginia Department of Environmental 
Quality, on behalf of the Association of state Territorial 
Solid Waste Management Officials. Sir, welcome.

                  STATEMENT OF JEFFERY STEERS

    Mr. Steers. Good morning. And thank you, Mr. Chairman, and 
members of the subcommittee for allowing ASTSWMO, the 
Association of state and Territorial Waste Management 
Officials, to testify before you today regarding these three 
bills.
    states value the relationship that we currently have with 
U.S. EPA, and together, through several types of cooperative 
agreements both as individual states and as an association, 
continue to make great strides in addressing some of the most 
contaminated land in the United states. While we can all agree 
that the Superfund program has success stories, 30 years of use 
necessitates some changes and updating. The decisions made by 
Congress and EPA can have a profound impact on state resources.
    states share a common goal with the Federal Government in 
ensuring that risks to human health and the environment are 
mitigated and appropriately addressed. Our association is 
committed to ensuring that this is done in an efficient, cost-
effective manner, and I will briefly summarize our position on 
each specific bill.
    With respect to the Reducing Deadline Obligations Act of 
2013, we support this bill. Specifically our interests 
surrounds the proposals that allow the individual states to 
maintain financial assurance requirements already in place so 
as not to allow Federal preemptions to override state financial 
assurance programs. Member states have enacted robust financial 
assurance requirements for various classes of facilities and 
other types of facilities under RCRA. The impacts of any new 
Federal requirement must be carefully coordinated and evaluated 
in the context of existing state laws and obligations.
    ASTSWMO supports the provisions proposed in the Federal and 
State Partnership for the Environmental Protection Act of 2013, 
especially with respect to fund lead sites placed on the 
National Priorities List. Our members continue to be challenged 
with skyrocketing financial obligations, which include 10 
percent cost share of the remedial action, and O&M in 
perpetuity. EPA consultation with states on removal actions, 
listing to the NPL and on remedy selection doesn't, in fact, 
occur regularly. The end result of this consultation is often 
problematic and inconsistently used across the EPA regions. The 
states have no interest in delaying emergency or time critical 
removal actions, for example; however, non-time critical 
removal actions are not viewed as urgently, and state 
concurrence and development of a plan for the status of some of 
these sites after a removal action is taken are needed.
    With respect to NPL listing, ASTSWMO supports greater 
consistent consideration by EPA relative to state obligations 
to inclusion on the NPL. states are under a significant 
pressure to just concur with individual listing decisions. 
CERCLA authority is one tool to address contaminated lands. As 
states evaluate proposals for listing, we look for other 
opportunities, including economic redevelopment opportunities, 
to help drive cleanups. Oftentimes there is a prospective 
purchaser willing to adequately mitigate the environmental and 
human health risks on a contaminated property, provided they 
have future certainty and avoid the stigma of Superfund. state 
voluntary programs can in many circumstances serve as a 
substitute for the long and costly CERCLA Superfund process.
    states should not be pressured into accepting at face value 
a listing on the NPL, especially where the fund is being used 
and resulting in significant state resources.
    The provisions of this bill that seek to give states the 
ability to add sites to the NPL is fully supported by ASTSWMO. 
While there may be a perceived notion that there are dozens of 
state priorities that would be suggested for listing, this is 
simply not the case. states recognize the limited resources 
that we all have and understand that we have complex sites that 
have--we need to get the biggest bang for the buck.
    ASTSWMO strongly supports a process for more concurrence 
with selected remedies, especially at fund lead sites. Many of 
our member states have sophisticated programs, and we can offer 
the technical fire power that ensures remedies will be 
effective. All too often we come across sites that are turned 
over to the states that are nothing more than a pig in a poke 
and the state is responsible for the long-term care.
    An example of a $100,000 problem that our state and other 
states have seen is something as simple as piping that was 
clogged and was not able to be properly maintained during the 
time that EPA had a site under its control, and the state took 
the site over and had to re-fix a lot of the problems.
    We strongly support the Federal Accountability Act of 2013. 
No entity, whether privately or publicly owned, should be given 
special treatment when it comes to protecting human health and 
the environment. Federal agencies playing the sovereign 
immunity card only serve to delay and put citizens in harm's 
way. states continue to believe that the Federal Government 
should be accountable to adherence with CERCLA, similar to what 
is required under the Clean Air Act, Clean Water Act and RCRA.
    The universe of sites subject to CERCLA includes properties 
owned by Federal, state and local governments and private 
entities. The protection of our citizens should not be seen not 
through the color of ownership. Many states and localities are 
also limited with the resources that they can bring to bear, so 
we all need to work together in our obligations.
    It is inherently wrong for the Federal Government to shirk 
its responsibilities due to cost considerations. It is 
important that Federal facilities and agencies be accountable 
to the same requirements as all other regulated entities, 
including state-specific requirements to ensure equal treatment 
and protection under the law.
    In closing, let me just say that the CERCLA process is 
complex and we ought to take a page from business where they 
look at processes and quality improvement and using things such 
as value stream mapping and lien to look at the national 
contingency plan in the way that Superfund is managed.
    I would like to thank you again for allowing me the 
opportunity to speak before you, and I will be available to 
answer any questions.
    Mr. Shimkus. Thank you.
    [The prepared statement of Mr. Steers follows:]

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    Mr. Shimkus. The chair now recognizes Mr. Dan Miller, 
Senior Assistant Attorney General, Natural Resources and 
Environmental Section of the Colorado Department of Law. Sir, 
you are welcome; you are recognized for 5 minutes.

                 STATEMENT OF DANIEL S. MILLER

    Mr. Miller. Thank you, Mr. Chairman, members of the 
subcommittee. I am here today on behalf of the Hazardous 
Materials and Waste Management Division of the Colorado 
Department of Public Health and Environment. That is the agency 
that works with EPA in implementing the Superfund program and 
it also implements the state equivalent of RCRA.
    My written statement addresses all three bills, but----
    Mr. Shimkus. If you can just pull that--just bend it so the 
mike's closer to your mouth. There you go.
    Mr. Miller. My written statement addresses all three bills, 
but due to time limits, I will probably just be able to focus 
on sovereign immunity and state rule and remedy selection 
today.
    The Federal Facility Accountability Act broadens the CERCLA 
sovereign immunity waiver, a change Colorado and other states 
have long supported. There is simply no reason why Federal 
agencies should be above the law. Private entities have to 
clean up their mess, states and cities have to clean up their 
mess. There is no reason Federal agencies should be any 
different, especially since they have some of the most 
contaminated sites in the country, yet Federal agencies have 
relied on the current wording of the CERCLA waiver to argue 
that they are immune from the application of state laws at 
sites that they once contaminated but no longer own. They have 
also used it to argue that state laws do not apply at Federal 
facilities that are listed on the Superfund National Priorities 
List.
    On a cursory review, the bill before us appears to resolve 
these concerns; however, sovereign immunity is a very complex 
area of the law and we would welcome the opportunity to work 
with the committee--subcommittee and the committee to be sure 
that the proposed bill really does accomplish its intended 
purpose and addresses the issues that the states commonly face 
in cleaning up Federal facilities.
    One of these issues that I would like to call out is 
Federal agency reluctance to comply with what is known as state 
institutional control laws, laws like environmental covenant 
laws. These are legal mechanisms that restrict land use at 
remediated sites and help limit exposure to residual 
contamination or protect the engineered components of a remedy. 
We don't have any problem getting private entities to comply 
with these laws, but Federal agencies have long resisted their 
application.
    Turning to the state role in CERCLA remedy selection, our 
main concern is that CERCLA's cost sharing structure creates 
incentives for EPA to choose remedies that cost less for the 
initial cleanup at the expense of more costly long-term 
maintenance. Under the current statute and regulations, EPA 
pays 90 percent of upfront remedy costs and states pay the 
remaining 10 percent, but after 10 years states have to pay all 
of the operation and maintenance costs, which can be 
substantial. At historic mining sites, for example, EPA 
remedies often rely on water treatment plants that must 
essentially be operated in perpetuity. These plants may cost 
millions of dollars a year to run. Over the decades, these 
operation and maintenance costs will eventually overwhelm the 
amount of money that was spent on the remedy and change the 
fundamental balance of the Superfund program cost share from 
predominantly Federal to predominantly state funded.
    A second concern we have is that EPA and other Federal 
agencies implementing CERCLA sometimes resist Colorado's 
efforts to have its state laws designated as ARARs, the CERCLA 
term for cleanup standards that a particular cleanup has to 
meet. Once again a common area of dispute is the state's 
environmental covenant law, which is frequently ignored in 
removal actions and sometimes even at remedial actions.
    With these concerns in mind, let's turn to the Federal and 
state Partnership for Environmental Protection Act. Section 2 
emphasizes CERCLA's existing mandate that EPA consult with 
affected states in remedy selection. While we agree that EPA 
certainly sometimes views its obligation to consult rather 
narrowly, we are concerned, based on our understanding of the 
congressional process, that because this bill proposes to amend 
Section 104 and Section 120, it could open the door to other 
more controversial amendments to these sections. Perhaps there 
is a procedural way to limit the scope of any amendments.
    Section 5 of the bill creates a new exception to CERCLA's 
bar on pre-enforcement judicial review of remedies. This is one 
of the key provisions of the statute. The pre-enforcement bar 
prevents litigation from delaying needed cleanup actions. The 
proposed amendment undermines this fundamental protection by 
allowing any person to challenge a remedy before implementation 
whenever a state has simply objected in writing to the proposed 
remedy.
    We don't think this is the proper response to address the 
concerns we have cited above. Instead, we would address a 
concern about the fiscal impact to states of expensive long-
term O&M by revisiting the cost sharing allocation in the 
statute and regulations. If legislation is needed to address 
the concern that EPA doesn't consistently recognize state laws 
as ARARs or otherwise limits state input on cleanup decisions, 
it should be possible to craft a narrow legislative solution 
that does not undermine the bar on pre-enforcement judicial 
review.
    Thank you.
    Mr. Shimkus. Thank you.
    [The prepared statement of Mr. Miller follows:]

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    Mr. Shimkus. The chair now recognizes Ms. Abigail Dillen, 
Coal Program Director from Earthjustice.

                  STATEMENT OF ABIGAIL DILLEN

    Ms. Dillen. Thank you. Good morning, Chairman Shimkus, and 
members of the subcommittee. Thank you for the opportunity to 
offer testimony this morning. I will be addressing the proposed 
amendment of RCRA, Section 2002(b) under the Reducing Excessive 
Deadline Obligations Act of 2013.
    I am Abigail Dillen. I direct the Coal Program at 
Earthjustice and I am also a managing attorney there. 
Earthjustice is a non-profit public interest law firm dedicated 
to protecting the environment.
    RCRA, Section 2002(b) provides for periodic review and 
revision of the regulations implementing RCRA, as you know. And 
to be clear, the Environmental Protection Agency always enjoys 
the discretion to determine when revisions are necessary. As 
this provision is currently written, it strikes a careful 
balance, ensuring that regulations are updated to address 
evolving waste management issues while still leaving EPA broad 
discretion to manage RCRA programs as it sees fit and determine 
regulatory priorities.
    This bill would upset that balance in order to derail three 
parallel lawsuits that were filed to compel an EPA decision on 
badly needed regulation of coal ash and other waste from coal-
fired power plants.
    As EPA acknowledges, regulation of coal ash is already long 
overdue, but the agency continues to delay issuance of final 
regulations. This delay is harming the many communities around 
the country that are contending with water contamination, 
fugitive ash dust and the risk of catastrophic collapse of ash 
impoundments in the absence of effective safeguards.
    At the same time, ongoing regulatory uncertainty is bad for 
business, according to the coal ash recycling industry. And 
that is why the ash recycling industry and conservation groups 
are both suing under Section 2002(b) to prompt overdue action 
by EPA. This bill would deliberately undercut those lawsuits, 
leaving coal ash regulated indefinitely. More broadly, it would 
upset a longstanding statutory scheme for updating RCRA that 
has never proven to be unworkable.
    This bill's supporters are claiming that current law 
requires EPA to review or promulgate regulations within time 
frames that have proven unworkable and that this provision has, 
quote, only led to lawsuits for failure to meet these 
deadlines. However, in the 37 years since Congress established 
Section 2002(b), a total of three lawsuits have been filed, and 
those are the three lawsuits pertaining to regulation of coal 
ash. One has been brought by conservation groups represented by 
Earthjustice. And, again, the others have been brought by 
Headwaters Resources and Boral Material Technologies, two of 
the leading companies that market coal ash to make commercially 
valuable building products.
    The transparent intent of this bill is to undercut these 
lawsuits and prevent a Federal court from imposing needed 
deadlines: one, for coal ash regulations that EPA has 
acknowledged are needed; and, two, for a decision on the 
threshold question whether coal ash should be regulated as a 
hazardous waste under RCRA, subtitle (c) or as a solid waste 
under RCRA, subtitle (d).
    I want to underscore, it is simply not the case that this 
deadline has ever proven unworkable. And to Chairman Shimkus, 
your point about EPA's testimony, we have not had the benefit 
of seeing it yet, but I am not surprised the agency is eager to 
avoid any deadlines whenever possible. Of course it is an 
agency that contends with many deadlines, but if there is one 
thing that many of us can agree upon in this room is that 
without deadlines, work doesn't get done.
    And I can't overstate the importance of addressing 
longstanding environmental harms that are associated with the 
regulatory failure to address coal ash. In 2000, 13 years ago, 
following years of study in the 1990s, EPA concluded that 
establishment of national standards under RCRA, subtitle (d) 
was necessary, quote, to ensure a consistent level of 
protection of human health in the environment. But in the 13 
years since EPA made that formal finding, EPA has yet to 
undertake any of the requisite regulatory revisions that are 
needed to end the unsafe dumping of coal ash. This delay poses 
an unacceptable threat to the environment and it perpetuates 
regulatory uncertainty that is unacceptable to the ash 
recycling industry.
    In short, this bill would eliminate a statutory provision 
that has operated for 37 years without incident, only to 
exacerbate the problems caused by EPA's inexcusable delay in 
regulating coal ash.
    Thank you.
    Mr. Shimkus. Thank you.
    [The prepared statement of Ms. Dillen follows:]

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    Mr. Shimkus. The chair now recognizes Mr. Thomas Duch, City 
Manager, city of Garfield, New Jersey. Sir, you are recognized 
for 5 minutes.

                    STATEMENT OF THOMAS DUCH

    Mr. Duch. Mr. Chairman, committee members, I appear before 
you today on behalf of the people of the City of Garfield, a 
community of approximately 31,000 people located in south 
Bergen County in the State of New Jersey. We are multi-ethnic, 
multi-cultural and a multi-religious community. We are a 
microcosm of America itself.
    Our city is an old industrial city filled with tired 
factory buildings, many of which are beyond their useful life. 
Many of these former industrial sites have contamination 
problems which are beyond the grasp of local government to 
handle.
    Back in 1983 at the EC electroplating factory in our 
community, there was a spill of hexavalent chromium. 3,640 
gallons of chromium were released into the Earth. Of that, 
1,056 gallons were recovered, with the rest remaining in our 
soil.
    Over the last 25 years, the NJ DEP handled this site. They 
made a determination in the late 1980s that no further action 
was required and that there were no health concerns.
    In early 1993, Fire Company Number 3, located in the 
downstream plume of the underground water table had to be 
closed due to the detection of hexavalent chromium in the 
basement of that firehouse facility.
    As we have learned, once hexavalent chromium enters a 
building and crystallizes, it can be dispersed into the air. 
Scientific evidence tells us that if you breathe that dust into 
your lungs, it will likely cause cancer.
    Approximately 5 years ago, in the fall of 2008, I was 
contacted by the U.S. EPA. I was told that they were taking on 
the responsibility for the chromium spill in our city. My 
initial meeting was productive and I was impressed with the 
competence and the genuine interest of the EPA in helping our 
people. We provided them with lists of residents, property 
owners and tenants in an effort to get notice out to the 
community that the EPA would investigate and examine homes and 
properties in the affected area.
    The EC electroplating facility is located in a densely 
populated section of Garfield. Within the spill area, there are 
approximately 600 separate parcels of property. These include 
one and two-family homes, multi-family dwellings, an elementary 
school, a daycare facility, houses of worship and industrial 
and commercial properties. We have approximately 6,300 separate 
parcels of property in our city, therefore, almost 10 percent 
of our community has been affected.
    Notification has been made to residents in multiple 
languages: English, Spanish, Polish and Macedonian. We have 
conducted many public hearings with the EPA to provide 
information to our people and to answer their questions.
    The EPA's team on the ground in Garfield has been 
exceptional. They have answered our concerns professionally, 
knowledgeably and competently. They have given reassurance to a 
scared populace, but despite that reassurance, property values 
in the area have declined significantly.
    With the assistance of the EPA, 400 homes and properties 
have been examined. Contaminated properties detected to date 
have been cleaned up and monitoring wells have been installed 
throughout the affected area in order to fingerprint exactly 
where the contamination lies below the surface.
    To get into the ground below the EC electroplating 
facility, demolition of the building on the surface was 
required. Due to safety concerns expressed by residents that 
chromium-tainted dust could be released from the property 
during demolition, an additional public hearing was held with 
the staff and administration of a kindergarten through fifth 
grade elementary school one half block from the site. That 
hearing included residents throughout the affected area.
    The factory itself has now been demolished. The site is 
fenced and ready for the next phase of study to plan for the 
removal of the chromium that sits below ground in the water 
table of this neighborhood.
    This phase, the analysis and cleanup phase, will absolutely 
require continued funding of the U.S. EPA initiative in the 
City of Garfield. We are a Superfund site. We are a Superfund 
cleanup priority. We are a community living in fear that this 
chromium in our water table may be impacting the health, safety 
and welfare of our residents. Our cleanup need is immediate.
    I urge your committee to continue with the necessary 
funding to address Superfund sites, not only in the City of 
Garfield, but throughout the Nation. It is incumbent upon all 
of us as public officials to prioritize and to fund those 
budgetary requests that provide the greatest good for the 
people that we answer to. I respectfully request your support 
for all of the cleanup funding that is necessary in the City of 
Garfield and all other sites which present immediate health 
hazards to the people who live in or near them.
    Thank you, Mr. Chairman, members of the committee, for 
giving me the opportunity to appear before this prestigious 
committee.
    Mr. Shimkus. Thank you.
    [The prepared statement of Mr. Duch follows:]

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    [The prepared statement of Mr. Stanislaus follows:]

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    Mr. Shimkus. Now the chair recognizes himself for 5 minutes 
for 5 minutes of questioning.
    Let me start with Ms. Dillen. When Earthjustice has engaged 
in litigation with the EPA, does Earthjustice receive 
compensation from the Federal Government for attorney fees and 
court costs?
    Ms. Dillen. Only if we prevail in a lawsuit. The Federal 
Government is like any other party, and if it is----
    Mr. Shimkus. So the answer is yes. And can you give us how 
much you received in 2012?
    Ms. Dillen. No. I don't have that figure.
    Mr. Shimkus. Well, can you submit that to the committee for 
the record?
    Ms. Dillen. Yes, I certainly can.
    Mr. Shimkus. Great. Thank you.
    Let me follow up with you. Do you have a position on any 
other legislation we are discussing today?
    Ms. Dillen. Not that I am prepared to discuss.
    Mr. Shimkus. So a hearing on three pieces of legislation, 
so you decided just to testify on one?
    Ms. Dillen. Chairman, I was asked to address the 2002(b) 
issue, which I have particular knowledge about. I am not an 
expert on CERCLA, and wouldn't care to----
    Mr. Shimkus. Let me ask a question as a citizen. If there 
is a state and has a Federal facility that has major 
contamination, do you think that the Federal Government should 
comply with the same laws that states, local communities and 
businesses have to abide by?
    Ms. Dillen. Chairman, I am here to testify about 2002(b), 
and I would prefer not to wade in to CERCLA, which is an area 
that requires, I think----
    Mr. Shimkus. Thank you.
    Ms. Dillen [continuing]. Tremendous sensitivity----
    Mr. Shimkus. Thank you.
    Ms. Dillen [continuing]. And expertise.
    Mr. Shimkus. Mr. Duch, let me ask you that same question on 
just Federal facilities. If a Federal facility is in your 
community and it has the same type of problem as you just 
outlined by a private sector business, should that Federal 
facility have to comply with the Federal laws in your 
community?
    Mr. Duch. Mr. Chairman, in my opinion, a Federal facility 
should apply just like every other facility.
    Mr. Shimkus. All right. Thank you very much.
    Let me now go to Ms. Hanson. ECOS has adopted a resolution 
that it advocates clarification of the CERCLA waiver of 
sovereign immunity to ensure that Federal facilities are 
subject to appropriate state regulations. Does the Federal 
Facilities Accountability Act accomplish the purposes of the 
ECOS resolution?
    Ms. Hanson. According to our understanding of the bills, we 
do believe that it addresses concerns expressed by the states 
in that resolution.
    Mr. Shimkus. Does ECOS support the Federal and state 
Environment Partnership for Environmental Protection Act?
    Ms. Hanson. I will have to double-check on that.
    Mr. Shimkus. Well, that is----
    Ms. Hanson. I am--yes.
    Mr. Shimkus. The name, we have the REDO Act, the state 
Partnership Act and we have the Federal Accountability Act, 
three pieces of legislation in this oversight hearing today.
    Ms. Hanson. And which one were you asking about? I am 
sorry.
    Mr. Shimkus. In essence, the state Partnership Act, giving 
states more of a role in the whole process as----
    Ms. Hanson. I am sorry. I got my pages out of order.
    We addressed certain part--we agree with certain parts of 
the bill: the consultation with the states and the credit for 
state contributions.
    Mr. Shimkus. Mr. Steers, can you describe the role states 
currently have in administering the CERCLA cleanup program?
    Mr. Steers. Yes. Many of the states work with the EPA on 
oversight and also assist the U.S. Government through 
cooperative agreements on doing site assessments and 
preliminary investigations at the very front end of the CERCLA 
process where we identify sites.
    So the states have a role in working with U.S. EPA in 
identifying sites that may be at risk. We also have a role in 
using state Superfund contracts for the process of state input 
and oversight, at least to be able to offer that; not always 
used, but we do get that opportunity.
    Mr. Shimkus. Do you have any decision-making authority 
under CERCLA?
    Mr. Steers. I will say it is very limited. And typically 
what--and what we would hope by these bills is that we have 
more authority, especially when it comes to determining whether 
to even put a site on the NPL, or with the remedy; especially 
with the selection of a remedy.
    Mr. Shimkus. Yes. And I think you followed--that was my 
follow-up question. Why would that--why is it important that 
the states at least have some role? So it is really the NPL 
issue, too. You may want to more rapidly identify a location on 
the NPL. And correct me if I am wrong, by empowering you all, 
you may be able to leverage that and get a site on the NPL 
sooner?
    Mr. Steers. We may be able to do that. We have--states 
understand their sites the most and have the greatest boots on 
the ground with being able to identify what our priority sites 
are. So having the ability to suggest sites for the NPL is also 
something that I think we all as states would support where it 
is appropriate.
    Mr. Shimkus. Great. My time has expired. The chair now 
yields to Mr. Tonko for 5 minutes.
    Mr. Tonko. Thank you, Mr. Chair. And, again, good morning 
to our witnesses. I would like to examine one legislative 
provision in the bills before us that may be particularly 
controversial.
    Section 113 of CERCLA includes a statutory bar on pre-
enforcement review of cleanup remedies. My understanding is 
that when this committee crafted the law decades ago, this was 
considered a very important key provision.
    Mr. Miller, your testimony refers to this bar on pre-
enforcement judicial review as, and I quote, one of the key 
provisions of the statute. Can you explain why that provision 
is so important?
    Mr. Miller. Certainly. The concern was that without the bar 
on the pre-enforcement review, anyone would be allowed to 
challenge an EPA decision on a remedy and thereby delay the 
implementation of the remedy potentially for years while the 
litigation runs its course. And so obviously there was a 
concern that responsible parties at these sites might seek to 
delay their obligation to clean up the site, but it could go 
the other way. Everybody is precluded pretty much from 
challenging remedies prior to their implementation, 
environmental groups, industry, states.
    Mr. Tonko. And so is the result, then, of that perhaps 
added or extended hazardous and human health concerns?
    Mr. Miller. Well, because the statute bars that type of 
litigation, it allows the remedies to be implemented in a 
timely fashion, and then people can sue after the remedy has 
been implemented to challenge whether it was a correct decision 
or not, but in the meantime you have addressed the human health 
concerns by implementing the remedy.
    Mr. Tonko. So then what problems would arise if Congress 
did indeed lift this bar and allowed judicial review of cleanup 
remedies?
    Mr. Miller. As I read the provision, any time a state has 
expressed an objection to a remedy, it would allow any entity 
to sue to block implementation of the remedy, and so at sites 
where that occurred cleanup could be delayed for years.
    Mr. Tonko. And an increased litigation that would result?
    Mr. Miller. It would--I mean, yes.
    Mr. Tonko. So, Mr. Miller, it appears that the way the 
proposal is drafted, even a responsible party would be able to 
go to court to challenge a remedy before its implementation.
    Mr. Miller. That is how I read the provision.
    Mr. Tonko. And the responsible party could have a financial 
incentive to go to court, delay a cleanup and argue for a less 
protective cleanup remedy? Is that correct?
    Mr. Miller. Yes, that is correct.
    Mr. Tonko. I guess someone could argue that despite those 
drawbacks, this provision might still be worth it if it 
resulted in better cleanups, but this provision would result in 
judges deciding the best way to clean up Superfund sites.
    Does anyone on the panel think that judges would make the 
best technical cleanup decisions? Anyone?
    Mr. Miller. I guess it depends on the standards they are 
applying. Typically judges give some deference to agency 
decisions within the area of their expertise, but the main 
concern here is with the timing of the litigation and the 
timing of when the cleanups would happen.
    Mr. Tonko. Anyone else that might have an opinion on having 
it fall to a judicial interpretation? Anyone?
    If not, Mr. Duch, you are a city manager trying to get a 
site cleaned up in your community. What would be your advice to 
the committee when you hear that we are considering a 
legislative proposal that could increase litigation and in fact 
delay cleanups?
    Mr. Duch. My primary concern as a city manager is really 
the health, safety and welfare of the people who live in that 
area. Any litigation that would slow up the process is 
certainly not desired. Anything that allows the filing of more 
litigation could present a problem in my community. Right now 
there is no litigation. We are proceeding. Litigation would 
slow us down.
    Mr. Tonko. And, Mr. Chair, the basic policy behind 
Superfund is that polluters should pay for their pollution. May 
I respectfully share that I think we should be very careful 
about potentially creating new avenues for litigation that can 
allow polluters to delay cleanups and argue for weaker 
protections. They have a financial incentive to do so, but that 
does not align with the public interest.
    With that, I yield back.
    Mr. Shimkus. The gentleman yields back. I think we have 
time for one more round of--not round, but one more question 
before there is votes. There are 11 minutes left on the floor. 
So the chair now will turn to Mr. Murphy for 5 minutes.
    Mr. Murphy. Thank you, Mr. Chairman. I was assuming I 
wasn't going to get to, so I will pass, go to somebody else. I 
am still preparing my questions.
    Mr. Shimkus. Well, for the majority time, does anyone want 
to seek time for the 5 minutes? Mr. Latta.
    Mr. Latta. Well, thank you, Mr. Chairman. And thanks very 
much for our witnesses for being here today. I really 
appreciate it.
    And if I could start with Ms. Hanson, if I may. Kind of 
following along the chairman's lines, the question is, has 
ECOS, has it adopted a resolution regarding the fact that 
states are co-regulators with the Federal Government and that 
there should be a meaningful and substantial involvement of the 
state environmental agencies as partners?
    Ms. Hanson. We have.
    Mr. Latta. OK. And does the Federal and state Environmental 
Partnership for Environmental Protection Act accomplish the 
purpose of the ECOS resolution?
    Ms. Hanson. In that it addresses consultation with the 
states, it does.
    Mr. Latta. OK. And let me just ask to follow up with that, 
is that consultation very--you know, I came from state 
government. I was in the legislature for 11 years. And I was 
also on the receiving end. I was a county commissioner for 6 
years. So I was getting it from the Federal and the state.
    So does the ECOS support the Federal and state 
Environmental Partnership for the Environmental Protection Act? 
Does that----
    Ms. Hanson. I didn't follow your question. I am sorry.
    Mr. Latta. OK. Does the ECOS support the Federal and state 
Environmental Partnership for the Environmental Protection Act?
    Ms. Hanson. We support parts of the bill: the consultation, 
the state credit for their contributions, and placing the sites 
on the National Priorities List.
    Mr. Latta. OK. And following along those lines, in your 
testimony it notes that the EPA is not obligated to listen to 
state input about the remedy selection for sites on the 
National Priority List. And to what extent does the EPA include 
the states in selecting a response action?
    Ms. Hanson. I believe that would vary state to state. If 
you wanted specific numbers or responses, I would have to get 
back to you.
    Mr. Latta. OK. Well, when you say it varies from state to 
state, is there a wide variance? Or how would you rank that?
    Ms. Hanson. Again, I would have to check on exactly what 
that would be.
    Mr. Latta. OK. And if I could turn to Mr. Steers, if I 
could ask you. Do Federal agencies, including the EPA, 
implementing the CERCLA routinely comply with all applicable 
state requirements, and if not, why not?
    Mr. Steers. Well, we often identify and actually we always 
do identify the ARARs in the state requirements. Typically, 
though, the Federal agencies, especially on former use defense 
sites, for example, the agencies tend to use sovereign immunity 
as a get-out-of-jail card, if you will, trying to circumvent 
state requirements that may be more stringent, and especially 
considering them and other media such as the NPDS water 
programs and the Clean Air Act. So states have authorized 
programs and have regulatory requirements that we end up having 
delayed Federal actions because of debates on sovereign 
immunity.
    Mr. Latta. OK. But in those, who typically determines what 
state requirements are applicable?
    Mr. Steers. Can you repeat your question again?
    Mr. Latta. Yes. Who typically determines what state 
requirements are applicable?
    Mr. Steers. You know, the states are only in a position to 
offer these up. And at the end of the day EPA and the Federal 
agencies determine which ARARs that are going to be used.
    Mr. Latta. Thank you, Mr. Chairman.
    Mr. Shimkus. Will the gentleman yield?
    Mr. Latta. I yield to the chairman.
    Mr. Shimkus. Thank you. I had a follow-up question for Mr. 
Duch. I come out of local government, too. So I appreciate 
folks in municipalities, counties, and townships. If you were 
required under state statute--I assume cities in New Jersey are 
empowered by the state constitution, which allow you to 
incorporate as a city--I mean, is that correct?
    Mr. Duch. Our city is incorporated. I don't understand, Mr. 
Chairman.
    Mr. Shimkus. Well, the state gives that you authority to 
incorporate to become a city by the state constitution.
    Mr. Duch. Correct.
    Mr. Shimkus. So let say the state passed a law and said, 
City, you have to review all of ordinances every 3 years. Would 
that be helpful?
    Mr. Duch. It probably would be helpful. New Jersey is known 
for having many old, old laws----
    Mr. Shimkus. So I can, then, call the State of New Jersey 
and say, I have got a city manager who says it is going to be 
helpful to him to review all his local ordinances every 3 
years. And, if not, then people who are adverse to that would 
be able to take the city to court because you haven't reviewed 
those laws in 3 years. Is that what you are asking for?
    Mr. Duch. I am not asking for that, Mr. Chairman.
    Mr. Shimkus. But the point of the question is one of the 
pieces of legislation says that the Federal Government, the EPA 
has to review every regulation within 3 years. And if they 
don't, whether it is a good regulation or not, they have to 
review it. And, if not, then outside parties can sue them. 
Would you like the same type of venue for your local community?
    Mr. Duch. It would slow down our ability to run the 
government if there was a review process.
    Mr. Shimkus. Yes, sir. And very costly.
    Mr. Duch. Absolutely.
    Mr. Shimkus. And possibly litigious.
    Mr. Duch. If I had to make a choice between doing that and 
spending the money on the cleanup, I would spend the money on 
the cleanup.
    Mr. Shimkus. Amen, brother. Thank you. I am going to recess 
the committee till after votes. We will reconvene about 15 
minutes after the last vote. The hearing is recessed.
    [recess.]
    Mr. Latta [presiding]. I would like to call the 
subcommittee back to order. I believe I was the last to ask 
questions before the recess for votes. And the next questioner 
on the Democratic side is the gentleman from Michigan, the 
chairman emeritus, Mr. Dingell is recognized.
    Mr. Dingell. Mr. Chairman, I thank you for your courtesy. 
These questions go to Mr. Miller of Colorado Department of Law.
    Mr. Miller, relating to the amendments in Section 108 of 
CERCLA, how many states have promulgated the financial 
responsibility requirements?
    Mr. Miller. I don't know the answer to that question.
    Mr. Dingell. We will submit it for the record.
    Mr. Miller. But certainly, any state that has a RCRA 
program or state equivalent to RCRA, would have financial 
assurance for----
    Mr. Dingell. But the answer is very few, if any. Is that 
right?
    Mr. Miller. I am not sure.
    Mr. Dingell. OK. Let's go to the next one. I don't want to 
be unfair to you.
    Relating to the amendment to Section 2002(b) of CERCLA, 
which eliminates the requirements of current law that require 
the Administrator to review regulations every 3 years, this 
requirement has been a part of the Federal law for over 30 
years. Do you believe that the efforts to change this 
longstanding provision have anything to do with litigation 
relating to coal ash regulations? Yes or no.
    Mr. Miller. It is my understanding that it does.
    Mr. Dingell. Thank you. Now, sir, does anything prevent a 
state from obtaining funding for its activities on Superfunds 
and things of that sort from fees, taxes, or other revenues to 
clean up toxic waste sites in their state?
    Mr. Miller. They would just have to do it in compliance 
with whatever their state laws are.
    Mr. Dingell. So there is no obstacle in any Federal law to 
prevent them from doing so?
    Mr. Miller. Not that I am aware of.
    Mr. Dingell. OK. Now, if states then choose to exercise 
this, they have total control over the remedy selected or the 
removal action taken. Is that not so?
    Mr. Miller. It depends on whether the Federal Government is 
also acting. If the EPA----
    Mr. Dingell. No, but if the state initiates its own 
program, using its own funding, it can then proceed to function 
under its own law; right?
    Mr. Miller. That is correct.
    Mr. Dingell. Now let us draw our attention to Section 
113(h). This provides new opportunity for lawsuits where a 
state simply writes a letter objecting to a remedy selected by 
the President. After such letter is posted by the state, it 
would allow this new--under this provision, it would allow the 
responsible party who polluted the site to litigate the 
challenge and to challenge the remedy. Is that not so?
    Mr. Miller. That is correct.
    Mr. Dingell. I believe that Ms. Dillen--I have trouble 
seeing--I believe you were of the same view. Is that correct?
    Ms. Dillen. Yes.
    Mr. Dingell. Thank you. Now, the next question is, would it 
allow an environmental group also to challenge the remedy if 
they could get a state to write such a letter? Yes or no.
    Mr. Miller. Yes.
    Mr. Dingell. OK. Who would, in fact, be barred from such an 
effort; in other words, getting the Governor to write a letter? 
Anybody could do it; right?
    Mr. Miller. Anybody could try to do that, yes.
    Mr. Dingell. Good. Now, in a situation where the state 
wants the most gold-plated remedy which might require the 
excavation and disposal of hundreds of tons of contaminated 
soil so its future operation and maintenance costs for which 
the state is responsible are less, could this new lawsuit 
provision be used to leverage the Federal cleanup decision up 
or down?
    Mr. Miller. It would provide the states more leverage in 
their discussions with EPA as to what their----
    Mr. Dingell. I am not trying to trap you, but the answer is 
yes, right?
    Mr. Miller. Clearly, it is trying to give the states more 
leverage in their negotiations with EPA.
    Mr. Dingell. Now, this also affords opportunity for the 
process to be delayed, does it not?
    Mr. Miller. The way that provision is drafted, because it 
affects the 113(h) bar on judicial review, it does----
    Mr. Dingell. So again the answer is yes?
    Mr. Miller. Yes.
    Mr. Dingell. Now, what happens to the citizens surrounding 
the community? Here we have a lot of folks living around the 
site and they are daily being exposed to these hazardous 
substances. And they want the site redeveloped to create jobs 
and to make their lives and that of their families and children 
more safe. So now we have a process where the decision is going 
to be litigated, and this can take years in the Federal court 
under this new lawsuit provision. Am I correct?
    Mr. Miller. Yes, it could lead to lengthy delays in 
cleaning up sites.
    Mr. Dingell. And one of the problems I believe with 
Superfund is that these things are litigated till hell freezes 
over; isn't that right?
    Mr. Miller. CERCLA litigation can go on for a long time.
    Mr. Dingell. And it is having a prodigious delaying effect 
on the cleanup of all of these poison sites and it is creating 
huge difficulty in terms of seeing to it that we make the 
progress that people desperately want in disposing of these 
sites, and it is costing more money. Am I right or wrong?
    Mr. Miller. Well, with the pre-enforcement judicial--the 
bar on pre-enforcement judicial review in place, that limits 
litigation that would delay cleanups. Most of the----
    Mr. Dingell. So the answer is it permits a splendid 
opportunity to obfuscate the process, delay the cleanup, and 
cost a lot more money in litigation, which is a prodigiously 
expensive undertaking. Right?
    Mr. Miller. Right. It would open the door to a lot more 
litigation.
    Mr. Dingell. Now, Ms.Hanson----
    Mr. Shimkus [presiding]. If the gentleman would suspend. 
The clock got started late, and you are already 30 seconds 
over.
    Mr. Dingell. Am I incorrect that I have got 26 seconds?
    Mr. Shimkus. And the clock got started late, so it is 
really a minute and 26. But if the gentleman wants to ask 
unanimous consent for an additional 30 seconds for----
    Mr. Dingell. I will accede to the wishes of the chair. I 
thank you.
    Mr. Shimkus. Thank you. The chair now recognizes the 
gentleman from West Virginia, Mr. McKinley, for 5 minutes.
    Mr. McKinley. Thank you, Mr. Chairman. Just a matter of 
housekeeping, Mr. Chairman, and for the panel, I think we have 
worked under the idea in this committee, in my time, we were to 
have all testimony submitted within 48 hours or prior to 48 
hours before testimony. And, Ms. Dillen, were you aware of that 
requirement from Earthjustice, that there is a 48-hour 
restriction?
    Ms. Dillen. Mr. McKinley, my understanding is there was 
only an agreement reached late yesterday on what witnesses 
would be here, and I only received my invitation to testify 
yesterday afternoon.
    Mr. McKinley. So there is some reason. Because we only got 
your last night testimony around 7:30.
    Ms. Dillen. Yes, there is a reason.
    Mr. McKinley. So I didn't have a lot of chance. But I think 
it was interesting because quite frankly, I thought, after 
reading your testimony, I thought you were going to testify at 
a different hearing. Because it really has little to do with 
this hearing when 10 of the 15 pages had to do with fly ash 
when--and then when they quizzed you, they were--someone 
earlier, you didn't have expertise in all 3, but you did have 
about the fly ash. So I hope you come back when we talk with 
fly ash so we can have a meaningful, adult conversation with 
that.
    Ms. Dillen. I would be delighted to.
    Mr. McKinley. But, in the meantime, I am trying to 
reconcile your testimony. On page 4, you say that, ``In any 
deadline enforcement case, the agency has ample time--'' on and 
on--``and there is no reason to the courts will impose 
unworkable deadlines.'' But yet then in your own brief you said 
you think they should be forced to do it within 6 months. Can 
you explain that a little bit better why there is this 
contradiction in your testimony and in your legal brief?
    Ms. Dillen. Certainly. There isn't a contradiction. In our 
briefing, we take the position that EPA has had decades to come 
forward with revisions of the regulations that should address 
coal ash and has failed to do that. It has proposed a rule in 
2009. We think that the agency could expeditiously wrap up this 
rulemaking process that has created uncertainty for everyone. 
Whether----
    Mr. McKinley. There seems to be a bit of a moving target. I 
am curious, I think some testimony--maybe, Mr. Duch, you 
mentioned it, about some of the pollutants. But the legislation 
that we passed four times out of here last year would have 
resolved a lot of the issues that you are referring to about 
groundwater contamination. Because under the legislation we 
passed, it called for new liners underneath all new 
impoundments that would take care of this, and called for 
strict requirements over dam safety and water monitoring. All 
the things--but yet your group opposed that. So I am just 
curious about that, because you seem to be wanting it both 
ways. When the legislation was addressing it. But I think the 
real sticking point, if I am correct, is over primacy. You want 
the EPA to control the landfills versus the House's position, 
and with quite a few from the other side of the aisle, we are 
looking for resolution by allowing the states. And the states 
themselves have said they are prepared to do that. So you 
worked against a resolution to the very problem you are 
addressing.
    Ms. Dillen. We want environmental protection in whatever 
form it comes in. The House bill would not provide it.
    Mr. McKinley. We gave it with putting liners underneath it 
and dam impoundments so we wouldn't have another Kingston. 
Because it wasn't what they were containing was the problem, it 
was a failure of a dam that collapsed that caused that.
    Ms. Dillen. Respectfully, we disagree. But that is a bill 
that is not before the committee today.
    Mr. McKinley. Thank you. So I was just curious because you 
came and that is all your testimony has been, about fly ash. So 
I am just curious to see what you know about it other than just 
you want it your way and not in a way the committee--because we 
had an earlier discussion with Administrator Stanislaus. And he 
showed a very positive attitude about getting this thing 
resolved this year. And I am very encouraged with the 
possibility. We may very well through bipartisan get some kind 
of resolution. But you seem to be stuck outside the table. I 
would suggest that perhaps instead of looking for perfect, if 
you are willing to compromise with us, we will all come to some 
resolution and resolve this matter and remove the stigmas 
associated with the recyclable materials.
    My time--apparently, I have got a couple seconds. You want 
to respond?
    Ms. Dillen. We would certainly be interested in any action 
by Congress that would resolve the longstanding water pollution 
problems and fly ash air pollution problems and dam safety 
issues. So far, that has not materialized.
    Mr. McKinley. You understand Mr. Stanislaus already said he 
is trying to work with us and try to get that resolved.
    Ms. Dillen. I am sorry. I----
    Mr. McKinley. You are not aware that the Administrator said 
he is willing to work with us on a bipartisan----
    Ms. Dillen. If the Administrator is willing to work with 
Congress and Congress is willing to come to a solution that 
actually works to address coal ash, we would be the first 
people to endorse such a solution. So far, that solution has 
not materialized.
    Mr. McKinley. Thank you very much. Yield back.
    Mr. Shimkus. Gentleman's time expired. Chair now recognizes 
the gentleman from California, Mr. McNerney, for 5 minutes.
    Mr. McNerney. Thank you, Mr. Chairman.
    Ms. Hanson, could you tell me how many times a site has 
been added to the National Priority List without the 
concurrence of the state of location?
    Ms. Hanson. I don't have a number right off. We would have 
to look into that to get an actual number of times.
    Mr. McNerney. My understanding is there haven't been any. 
And I was wondering if that was because there was a tacit 
agreement in place or was it because of financial constraints 
at the EPA that states are not adding sites or not wanting to 
add sites to the National Priority List?
    Ms. Hanson. I don't know specifically why that would be.
    Mr. McNerney. Well, my district has two Superfund sites. 
And I was going to ask your opinion on what it would take to 
get action on those sites. Would it take additional EPA budget 
money? Would it take legislation here in Congress?
    Ms. Hanson. Not knowing anything about those sites and 
where they have fallen and looking at risk and things like 
that, it would be hard to make any statement on how you get 
those.
    Mr. Shimkus. Would the gentleman yield? Are those on the 
National Priority List right now, do you know? I am just 
curious.
    Mr. McNerney. Yes, they are. In fact, I can tell you what 
they are, if you want.
    Mr. Shimkus. No. I just--because part of this debate is if 
states have bad sites, they are trying to use this venue to get 
on the National Priorities List. It is not the flip side.
    Mr. McNerney. Reclaiming my time.
    Ms. Dillen, some have claimed that the deadline set out in 
Section 2002(b) of the Solid Waste Disposal Act has proven 
impracticable and it results in an avalanche of lawsuits. As 
you mentioned in your testimony there has only been 3 lawsuits 
under that provision in the last 29 years since the law has 
been on the books. Do you believe that the EPA has been under 
excessive burdens because of this review requirement?
    Ms. Dillen. No. There is no evidence to suggest that it has 
been. These 3 lawsuits all relate to a single issue, and that 
is regulation of coal ash. And that is something that has been 
an issue that EPA has recognized needs to be addressed for the 
last two decades. And even in that court case, EPA has said, we 
recognize we need to revise these regulations. And so now it is 
just a question of getting it done. And I would submit that 
without a deadline we won't see regulations to address this 
problem in the foreseeable future.
    Mr. McNerney. Thank you. Mr. Miller, you mentioned the 
issue of Federal financial responsibility requirements, 
potentially preempting state requirements. Do you believe the 
EPA has the discretion to address that issue under current 
authority?
    Mr. Miller. My understanding of the existing law is that 
EPA does have discretion to write rules that would meet the 
intent of Section 108 to provide financial assurance for 
releases of hazardous substances without preempting state laws 
that address related but separate issues, such as RCRA closure 
of hazardous waste impoundments, and the like, or mining bonds 
under state mining laws to require reclamation. But they also 
have the discretion to preempt.
    Mr. McNerney. Thank you.
    Ms. Hanson, again, you have expressed support for 
protecting state financial responsibility requirements for hard 
rock mining. How many states have adopted financial 
responsibility requirements for hard rock mining?
    Ms. Hanson. I do not have that number with me today.
    Mr. McNerney. You will need to get that to us, then.
    Ms. Hanson. OK.
    Mr. McNerney. Has ECOS conducted a comparative analysis of 
those state requirements to know how the requirements are 
similar and how they are different?
    Ms. Hanson. We have not.
    Mr. McNerney. All right. I understand that we may be 
marking these bills up in June. Will you commit to provide the 
committee that information for the record before the markup 
occurs?
    Ms. Hanson. We will do our best to get that information as 
rapidly as we can.
    Mr. McNerney. Thank you. I yield back.
    Mr. Shimkus. Gentleman yields back the time. Chair now 
recognizes the gentleman from Florida, Mr. Bilirakis, for 5 
minutes.
    Mr. Bilirakis. Thank you, Mr. Chairman. I appreciate it 
very much. Thank you for holding this hearing.
    There are 16 Superfund sites in or near my Florida 
congressional district, some of which have had the status for 
several years. The length of time it takes for EPA and the 
Florida Department of Environmental Protection to coordinate is 
one of the reasons the process takes so long.
    This question is for Ms. Hanson and Mr. Steers. You have 
mentioned that EPA's coordination practices are not consistent 
across regions or state to state. What legislative 
recommendations do you suggest to ensure every state receives 
equitable treatment? Whoever would like to go first.
    Mr. Steers. Yes. I think in order to solve the--especially 
with remedy selection and being able to get some more 
consistency across the country by EPA regions, I think having 
EPA have more skin in the game, if you will, may help that 
concurrence be taken a little more seriously. It is not to say 
that they are never concurring with or they are never taking 
the information and the recommendations the states have, but it 
is not done consistently. And the results when it is not done 
on either poor design or performance of some of these long-term 
systems are saddling the states with a lot of cost, my pipe 
example being one. But there is many out there. And I believe 
if EPA had more skin in the game by--you know, if they want to 
minimize or marginalize a state's recommendations, then they 
should be on the hook for some of the long-term O&M that goes 
on with these sites. It is a way to ensure that the state's 
voices are heard for the long course of O&M that can result 
from not taking our comments into account during the remedy 
selection.
    Mr. Bilirakis. Thank you.
    Ms. Hanson.
    Ms. Hanson. Yes. ECOS always advocates for a stronger state 
role in working on environmental issues with the Federal 
Government. And under the current setup, the Federal Government 
is only required to--is not required, actually, it is just a 
policy that EPA consult with the states. And we have said in 
our testimony that we would like it to be--we approve of it 
being required.
    Mr. Bilirakis. Thank you. Ms. Hanson, you note in your 
testimony that providing a mechanism for states to list sites 
that meet the listing criteria would make certain parties more 
willing to negotiate with the states and resolve cleanup issues 
without having to use Superfund money. Can you please explain 
that or elaborate if you will?
    Ms. Hanson. I think if sites knew that they could have a 
state come to them in addition to just the Federal Government, 
there is not just one mechanism but more than one mechanism or 
more than one group, that they would be more willing to talk to 
states. If they think it is only the Federal Government that is 
going to come in on a site, on a complex Superfund-type site, 
they are not going to talk to the states, they are going to 
wait for the Federal Government to come in.
    Mr. Bilirakis. Again for Ms. Hanson. EPA has indicated that 
the agency has a policy of not listing its sites on the 
National Priorities List over the objection of the states. Is 
that policy applied consistently across the regions? And 
shouldn't it be a requirement that EPA not list a site over the 
objection of the state?
    Ms. Hanson. We find that there are regularly variations 
state to state, region to region, on all sorts of work with the 
EPA. So having something a requirement ensures that it does 
occur consistently.
    Mr. Bilirakis. Anyone else wish to comment on that?
    Mr. Steers. And I would agree. I think a lot of our states, 
we feel like we are being pressured through the governance 
concurrence process into putting sites on the NPL when, quite 
frankly, there are other solutions out there that could 
facilitate a cleanup much faster than just being in on the 
CERCLA process. I understand there are some EPA regions where 
they are actually going through looking at newspaper articles 
for sites that potentially could be on the NPL as a way to try 
to keep the ball rolling with getting sites enrolled in the 
program. That is why I feel, and our association feels, that 
having a process where you go through prioritizing the states 
sites and what the state knows about the economic and 
environmental conditions in a community-- in a previous 
testimony I gave in front of this committee, I mentioned that 
we have some success stories of watershed approaches that are 
used sometimes to clean up several sites without having to go 
through the long process on the NPL. And we had one in my 
former State of Ohio that I worked for, which was a very big 
success story, where a lot of contaminated property along the 
Ottawa River was actually restored and cleaned up without the 
Superfund stigma attached to it because all the responsible 
parties came together, worked together, and facilitated a 
cleanup on their own with the state using a voluntary cleanup 
program as a way to restore that watershed.
    Mr. Bilirakis. Thank you, Mr. Chairman. I yield back.
    Mr. Shimkus. The gentleman's time has expired. The chair 
now recognizes the gentleman from Texas, Mr. Green, for 5 
minutes.
    Mr. Green. Thank you, Mr. Chairman, for holding the 
hearing. I am glad to hear that this will be the first of at 
least two hearings looking at the successes and possible 
shortcomings of RCRA and Superfund sites. Our district in East 
Houston, on Harris County, Texas, has a number of Superfund 
sites close in proximity, including the San Jacinto Waste Pits 
and the U.S. Oil Recovery. With my colleague, Congress Ted 
Poe's support, the EPA has been conducting studies and we are 
in the early stages of cleaning up the San Jacinto River site. 
U.S. Oil Recovery site was listed as a proposed addition to the 
NPL in 2011. From what I have witnessed at the San Jacinto 
Waste Pits, I believe the EPA is making great strides in the 
Superfund program. However, as a form state legislator, I am 
sensitive to the cost Federal decisions have placed on state 
and local governments and hope this hearing will highlight the 
importance of the EPA to work with the states as closely as 
possible and weigh the long-term cost of remediated Superfund 
sites on state governments.
    Mr. Miller, the national contingency plan sets out how 
cleanups are to be conducted. It includes an expectation that 
institutional controls will be used to supplement engineering 
controls as appropriate. In your experience, has that 
expectation been borne out in the Superfund cleanups?
    Mr. Miller. No. That is actually an area where there has 
been quite a bit of difficulty. EPA has paid increasing amounts 
of attention to institutional controls in recent years and has 
developed some policy guidance on it. But it is an issue that 
we struggle with, particularly at sites that are cleaned up 
under removal authority. And it is an issue that is always 
difficult at Federal facilities. Federal agencies routinely 
resist imposition of these institutional controls at their 
sites. And it is kind of a puzzling position to me because the 
institutional controls really don't cost very much at all. It 
is just creating a legally binding document and monitoring it, 
compliance with it. But the Federal agencies have resisted our 
efforts to impose it at a number of sites. We have recently had 
some luck with the Department of Defense, has come around. And 
they are happy to use a mechanism that we have in Colorado that 
a lot of other states don't have at DOD facilities. But we are 
continuing to get resistance from the land management agencies.
    Mr. Green. The CERCLA as currently written prioritizes 
treatment that significantly reduces the volume, toxicity, and 
mobility of the contaminants over response actions that do not 
have that effect. It also requires a cost-effectiveness 
analysis of response actions, including the costs of operation 
and maintenance for the entire period during which such 
activities are required. Mr. Miller, in your experience, are 
these statutory requirements consistently met?
    Mr. Miller. It is a balancing act at every site.
    Mr. Green. My experience with two sites in our area, the 
U.S. Oil Recovery site has been frustrating because of the--it 
is in Pasadena, Texas, in our district--because of the 
responsible party has been very unwilling, in fact has 
disappeared on us. So that has caused other problems.
    Are these areas where we might want to conduct more 
oversight? And do you think that sometimes just asking the 
right question can result in improved performance?
    Mr. Miller. It is an issue that varies from site to site. I 
do think that, particularly with respect to the long-term 
maintenance costs--in Colorado, we are looking at paying 
roughly $8 million a year to operate water treatment plants at 
two of our larger mining sites. And over time, that O&M cost is 
going to eventually exceed the cost of the original remedy. So 
this is an issue that the states actually sued EPA over when 
the National Contingency Plan was promulgate in 1990 over the 
cost-sharing provisions. EPA wrote a rule that interpreted the 
statute to require the states to pay 100 percent of the 
operation and maintenance. And it was the states' position that 
the statute actually required a 90/10 cost split--90 percent 
Federal, 10 percent state--for both the initial cost of the 
cleanup as well as continued operation and maintenance. So 
earlier today when I referred to changing the cost share 
provisions, changing the allocation of O&M costs I think could 
encourage EPA to pay more attention to remedies that would 
minimize, really, the long-term costs of these sites.
    Mr. Green. Thank you. I know I am almost out of time.
    Mr. Chairman, I agree with Mr. Miller. There are existing 
concerns over EPA's enforcement of Superfund, particularly in 
light of our hearing yesterday in our Energy Committee on the 
President's budget cuts to the Superfund. And I think it is our 
subcommittee's responsibility to oversee the EPA actions. 
Hopefully, the EPA must work with state and local governments 
as closely as possible to weigh the long-term costs of the 
remediated sites. But taking a heavy, heavy-handed approach 
will only make the problem worse and open up Superfund to more 
litigation, which obviously doesn't help us clean up the sites.
    So I appreciate the time this morning.
    Mr. Shimkus. The gentleman yields back the time. The chair 
now recognizes chairman emeritus, Mr. Barton, for 5 minutes.
    Mr. Barton. Mr. Chairman, I don't have any questions. I 
will just make a general comment. These 3 bills to me look like 
common-sense efforts to reform and improve CERCLA. And I know 
that former Chairman Dingell seemed to have some pretty serious 
reservations. But hopefully we can work through those and have 
a good, open process in the markup and move the bills. I mean, 
no Federal law was set in stone, and certainly the times have 
changed and some of the imperfections in CERCLA need to be 
changed. And I think this is good faith effort, these 3 bills, 
to do that. So I hope that the committee, the subcommittee can 
move forward in a bipartisan, open way to move these bills.
    With that, I yield back or yield to you.
    Mr. Shimkus. Gentleman yields back. Chair recognizes the 
gentlelady from the State of Illinois, Ms. Schakowsky, for 5 
minutes.
    Ms. Schakowsky. Thank you, Mr. Chairman. Mr. Tonko asked if 
I would sit here.
    Mr. Shimkus. That is great.
    Ms. Schakowsky. Mr. Duch, I want to thank you for being 
here today. Your testimony really provided a picture of how 
Superfund works in the real world to protect people and 
communities from the risks and costs of contamination. It is so 
important that any changes this committee considers to 
Superfund builds on its success helping communities like yours 
instead of undermining it. That is why I really am concerned 
that the bills before us today actually undermine our ability 
to help communities like yours. Although the EPA couldn't be 
here, they did review the bills. And they tell us that the 
bills will increase litigation, divert funds, and generally 
delay needed cleanups.
    So, Mr. Duch, how long has your town been fighting to clean 
up the contamination at the Superfund site?
    Mr. Duch. The spill that I spoke about earlier took place 
in 1983. It was managed by the New Jersey Department of 
Environmental Protection for the next 25 years. There was a 
determination made by them in the late '80s that there was 
really no further problem and no further concern. We were very 
fortunate in 2008 that the U.S. EPA was handed the case by the 
NJDEP. They came in. They have begun the cleanup. But my 
concern is, we have now fingerprinted where our problem is, but 
we need to clean up. And the only way we can clean up is if 
there is continued funding for the EPA to do that. Right now, 
they are doing the analysis phase to determine what is the best 
way to clean up. They are monitoring wells, forty-six of them, 
that have been drilled throughout this 600-parcel area. Those 
monitoring wells are between 8 feet and 400 feet deep. So the 
analysis is being done. But a determination needs to be made as 
to the best way to clean up. There are a number of alternatives 
that the EPA has discussed with us. They are all expensive. And 
every other community in the country that has a Superfund site, 
in particular, a site like this that is under residential 
properties, is threatened. So we do need help.
    Ms. Schakowsky. So this is your water supply for your town?
    Mr. Duch. Our water supply is not impacted. The problem is 
that there is a fairly high water table in this particular 
area. So when the water table rises, the hexavalent chromium 
can seep into basements. When it seeps into basements and it 
dries, it crystallizes. And in that crystallized form, when it 
becomes airborne dust, it becomes dangerous. So the sooner we 
can get it out of the water table or treat it in the water 
table, the sooner our people will be safe.
    Ms. Schakowsky. So if the money for the cleanup were just 
not available from the EPA, does your town have any other way 
to get the site cleaned up?
    Mr. Duch. Our community is--we are one of 70 towns in 
Bergen County. We are a--on the socioeconomic scale, our people 
are working class people. The city does not have that kind of a 
budget, nor do we have the technical expertise that would allow 
us to address this problem properly.
    Ms. Schakowsky. So would you oppose changes to the 
Superfund that have the potential to limit the funds available 
for cleanups like yours or have the potential to significantly 
delay any cleanup?
    Mr. Duch. We certainly would oppose that. The sooner the 
cleanup can take place the better. The less obstacles that are 
placed in front of the EPA, the sooner we can move forward.
    Ms. Schakowsky. Thank you very much.
    Mr. Duch. Thank you.
    Ms. Schakowsky. I wanted to ask Ms. Dillen, we have a local 
issue--I don't know, we may disagree on that, Mr. Chairman. But 
you probably know about the Badger Ferry that was recently 
granted a 2-year permit to continue operating on Lake Michigan 
in a settlement with the Environmental Protection Agency. This 
has to do with coal ash being dumped right into the lake. And 
every time it sails between Wisconsin and Michigan, the Badger 
Ferry dumps 4 tons of coal ash into the lake. And each year 
more than 500 tons of coal ash is dumped right from the ferry 
into the lake. I wondered what--if you could share your 
thoughts on the Badger Ferry settlement that would allow 
another season for them to continue dumping.
    Ms. Dillen. Well, I am not familiar with the details of the 
settlement. But I certainly know about the issue. And it is one 
of the notorious examples of what can happen when there isn't 
proper regulation of coal ash. And I think it underscores what 
my message has been to the subcommittee today, which is, please 
don't take away the one backstop that we have to ensure that 
EPA is forced to address this. And I think the settlement that 
you point up suggests that the agency is not going to take the 
action that is needed to address even the most notorious 
problems like the Badger Ferry if it doesn't have a deadline.
    Mr. Shimkus. Gentlelady's time expired. We appreciate the 
first panel for being here and for your testimony. The 
subcommittee stands in recess until Wednesday, May 22, at 10:15 
a.m.
    [The bills follow:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    [Whereupon, at 11:45 a.m., the subcommittee was adjourned.]

    [Material submitted for inclusion in the record follows:]

               Prepared statement of Hon. Henry A. Waxman

    Today we begin to examine three legislative proposals 
involving the Superfund program and hazardous and solid waste. 
These bills cover an expansive number of topics--from how sites 
are cleaned up, to who pays for what, to when citizens can go 
to court over the decisions.
    These are complex issues and changing the law could have 
serious consequences. Legislating in this area is no small 
undertaking.
    That's why I want to thank the Chairman for agreeing to 
hear from additional witnesses next Wednesday. We won't be able 
to cover every issue, but it will be very helpful to hear 
testimony from the Government Accountability Office and the 
Congressional Research Service on Superfund and these 
legislative proposals.
    One bill we will consider today is couched as legislation 
designed to repeal so-called ``excessive deadlines.'' Although 
some may claim that the targeted review requirement will 
require extensive resources and lead to a flurry of lawsuits, 
the requirement has been in place for decades with no issue. 
EPA has never found the review burden excessive, and only three 
suits have ever been brought to enforce the deadline--all three 
relate to the long overdue rulemaking on coal ash. The delays 
in finalizing that rulemaking are bad for the environment and 
are harming the beneficial reuse industry.
    These cases do not suggest that the deadline is excessive--
instead, they suggest that it is necessary.
    This is just one example of how the provisions before us 
today may seem innocuous, or even helpful, on paper. But when 
we examine EPA's experience implementing RCRA and Superfund 
over the last 30-40 years, it becomes clear that they are 
unnecessary at best, and at worst, a threat to the continued 
success of this essential program.
    Another small provision in the Federal and state 
Partnership for Environmental Protect Act would allow 
litigation over selected cleanup methods before the cleanup 
occurs--adding significant costs and delays to the process. One 
expert my staff spoke with called that change ``a hole so big 
it could swallow all of Superfund.'' I don't believe any of my 
colleagues want to see that happen.
    These three bills present a lot of ground to cover. I look 
forward to hearing from the witnesses today and when the 
hearing reconvenes next week. And I hope that members of the 
Subcommittee are given a full opportunity to understand these 
bills before they are brought to markup.
    I hope we are able to resist the temptation to take 
legislative shortcuts, to move legislation before it is 
adequately vetted and carefully considered. This Subcommittee 
tried that in the last Congress and it resulted in legislative 
failure after considerable confusion and wasted effort.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                              ----------                              



FEDERAL AND STATE PARTNERSHIP FOR ENVIRONMENTAL PROTECTION ACT OF 2013; 
   REDUCING EXCESSIVE DEADLINE OBLIGATIONS ACT OF 2013; AND FEDERAL 
                  FACILITY ACCOUNTABILITY ACT OF 2013

                              ----------                              


                         TUESDAY, MAY 22, 2013

                House of Representatives,  
        Subcommittee on Environment and the Economy
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:17 a.m., in 
room 2322 of the Rayburn House Office Building, Hon. John 
Shimkus (chairman of the subcommittee) presiding.
    Members present: Representatives Shimkus, Gingrey, Pitts, 
Latta, McKinley, Johnson, Tonko, Green, Capps, McNerney, 
Dingell, and Waxman (ex officio).
    Staff present: Nick Abraham, Legislative Clerk; David 
McCarthy, Chief Counsel, Environment/Economy; Tina Richards, 
Counsel; Environment; Chris Sarley, Policy Coordinator, 
Environment and Economy; Jacqueline Cohen, Democratic Senior 
Counsel; Greg Dotson, Democratic Staff Director, Energy and the 
Environment; and Caitlin Haberman, Democratic Policy Analyst.
    Mr. Shimkus. We are going to call the hearing back to 
order. This is a continuation of the hearing that started last 
week, and so on the second panel we have Mr. David Bearden, who 
is a Specialist in Environmental Policy from the Congressional 
Research Service, and also joined by Mr. David Trimble, who is 
the Director of Natural Resources and Environment from the 
Government Accountability Office.
    Gentlemen, your full statements have already been submitted 
for the record. You have 5 minutes. As you can see, I don't 
think we are really pressed for anything immediately, so we 
will be generous. It really gives us a chance to understand 
this program and as follow-up questions, so with that, I would 
like to recognize Mr. Bearden for 5 minutes. And let us make 
sure the microphone is on and it gets pulled close to you.

  STATEMENTS OF DAVID M. BEARDEN, SPECIALIST IN ENVIRONMENTAL 
   POLICY FOR THE CONGRESSIONAL RESEARCH SERVICE; AND DAVID 
    TRIMBLE, DIRECTOR OF NATURAL RESOURCES AND ENVIRONMENT, 
                GOVERNMENT ACCOUNTABILITY OFFICE

                   STATEMENT OF DAVID BEARDEN

    Mr. Bearden. Chairman Shimkus, Ranking Member Tonko and 
members of the subcommittee, my name is David Bearden and I am 
a Specialist in Environmental Policy for the Congressional 
Research Service. Thank you for inviting me to testify on 
behalf of CRS on legislation that would amend the Comprehensive 
Environmental Response, Compensation and Liability Act to 
address various aspects of the federal and state roles in the 
cleanup of environmental contamination and the applicability of 
state clean up requirements at both current and former federal 
facilities. In brief, the primary areas that the legislation 
would address include the designation of sites on the National 
Priorities List; credits toward state matching funds 
requirements at non-federal facilities; the selection of 
cleanup actions and opportunities for judicial review of such 
actions; the establishment of financial responsibility 
requirements; and the waiver of sovereign immunity at both 
current and former federal facilities.
    In serving the U.S. Congress on a non-partisan and 
objective basis, CRS takes no position on this legislation but 
has been asked by the subcommittee to identify the federal and 
state roles under CERCLA in existing law and the aspects of 
these roles that the legislation would address. The statements 
presented in this testimony are based on a preliminary analysis 
of the legislation within the time available. CRS remains 
available to assist the subcommittee in its consideration of 
this legislation, related issues and potential concerns among 
affected stakeholders.
    I will now just provide a brief summary of the existing 
framework of federal and state roles under CERCLA and then a 
summary of the main provisions of all three bills.
    Congress enacted CERCLA in 1980 in the 96th Congress in 
response to a growing desire for the federal government to 
pursue the cleanup of the Nation's most hazardous sites, to 
protect human health and the environment. Under the Superfund 
program, the Environmental Protection Agency, EPA, may pursue 
cleanup and enforcement actions to respond to actual or 
threatened releases of hazardous substances into the 
environment. CERCLA established a broad liability scheme that 
holds past and current owners and operators of facilities, 
generators of wastes, and transporters of wastes who selected a 
facility for disposal, liable for cleanup costs, natural 
resource damages, and the costs of federal public health 
studies that are conducted by the Agency for Toxic Substances 
and Disease Registry. In conjunction with this liability 
scheme, CERCLA directs EPA to establish requirements for 
private entities to demonstrate their financial capability to 
satisfy cleanup liability if contamination were to occur, but 
EPA has not yet promulgated such requirements.
    The Superfund Amendments and Reauthorization Act of 1986 in 
the 99th Congress amended CERCLA to address the applicability 
of the statute and state law to federal facilities, and amended 
various cleanup, liability and enforcement provisions of the 
statute. Several subsequent laws also have amended CERCLA for 
specific purposes. With respect to federal and state roles, 
which is the primary area of focus of the three bills, the 
Small Business Liability Relief and Brownfields Revitalization 
Act of 2002, enacted in the 107th Congress, amended CERCLA to 
authorize federal grants to assist states and local governments 
for the cleanup of brownfield sites that are not addressed 
under the Superfund program, to give substantial deference to 
the states in EPA's designation of sites on the National 
Priorities List, and to limit the use of federal enforcement 
authorities under CERCLA to pursue the cleanup of a site, if a 
state already is pursuing the cleanup under its own law.
    CERCLA directs EPA to maintain the National Priorities List 
to prioritize sites for federal response actions. Under CERCLA, 
federal response actions may include interim removal actions, 
as they are called, to address more immediate risks, and 
broader remedial actions to address long-term risks. Remedial 
actions also differ in that the use of federal Superfund 
appropriations is conditional upon the state agreeing to share 
the costs with the federal government, whereas removal actions 
may be fully federally funded with Superfund appropriations.
    Under federal regulation, a site also must be on the 
National Priorities List as an additional condition for EPA's 
use of federal Superfund appropriations to finance the remedial 
actions. The cleanup of Superfund sites that are financed with 
private funds from the potentially responsible parties are not 
subject to this condition, and therefore do not necessarily 
require listing on the NPL to perform the remedial actions that 
are not funded with federal tax dollars. EPA may fund removal 
actions with federal Superfund appropriations to address 
immediate hazards, regardless of whether a site is on the 
National Priorities List.
    The response authorities of CERCLA also are available to 
federal agencies for the performance of the cleanup of federal 
facilities that are funded with separate appropriations apart 
from Superfund, and these separate appropriations are allocated 
directly to the agencies that administer those facilities. The 
Department of Defense and the Department of Energy administer 
the vast majority of federal facilities where cleanup is 
performed under the authorities of CERCLA and other relevant 
statutes.
    EPA and the states still play a role, however, in 
overseeing and enforcing the cleanup of federal facilities. EPA 
leads the oversight of the cleanup of federal facilities that 
are on the National Priorities List but still in conjunction 
with the states, and the states primarily are responsible for 
leading the oversight of the cleanup of federal facilities that 
are not on the National Priorities List where EPA does not have 
a similarly prominent role.
    CERCLA authorizes various mechanisms for the states and the 
public to participate in federal cleanup decisions. However, 
EPA, or the lead federal agency at a federal facility, 
generally is responsible for making the federal decisions. 
Those decisions, though, still may involve the application of 
state cleanup requirements if they may be more stringent than 
the federal requirement.
    CERCLA authorizes citizen suits, including suits by states, 
to challenge federal decisions regarding response actions, both 
remediation and removal, but limits the timing of judicial 
review until after the action is taken. CERCLA also 
specifically authorizes states to bring action in U.S. district 
court to challenge the selection of remedial actions at a 
federal facility within its borders.
    Conditions for the use of federal Superfund appropriations 
also can be a factor in federal cleanup decisions that are made 
in consultation with the states at non-federal facilities. The 
use of federal Superfund appropriations to finance remedial 
actions generally is conditional upon the state agreeing to pay 
10 percent of the capital costs, with the federal government 
paying 90 percent, and generally 100 percent of the costs of 
long-term operation and maintenance in maintaining any 
institutional controls that might be necessary over the long 
term. There is an exception for the treatment of groundwater 
under which the federal government may pay the full costs of 
operation and maintenance for the first 10 years of the remedy 
after which point the state would assume its responsibility for 
the 100 percent costs of the operation and maintenance. These 
state matching funds requirements do not apply to the use of 
federal Superfund appropriations for removal actions, nor to 
either remedial or removal actions that are carried out at 
federal facilities and funded fully by the federal government 
separately with appropriations to those agencies that 
administer those facilities.
    The legislation that is before the committee, the three 
bills collectively, would expand the role of the states in the 
cleanup of contaminated sites under CERCLA beyond the scope of 
the most recent amendments I mentioned earlier that were 
enacted in 2002 in the 107th Congress. The following points 
that I have outlined briefly identify how each bill would alter 
the state role in comparison to existing law.
    The first bill, the Federal and state Partnership for 
Environmental Protection Act of 2013, would make the following 
changes to existing law. It would expand consultation with 
affected states to include not only remedial actions but also 
removal actions, including consultation with state and local 
officials at federal facilities. Another provision would expand 
the categories of non-federal funds that states could apply as 
credits toward meeting matching funds requirements to include 
state oversight costs and in-kind expenditures. In-kind 
expenditures essentially are non-monetary contributions that 
may offset some of the costs. Another provision would codify in 
statute EPA's general practice of obtaining the concurrence of 
the Governor of the state in which a site is located in making 
a decision to list a site on the National Priorities List and 
would give greater deference to state priorities in the listing 
process overall. It would also broaden the opportunity for 
judicial review of a remedial action, if a state were to object 
to the selection of the remedial action in writing.
    The next bill, the Reducing Excessive Deadline Obligations 
Act of 2013, has two primary provisions. The first provision 
would bar federal financial responsibility requirements that 
EPA may promulgate in the future from preempting state 
financial responsibility requirements that are in place on the 
effective date of any federal requirements that EPA may 
promulgate. The other provision is related to the Solid Waste 
Disposal Act and not CERCLA, and it would amend the Solid Waste 
Disposal Act to require EPA to review and revise regulations 
promulgated under that statute as determined appropriate by the 
agency, rather than under existing law requiring review and 
revision as necessary every 3 years.
    The last bill, the Federal Facility Accountability Act of 
2013, as its title suggests, would focus on federal facilities, 
and in two respects would expand the waiver of sovereign 
immunity at federal facilities to include not only current but 
also former federal facilities, to encompass the entire phase 
of the cleanup process for both remedial and removal actions, 
and to clarify the extent to which substantive and procedural 
requirements of state law apply to federal facilities 
regardless of whether a federal facility is on the NPL, the 
National Priorities List. The other respect of the bill would 
authorize EPA to review the actions taken by other federal 
departments and agencies under CERCLA at federal facilities 
regardless of whether a facility is on the National Priorities 
List, and also would allow states to request such a review by 
EPA to ensure consistency with EPA guidelines, rules, 
regulations or criteria.
    That concludes the remarks of my prepared statement, and 
thank you for the opportunity to appear before the subcommittee 
today, and I would be happy to address any questions you may 
have.
    [The prepared statement of Mr. Bearden follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Shimkus. Thank you, Mr. Bearden.
    And now I would like to recognize Mr. David Trimble, who is 
from the Government Accountability Office. Sir, welcome. Same 
thing, your full statement is in the record. You have 5 
minutes. Obviously, I was very generous because we are here to 
get a good background on these policies and pieces of 
legislation, so you are recognized.

                   STATEMENT OF DAVID TRIMBLE

    Mr. Trimble. Thank you. Chairman Shimkus, Ranking Member 
Tonko and members of the subcommittee, my testimony today 
focuses on GAO's work on four key issues: the role of the 
states in cleaning up hazardous waste sites, federal 
liabilities in management of sites listed on the NPL, the 
National Priorities List, commonly referred to as Superfund 
sites, the challenges and liabilities associated with 
contaminated hardrock mining operations, and litigation under 
environmental statutes including CERCLA, the statute governing 
the Superfund program.
    First, states play a critical role in cleaning up sites 
listed on the NPL and severely contaminated sites that are not 
listed on the NPL. After a hazardous site is identified, EPA 
often working with a state will evaluate the risks to the 
environment and to human health and assign a hazard ranking 
score. Sites posing hazards above a certain threshold are 
eligible for listing on the NPL. Not all sites with serious 
contamination and a high score are placed on the NPL, and the 
EPA policy is to not list such sites without approval from the 
relevant state. Additionally, EPA cannot use money from 
Superfund for long-term remediation activities unless the state 
has also agreed to pay at least 10 percent of these costs. The 
cleanup of sites not on the NPL can be managed by EPA as a 
Superfund alternative site or by the states and other entities 
under other cleanup authorities. In April, we reported that 42 
percent of sites assessed with contamination severe enough to 
be eligible for listing on the NPL were being managed as 
Superfund sites or Superfund alternative sites. The remaining 
58 percent were managed by other cleanup programs. Notably, 
states managed the cleanup of more Superfund-caliber waste 
sites outside of the Superfund program than EPA oversees in the 
Superfund program.
    Second, federal agencies, primarily DOD, have substantial 
cleanup and financial liabilities at NPL sites. Specifically, 
DOD is responsible for 80 percent of the 156 federal Superfund 
sites. The cost to clean up these sites represents a 
significant financial liability for the government. In 
addition, in 2010, we found that DOD's refusal to sign a 
required interagency agreement with EPA on how these cleanups 
should proceed had complicated cleanup at 11 DOD NPL sites. As 
a result of our work, DOD has decreased this number to two 
sites. Let me note, however, that these sites are at bases with 
large military and civilian populations. That report also 
recommended that EPA seek to increase its authority to hasten 
cleanups by other federal agencies, but no changes have been 
made to the relevant Executive Order.
    Third, the federal government faces significant financial 
challenges and liabilities associated with hardrock mining 
operations. From 1997 to 2008, the federal government spent 
over $2.6 billion to reclaim abandoned hardrock mines on 
federal, private and Indian lands with the EPA paying $2.2 
billion of this amount. In 2008, GAO estimated that there were 
at least 33,000 abandoned hardrock mine sites with 
environmental problems. One factor that contributes to 
reclamation costs on federal lands disturbed by mining 
operations is inadequate financial assurances required by the 
Bureau of Land Management. These assurances are imposed on new 
mining operations and are used to reclaim a site if the 
operator fails to adequately do so. In 2012, BLM reported 
implementing our recommendation to improve the sufficiency of 
these assurances.
    Finally, EPA often faces litigation over its regulations 
and other actions. Companies, interest groups, states and 
citizens can sue EPA under CERCLA and other environmental 
statutes, and these suits can be costly and time-consuming. 
Such litigation includes citizen suits to compel EPA to take 
action when it does not meet deadlines, challenges to 
regulations and permitting decisions, or lawsuits by 
potentially responsible parties at hazardous waste sites. In 
2011, we reviewed litigation associated with 10 environmental 
statutes and found such cases averaged about 155 per year, the 
majority of this litigation related to the Clean Air Act. 
Overall, trade associations and private companies comprised 48 
percent of the litigants followed by environmental groups at 30 
percent, and non-federal and other parties made up the 
remainder. Superfund cases represented about 2 percent of the 
total cases in our study. This is consistent with our 2009 
report on Superfund litigation, which found that litigation had 
decreased by almost half from fiscal years 1994 through 2007. 
Regarding the cost of this litigation, we found that the 
Department of Justice spent about $3.3 million per year 
defending EPA. Additionally, payments made to the prevailing 
parties in these cases to cover attorney fees and court costs 
averaged about $2.1 million per year, with about three-quarters 
of these payments going to environmental and citizen groups.
    This completes my statement. I would be pleased to respond 
to any questions.
    [The prepared statement of Mr. Trimble follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Shimkus. Thank you, and now I would like to recognize 
myself for 5 minutes for initial questions.
    Before I go on to the prepared questions, Mr. Bearden, I 
was involved with the, I think you called it the Small Business 
Liability Relief Act mentioned in the opening statement. That 
was one of the pieces of legislation that I helped originally 
cosponsor to get to small businesses, the Main Street stores, 
out of this litigation trap from the potential responsible 
parties who then would go after, and these folks were de 
minimis parties to the suit, and it was a great victory, and I 
think it helped keep the small actors out of the litigation. So 
thanks for mentioning that. I did mention it last week but I 
didn't remember the name, couldn't remember the year it passed 
and all that other stuff.
    Mr. Bearden, can you explain the preference in CERCLA and 
environmental law generally for non-preemption of state laws, 
and then tell us if the REDO Act would further that objective.
    Mr. Bearden. Well, in general, there is a provision in 
existing law and CERCLA that doesn't allow preemption of state 
laws, or prevent state laws, and states are free, of course, to 
enact their own cleanup laws, and many have; this is sort of a 
general premise with respect to the bill that would 
specifically add preemption in the circumstance of a financial 
responsibility requirement. So in that case, when EPA 
promulgates financial responsibility requirements and then in 
applying those requirements, it would not be allowed to preempt 
a state requirement that is in place on the effective date.
    Mr. Shimkus. Would the Federal Facilities Accountability 
Act also further that objective?
    Mr. Bearden. Could you restate the question, please?
    Mr. Shimkus. Would the Federal Facilities Accountability 
Act also further that objective?
    Mr. Bearden. Oh, the objective of preemption?
    Mr. Shimkus. Correct.
    Mr. Bearden. It expands the waiver of sovereign immunity to 
apply state substantive and procedural requirements to federal 
facilities, so it is similar to that objective in terms of 
allowing state law to apply.
    Mr. Shimkus. Thank you. In your opinion, are there aspects 
of CERCLA that could be improved or ``modernized'', in 
particularly the waiver of sovereign immunity, and do the bills 
the subcommittee is considering today take steps toward making 
some improvements to the existing statute?
    Mr. Bearden. Well, CRS takes no position or opinion about 
the legislation, but what I could say in response to your 
question is that what the bills would do are similar in the 
overall policy vein of the 2002 amendments that would amend the 
law in ways to be consistent with a greater number of state 
laws that are in place and to address some longstanding issues 
about whether the waiver of sovereign immunity applies to both 
current and former federal facilities, as those issues have 
lingered for a number of years.
    Mr. Shimkus. So those are possible positive provisions. Is 
there anything in the legislation that could be positive that 
we may have left out that could do the same thing and move us 
forward?
    Mr. Bearden. Well, in terms of positive, that of course 
would be a judgment call, and again, CRS would take no position 
on it, but the types of issues that are addressed in the bills 
are numerous longstanding issues that have been concerns of the 
states and other stakeholders about the federal and state 
roles, so they are not new issues; they are continuing issues 
that have been addressed by Congress previously in different 
ways.
    Mr. Shimkus. Thank you. Mr. Trimble, your testimony said as 
a matter of policy, EPA seeks concurrence from state governors 
or environmental agency heads before proposing a site on the 
National Priorities List. If it is a matter of established EPA 
policy, do you see a problem with codifying the policy in the 
statute?
    Mr. Trimble. We have not done specific work on that. I 
think the questions that would have to be looked at whether 
there are specific cases where EPA might still need the 
authority to list a site over state objection, and I am 
thinking off the top of my head, I am thinking key issues may 
be on sites that sort of cross borders between states so there 
could be a dispute between states or could be perhaps a 
situation where the state is somehow responsible for the 
pollution, but I am just----
    Mr. Shimkus. But you don't know of any particular example 
that we could site right now? I understand that concern, but I 
am just wondering if there is an actual case.
    Mr. Trimble. I don't know, sir.
    Mr. Shimkus. CERCLA and the regulations implementing CERCLA 
already provides the states with limited consulting role before 
remedy selection. Do you see a problem with amending the 
statute to codify the regulations and assure that states are 
consulted during selection of the remedy?
    Mr. Trimble. Again, we are not taking a position on the 
legislation. We have not done any work on this issue of how 
effective the state consultation mechanisms are within the 
Superfund program. I think it is an interesting question, but 
that is not something that we have delved into in our past body 
of work.
    Mr. Shimkus. In testimony last week, it was interesting, 
the point being, there was some desire to ensure that they have 
consultation early in the remedy because their complaint was, 
we have the costs at the end, we have the operational and 
maintenance costs at the end, and so maybe we should have some 
role in saying how the remedy or at least give our opinion 
because we are going to be on the hook for the longevity of the 
program.
    Mr. Trimble. Yes, and I think again, because of the 
financial requirements for the state to kick in 10 percent on 
the remedial costs and also to sign up for the lifetime costs 
of the operation and maintenance, there is a hook for the 
state, again, but we have not looked at whether that gives them 
enough leverage in the process to protect their interests. I 
think one of the questions that came up last week, and it is to 
your point, is, you know, how effective is the cost-benefit 
analysis EPA is doing when they are choosing their path forward 
and does that bias toward short upfront costs and higher long-
term costs or not, but that is a good question but it is not 
something we have looked at.
    Mr. Shimkus. Great. Thank you. The chair now recognizes the 
ranking member of the subcommittee, Mr. Tonko, for 5 minutes.
    Mr. Tonko. Thank you. Thank you very much. I thank the 
chair for reconvening our hearing today. We may not cover every 
issue, but as our additional witnesses appear, they help 
broaden and improve the record, so thank you very much.
    The hearing last week gave me reservations about the bills 
under consideration. Not a single witness gave unqualified 
support to the bills we are examining today. In fact, we heard 
testimony that one of the bills we are considering would 
increase litigation and delay the cleanup of contaminated 
sites. One of the majority's witnesses explained that Superfund 
now contains a bar on pre-enforcement judicial review. This 
provision is important because it prevents litigation from 
delaying needed actions to address releases of hazardous 
substances that threaten human health and the environment.
    So Mr. Bearden, one of the bills we are considering today 
would reverse this longstanding policy, would it not?
    Mr. Bearden. Yes, with respect to states filing objections 
to the selection of a remedy.
    Mr. Tonko. If enacted, a responsible party or anyone else, 
for that matter, could go to court and sue EPA before a cleanup 
even begins. Is that correct?
    Mr. Bearden. If a state were to file a written objection 
and someone were to have standing under that provision, yes.
    Mr. Tonko. And that would be before the cleanup begins?
    Mr. Bearden. The way the provision is worded, the trigger 
of the timing is when the state files its written objection.
    Mr. Tonko. OK. That leg could delay then the cleanup of 
contaminated sites, could it not?
    Mr. Bearden. That would have to be demonstrated over time. 
Whether it would delay it would depend on the nature of the 
individual suit.
    Mr. Tonko. We also received testimony last week that a 
responsible party could have a financial incentive to go to 
court to delay cleanup and argue for a less protective cleanup 
remedy. Do you agree with that assessment?
    Mr. Bearden. That would involve speculation, and what a 
party may be motivated by, CRS cannot comment on that, but 
again, anyone who may have standing under that provision once 
the state files its objection could at least pursue the matter.
    Mr. Tonko. Which would affect the time element. The end 
result could be that judges decide how to clean up Superfund 
sites, and none of the witnesses last week seemed to think that 
that would be a good scenario.
    Mr. Trimble, we have seen the problems with litigation, 
haven't we? Has litigation been a problem under Superfund in 
the past?
    Mr. Trimble. As we have reported, I think initially there 
was a heavy amount of litigation but slowed over time as the 
court settled some legal issues and the number of sites being 
added slowed down, and the EPA increased its reliance on 
settlement agreements out of court. The number of those cases 
has dramatically gone down. Right now, I believe it's 2 to 5 
percent of all litigation cases that we looked at in our list, 
not as large as you would think it would be, given the 
universe.
    Mr. Tonko. And can you give us a sense of the costs of 
those litigations?
    Mr. Trimble. Yes. There are a couple of costs. One is the 
Department of Justice costs to defend EPA, and the numbers we 
have are for about 10 environmental statutes, and I think their 
costs were about $3 million per year, if I am remembering 
correctly, and that payments were about $2 million pear year.
    Mr. Tonko. And what have the recent trends been in 
Superfund litigation over the recent years?
    Mr. Trimble. Well, in our report from a couple years ago, 
we found that it had decreased, I believe, by over half.
    Mr. Tonko. And that is in duration and in cost?
    Mr. Trimble. That was just number of cases.
    Mr. Tonko. OK. And can you speak to the complexity of those 
cases?
    Mr. Trimble. No, I don't have any information on the 
complexity in terms of the trends of those.
    Mr. Tonko. Well, that certainly is a positive trend, but I 
am concerned that it could be reversed by lifting the bar on 
pre-enforcement judicial review. Is that a legitimate concern, 
in your opinion?
    Mr. Trimble. Well, again, we don't opine on the pending 
bills, but clearly as sort of the rules of the road have 
settled, the litigation has declined over time in the program.
    Mr. Tonko. Mr. Chair, I hope we can give this the 
bipartisan attention it deserves. No one, in my opinion, would 
be well served if we end up moving legislation that increases 
litigation and therefore would cause delays in the cleanup of 
contaminated sites, which would then really speak to the 
overall mission statement and soulfulness of the legislation. 
So with that, Mr. Chair, I yield back.
    Mr. Shimkus. The gentleman yields back his time, and I want 
to assure him that as conservative Republicans, additional 
litigation is something that we are not interested in. So I 
think there is some language that could be added to ensure that 
that does not happen.
    The chair now recognizes the gentleman from Ohio, Mr. 
Latta, for 5 minutes.
    Mr. Latta. Thank you, Mr. Chairman, and gentlemen, thanks 
very much for your testimony today.
    Mr. Trimble, if I could start my questions with you. In the 
1990s, GAO reported that within the EPA's cleanup budget for 
CERCLA, less than 50 cents of the dollar was spent on dirt-
moving cleanup versus oversight and administrative costs. Is 
that still the case?
    Mr. Trimble. We have not done recent work on taking apart 
their costs for the recent cleanup so I am not sure what the 
ratio is. I know there is a lot of work, I am sure still even 
today, in terms of investigation and assessment as opposed to 
final construction.
    Mr. Latta. Well, I guess when you say that you haven't 
really been able to take it apart, is there a way that you 
could get a current amount?
    Mr. Trimble. It is not something we readily have. We would 
have to do a review on that.
    Mr. Latta. If you could provide that, I think the Committee 
would like to know what that ratio is now because if it is 
still at that 50/50--because I know of sites out there that 
really needed cleaned up, and at 50 cents on the dollar, that 
is not helping those sites.
    If I could go on then, it seems also that many states have 
developed constructive working relationships with the 
Department of Defense, particularly utilizing the Defense-state 
Memorandum of Agreement. Are you familiar with the general 
working relationship between other federal land managers and 
states on non-NPL sites?
    Mr. Trimble. I think we have done some work. I am 
personally not that familiar with it. I know we had done work 
on the cleanup of mines, so the relationship with the EPA and 
BLM, for example, and we have done work in that area.
    Mr. Latta. Let me ask this: is there a distinction between 
the relationship between DOD and DOE may have with the states 
versus the federal land managers, for example?
    Mr. Trimble. I am not familiar with it. Again, we have not 
looked into the relationship between states and DOD or states 
and EPA, for that matter. Regarding DOD, we have reported on 
difficulties where DOD has refused to sign interagency 
agreements with EPA governing the cleanup of NPL sites.
    Mr. Latta. You say that DOD has not signed. Is there a 
reason for that?
    Mr. Trimble. Not that we can understand. This is an ongoing 
issue. In our report from a couple years ago, we had identified 
11 sites where they had refused to sign the agreement, which is 
required under CERCLA. After our report, they took action, and 
now there are only two sites. One of these is Tindall Air Force 
Base, and even in that situation with Tindall, EPA has issued a 
RCRA order, which DOD has also not complied with. So there are 
still letters going back and forth regarding the matter. 
Regarding the RCRA matter at DOJ, DOD objected to EPA issuing 
the order. DOJ upheld EPA's authority to issue it, and we don't 
have any ongoing work on this, we are just following the issue 
because it is something we have done work in the past on, but 
it is a significant issue in terms of hampering the ability of 
the EPA to oversee the effectiveness of the cleanup.
    Mr. Latta. Thank you.
    Mr. Bearden, if I could ask you quickly, can you explain 
the state cost share requirement under CERCLA and maybe give us 
some insight regarding why states are concerned with the EPA 
selecting the remedies that focus on short-term containment 
rather than long-term stewardship?
    Mr. Bearden. The federal-state cost sharing proportion, as 
outlined in my prepared statement, is generally 90 percent 
share of the federal government for the capital costs of the 
remedial action, 10 percent shared by the state, and again, 100 
percent of operation and maintenance with the exception of 
treatment of groundwater. So for containment methods that may 
be a concern for the state in terms of being responsible for 
100 percent of the long-term operation and maintenance, for 
example, if there is a waste cap that has to be maintained for 
many years, if not decades, the state would be fully 
responsible for those costs under existing law.
    Mr. Latta. Let me just follow up with that. Would a change 
in the cost share provision in CERCLA address these state 
concerns?
    Mr. Bearden. If the cost share provision were changed to 
have the state bear less than 100 percent, then that would 
increase the necessity for federal resources and then it may 
affect decisions that are made. The requirement in existing law 
is for EPA to consider short- and long-term cost-effectiveness 
in assessing the selection of the remedy, so there is a 
statutory requirement to consider cost-effectiveness.
    Mr. Latta. OK. And could you also explain how the criteria 
for selecting remedial action may be relevant, and would they 
also need to be addressed?
    Mr. Bearden. I am not sure if I understand your question, 
sir.
    Mr. Latta. Well, in explaining the criteria for selecting 
remedial action.
    Mr. Bearden. The criteria for selecting remedial action 
under existing law are that there be applicable, relevant and 
appropriate requirements. There is a whole host of criteria in 
statute and regulation on determining what is applicable, 
relevant and appropriate at a site. Generally, a state 
requirement can be applied as well if it is more stringent than 
the federal requirement. But then again, those criteria may 
allow for exclusions of some standards under those criteria.
    Mr. Latta. Just briefly, if I may, Mr. Chairman, I see my 
time is expired, but would also need to be addressed, do you 
think, those remedial actions if we are looking at that? Should 
those actions be addressed out there?
    Mr. Bearden. Well, if one is looking at the federal and 
state roles in making those decisions and one is concerned 
about who is sharing the cost, one would need to consider the 
existing criteria under which those decisions would be made.
    Mr. Latta. Thank you. Mr. Chairman, my time is expired and 
I yield back. Thank you very much.
    Mr. Shimkus. The gentleman yields back his time. The chair 
now recognizes the chairman emeritus of the committee, Mr. 
Dingell, for 5 minutes.
    Mr. Dingell. Mr. Chairman, I thank you for your courtesy 
and I commend you for holding this hearing. I want to begin 
with congratulations to Mr. Bearden and Mr. Trimble. You have 
given good testimony this morning, and your agencies have been 
agencies that this committee has looked to most urgently for 
your help in times past as well as today. These questions are 
for Mr. Trimble, and I am hopeful to that the degree you can 
you will answer yes or no.
    Relating to the amendments to Section 108 of CERCLA, can 
you tell the subcommittee how many states have promulgated 
financial responsibility requirements?
    Mr. Trimble. I do not know the answer.
    Mr. Dingell. Could you check and submit that?
    Mr. Trimble. I can check to see if we have that.
    Mr. Dingell. And perhaps you would want to make a comment 
on that, Mr. Trimble, but I assume you will want to do that for 
the record, or rather Mr. Bearden.
    What are the amounts set in each state and for what classes 
of facilities? I assume that is a matter that you will have to 
submit for the record also.
    Now, the next question: does anything prevent a state from 
obtaining funding from fees, taxes or other sources of revenue 
to clean up toxic waste sites in the respective states and thus 
have total control over the remedy selected or removal action 
taken? Yes or no. This is to Mr. Trimble.
    Mr. Trimble. Not to my knowledge.
    Mr. Dingell. What does that mean?
    Mr. Trimble. No.
    Mr. Dingell. Next question, if you please, Mr. Trimble. 
Section 113(h) provides new opportunity for lawsuits where a 
state simply writes a letter objecting to a remedy selected by 
the President after such letter is posted by the state. Would 
this new provision also allow the responsible party who 
polluted the site in the first place to litigate and to 
challenge the remedy? Yes or no.
    Mr. Trimble. I am not a lawyer, but I would think it would.
    Mr. Dingell. You would think it would. Do you have a 
comment on that, Mr. Bearden?
    Mr. Bearden. I addressed that question, a similar question, 
earlier. Assuming someone would have standing under that 
provision, the trigger would be, as you mentioned, the state 
filing a written objection to the selection of the remedy.
    Mr. Dingell. Thank you. Now, this is to Mr. Trimble. Mr. 
Trimble, would this provision allow an environmental group to 
also challenge the remedy if they could get a state to write 
such a letter? Yes or no.
    Mr. Trimble. Yes.
    Mr. Dingell. And I would assume that almost anybody who 
could involve themselves in this could enter the litigation of 
the question, could they not?
    Mr. Trimble. I would defer to Mr. Bearden but I----
    Mr. Dingell. Please, Mr. Trimble.
    Mr. Trimble. I would assume so, but again, we have not done 
audit work in this area but my understanding would be that is 
the case.
    Mr. Dingell. Mr. Bearden?
    Mr. Bearden. As with any litigation, it would depend on 
whether someone has standing, and a judge would have to decide 
that based on the circumstances.
    Mr. Dingell. We would significantly increase the number of 
persons who have standing by this provision, would we not?
    Mr. Bearden. It does broaden the opportunity for judicial 
review.
    Mr. Dingell. Now, what happens to the citizens and the 
surrounding communities that is being exposed to the hazardous 
substance and hazardous conditions or to communities and 
persons in the communities who wish the site to be redeveloped 
to create jobs while the remedy decision is litigated in the 
federal courts? They just have to sit and grind their teeth, 
don't they? Yes or no.
    Mr. Trimble. I don't know about the grinding of the teeth 
but----
    Mr. Dingell. I know if I were, I would. This has a 
significant chance of increasing the number of litigants and 
the amount of time that is involved in concluding the cleanup 
of these sites, does it not?
    Mr. Trimble. I would suspect that the delay would add to 
the time, yes.
    Mr. Dingell. All right. Mr. Chairman, as I stated last 
Friday, I do not see the factual record in this matter 
justifying significant changes to the existing law here. The 
changes to Section 113(h) expand the opportunities for 
litigation, meaning communities would have to live longer 
without a cleanup remedy. Section 121(f) of current law already 
details requirements for substantial and meaningful involvement 
by each state in initiation, development and selection of 
remedial actions. Then there is an amendment to Section 108. In 
this section, the Congress wanted to EPA to establish financial 
responsibility requirements for various classes of facilities 
so that they could maintain evidence of financial 
responsibility consistent with the degree and the duration of 
the risk associated with the production, transportation, 
treatment, storage or disposal of hazardous substances. The 
Agency has been dilatory in implementing this provision. 
However, instead of calling the EPA to task for failing to act, 
the legislation here seems to have a goal to eliminate the one 
provision that was imposing a mandatory duty on EPA to initiate 
the action. I feel with regret that the amendments appear to be 
solutions in search of a problem, and I hope that as we 
continue our discussion of these matters and our evaluation of 
these matters, it will be possible to address the concerns that 
I have expressed, and I thank you for letting me run over time.
    Mr. Shimkus. And I thank the gentleman. The chair now 
recognizes the vice chairman of the subcommittee, Mr. Gingrey, 
for 5 minutes.
    Mr. Gingrey. I thank the chairman for yielding, and Mr. 
Trimble, I will address my first question to you. In an October 
2009 report on formerly used defense sites--I think that's GAO 
report 1046--GAO found that the Army Corps has not consistently 
conducted CERCLA 5-year reviews to assure continued 
protectiveness of remedies on sites where the chosen remedy 
does not allow for unrestricted use and unrestricted exposure. 
So did GAO find that the Corps routinely complies with state 
land-use control and environmental covenant requirements for 
such sites?
    Mr. Trimble. I do not recall from that report if it got 
into the details of where there was noncompliance of state-
specific requirements. The finding was, if you go through 
remedial action and you clean up a site and you say your 
construction is complete and you are entering the operation and 
maintenance phase, at that point you have to monitor it every 5 
years to make sure it is still in good shape. What that review 
found was that for the formerly used defense sites, the Army 
Corps was not doing a good job at monitoring those sites to 
make sure that everything was still as it should be or if new 
contamination had emerged or new remedies would have to be put 
in place. Now, the basis for how it could have gone off the 
rails might have been state requirements versus federal 
requirements, and I don't know off the top of my head if that 
report got into that level of detail.
    Mr. Gingrey. Would that be true for commercial sites as 
well?
    Mr. Trimble. The 5-year requirement would be there but who 
would be doing it would be different.
    Mr. Gingrey. But the 5-year requirement is there.
    Mr. Bearden, we also understand that there are EPA 
regulations pertaining to consultations with the states 
regarding remedy selection, and we understand that the statute 
already requires consultation at certain points in the process. 
Do you think that codifying that regulatory practice in statute 
would be a bad thing?
    Mr. Bearden. Well, there are many instances where Congress 
chooses to codify a regulatory requirement to elevate it in 
statute, and that is a policy decision of the Congress.
    Mr. Gingrey. Well, wouldn't codifying the regulations 
regarding consultation regarding remedy selection ensure 
consistency among all the EPA regions and ensure that other 
federal agencies also consult with states when selecting a 
remedy?
    Mr. Bearden. Well, the regulatory requirements already 
apply to all regions and to other federal agencies who 
implement a national contingency plan, which are the 
regulations to which you are referring. Whether in practice 
they implement them consistently may be a question, but they 
already are required to follow those regulations.
    Mr. Gingrey. Well, the question was, wouldn't codifying the 
regulations make this work better and more consistently?
    Mr. Bearden. It would elevate it as a statutory 
requirement. It already is a requirement. There may be 
questions of application on a consistent basis.
    Mr. Gingrey. Well, that is my whole point. CERCLA 
specifically requires consultation with the states before 
selecting a remedy. The Federal-state Partnership for 
Environmental Protection Act would amend the timing of the 
consultation to ensure that states are consulted during the 
process of selecting a remedy. What is your opinion about 
changing the timing for the consultation?
    Mr. Bearden. Well, CRS would make no opinion on any 
amendments, but in terms of timing, that difference would be in 
current law, it is in determining the remedy, and that may be 
interpreted as the point at which you are selecting as opposed 
to earlier in the process before a determination is made, so 
the bill would expand the time frame to an earlier stage of the 
process in statute.
    Mr. Gingrey. Mr. Chairman, I see I have got about 45 
seconds, if anyone on this side, or do you want me to yield 
back to you.
    Mr. Shimkus. Just yield back.
    Mr. Gingrey. I will yield back.
    Mr. Shimkus. The gentleman yields back. The chair now 
recognizes the gentleman from California, Mr. McNerney, for 5 
minutes.
    Mr. McNerney. Thank you, Mr. Chairman, for holding this 
follow-up hearing.
    Mr. Bearden, in your testimony you stated that the states 
have input into the designation of the NPLs. Can the EPA list 
sites on the NPL without state concurrence or cooperation?
    Mr. Bearden. EPA has the statutory authority to list a site 
without state concurrence. I don't know of an example in which 
that has occurred. The amendments in 2002 address that very 
issue that limited EPA's authority to list a site without the 
state's concurrence. A state may request EPA to defer and there 
would have to be a set of conditions that EPA would determine 
that a state was not making adequate progress toward the 
cleanup in order to list the site despite a state's request to 
defer the listing. So it is more limited in current law as a 
result of the 2002 amendments.
    Mr. McNerney. Well, last week we heard from state 
organizations who claim to have little or no input into the 
process. Could you explain the disconnect?
    Mr. Bearden. Well, I can't speak to their level of 
understanding but if one reads Section 105(h) of CERCLA, which 
was added again in the 2002 amendments, a state merely has to 
request that EPA not list a site, and at that point that limits 
EPA's authority, again, unless a determination is made under 
the statutory criteria that listing is necessary to protect 
human health and the environment.
    Mr. McNerney. OK. There is a disconnect there, clearly. You 
said that the Federal Facility Accountability Act of 2013 would 
hold federal agencies more accountable at federal facilities to 
include current and former federal facilities to encompass the 
entire phase of the cleanup process and to clarify in greater 
detail the extent to which substantive and procedural cleanup 
requirements of state law apply to federal facilities. Can you 
explain the impact that this would have on listing of NPLs?
    Mr. Bearden. Well, it would not have a direct bearing on 
the listing of sites on the National Priorities List. It would 
determine, based on the language in the bill, whether it would 
apply to either National Priorities List sites and non-National 
Priorities List sites. It would determine what requirements 
that are substantive and procedural of the state may be applied 
to the cleanup. It would determine how the cleanup may be 
performed and apply regardless of listing status.
    Mr. McNerney. Thank you. Mr. Trimble, in your testimony you 
stated that CERCLA authorizes the EPA to compel potentially 
responsible parties to clean up their sites. Do you think that 
the proposed bills would undermine the EPA's authority in this 
compelling the potentially responsible parties to clean up 
their sites?
    Mr. Trimble. I don't know if I have any work that would 
speak directly to that, and I think you would have to see how 
these things were implemented. I think if EPA is restricted in 
taking immediate, sort of response actions, that could be one 
issue that could come up. I am not sure I have much more to 
offer than that on that question.
    Mr. McNerney. Well, the authority for funding the actual 
cleanup expired 18 years ago despite the increasing financial 
liability since that time. Rather than trying to restructure 
the authority in CERCLA, Congress should, in my opinion, 
reinstate the fees on which the old funds relied. Are there 
other funding sources that would be viable to supplement the 
fund?
    Mr. Trimble. GAO has not taken a position or looked at 
alternative funding issues for Superfund. The tax was one 
option. Right now it is coming out of general taxes, general 
fund. We have done work looking at anticipated future costs in 
the Superfund program, and those costs are very difficult to 
measure for a variety of reasons. Superfund program managers 
have estimated that their costs will likely exceed available 
monies going forward as many of these sites get more complex 
and complicated, for example, some of the mining sites. But we 
don't have an opinion. It is more of a policy question in terms 
of where the money comes from, so we don't have a position on 
that.
    Mr. McNerney. But there is going to be a critical shortage 
of funds from all sources to clean up these sites.
    Mr. Trimble. Well, the program will continue to need a lot 
of money going forward.
    Mr. McNerney. Thank you. I yield back, Mr. Chairman.
    Mr. Shimkus. The gentleman yields back his time. The chair 
now recognizes the gentleman from Ohio, Mr. Johnson, for 5 
minutes.
    Mr. Johnson. Thank you, Mr. Chairman, for the time, and 
gentlemen, thank you both for being here with us today.
    Mr. Trimble, has your office ever conducted a review of 
other federal agencies' implementation of institutional 
controls as a part of removal or remedial actions conducted 
pursuant to authorities granted under CERCLA or Executive Order 
12580?
    Mr. Trimble. To my knowledge, we haven't. I mean, I can 
certainly check when I go back, but I am not familiar with 
prior work on that issue.
    Mr. Johnson. Would you please check and get back with us?
    Mr. Trimble. Absolutely.
    Mr. Johnson. I would appreciate that. Do you think it would 
be constructive to conduct such a review?
    Mr. Trimble. Absolutely.
    Mr. Johnson. Let me go also to you, Mr. Trimble. In June of 
2006, GAO conducted a review of EPA's implementation of 
institutional controls by the EPA Superfund program. In this or 
any subsequent review, were you able to ascertain whether EPA 
routinely complies or requires compliance with state land-use 
control or environmental covenant laws and regulations?
    Mr. Trimble. And I apologize, I am not familiar with that 
report and I would love to take that for the record, if I 
could.
    Mr. Johnson. Good. I would appreciate that as well. Would 
it be fair to anticipate that requiring federal agencies, in 
your mind, would it be fair to anticipating that requiring 
federal agencies to comply with state laws that require that 
institutional control be implemented and enforced in perpetuity 
that this would help ensure that these controls are in fact 
maintained for as long as they are necessary to protect human 
health and the environmental?
    Mr. Trimble. I am curious about the work we have done in 
the past but I think the key question is whether or not they 
currently are considered in the existing procedures and 
processes, whether or not there is a disconnect between the 
states' desires to apply certain controls and whether those are 
actually going on into effect and whether or not they have 
enough leverage to make that happen. If there is a breakdown 
there, then certainly there is an issue to be looked at.
    Mr. Johnson. Thank you. If you would get back to the 
committee on that, I would appreciate it.
    Mr. Trimble. Absolutely.
    Mr. Johnson. Mr. Chairman, with that, I will yield back my 
time.
    Mr. Shimkus. The gentleman yields back his time. The chair 
now recognizes the gentlelady from California, Ms. Capps, for 5 
minutes.
    Mrs. Capps. The bills before us may affect many aspects of 
the program's ability to accomplish this goal but my time is 
limited so I want to focus on one particular provision. My 
first question is going to be for you, Mr. Bearden. The federal 
and state partnership bill we are examining includes an 
amendment that could complicate and impede, in my opinion, the 
streamlined process currently in place for short-term Superfund 
removal actions. So I wanted to ask you, Mr. Bearden, can you 
explain what removal actions are and why we need to be able to 
undertake them quickly?
    Mr. Bearden. Removal actions can be conducted in two 
different capacities. One is referred to programmatically as 
time critical. The other is non-time critical. At any site 
where a release is reported and EPA, state and local officials 
become aware of it, the very earliest actions to stabilize the 
site may be considered in practical terms to be the early 
emergency phase of the response, but the removal action can 
continue much longer than that, especially the non-time-
critical removal actions. So there are various phases even for 
the removal aspect of the process.
    Mrs. Capps. So some removal actions are very pressing and 
are needed to address imminent public health threats. I mean, 
that could be the trigger that necessitates quick action. Am I 
right?
    Mr. Bearden. Correct. The initial response is a removal, 
and the very earliest stage of the response is to stabilize the 
site and prevent potentially harmful exposures at the very 
earliest stages.
    Mrs. Capps. OK. Moving on, these imminent threats are why 
these actions have always been done in a streamlined process. 
In testimony they provided last week, the EPA expressed concern 
that this legislation as currently drafted would require 
consultation before removal actions could even begin. The 
Agency said the bill could, and this is a quote from EPA, ``The 
bill could have an adverse impact on your emergency removal 
program by introducing potential delays when EPA needs to 
conduct time-critical emergency removal actions.'' Having a 
Superfund site in my district, this is a big concern for me, 
the timing that we are talking about.
    So Mr. Bearden, do you agree with EPA's assessment that 
this procedural change has a potential to delay removal 
actions?
    Mr. Bearden. Well, CRS would not agree or disagree with an 
agency position but what I can say is, at the very earliest 
stages of the emergency response, even under the regulations of 
the National Contingency Plan that EPA promulgated, state and 
local officials are expected in most cases to be the first 
responders. So it is actually the state and local officials who 
are on site. Most often it is the local fire department, local 
police department, to stabilize the emergency conditions and 
then it becomes elevated to EPA's attention.
    Mrs. Capps. And your careful delineation of those steps 
indicates that the reason they are done that way is to enable a 
prompt response and timely response.
    I have only one question left, but I want to make sure that 
I ask you, Mr. Trimble, the GAO has done work on contamination 
at Superfund sites nationwide and on health assessments of 
Superfund sites done by the Agency for Toxic Substance and 
Disease Registry. These assessments find risks of cancer, 
development issues, neurological effects. So my question to 
you, Mr. Bearden, what could be the consequences of delaying 
emergency removal actions?
    Mr. Bearden. Assuming the delay actually resulted in 
increased exposure to whatever contaminants, then the problems 
being cited by ATSDR could be expected to be great.
    Mrs. Capps. So you two are sort of in agreement with the 
notion that if something is discovered, that the local 
responders really are in the best position because they are 
close and can make that initial assessment. It doesn't remove 
EPA's responsibility but it allows the emergency response to 
happen the way emergency responders are trained to do. They 
come in and make an assessment when there is a little more time 
in their favor. Would you agree? Any other comments you wish to 
make on either of these points, either of you?
    Mr. Bearden. No.
    Mrs. Capps. Then I will yield back the balance of my time.
    Mr. Shimkus. The gentlelady yields back her time. The chair 
now recognizes the gentleman from Florida, Mr. Bilirakis, for 5 
minutes.
    Mr. Bilirakis. Thank you. I appreciate it, Mr. Chairman.
    Mr. Bearden, what recourse do states currently have if they 
disagree with an EPA decision or remedy and what recourse do 
states have if they disagree with another federal agency's 
decision or remedy?
    Mr. Bearden. Under the current existing mechanism, if it is 
a site that would be funded with federal Superfund 
appropriations for the remedial action, since the state is 
responsible for sharing the cost, as I outlined in my prepared 
statement, the state may choose not to provide those matching 
funds, and under existing law in CERCLA, EPA would not have the 
authority to use the federal Superfund appropriations. So that 
is some leverage that the state could be provided, and that is 
the underlying intent of the way the matching funds 
requirements are structured to have a factor be included in the 
federal decision on whether or not the state agrees to provide 
its match. So those again are circumstances where Superfund 
appropriations are used so that would not apply to sites where 
private potentially responsible party funds are used through 
enforcement actions. In those cases, then the state input is 
limited to the consultation process under existing law.
    In terms of federal facilities, as was mentioned earlier, 
there is a provision in existing law for states to challenge a 
selection of a remedial action in a U.S. District Court as 
outlined in my statement, so that is a mechanism specifically 
at federal facilities where it would be administered and funded 
by other federal agencies like the Department of Defense and 
Department of Energy.
    Mr. Bilirakis. Thank you. Mr. Trimble, during the first day 
of this hearing, the subcommittee heard testimony comparing the 
compliance rate of federal facilities under the Clean Water Act 
and the RCRA. The testimony indicated that due to the ability 
of the states to impose and collect penalties under RCRA but 
not under the Clean Water Act, that RCRA experiences a 
significantly higher compliance rate by federal facilities than 
does the Clean Water Act. Has GAO ever conducted a similar 
evaluation, and if so, what did you find?
    Mr. Trimble. Again, to my knowledge, we have not done such 
a study. I am happy again to look to make sure I am not missing 
something when I say that. I think in general, the issue of 
having a stick to ensure compliance makes people behave better. 
As I noted earlier, we have made recommendations in terms of 
EPA's ability to make other federal agencies comply. I think 
that the issue of DOD's noncompliance with the requirement that 
they sign an interagency agreement with the EPA governing the 
cleanup at two NPL sites, Tindall Air Force Base in particular 
comes to mind, GAO has made recommendations in the past as a 
matter of congressional consideration to give EPA more 
authority to force compliance by DOD when they are faced with 
these kinds of situations.
    Mr. Bilirakis. OK. One more question, Mr. Chairman.
    Mr. Trimble, in your testimony you mention Executive Order 
12580. Does this Executive Order enable some or all federal 
agencies including those that are potentially responsible 
parties to self-regulate and make determinations regarding 
their compliance with state and federal cleanup requirements, 
and if you can please explain briefly?
    Mr. Trimble. Again, I will probably lean on David to help 
me out here.
    Mr. Bilirakis. OK. That would be great.
    Mr. Trimble. But I think it gives agencies like DOE and DOD 
the authority to manage the cleanups. EPA is still in sort of a 
partner position but also to provide independent oversight on 
those activities to make sure the cleanups are done 
appropriately, which, again, speaks to the need for that 
interagency agreement at places like Tindall to make sure they 
are being done appropriately on time and to the correct 
standards.
    Mr. Bilirakis. Yes, please.
    Mr. Bearden. Yes. All I would add to that is, when it is a 
federal agency like the Department of Defense, Department of 
Energy, there can be other federal agencies as well, the 
Executive Order that you cited authorizes that agency to 
execute the President's authority for the response action, 
which is carrying out the cleanup itself. But when it is a 
National Priorities List site and a federal facility, as Mr. 
Trimble mentioned, EPA has a prominent oversight role, and 
actually under existing law has final decision-making authority 
at the federal level for selecting the cleanup actions and the 
deference is to EPA, not the federal agency responsible for 
carrying out the cleanup. And in terms of state involvement, if 
it is a non-National Priorities List site, the state primarily 
is responsible for overseeing that cleanup carried out with the 
President's delegated authorities under the Executive Order.
    Mr. Bilirakis. Thank you. I yield back, Mr. Chairman.
    Mr. Shimkus. The gentleman yields back his time. The chair 
now recognizes the gentleman from Pennsylvania, Mr. Pitts, for 
5 minutes.
    Mr. Pitts. Thank you, Mr. Chairman. I just had a couple 
questions. Sorry to be in and out with meetings. I apologize of 
this has been asked.
    Mr. Bearden, we understand that it is currently EPA's 
policy not to list a site on the National Priorities List over 
the objection of the state. Do you think that codifying the EPA 
policy in the statute would ensure that states could count on 
this policy?
    Mr. Bearden. Well, codifying it in statute and making it 
binding by law would certainly require EPA to adhere to that 
policy.
    Mr. Pitts. Wouldn't codifying the policy to not list a site 
on the National Priorities List eliminate any potential 
inconsistent among the regions?
    Mr. Bearden. Yes, there would not be any discretion in 
implementing the existing policy if it were to become a uniform 
statutory requirement in all cases.
    Mr. Pitts. Now, do you have any comments or opinions 
regarding whether it would be benefit to authorize EPA to 
review actions taken by other federal agencies under CERCLA to 
ensure consistency with EPA cleanup guidelines, rules and 
regulations?
    Mr. Bearden. Well, under existing law, when it is a federal 
facility on the National Priorities List, already EPA has the 
authority under the interagency agreement to make a decision on 
the final remedy selection. So there already is that mechanism 
for ultimate review in making a decision.
    Mr. Trimble. If I could add to that, what is missing, 
though, is giving EPA the stick if they find noncompliance. So 
I believe the way the language is written, it allows EPA to 
review, but what happens if EPA finds somebody is in 
noncompliance? And that is sort of the situation we have today.
    Mr. Pitts. Thank you. Thank you, Mr. Chairman.
    Mr. Shimkus. The gentleman yields back his time. The chair 
wants to ask unanimous consent for a couple letters to be 
submitted in the record, one letter from public interest groups 
on RCRA Section 202(b) and CERCLA 108(b), a letter from other 
public interest groups on CERCLA Section 113(h) and Section 
105, and a letter from Headwaters Resources, also signed by 
Boral Material Technologies. They were referred to in the first 
testimony, and I quote a line in here: ``Headwaters and Boral 
utilize Section 202(b) of RCRA in an attempt to end the recent 
uncertainty as a matter of overall governance. We think Section 
202(b) RCRA makes for poor public policy. It could enable 
special interest groups through deadline suits to set EPA's 
agenda.'' So we will submit those into the record.
    [The information appears at the conclusion of the hearing.]
    Mr. Shimkus. I am joined by my colleague from Texas, Mr. 
Green. You are recognized for 5 minutes.
    Mr. Green. Thank you, Mr. Chairman. I apologize to our 
witnesses. We are balancing two committees at the same time, 
and I just finished in the O&I Committee.
    I want to thank you for holding the hearing today. I am 
happy to see GAO and CRS come before us subcommittee to speak 
on proposals to amend CERCLA and RCRA.
    I have a very urban district in Houston, and it is East 
Harris County, which is a heavy industrial large petrochemical 
complex in the country, and there are a number of Superfund 
sites in and near our district that I have been involved with 
other the years. The most recent one, although it has been 
there a while, includes the U.S. oil recovery site in Pasadena, 
which was added to the National Priorities List last year. From 
my experience, the Superfund program has played a value role in 
protecting the environment and human health of my constituents 
and for Americans for all 50 states, and I am concerned how the 
proposed legislation would change this program.
    Mr. Bearden, is it true that the EPA is already obligated 
by federal statute to give substantial deference to the states 
on naming sites to the NPL?
    Mr. Bearden. The substantial deference is a result of the 
2002 amendments. EPA may still list a site if EPA determines it 
is necessary to protect human health and the environment but 
generally defers to the state if they desire not to list the 
site.
    Mr. Green. Well, the two I have been involved in, we got 
concurrence from the state agency. In fact the state agency was 
very happy to have them listed on the site including the 
current one.
    Mr. Bearden, is it that true that the 2002 amendments to 
limit EPA's enforcement authorities to CERCLA to pursue the 
cleanup of a site if a state is already pursuing the cleanup 
under its own law?
    Mr. Bearden. Yes. The 2002 amendments address that issue.
    Mr. Green. You know, again, my experience with Texas is 
that we have had good cooperation between our regional office 
on our Superfund sites. I wish we didn't have them, but again, 
in an industrial area, that is going to happen if you have been 
producing chemicals and things for 60, 70 years.
    Mr. Bearden or Mr. Trimble, to your knowledge, has a site 
ever been added to the NPL without the concurrence of the 
governor of the state in which a site is located?
    Mr. Bearden. I am not aware of one myself.
    Mr. Trimble. I am not either.
    Mr. Green. Mr. Trimble, in your testimony you noted that 
over 40,000 potential hazardous release sites have been 
reported to EPA over the past 30 years and yet EPA has 
determined only a few thousand of those sites for NPL 
designation. Is that true?
    Mr. Trimble. That is correct.
    Mr. Green. What happens to those sites that are reported to 
EPA and not added to the NPL?
    Mr. Trimble. They are generally cleaned up under other 
cleanup authorities, so in our most recent report, we note that 
sites that are assessed at a level where the contamination 
would make them eligible for Superfund, so they are severely 
contaminated sites, the majority of those sites actually are 
not handled by the Superfund program but are cleaned up under 
cleanup authorities principally managed by the states. The 
states manage about 47 percent of all those sites.
    Mr. Green. So the states handle about--so some of the sites 
are deferred to the states and so that is about 47 percent of 
them?
    Mr. Trimble. Yes, the states handle more Superfund-caliber 
sites than EPA does under the Superfund program.
    Mr. Green. You know, in my experience, though, I haven't 
had the state being one to take it over because it has always 
been EPA oversight in cleaning up. Our problem is making sure 
we do due diligence and find a responsible party. Otherwise it 
is going to be the taxpayer that ultimately does it, which 
makes it harder, Mr. Chairman, when we don't have budget 
appropriations. That is why responsible parties are really 
important.
    You stated in your testimony the number of NPL site 
designations has increased in recent years. Is that true?
    Mr. Trimble. That is correct. I believe it is running about 
22 a year.
    Mr. Green. And again, a few years ago, in Congressman Ted 
Poe's district we were borders. It is a dioxin facility that 
actually submerged back in the 1960s and nobody knew about it, 
but we always knew that the Port of Houston had higher dioxin 
levels, but my industries that were there were being blamed for 
it and yet it was from an old site that very quickly 
Congressman Poe and I worked with EPA to be able to put it on 
the NPL. So it was a very bipartisan effort, and again, the 
state was happy that we finally were able to find the source of 
that. We still have a cleanup problem. It is encapsulated. How 
do you deal with sediment in a river that is, you know, 40 
years old. Can you explain the number of designations has 
increased and why the number of designations increased in 
recent years?
    Mr. Trimble. A couple of factors that we have discussed in 
our reports. One is, it is often linked to states' abilities to 
take on these sites so with the economic downturn in the last 
few years, the states' ability or willingness to take on the 
cleanup responsibilities for these has gone down, which means 
the burden gets shifted to the federal government. And then 
also there is some emergence of a growing number of complicated 
sites, like abandoned mine sites, that have come on over.
    Mr. Green. Thank you, Mr. Chairman, for having the hearing.
    Mr. Shimkus. The gentleman's time is expired. The chair now 
recognizes the ranking member of the full committee, Mr. 
Waxman, for 5 minutes.
    Mr. Waxman. Thank you very much, Mr. Chairman. I thank you 
for reconvening the hearing today, and I am pleased that we 
have the opportunity to hear from knowledgeable experts about 
the Superfund program.
    The legislation before us has been presented as correcting 
a problem where states are not sufficiently consulted in the 
decisions to clean up contaminated sites through the Superfund 
program. The argument is that although Superfund is a federal 
program carried out by federal employees using federal 
resources, a state should be able to slate sites for cleanup, 
veto sites from being slated for cleanup, have a greater say in 
cleanup decisions, and even collect their attorney fees from 
the U.S. taxpayer when they sue the federal government. I am 
not sure this approach strikes the right balance.
    Mr. Trimble, if a state wants more control over the cleanup 
of a contaminated site, the state can simply conduct its own 
cleanup under state law and retain full control of all 
decisions. Isn't that right?
    Mr. Trimble. That is correct.
    Mr. Waxman. And in fact, this happens regularly, doesn't 
it?
    Mr. Trimble. Yes, it does. About 47 percent of all 
Superfund-caliber sites are managed by the states.
    Mr. Waxman. The states don't always do that, though, 
because they want federal resources and expertise brought to 
bear to get sites cleaned up. Isn't that correct?
    Mr. Trimble. That is correct.
    Mr. Waxman. In fact, the states often request that EPA come 
in and conduct expensive removal actions and response actions, 
don't they?
    Mr. Trimble. Yes.
    Mr. Waxman. The federal government pays the entire cost of 
a removal action. The states pay just 10 percent of the cost of 
a response action. The rest is picked up by the federal 
government. Is that correct?
    Mr. Trimble. I believe that is true for remedial actions. I 
am not sure about removal.
    Mr. Waxman. And there is a great variation among the states 
in their capacity and resources to carry out site cleanups, 
isn't there? Some are better at it than others?
    Mr. Trimble. Absolutely.
    Mr. Waxman. Even though Superfund is a federal program, the 
law provides for significant state involvement. Under the 
statute as it currently stands, EPA is required to provide 
``substantial and meaningful participation'' to states.
    Mr. Trimble, under current law, are states involved in 
suggesting sites for cleanup under Superfund?
    Mr. Trimble. They are, yes, in terms of reporting sites 
with contamination and then EPA has a consultative process.
    Mr. Waxman. So they can propose sites and have the ability 
to directly list one site on the National Priorities List. 
Isn't that the case?
    Mr. Trimble. I would defer to Mr. Bearden for a more 
thorough answer on that, but I don't think they have the 
authority to list. I mean, I wouldn't go quite that far.
    Mr. Waxman. Let me continue with my questioning for you. 
Under current law, EPA seeks concurrence from states before 
slating a site for cleanup on the National Priorities List. Is 
that correct?
    Mr. Trimble. Under policy, correct.
    Mr. Waxman. Under current law, states can block EPA from 
carrying out a selected response action by not agreeing to pay 
the cost share for that response action. Isn't that right?
    Mr. Trimble. Yes, EPA could not use funds to clean that 
site up under the Superfund program without state concurrence.
    Mr. Waxman. Finally, Mr. Trimble, if a state wants to take 
a leadership role at a Superfund site under current law, they 
can assume the lead under cooperative agreements with EPA. 
Isn't that correct?
    Mr. Trimble. That is correct.
    Mr. Waxman. Thank you. It is natural that a state would 
want to be able to tell EPA what to focus on and what to spend 
money on and what not to spend money on. It is natural that a 
state would want federal resources available for use at their 
discretion. But this is a national program that must be 
available to clean up the most contaminated sites in every 
state. It is our job to ensure a balanced approach.
    Mr. Chairman, I have serious concerns about certain aspects 
of these bills. I think they are a work in progress. If you are 
interested in moving these bills, I urge you to convene a 
process that would allow us to examine whether there are 
problems here that need to be addressed and how to address 
them.
    I thank the witnesses, and I hope the chairman will consult 
with us on some of these ideas.
    Mr. Shimkus. The gentleman yields back his time. Just to 
address the ranking member, we have already had some staff 
attempts to talk about this. This is a legislative hearing. I 
think there are two issues raised on some of the provisions 
that it would be helpful to get input and maybe move forward, 
and we will let our staffs give that a try first, and if 
members want to be engaged, they know where to find me.
    With that, we want to thank our second panel for coming. 
This is a legislative hearing, which is for us to gather input, 
which we have done today with your help and your expertise. We 
thank you, and with that, the hearing is now adjourned.
    [Whereupon, at 11:33 a.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

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