[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF CERCLA IMPLEMENTATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
JULY 13, 2016
__________
Serial No. 114-162
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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
JOE BARTON, Texas FRANK PALLONE, Jr., New Jersey
Chairman Emeritus Ranking Member
ED WHITFIELD, Kentucky BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois ANNA G. ESHOO, California
JOSEPH R. PITTS, Pennsylvania ELIOT L. ENGEL, New York
GREG WALDEN, Oregon GENE GREEN, Texas
TIM MURPHY, Pennsylvania DIANA DeGETTE, Colorado
MICHAEL C. BURGESS, Texas LOIS CAPPS, California
MARSHA BLACKBURN, Tennessee MICHAEL F. DOYLE, Pennsylvania
Vice Chairman JANICE D. SCHAKOWSKY, Illinois
STEVE SCALISE, Louisiana G.K. BUTTERFIELD, North Carolina
ROBERT E. LATTA, Ohio DORIS O. MATSUI, California
CATHY McMORRIS RODGERS, Washington KATHY CASTOR, Florida
GREGG HARPER, Mississippi JOHN P. SARBANES, Maryland
LEONARD LANCE, New Jersey JERRY McNERNEY, California
BRETT GUTHRIE, Kentucky PETER WELCH, Vermont
PETE OLSON, Texas BEN RAY LUJAN, New Mexico
DAVID B. McKINLEY, West Virginia PAUL TONKO, New York
MIKE POMPEO, Kansas JOHN A. YARMUTH, Kentucky
ADAM KINZINGER, Illinois YVETTE D. CLARKE, New York
H. MORGAN GRIFFITH, Virginia DAVID LOEBSACK, Iowa
GUS M. BILIRAKIS, Florida KURT SCHRADER, Oregon
BILL JOHNSON, Ohio JOSEPH P. KENNEDY, III,
BILLY LONG, Missouri Massachusetts
RENEE L. ELLMERS, North Carolina TONY CARDENAS, California
LARRY BUCSHON, Indiana
BILL FLORES, Texas
SUSAN W. BROOKS, Indiana
MARKWAYNE MULLIN, Oklahoma
RICHARD HUDSON, North Carolina
CHRIS COLLINS, New York
KEVIN CRAMER, North Dakota
______
Subcommittee on Environment and the Economy
JOHN SHIMKUS, Illinois
Chairman
GREGG HARPER, Mississippi PAUL TONKO, New York
Vice Chairman Ranking Member
ED WHITFIELD, Kentucky KURT SCHRADER, Oregon
JOSEPH R. PITTS, Pennsylvania GENE GREEN, Texas
TIM MURPHY, Pennsylvania DIANA DeGETTE, Colorado
ROBERT E. LATTA, Ohio LOIS CAPPS, California
DAVID B. McKINLEY, West Virginia MICHAEL F. DOYLE, Pennsylvania
BILL JOHNSON, Ohio JERRY McNERNEY, California
LARRY BUCSHON, Indiana TONY CARDENAS, California
BILL FLORES, Texas FRANK PALLONE, Jr., New Jersey (ex
RICHARD HUDSON, North Carolina officio)
KEVIN CRAMER, North Dakota
FRED UPTON, Michigan (ex officio)
(ii)
C O N T E N T S
----------
Page
Hon. John Shimkus, a Representative in Congress from the State of
Illinois, opening statement.................................... 2
Prepared statement........................................... 3
Hon. Paul Tonko, a Representative in Congress from the State of
New York, opening statement.................................... 4
Hon. Frank Pallone, Jr., a Representative in Congress from the
State of New Jersey, opening statement......................... 5
Prepared statement........................................... 6
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, prepared statement................................... 126
Witnesses
Hon. Ann Wagner, a Representative in Congress from the State of
Missouri....................................................... 7
Prepared statement........................................... 11
Hon. Wm. Lacy Clay, a Representative in Congress from the State
of Missouri.................................................... 13
Prepared statement........................................... 15
Mathy Stanislaus, Assistant Administrator, Office of Land and
Emergency Management, Environmental Protection Agency.......... 26
Prepared statement........................................... 29
Amy Brittain, Environmental Programs Manager, Site Remediation
Section, Land Protection Division, Oklahoma Department of
Environmental Quality, on Behalf of the Association of State
and Territorial Solid Waste Management Officials............... 63
Prepared statement........................................... 65
Marianne Lamont Horinko, President, The Horinko Group............ 70
Prepared statement........................................... 73
Steven Nadeau, Partner, Environmental Practice Group, Honigman
Miller Schwartz and Cohn, LLP.................................. 83
Prepared statement........................................... 86
Robert Spiegel, Executive Director, Edison Wetlands Association.. 103
Prepared statement........................................... 105
Submitted Material
Statement of July 13, 2016, by Karen J. Baker, Chief,
Environmental Division, Department of the Army, submitted by
Mr. Shimkus.................................................... 128
OVERSIGHT OF CERCLA IMPLEMENTATION
----------
WEDNESDAY, JULY 13, 2016
House of Representatives,
Subcommittee on Environment and the Economy,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:03 a.m., in
room 2123 of the Rayburn House Office Building, Hon. John
Shimkus (chairman of the subcommittee) presiding.
Members present: Representatives Shimkus, Harper,
Whitfield, Murphy, McKinley, Johnson, Bucshon, Flores, Hudson,
Tonko, Schrader, Green, McNerney, and Pallone (ex officio).
Staff present: Will Batson, Legislative Clerk, Energy and
Power; Rebecca Card, Assistant Press Secretary; A.T. Johnston,
Senior Policy Advisor; David McCarthy, Chief Counsel,
Environment and the Economy; Tina Richards, Counsel,
Environment; Chris Sarley, Policy Coordinator, Environment and
the Economy; Dan Schneider, Press Secretary; Jeff Carroll,
Democratic Staff Director; Jacqueline Cohen, Democratic Senior
Counsel; Timia Crisp, Democratic AAAS Fellow; Tiffany
Guarascio, Democratic Deputy Staff Director and Chief Health
Advisor; Rick Kessler, Democratic Senior Advisor and Staff
Director, Energy and Environment; Dan Miller, Democratic Staff
Assistant; Alexander Ratner, Democratic Policy Analyst; Andrew
Souvall, Democratic Director of Communications, Outreach, and
Member Services; Tuley Wright, Democratic Energy and
Environment Policy Advisor; and C.J. Young, Democratic Press
Secretary.
Mr. Shimkus. If I can get my colleagues to take their
seats, we will call the hearing to order.
First of all, just for our guests, the way we will operate
is we will do our opening statements. We do 5 for the chairman,
5 ranking, and then the full committee chairman, full committee
ranking member, so there will be 10 on each side.
Then, we will turn to our first panel. The first panel will
give their opening statements. It is the tradition of this
committee not to engage in questions afterwards. We will
receive your testimony and then we will bring up the EPA on the
overall generic debate on the hearing, which is in the
Superfund et al, the general Superfund hearing.
So, with that, I will recognize myself for 5 minutes.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
I would like to welcome everyone this morning. As we take
another look today at CERCLA, which is the Superfund law, today
our focus will be on how the Superfund program is being
implemented. Hopefully, our witnesses can share with us what
worked but, more likely, we will need to take a look at what
doesn't work. We also are looking for suggestions on how we
make the program better.
CERCLA or Superfund governs the cleanup of hazardous waste
sites, as well as accident spills and other emergency releases
of pollutants and contaminants into the environment. The
program is implemented by EPA in cooperation with the States
and tribal governments. And in implementing CERCLA, EPA also
delegates certain authority to the Regional Administrators.
One of the key issues we intend to look at today with Mr.
Stanislaus is whether the level of delegation is appropriate
and whether there is adequate oversight of the Regional
Administrators by the EPA headquarters.
It has been over 35 years since CERCLA was enacted. A lot
has changed since then. When CERCLA was enacted, very few
States had their own cleanup programs. What we are looking at
today is, after all that time, how is it going? Are sites
getting cleaned up in a timely manner? And if not, why not?
We need to assess whether States should have a more
significant role in CERCLA cleanups, and are there cleanups
that are best handled entirely by the States? There is a lot of
process involved with CERCLA cleanups. We need to take a
serious look at whether that process is working or whether it
encourages or impedes timely and efficient cleanup.
I would like to welcome my colleagues, Ann Wagner and Lacy
Clay. We also welcome back to the committee Mathy Stanislaus,
the Assistant Administrator from the recently renamed Office of
Land and Emergency Management.
And we welcome our second panel, who will walk us through
how public and private stakeholders also participate in the
implementation of the Superfund Program. We welcome Ms.
Brittain from the State of Oklahoma, who is here on behalf of a
good friend of the subcommittee ASTSWMO. Ms. Brittain will,
hopefully, talk to us about how far States have come with
developing cleanup programs and whether the current role for
States in CERCLA cleanup is appropriate.
We also welcome Ms. Horinko, who is a former head of EPA's
Office of Solid Waste and Emergency Response. Ms. Horinko has
been in the trenches at EPA with respect to CERCLA and can
share with us her opinion of what works and what doesn't, as
well as suggestions for moving forward.
We also have today with us Mr. Nadeau, thank you, an
attorney with over 30 years of experience, representing
potentially responsible parties or, as we know them, PRPs,
Superfund sites around the country.
And last but not least, we will hear from Mr. Spiegel, the
Executive Director of the Edison Wetlands Association, which
has done a lot of work restoring hazardous waste sites in New
Jersey.
So, we welcome everyone.
And just on the aside, with my friends, obviously, and
colleagues, in the metro St. Louis areas, Members Ann Wagner
and Lacy Clay, the Nation's Superfund legacy is part of a
response to our nuclear legacy, which was implemented to make
sure we saved hundreds of thousands of lives in the invasion of
Japan and development of the nuclear weapon and that was
successful in saving American lives. But there is still a
legacy around the country, and my colleagues will talk about
the site in St. Louis Metropolitan area. But there are sites
like these all over the country and it is still part of our
responsibility to help move forward and remediate these
locations as soon as possible. So, I appreciate them being
there.
[The prepared statement of Mr. Shimkus follows:]
Prepared statement of Hon. John Shimkus
I would like to welcome everyone this morning as we take
another look today at CERCLA. Today our focus will be on how
the Superfund program is being implemented--hopefully our
witnesses can share with us what works but more likely we will
need to take a look at what doesn't work. We are also looking
for suggestions as to how we can make the program work better.
CERCLA or Superfund governs the cleanup of hazardous waste
sites, as well as accidents, spills, and other emergency
releases of pollutants and contaminants into the environment.
The program is implemented by EPA in cooperation with the
States and tribal governments and in implementing CERCLA, EPA
also delegates certain authority to the Regional
Administrators. One of the key issues we intend to look at
today with Mr. Stanislaus is whether the level of delegation is
appropriate and whether there is adequate oversight of the
Regional Administrators by EPA headquarters.
It has been over 35 years since CERCLA was enacted. A lot
has changed since then. When CERCLA was enacted, very few
States had their own cleanup programs. What we are looking at
today is after all that time--how is it going, are sites
getting cleaned up in a timely manner and if not, why not? We
need to assess whether States should have a more significant
role in CERCLA cleanups and are there cleanups that are best
handled entirely by the States? There is a lot of process
involved with CERCLA cleanups. We need to take a serious look
at whether that process is working and whether it encourages or
impedes timely and efficient cleanups.
I would like to welcome my colleagues Ann Wagner and Lacy
Clay. We also welcome back to the committee Mathy Stanislaus
the Assistant Administrator from the recently re-named Office
of Land and Emergency Management and we welcome our second
panel who will walk us through how public and private
stakeholders also participate in the implementation of the
Superfund program. We welcome Ms. Brittian from the State of
Oklahoma who is here on behalf of a good friend of the
subcommittee, ASTSWMO. Ms. Brittian will hopefully talk to us
about how far States have come with developing cleanup programs
and whether the current role for States in CERCLA cleanups is
appropriate. We also welcome Ms. Horinko, who is the former
head of EPA's Office of Solid Waste and Emergency Response. Ms.
Horinko has been in the trenches at EPA with respect to CERCLA
cleanups and can share with us her opinion of what works and
what doesn't as well as suggestions for moving forward. We also
have with us today, Mr. Nadeau, an attorney with over 30 years
of experience representing potentially responsible parties or
PRPs at Superfund sites around the country. And last, but not
least, we will hear from Mr. Spiegel, the Executive Director of
the Edison Wetlands Association which has done a lot of work
restoring hazardous waste sites in New Jersey.
So, welcome everyone.
Mr. Shimkus. I yield back my time, and I now yield to the
ranking member, Mr. Tonko, from New York.
OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Tonko. Thank you, Mr. Chair, for holding today's very
important hearing on the Superfund program.
I also want to thank our colleagues, Ms. Wagner and Mr.
Clay, and other witnesses for their testimony here this morning
and our other witnesses that will, again, offer testimony.
Congress enacted the Comprehensive Environmental Response,
Compensation and Liability Act, commonly known as Superfund
more than 35 years ago but communities across our country are
still dealing with the legacy of toxic waste.
EPA has estimated that over 50 million people live within 3
miles of a Superfund National Priorities List Site or a
Superfund Alternative Approach site. Despite successful
remediation at a number of sites, there is still much work to
do and too few dollars available to do it.
At our hearing last year, GAO provided testimony that there
are thousands of contaminated sites on Federal land, the
majority of which are abandoned mines. Federal agencies do not
even have accurate inventories of these sites, let alone a plan
or the funding needed to clean them up. Agencies feel like they
have been left holding the bag for the cleanup, despite not
being involved in causing the contamination. This is emblematic
of the issue with the Superfund program. Too much of the burden
of cleaning up after private entities has fallen upon the
public at large. The cleanup of Non-Federal National Priorities
List Sites is funded by potentially responsible parties that
are liable for conducting or paying for the cleanup. When such
parties cannot be identified or are financially unable to
perform the cleanup, EPA is authorized to pay for it. CERCLA
created the Superfund Trust Fund for these cases. However, the
tax to fund the Trust Fund expired in 1995. For years,
appropriations from the General Fund have been the largest
source of revenue for the Trust Fund. There are over 1300 sites
on the National Priorities List, with more being added each
year, despite declining funding.
From 1999 to 2013, the total number of non-Federal sites on
the National Priorities List remained relatively constant,
while the number of completed projects generally declined on an
annual basis. This should not come as a completely surprise,
since appropriations declined during this time but we cannot
lose site of the polluter pays principle that has guided this
program since its inception.
Ultimately, I believe there are two steps that must be
taken to strengthen this given program. First, ensuring that
the Trust Fund is supported by polluting industries to help
clean up existing orphaned sites. Second, to limit the number
of new sites being created in the first place, be ensuring that
businesses that engage in activities that regularly lead to
serious contaminations have the financial assets in place
before waste is generated to cover the cost to clean up a site,
should it be necessary.
With the passage of Superfund, we made a commitment to
identify and clean up contaminated properties. We should
fulfill that commitment but the reality is we need more funding
and assurances in order to do it. When sites are cleaned up,
the surrounding community benefits from a cleaner, healthier
environment. And returning abandoned contaminated land to
productive use improves the local economy.
So, I again thank all for participating in the hearing this
morning. I look forward to your testimony on this important
issue.
And with that, Mr. Chair, I yield back.
Mr. Shimkus. The gentleman yields back his time. The Chair
looks to the majority side to see if anyone else wishes to make
an opening statement.
Seeing none, the Chair then turns to the minority side. The
Chair recognizes the ranking member of the full committee, Mr.
Pallone, for 5 minutes.
OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Mr. Chairman. Thanks for calling
this hearing to bring much needed attention to the Superfund
Program.
The Superfund Program is critical to cleaning up the most
toxic sites across our country and these sites are shockingly
common in my home State of New Jersey. Roughly 50 percent of
the population lives within three miles of Superfund site.
And I want to welcome not only our Missouri colleagues but
also Bob Spiegel of the Edison Wetlands Coalition, which has
been a tremendous ally for many years in the fight to ensure
fast and thorough cleanup of contaminated sites in my home
State of New Jersey.
The contaminants at Superfund sites have been shown to
cause cancer, birth defects, infertility and other serious
health problems. According to EPA, cleanups through the
National Priority List and Superfund Alternatives Program have
brought human exposure to contaminants under control at over
1400 sites around the Nation but the impact of Superfund goes
well beyond these funded cleanups, thanks to a provision of the
law that allows EPA to recover treble damages or three times
the cost of cleanups when the agency carries out a cleanup on
its own. And this provision has encouraged countless other
cleanups.
But there are still so many sites nationwide and in New
Jersey, which has more sites than any other State, that will
need funding for cleanup in the future. Unfortunately, funding
for these cleanups has dropped dramatically since the Superfund
tax expired in 1995, meaning fewer cleanups were started and
even fewer are finished. Too many communities are waiting too
long for cleanups. The threat that EPA will come in and clean
up the site and the threat of treble damages is now all but
extinguished by the lack of funds and the cleanups that are
being done, it seems, are not as robust as they once were. In
many cases, remedies are selected based on available funds,
rather than risk.
And I have personally visited many of these sites and have
seen firsthand the impact a contaminated site can have on a
community. Nothing but a full and timely cleanup can restore
these communities.
We have to provide the program the resources it desperately
needs. For years, I have introduced a Superfund Polluter Pays
Act, which would reauthorize the original Superfund fees and
make polluters, not taxpayers, pay the cost of cleaning up
Superfund sites. Congress needs to reinstate the Polluter Pays
taxes so those industries most responsible for polluting our
land and water are held responsible for cleaning up our toxic
legacy, a legacy that severely affects New Jersey and many
other States around the Nation.
Now, that is only fair because restoring the polluter pays
principle to this program would reduce pressures on the Federal
budget and lead to faster cleanup of these toxic and dangerous
sites.
Now, I understand that reinstating this tax is not within
the committee's jurisdiction and some of my colleagues will
look for solutions we can offer as a committee to strengthen
Superfund. One thing we can do within our committee's
jurisdiction is to encourage EPA's efforts to establish
financial responsibility requirements to the most polluting
industries and those requirements can stop the proliferation of
new orphaned Superfund sites, which hurt public health and cost
the taxpayers millions of dollars.
But the main problem facing Superfund is the expiration of
the polluter pays tax and the most important thing we can do in
Congress is reinstate. Cleaning up toxic Superfund sites not
only reduces health risks, it also helps create jobs during the
cleanup and allows for redevelopment of the land, once the
cleanup is completed. We should also report cleanups of these
contaminated sites and should ensure that these efforts are
appropriately funded.
[The prepared statement of Mr. Pallone follows:]
Prepared statement of Hon. Frank Pallone, Jr.
I thank the chairman for calling this hearing to bring much
needed attention to the Superfund program. As many of you know,
the Superfund program is critical to cleaning up the most toxic
sites across our country. These sites are shockingly common--in
my home State of New Jersey, roughly 50 percent of the
population lives within three miles of a Superfund site.
I want to welcome, not only our Missouri colleagues, but
also Bob Spiegel of the Edison Wetlands Coalition, who has been
a tremendous ally for many years in the fight to ensure fast
and thorough cleanup of contaminated sites in my home State in
New Jersey.
The contaminants at Superfund sites have been shown to
cause cancer, birth defects, infertility, and other serious
health problems.
According to EPA, cleanups through the National Priority
List and Superfund Alternatives program have brought human
exposure to contaminants under control at over 1,400 sites
around the Nation. But the impact of Superfund goes well beyond
those funded cleanups thanks to a provision in the law that
allows EPA to recover treble damages--or three times the cost
of cleanups--when the Agency carries out a cleanup on its own.
This provision has encouraged countless other cleanups.
But there are still so many sites nationwide and in New
Jersey--which has more sites than in any other State--that will
need funding for cleanup in the future.
Unfortunately, funding for these cleanups has dropped
dramatically since the Superfund tax expired in 1995, meaning
fewer cleanups are started and even fewer are finished. Too
many communities are waiting too long for cleanups. The threat
that EPA will come in and clean up a site, and the threat of
treble damages, is now all but extinguished by the lack of
funds. And the cleanups that are being done, it seems, are not
as robust as they once were--in many cases, remedies are
selected based on available funds rather than risk.
I have personally visited many of these sites, and have
seen firsthand the impact a contaminated site can have on a
community. Nothing but a full and timely cleanup can restore
these communities.
We must provide the program the resources it desperately
needs. For years, I have introduced the Superfund Polluter Pays
Act, which would reauthorize the original Superfund fees and
make polluters, not taxpayers, pay the costs of cleaning up
Superfund sites.
Congress needs to reinstate the ``polluter pays'' taxes so
those industries most responsible for polluting our land and
water are held responsible for cleaning up our toxic legacy, a
legacy that severely affects New Jersey and many other States
around the Nation. This is only fair. Restoring the ``polluter
pays'' principle to this program would reduce pressures on the
Federal budget and lead to faster cleanup of these toxic and
dangerous sites.
I understand that reinstating this tax is not within this
committee's jurisdiction, and some of my colleagues will look
for solutions we can offer as a committee to strengthen
Superfund.
One thing we can do within our committee's jurisdiction is
encourage EPA's efforts to establish financial responsibility
requirements for the most polluting industries. Those
requirements can stop the proliferation of new orphan Superfund
sites which hurt public health and cost the taxpayers millions.
But the main problem facing Superfund is the expiration of
the polluter pays tax, and the most important thing we in
Congress can do is reinstate it.
Cleaning up toxic Superfund sites not only reduces health
risks. It also helps create jobs during the cleanup and allows
for redevelopment of the land once the cleanup is completed. We
should all support cleanup efforts of these contaminated sites,
and should ensure that these efforts are appropriately funded.
Mr. Pallone. So, I would yield back, unless one of my
colleagues--I yield to Mr. Green.
Mr. Green. Thank you, Mr. Chairman. I thank my ranking
member for yielding the time.
I know we don't have jurisdiction over that fund, but we do
have jurisdiction over the EPA. And that is what this hearing
is about today. I think every Member of Congress around the
country had problems with the slowness in cleaning up. I know I
do in our district, in our community, along with other Members,
and Members who are here today. So, that is what we are for,
and see why we can't move these cleanups along to make our
neighborhoods safe.
And I appreciate your time. Thank you.
Mr. Pallone. Any other of my colleagues want time? If not,
Mr. Chairman, I yield back.
Mr. Shimkus. The gentleman yields back his time.
Now, I turn to our colleagues in the first panel. I am
going to do it by seniority first. So, I would like to first
recognize Congressman Lacy Clay.
Mr. Clay. I am going to yield.
Mr. Shimkus. You can do that, but you are senior.
Mr. Clay. I know. We have an arrangement.
Mr. Shimkus. And I was messing it up. I was going to use
another word but----
Mr. Clay. That is fine.
Mr. Shimkus. So, the Chair now recognizes the gentlelady,
or the gentlewoman, from the Metropolitan St. Louis area,
Congresswoman Wagner, for 5 minutes.
STATEMENTS OF HON. ANN WAGNER AND HON. WM. LACY CLAY,
REPRESENTATIVES IN CONGRESS FROM THE STATE OF MISSOURI
STATEMENT OF HON. ANN WAGNER
Mrs. Wagner. Thank you. Thank you, Mr. Chairman. I thank my
friend and colleague Lacy Clay for yielding.
Chairman Shimkus, Ranking Member Tonko, full committee
ranking member, Mr. Pallone, and my other colleagues, I
appreciate the opportunity to speak to you today on this very
important subject over oversight on CERCLA and the EPA's role
in cleaning up contaminated sites across the country.
I would like to speak today about my experience with the
West Lake Landfill in St. Louis and how the EPA has failed,
failed for more than 30 years, in its cleanup of nuclear waste
dating back to the Manhattan Project and World War II. For 3
full decades, the CERCLA process, and particularly the EPA,
have failed the people of St. Louis in the most heartless
manner possible.
Before I share the facts, I want to paint a bleak picture
of what my constituents are facing. Moms and dads are watching
their children suffer from and fight uncommon health
afflictions. Local school districts are sending kids home with
notices of emergency procedures related to the hazardous
landfill. The county health department started testing nearby
residents for respiratory problems and developed an emergency
plan of its own.
I cannot possibly imagine what it would be like to open my
child's book bag when they got home from school and learned
that they are subject to extreme health risk or learn about the
procedures they have been practicing in their classrooms in the
event that the radioactive waste reaches fire. This is
happening and it is happening to the innocent children every
day in St. Louis. These are the experiences caused by years,
years of dereliction and inaction by the EPA.
In 1990, the EPA listed West Lake on the National
Priorities List under CERCLA. It wasn't until 18 years later,
in 2008, that the EPA was finally able to come up with a
decision on what to do with the waste at the site.
After intense public backlash and sharp criticism from the
EPA's own National Remedy Review Board, the agency reopened the
2008 decision and has undertaken additional testing and study.
In June of this year, just last month, another document
prepared by the National Remedy Review Board in 2013 was
released by the EPA stating----
Mr. Shimkus. Would the gentlelady yield? I am sorry to do
that but we have got young kids coming in which we want to
incentivize. Come on in. There are seats, if people can move.
This is about their future. I love it when we have young adults
come in. And they were kicking some out and I didn't want to do
that.
Mrs. Wagner. Gather around the walls.
Mr. Shimkus. That is right.
Mrs. Wagner. I do want to reclaim my time, however, Mr.
Chairman.
Mr. Shimkus. Well, that was another reason why I was
interrupting, but you caught me.
And we are going to be very gracious on time. So, the
gentlelady, you can resume. Thank you for letting me interrupt.
Mrs. Wagner. Thank you, Mr. Chairman. And welcome. Welcome,
young people. It is about your future and the future of all of
our families and our children in our communities.
After intense public backlash and sharp criticism from the
EAP's National Remedy Review Board, the agency reopened, as I
stated, a 2008 decision and has undertaken additional testing
and study.
In June of this year, another document prepared by the
National Remedy Review Board in 2013 was released by the EPA
stating that removing radioactive waste at the landfill was
feasible and could reduce long-term risks, contradicting the
EPA's earlier decision to leave the waste in place and capping.
But simply, Mr. Chairman, the fact that this 2013 document
has not been available before last month shows the lack of
transparency and accountability that the EPA has demonstrated
throughout this entire process.
As the Missouri Attorney General stated, and I quote, ``the
EPA has time and again made promises that failed to deliver
results.'' Meanwhile, families suffer as the clock ticks, and
ticks, and ticks away.
During this additional testing, discovery of new
radioactive materials is consistently found outside of the
known containment area, bringing considerable doubt in EPA's
management of the site while pushing back the time line for
action.
At the same time, a subsurface fire is burning in an
adjacent site and moving toward the radioactive waste,
prompting significant and absolutely justifiable concern in the
community that the EPA has turned a blind eye and failed in its
missions to protect our residents. And despite the seriousness
of the situation, the EPA has still, still not made a decision
about what do with the waste, pushing back their self-imposed
deadline for releasing a decision time after time and year
after year.
Failure after failure while entire communities wait. Forget
cleanup and remediation; the EPA can't even make a decision
about what to do with the Federal Government's nuclear waste.
They have been unable to deliver on deadlines to ensure basic
safety in preventing the underground fire from reaching the
radioactive waste.
In a letter from the International Association of
Firefighters, they say, and I quote, Firefighters in the area
are especially concerned about the dangers posed by the
underground smoldering fire at the nearby Bridgetown landfill.
The proximity of the two landfills creates the potential for
firefighters and other emergency personnel to be exposed to
radioactive materials during response operations.
Community leaders, Mr. Chairman, such as Dawn Chapman and
Karen Nickel who have joined me and are seated right behind me,
and Ed Smith who couldn't be with us today have been tirelessly
raising the alarm for years about the dangers posed by this
site. I have their testimony, Mr. Chairman, that I would like
to submit for the record.
Mr. Shimkus. We will look at the testimony, but we won't
commit for submission to the record, but we will have to talk
to the ranking member.
Mrs. Wagner. Let me take a quote from Karen Nickel. They
both are up here of their own expense, their own dime, their
own nickel because they care so deeply about their communities
and their families.
Karen Nickel says, where we thought we would find an ally
in EPA, instead we found a foe and failure. Dawn Chapman, we
deserve to be able to put our children on the school bus
without fear that a catastrophic event will happen at this land
fill and our children will have to be sent to a different
location to keep them safe.
Mr. Chairman, I can tell you that this is the first issue I
was briefed on after being elected to Congress nearly 4 years
ago, and it is past time, past time for action. I appreciate
their support and am asking this committee for help on behalf
of all my constituents and these leaders, these women and men,
and activists who have recognized that something must be done
to clean up this nuclear waste and prevent health and safety
concerns.
That is why I, along with my colleague, Congressman Lacy
Clay and Congressman Blaine Luetkemeyer introduced legislation
to transfer control of landfill from the EPA to the Army Corps
of Engineers Formerly Utilized Sites Remedial Action Program,
FUSRAP, which is H.R. 4100.
Companion legislation in the Senate has already been passed
by unanimous consent. The Corps has successfully and
professional managed several of the similar sites in the St.
Louis area and across the country. This move is supported by
the St. Louis community, including SSM Healthcare, which
describes itself as, and I quote again, the healthcare provider
serving the community surrounding the West Lake Landfill.
Mr. Chairman, members of this committee, the EPA has had
more than 25 years to understand and resolve the situation at
this landfill and they have delivered zero, zero results. The
Agency has undoubtedly lost the trust of the entire community
and has lost my trust as well. It is time for someone new to
step in. EPA has failed and CERCLA has failed. And as my
constituents and I continue our fight, the clock continues to
run.
I would also like to request, Mr. Chairman, to insert into
the record local letters of support for H.R. 4100, as well as
city and council resolutions supporting the transfer of West
Lake from EPA to the Army Corps. And these documents that I
have referenced today all I would like to submit for the
record, sir.
Mr. Shimkus. Again, we will take that into consideration
with the minority.
Mrs. Wagner. Thank you very much. Finally, most importantly
I would like to enter into the record the full testimony of the
constituents who were not able to testify on their own today at
this hearing. I thank you very much for your indulgence, Mr.
Chairman.
[The prepared statement of Mrs. Wagner follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Again, the same statement applies.
The Chair now recognizes the gentleman from St. Louis, Mr.
Clay, for 5 minutes.
STATEMENT OF HON. WM. LACY CLAY
Mr. Clay. Thank you, Mr. Chairman and Ranking Member Tonko,
as well as all of the members of this committee for affording
Congresswoman Wagner and I the opportunity to come to you today
and tell our story.
You know FUSRAP, which is already hard at work across the
Nation and at several locations in the St. Louis area cleaning
up our Nation's legacy of radioactive and toxic contamination
from weapons production. The bill before you, H.R. 4100, was
crafted with strong grassroots support from the Missouri
Coalition for the Environment, Just Moms St. Louis, who were
mentioned earlier, who are here with us today, and many other
civic and environmental activists to address a 74-year-old
nuclear legacy in St. Louis, which has subjected families to
fear and suffering for far too long.
In 1942, the War Department secretly contracted with the
Mallinckrodt Chemical in St. Louis to enrich yellow cake
uranium from the Belgian Congo to fuel the Manhattan Project.
That enriched uranium prepared with the assistance of Nobel
Prize winning physicist, Dr. Arthur Holly Compton of Washington
University, was used to fuel our Nation's first atomic bombs
created at Los Alamos, New Mexico, under the direction of
Manhattan Project Director, J. Robert Oppenheimer. That
program, which exists from 1942 to 1945 was essential to
winning World War II but the nuclear waste that was generated
from the manufacturing of those original atomic bombs and
others that would follow forged a curse of radioactive
contamination that is still inflicting pain and suffering on
our constituents today.
After World War II, that waste and several failed attempts
to clean it up caused dangerous radioactive contamination at
sites in downtown St. Louis, at Lambert-St. Louis International
Airport, at Latty Avenue in North St. Louis County, at
Coldwater Creek, which is a tributary which flows into the
Mississippi River.
And finally, in 1973, approximately 50,000 tons of
contaminated soil from that same nuclear waste was illegally
dumped at West Lake Landfill in Bridgeton, Missouri, and mixed
with other debris. That nuclear waste includes radioactive
uranium, radioactive thorium, radioactive barium sulfate, and
other toxic contaminants. Unbelievably, that radioactive toxic
mess dumped illegally at West Lake 43 years ago is held in an
unlined limestone landfill near the Missouri River, near a
major hospital, near Lambert-St. Louis Airport, near schools,
and interstate highways. And most troubling of all, is the
appalling fact that 1,000 of our constituents live less than a
mile away from this illegal nuclear waste dump.
The truth is that if you search far and wide across this
country, it would be almost impossible to find a dumber, more
dangerous, more completely irresponsible place to dump nuclear
waste than West Lake Landfill.
And if you think this potential environmental disaster
couldn't get any worse, you are wrong. For the last 4 years, we
have also been dealing with a creeping underground landfill
fire at the adjacent Bridgeton Sanitary Landfill, which is
under the control of the Missouri Department of Natural
Resources. And that underground fire is less than 1,000 feet
from the buried nuclear waste.
My friends, the U.S. Government created this radioactive
mess and then we allowed it to metastasize to other sites,
including West Lake and we have a clear and unavoidable
responsibility to finally clean it up. That is what H.R. 4100
is all about. Our legislation builds on the highly successful
track record of FUSRAP, which is already cleaning up the same
nuclear waste at other sites around St. Louis. It is fiscally
responsible because even after the transfer of the West Lake to
the Army Corps of Engineers, the site would remain on the
Superfund List, which would preserve revenue streams to help
fund the cleanup from several potentially responsible parties,
including the Department of Energy, Republic Services, and the
Cotter Corporation.
This bill has earned the bipartisan support of Democrats
and Republicans, religious coalitions, community activists, and
respected scientific sources, who believe that a cleanup like
this should be put in the hands of those who have the strongest
possible expertise in cleaning up nuclear waste, the U.S. Army
Corps of Engineers.
You know a few months ago, this identical legislation
introduced by our Missouri colleagues Senators Blunt and
McCaskill was embraced and approved by a huge bipartisan
majority in the U.S. Senate. Congresswoman Wagner and I
introduced the companion bill here. Some of the forces who want
to keep this nuclear waste in the unlined West Lake Landfill
ganged up to stop it. And I am greatly disappointed that this
commonsense bill has been delayed, obstructed, and even
deliberately misrepresented by some staff and certain members
of this committee.
My friends, after 74 years of negligence by the U.S.
Government, that is totally indefensible.
Now, I recognize that there are factions who oppose this
bill because of cost concerns. I also know that some oppose
this timely and wise solution to cleaning up West Lake for
purely selfish and political considerations but none of that
matters to the real people who we represent who still live in
fear because of the West Lake Landfill.
So, let me say this to all of you. As my colleagues and my
friends in service to this country when the U.S. Government
makes a mistake, when we put citizens at risk, when we disrupt
their lives, when destroy the peace and property values in
these neighborhoods and when we allow the health of innocent
citizens to be harmed because of our own inaction, we must make
it right.
The U.S. Government created this nuclear mess in West Lake,
and we have a responsibility to pass this bill and clean it up.
And I ask you all to search your conscience and realize that
these people are suffering, that our community is in harm's way
and need to clean it up and give that bill serious
consideration.
And I yield back the balance of my time.
[The prepared statement of Mr. Clay follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. The gentleman yields back his time. We thank
you for your testimony, both of you. We will submit for the
record a statement by the Corps of Engineers in response, since
they were raised in your testimony and that will be submitted
for the record agreed upon by both the minority and the
majority.
[The information appears at the conclusion of the hearing.]
Mr. Shimkus. And we appreciate your testimony, and now we
will turn to the EPA for the second panel. Thank you very much.
So, we will start with our first panel, and we welcome back
Mathy Stanislaus, which is actually a new name. As far as his
office, he is the Assistant Administrator for the Office of
Land and Emergency Management from the United States
Environmental Protection Agency. Mathy, you have been a friend
of the committee and been here numerous times. Thank you for
appearing, and we will recognize you for 5 minutes.
STATEMENT OF MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE
OF LAND AND EMERGENCY MANAGEMENT, ENVIRONMENTAL PROTECTION
AGENCY
Mr. Stanislaus. Good morning, Chairman Shimkus, Ranking
Member Tonko, and other members of the committee. I am the
Assistant Administrator at the U.S. EPA with Office of Land
Emergency Management, which is responsible for, among other
things, the Superfund Program.
The Superfund Program protects tens of millions of
Americans in thousands of communities across the country by
first responding to the imminent issues of a release, something
that is called time-critical and non-time-critical removal
actions to protect human health and the environment for shorter
term response actions. These really effectively serve a safety
net to protect communities from the immediate issues of
hazardous substances. And these are all done at the request of
States, local governments, and community residents.
Over the past 4 years, for example, EPA has conducted or
provided oversight for close to 1400 of what we call removal
completion. These are the situations of imminent risk to public
health and a total of close to 800 emergency responses. You
know some of these include securing and disposing of thousands
of containers of acids, solvents, and flammable materials in a
rural area outside of Dexter, Oregon; providing air and water
monitoring at train derailment outside Galena, Illinois,
spilling more than 300,000 gallons of crude oil; removing close
to 4,000 cubic yards of asbestos and PCB waste from burned out
former school buildings in Tazlina, Alaska, and managing the
collection and disposal of thousands of hazardous and
nonhazardous waste items, including drums, tanks, appliance in
the aftermath of the Merrimack River flooding in St. Louis,
Missouri.
Separately, the Superfund Remedial Program addresses longer
term at more comprehensive and more complex sites. The EPA's
analysis, as was noted earlier, shows that approximately 53
million people live within 3 miles of a Superfund NPL site or a
Superfund Alternative Approach site, roughly 17 percent of the
U.S. population, including 18 percent of all children in the
U.S. under the age of 5. This population is predominately
minority and low-income and is less likely to have a high
school education than the U.S. population as a whole. As a
result, these communities often lack sufficient resources to
address health and environmental concerns.
Sites that the EPA adds to the National Priorities List
represent the Nation's most serious uncontrolled and abandoned
hazardous waste sites. Contaminated sites reflect both legacy
practices but also recent practices of mismanagement. Of the
112 sites listed on the NPL from 2010 to 2016, nearly half have
related from recent mismanagement of industrial activities. Of
the 112 sites, 12 involve bankrupt facilities or properties.
None of these situations did those companies have financial
instruments in place to pay for the cleanup. Therefore, these
sites will have to be cleaned up by taxpayer resources in the
future.
State partnerships is critical to Superfund cleanup
efforts. EPA has ongoing engagement with the States in the
execution and implementation of the Superfund Program, as well
as tribes and local communities. The EPA requests State or
tribal support for any site that it seeks to list on the
National Priorities List sites, coordinates early site
assessments. In some cases, the States actually take the lead
of investigation, along with funding to the States to conduct
that funding. And development of the cleanup remedies is also
done with extensive consultation with the State.
We also recognize that that consultation, that engagement
could be strengthened and we currently have a process to do
that, particularly how we want to make sure that State
standards are properly included in our decisionmaking. We have
stood up a working group working with the States, working with
ASTSWMO and the ASTSWMO will be talking about that a bit later.
Community engagement is a real critical component of our
program. We want to engage and ensure that communities
participate in an effective way, in an informed way. We invest
in technical assistance so technical assistance providers on
behalf of communities can digest some fairly complex technical
information.
We seek to present the information in an understandable way
so communities can really understand the decisions in front of
us.
And EPA is also continuing to utilize every dollar to the
greatest extent possible. You know obviously, we want to make
responsible parties pay for that and we have leveraged
significant federally enforcement dollars in 2015. EPA has
secured commitments on the order of $2 billion from responsible
parties to conduct the cleanup. It still leaves a gap, where
the taxpayers have to pay for the orphaned sites, where there
is no responsible party or responsible parties don't have
financial resource to pay for that.
You know EPA does have a challenge in the Superfund
Program. We do have a backlog of sites that we cannot fund
because of the absence of funding. This is the reason that the
President requested a bump-up for Superfund resources of $20
million in the fiscal year 2017 budget. And the administration
has also supported the reinstatement of the Superfund tax so
that there is a dedicated tax to pay for the cleanup, as
opposed to the taxpayer paying for that.
To underscore the value of the investment in the Superfund
Program, it returns an investment in health, disease avoided,
and the increase of property value, and tax revenue from the
reuse of these properties. We believe it is an investment, not
only dealing with the legacy of sites but also recent sites,
ongoing sites that result in mismanagement that, unfortunately,
the Federal Government Superfund Program has to address.
With that, I see my time is up. I will close and take
questions from you.
[The prepared statement of Mr. Stanislaus follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. We thank you for your opening statement. Your
full statement is submitted for the record.
I will recognize myself 5 minutes for the questioning
period of time.
So, the former Chanute Air Force Base, which is in Rantoul,
Illinois, it is a new part of my congressional district, is a
Superfund site. BRAC funding for environmental cleanup is
limited to Superfund or CERCLA hazardous substances.
How does Chanute deal with the cleanup of emergent
contaminants such as perfluorinated chemicals, PFCs or PFAS
that are not currently regulated under CERCLA?
Mr. Stanislaus. Sure. As you know, Chairman, that is being
led by the Air Force under CERCLA authority and these emergent
contaminants perfluor and PFAS can be addressed under the
CERCLA authority.
Mr. Shimkus. So, the ability to recruit dollars for the
cleanup of these remaining contaminants should be able to be
deemed through the Superfund?
Mr. Stanislaus. Yes, so just to be clear, it is the
responsibility of the Air Force. So, in terms of conducting
response actions, there is no constraint under the CERCLA
authority.
Mr. Shimkus. So, Chanute Landfill leachate has made it into
the waste water treatment process and the PFCs contaminate the
biosolids, which in the past have been spread on local private
farm ground. What would the mechanism for cleanup be in this
circumstance?
Mr. Stanislaus. Well, I think, following, if I understand
your question, in the Air Force, following the standard
Superfund and CERCLA process, we would look at the areas
contaminated that are contaminated above the certain
thresholds. Then, the appropriate cleanup should happen.
Mr. Shimkus. In your opinion, how is the Superfund cleanup
process working in terms of getting sites cleaned up
efficiently and in a timely manner?
Mr. Stanislaus. Sure. I mean, Superfund sites are a
complicated situation. We come to the sites because of
sometimes decades of mismanagement. Some of that has been
enunciated earlier today.
We first try to get the responsible parties to pay for that
and actually lead the cleanup of those sites and then we
oversee whether the responsible party does the cleanup or we do
the cleanup. Then, we do through a process.
You know, one, we want to make sure that it is technically
grounded. We want to make sure it is data-driven, so it takes
some time do that. But we also recognize that we need to bring
to bear in an ongoing way the best management practices to make
sure we streamline that. And during my tenure, I have really
pushed that really significantly. We pushed something we call
optimizing. How do we build in time and cost savings? And we
have done that. Looking at contractor savings and we have done
that.
There are lots of examples that we have institutionalized
to bring out more efficiencies to the Superfund process. But we
also recognize more can done as an ongoing commitment and we
also are engaging the States in that process.
Mr. Shimkus. So, I think the constant refrain, and I think
actually one of my colleagues who testified earlier, and I
think you will hear from many members of the committee is it
just takes too long. And we deal with long timeframes in a
broad portfolio of interests of the Energy and Commerce
Committee. And we are finding in a lot of areas that new
technology, efficiencies can be created. That is part of some
of our other debates. What is EPA doing to try to cut down the
time line and get more efficient?
You used the word process. It was kind of weaved into the
question. Surely, there must be some things about the process
that we can improve.
Again, on the drug debate, we are trying to make sure some
of these inspections run parallel instead of cumulative. That
is cutting down the overall time. I think that is what we are
going to look forward to hearing is process. How can we change
process to get this stuff moving quicker?
Mr. Stanislaus. Sure. I mean there are a lot of things as,
Chairman, as you referred to, that we can learn. And one of the
things we have learned is there are some opportunities to
expedite the investigation process. I mean there has been some
history, frankly, where investigation has gone on too long. And
so how do we triangulate the investigation? How do we marry the
investigation and cleanup? There are some sites that we kind of
know earlier on the potential remedial options.
So, we have begun to do this optimization effort to look at
those opportunities to marry some of those things that may have
taken more time in the past.
Mr. Shimkus. We will keep encouraging you to be successful
at that and kind of expedite the process.
The Chair now recognizes the ranking member of the
subcommittee, Mr. Tonko from New York for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair. And you know listening to
the testimony and hearing about efficiencies that should be
embraced and management that should be underscored are all
important but also appropriations. We are appropriators, too.
And we need to understand that every action or perhaps inaction
in terms of appropriations trickles down, percolates down to
the local level and affects human lives. So, we need to bear
that in mind.
The legacy of contaminated orphaned sites in this country
is serious and, in some areas, devastating. The number of
abandoned mines posing serious threats to drinking water
sources in the West is shocking. Even more shocking is the fact
that more orphaned sites are still being created.
As I mentioned, I believe more must be done to prevent
sites from becoming orphaned in the first place. When Superfund
was created, Congress required EPA to establish financial
assurance requirements for the most polluting industries, to
ensure that companies going into business in those industries
would be solvent, to clean up any contamination they caused.
This is a common sense approach that protects the American
taxpayers.
Unfortunately, these rule, which were required to be
initiated decades ago, have not been developed.
Administrator Stanislaus, do you believe that requiring
financial assurances incentivizes facilities to manage and
store their hazardous waste materials more safely?
Mr. Stanislaus. Oh, absolutely. And we also want to make
sure that in the worst case scenario a company goes bankrupt,
that those financial instruments are in place to pay for the
cleanup, as opposed to the American taxpayer.
Mr. Tonko. And when can we expect to see financial
assurance requirements proposed under the Superfund?
Mr. Stanislaus. Sure. The first sector was the hard rock
mining, which was identified because it was the number one
taker from the Superfund and it also has the highest risk from
various analysis we have done. The first proposed rule will be
done later this year.
Mr. Tonko. And is that in line with the schedule set out by
the DC Circuit Court of Appeals earlier this year regarding
hard rock mining?
Mr. Stanislaus. That is correct.
Mr. Tonko. And has EPA begun considering which other
industries are in need of financial assurance rules?
Mr. Stanislaus. Yes, so we will also be making this
decision as to whether we want to also do financial assurance
for a couple of other sectors.
Mr. Tonko. Including?
Mr. Stanislaus. Chemical manufacturing, the electric
utility industry is two. I believe there is another one that I
don't remember.
Mr. Tonko. OK and when can we expect requirements to be
finalized?
Mr. Stanislaus. On the first proposal of hard rock mining?
Mr. Tonko. Yes, the hard rock mining.
Mr. Stanislaus. Yes, let me get back to you. I just don't
recall.
Mr. Tonko. OK and do you envision that these new rules
would complement existing costs, recovery, and enforcement
procedures?
Mr. Stanislaus. Yes, I mean in terms of--is your question,
Will be it consistent with the current cost recovery
procedures? Is that your question?
Mr. Tonko. Well, just would they complement existing cost
recovery and enforcement procedures?
Mr. Stanislaus. Yes, I mean, that is absolutely the
intention.
Mr. Tonko. And a 2015 GAO report stated that States agreed
to add sites to the national priorities list, where they
encountered difficulty in getting a potentially responsible
party or a PRP to cooperate, or where that PRP went bankrupt.
Do you believe States may be more likely to add a site to
the national priorities list if no responsible party can step
up to the pay for the cleanup?
Mr. Stanislaus. I mean I think that is one factor that we
have heard from the States but not only the factor. You know
sometimes it is just the magnitude and complexity of the sites
as well.
Mr. Tonko. Well, if that is the case, I think that it is
likely that the most difficult orphaned sites will continue to
find their way to the National Priorities List, unless
financial assurances are required. Financial assurances were
intended to prevent the all too common practice of polluting
and then declaring bankruptcy, leaving the bill for the
taxpayers to pick up. The lack of financial assurance
requirements has exposed the Superfund Program and the United
States taxpayers to potentially enormous cleanup costs. These
requirements are long overdue.
I know that some of my Republican colleagues have opposed
them in the past but I hope they will join me now in supporting
them to protect taxpayers and the environment and, obviously,
the appropriations for some of these programs are essential to
be at the appropriate level.
With that, I yield back my time, Mr. Chair.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes my colleague, the vice chair of the
subcommittee, Mr. Harper from Mississippi, for 5 minutes.
Mr. Harper. Thank you, Mr. Chairman. Great to see you
again.
Mr. Stanislaus. You, too.
Mr. Harper. And I had a few questions I would like to ask
you.
When selecting the remedy for a contaminated sediment site
cleanup, does EPA follow the contaminated sediment remediation
guidance for hazardous waste sites?
Mr. Stanislaus. Oh, absolutely.
Mr. Harper. How does EPA ensure the timeliness, cost-
effectiveness, consistency, and the quality of the sediment
site cleanups?
Mr. Stanislaus. Well, that is an ongoing responsibility
between both the regions and headquarters, particularly
sediment sites. We review everything from the investigation
planning to the proposed cleanup remedy.
Mr. Harper. So, how does EPA ensure that sediment cleanups
are consistent with the contaminated sediment remediation
guidance?
Mr. Stanislaus. Sure. In our review of the site-specific
factors, we look at one of the things that headquarters looks
at is a consistency with the national guidance.
Mr. Harper. Now, we understand that certain authorities are
delegated from EPA headquarters to the regions. Please explain
what authority is actually delegated.
Mr. Stanislaus. Sure, I mean the delegation to the States
goes back I think to the mid-1980s or so. You know it was
really intended to bring out more efficiency to the process.
But that being said, we also recognize the need for
headquarters review. And so, again, everything from the
proposed plan, you know the headquarters reviews. We also have
additional infrastructure for significant costly remedies. We
have a National Remedy Review Board. We have a sediment cleanup
body. There is a national body of peer review experts who also
look at that.
I get briefed on a monthly basis on the sites of
controversial complexity. So, there is an ongoing scrutiny,
frankly that we do.
Mr. Harper. Let me, just so that I am clear, does the
Administrator or someone at the EPA headquarters have the final
sign-off on those remedial decisions?
Mr. Stanislaus. The delegation envisions that it be done at
the regional level.
Mr. Harper. OK.
Mr. Stanislaus. But again, that decision is done after
significant engagement with headquarters.
Mr. Harper. Got you. Is there a process in place to ensure
that the Administrator and you, as the Assistant Administrator
for the Office of Land and Emergency Management are actively
reviewing and signing off on remedial investigations proposed
by the Regional Administrators to ensure that they are
consistent and appropriate?
Mr. Stanislaus. Yes. As I referred to it earlier, so we
have an ongoing engagement leading up to the proposed planned
review, all of that.
Mr. Harper. So, you are getting a briefing at least once a
month.
Mr. Stanislaus. Yes, on the sites of major issues.
Mr. Harper. And how are you drawn into it into a deeper
way, let us say, on a specific situation? Does that vary case
by case?
Mr. Stanislaus. Well, again, my technical staff reviews
evidence from the data and the guidance. And depending on those
issues, I get briefed on sites.
Mr. Harper. Well, let me ask this. If you can recall, are
remedies proposed by the regions ever changed by you or the
Administrator?
Mr. Stanislaus. It definitely gets changed through the
headquarter involvement, absolutely.
Mr. Harper. So, what would draw it to your attention? Are
you reviewing every proposal or just in an overall briefing of
the entire review process?
Mr. Stanislaus. Yes, I mean you know I get briefed at
various levels, depending on the site. Sites are very large,
very complex, which really are sometimes a precedential nature.
Take a hard look at that, involving a mixture of proposed
future uses, cleanup remedy alternatives. So, all of that goes
into the mix of the decisionmaking.
Mr. Harper. I want to make sure that I am following you and
I have got this; that I am understanding what you are telling
us. Normally, those remedies, they are going to just proceed
and you are not going to be reviewing every remedy that comes
into the agency. Am I correct, as far as making the decision
how to proceed from the start?
Mr. Stanislaus. Well, yes. I mean so, again, we have my
staff reviews, at a technical level, the data and the technical
issues. And I get briefed at a certain level. And where there
are potential areas of major significance, then I get more
deeply involved, depending on the precedential nature of that
decision on particular sites.
Mr. Harper. And if you don't like what you see or you don't
think it is the right course, then you will pass on that
decision.
Mr. Stanislaus. Yes. Well, sometimes I would ask for taking
a hard look at an alternative or is there enough data to
support this decision. It kind of depends on the site.
Mr. Harper. Thank you very much. I yield back.
Mr. Shimkus. The gentleman's time has expired.
The Chair now recognizes the ranking member of the full
committee, Mr. Pallone, for 5 minutes.
Mr. Pallone. Thank you, Mr. Chairman and thank you Mr.
Stanislaus.
I wanted to focus on three concerns, all related to the
funding of the Superfund program. First, how pays? Second, the
delays brought about by dwindling funds. And third, a falloff
in the quality of cleanups brought about by dwindling funds.
So, as we all have discussed, the Superfund tax was created
to cover the cost of cleanup when potentially responsible
parties could not pay or could not be ID'd. In my view, this
fund was the crowning achievement of the Superfund because it
ensures that polluters paid for cleanups even at orphaned
sites.
And since the funds from that tax were exhausted, funding
for cleanups at orphaned sites has come through the
appropriations process, drawing from general treasury funds.
That is correct.
Mr. Stanislaus. That is correct.
Mr. Pallone. I think that is just fundamentally wrong. The
cost of cleanup should be paid for those who get rich off
contaminating these sites. And it is not just a question of
fairness. Since the tax expired, funding for Superfund cleanups
has decreased dramatically by about 45 percent since 1999.
And I have a list of sites provided by your staff which are
waiting for funding. There are about 12 sites on the list that
I have. And for the communities around these sites--you have
the list, Mr. Stanislaus, correct?
Mr. Stanislaus. I am sorry. Say that again.
Mr. Pallone. You have the list with the 12 sites?
Mr. Stanislaus. I am aware of that. I am not sure I have it
with me right now.
Mr. Pallone. OK, well, you are aware of it.
Well, what I wanted to ask you is for the communities
around these 12 sites, what is the impact of your limited
funding, if you would?
Mr. Stanislaus. Well, I mean it is delayed cleanup, delayed
recovery, delayed protection, and delayed economic land use
benefits.
Mr. Pallone. OK. And we just heard a few minutes ago from
our colleagues from Missouri how serious the effects of these
cleanup delays can be for the communities. And we also have our
colleagues speaking about the tension over what remedies should
be selected, whether pollution should be removed or capped in
place. Mr. Spiegel, who is going to testify in the third panel
is very familiar with how we have to deal with that in a given
situation.
Often, the community around the site wants the pollution
removed completely. A lot of times, that is a lot more costly
but it also ensures, in a way that institutional controls
cannot, that there will be no future human exposure to these
contaminants from the site.
So, Mr. Stanislaus, can you explain how the limited funding
available for Superfund cleanups affects decisions about how to
clean up these sites, removal versus capping or whatever?
Mr. Stanislaus. Well, I don't think the limited pot of
money has an influence on the remedy. It has an influence on
how many sites we can take on every year.
The remedy selection we go through this process under the
underlying regulations where we look at the opportunity to a
permanent cleanup, the short- and long-term benefits. So, it
all goes purely from a technical legal consideration. And I
think the relevance of cost is really, as you noted, that we
are going to have a backlog of sites, as we do right now.
Mr. Pallone. But isn't it true that in many cases--I don't
know many cases but certainly in some cases--that you do end up
capping the site as sort of an interim measure because the
funds are not necessarily available to do the final cleanup?
Mr. Stanislaus. Well, interim remedies are all done for
technical reasons. Sometimes we do interim remedies to create a
temporary block of exposure, while we examine the long-term
remedy. You know so I wouldn't say that putting in a temporary
measure is driven by the unavailability of cost. And it could
be that the unavailability of funds delay the pace of executing
the cleanup.
Mr. Pallone. OK. Well, I appreciate your comments and I
appreciate the fact that the chairman had this hearing.
And I just hope that we will all work together to do the
most important thing that we can do and that is reinstate the
Superfund tax. I remember when it was expiring, I think
Gingrich was the speaker at the time and President Clinton was
very emphatic that he wanted to continue it and Speaker
Gingrich said no.
I think we can debate tweaks in policies but, without
funding these policies are meaningless. So, we are just going
to see more communities waiting for cleanups and more
communities dissatisfied with the cleanups that are being done.
So, I really think the most important thing is reinstating the
Superfund tax.
I yield back, Mr. Chairman.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentleman from Pennsylvania, Dr. Murphy, for
5 minutes.
Mr. Murphy. Thank you, Mr. Chairman. Thank you for this
hearing.
I was visiting a business in my district a few years ago,
and I went down there with some folks to see this site on their
factory that they have not been able to use, part of a
warehouse that was involved in some Government contract
research using some materials that were radiation-contaminated,
not in high levels but enough that they weren't supposed to go
in them.
It was some things the size of oil drums and they were
filled with concrete and rags and they were materials that
contained radioactive materials at one time. And they weren't
allowed to touch them.
So, we went down there and visited and talked with the Army
Corps of Engineers and EPA and said what would it take. They
said we are going to have to study this, do several studies. I
am planning on lots of things. It is probably going to take
about 11 years and maybe $1 million or more.
And I said what will you do with it at the end? We will
pick it up, we will move it. We will take it to the approved
site and there they will seal it and bury it.
In the meantime, the business couldn't use their building.
So, I said so well what is to stop them from going out and
getting a dump truck, put all the stuff in a dump truck, load
it in, drive it to the same site and just say keep the truck?
And they said, well, we wouldn't recommend that because they
have to go through the studies.
And I said well, wouldn't you do the same? And they said
well, basically, in the end, that is what we are going to do.
So, you can understand the incredible frustration from business
saying why are we going to lose out on using this site and
having this problem, when basically the resolution is the same.
I am sure you can understand the appreciate the frustration
that people have with taking so incredibly long to do
something.
But let me ask you about some timeframes on this. And,
again, thank you for being here. We know this is not easy. And
we know you have got to crack the whip and make some things
work and we want you to do it right but the public doesn't
understand.
So, the nature of these sites being cleaned up under CERCLA
has changed since CERCLA was enacted some 35 years ago. The
sites remaining to be cleaned up today are more complex, like
sediment or mining sites.
So, do you think that the Superfund program needs to change
and adapt to deal with the new challenges associated with these
more complex cleanups? I mean do we need to do something
different?
Mr. Stanislaus. Well, I think we need to specifically call
attention to particular differences, a sediment site and a
mining site. So, for example, a sediment site, the approach of
well let us call it adaptive management, so we want to move
forward with some level of immediate cleanup and learn from
that. Just because the complexity of sediment sites are much
longer, much wider----
Mr. Murphy. So, let me just make sure I understand. So,
does everybody have to follow the same set of rules regardless
of the site, then? Or are you saying a mining, a sediment site,
a hazardous waste material site versus something buried, is it
the same rules everybody has to follow all the time that adds
to some of the timing and burden?
Mr. Stanislaus. Well, you know I would say the same basic
rules. One, you want to fully investigate the site. And then
you want to select a remedy, based on investigation.
But the differences I was referring to is that when you are
in the water, it is far more complex than when you are on land
in terms of doing cleanup. Sediment sites you tend to have a
much wider breadth of area, much more complexity in terms of
science. You have you are in the water, you have a mixture of
sediments that are buried under sometimes decades of sediment
and fill, so a bit more complex.
Mr. Murphy. Let me ask. When it does involve some radiation
materials, does that go under the Nuclear Regulatory Commission
or is that under you?
Mr. Stanislaus. Well, I guess, depending on the site. We
have Superfund sites.
Mr. Murphy. Sure.
Mr. Stanislaus. And then you have radiological materials
and that would be under the Superfund Program.
Mr. Murphy. And do you review and monitor the efficiency of
those who are doing those? I know Mr. Johns from this committee
has an area he talks about in his district, where it has taken
years to do this, and records may indicate a lot of people are
putting in overtime who haven't even put in hours and a massive
amount of waste. So, I just wonder if you audit those things,
too, and say why is it taking so long. Is there something in
the nature of this particular project?
Mr. Stanislaus. Well, I mean what we try to do is, up
front, look at how do we kind of make sure that the process
work is intended and build in efficiency to better extend
possible----
Mr. Murphy. But you understand efficiency is not a word
that we think as associated with this agency.
Mr. Stanislaus. Well, I mean, I think we can agree to
disagree on certain aspects of it. Because what I have done
under my----
Mr. Murphy. Yes, but years, and years, and years is not
efficient. So, let me just ask this.
Mr. Stanislaus. But this is decades of mismanagement.
Mr. Murphy. I appreciate that.
Mr. Stanislaus. Decades of hazardous substances.
Mr. Murphy. Thank you.
Mr. Stanislaus. And getting to understanding the complexity
of the problem, it is technically challenging. I think every
technical expert will conclude that discerning the magnitude of
the problem does take some time.
Mr. Murphy. So, let me ask if we could----
Mr. Stanislaus. That is not to say that efficiencies are
not important.
Mr. Murphy. OK. I would love to be able to meet with you
one-on-one to talk about a couple of the sites----
Mr. Stanislaus. Sure.
Mr. Murphy [continuing]. Review that, and then get some
more in-depth information.
We want you to be empowered to make this efficient and
change the mismanagement over time, whether it is on the site
or whether it is in your agency. And I appreciate that
opportunity.
Thank you, Mr. Chairman.
Mr. Shimkus. The gentleman's time expired.
The Chair now recognizes the gentleman from Oregon, Mr.
Schrader, for 5 minutes.
Mr. Schrader. Thank you, Mr. Chairman. And welcome, Mr.
Stanislaus. Thanks for coming here. It is a tough hearing, but
it is a very important hearing.
As you know, I am primarily concerned about the Portland
Superfund site and the Willamette River back home in Oregon.
And I am concerned a little bit about the data being used, to
be honest with you. This has been in process for a long time. I
appreciate the fact that we are coming to a record of decision,
hopefully soon.
But some reservations still remain. I mean it has been
clear to me that this Superfund site is actually cleaner than
some of the sites that have been cleaned up. You can swim in
the river. No problem. You can eat the native fish out of the
river. No problem. You know I think it is good to do things as
well as possible.
But I would like to see the feasibility study and the
proposed plan to be based on good science. Right now we are
talking about nonnative fish being eaten by local residents
that are fishing in that harbor on an extended basis that is
not really very realistic. So, I am hoping that as headquarters
reviews some of the data, they take that into account. We want
to have an efficient process.
I know in 2012 you tried to look at ways to be innovative
and adaptive to local conditions. And I am not sure I am seeing
that. My colleague from Mississippi talked a little bit about
what role the headquarters has.
To that point, what role do you play in terms making sure
there is consistency across the country in how these standards
are applied so that you don't have one region getting a little
carried away and not paying attention to what has being done
overall around the country so we can allocate the resources
most effectively?
Mr. Stanislaus. Sure. So, the structure we have in place
right now is we have what I would characterize as some up-front
infrastructure. So, we have guidance to promote national
consistency in terms of cleanup, in terms of remedy selection.
And then we have site-specific reviews of proposed cleanup
above a certain monetary amount. So, we have a national body of
experts called the National Remedy Review Board. We have
separately a sediment group that looks at sediment sites from a
national perspective to provide independent technical review
while we are looking at other alternative ways of achieving the
goals. Have the goals been set appropriately?
And then based on that, then I get briefed from various
periods of time in the decisionmaking process.
Mr. Schrader. Now, to that, I guess I am a little concerned
because the only solutions I have seen proposed originally and
even now in the proposed plan is just dredging and capping. I
mean it seems to me there ought to be other alternatives that
we would want to consider.
What role has the State of Oregon played, prior to the
release of the proposed plan? Have you resolved most or all of
the issues that the State has brought up?
Mr. Stanislaus. I believe that is the case. I mean we
believe the State is an important partner in moving this
forward and my understanding is that the proposed plan is
aligned with the State's perspective.
Mr. Schrader. All right. I am not sure I 100 percent agree
but that is OK.
To the point on cost and realistic assumptions and stuff,
how accurate has EPA's sediment site cost estimates been in the
past? I would reference in Tacoma a couple of waterways where
the costs eventually were 3 times and almost 100 percent more
in another case than what was originally estimated. How
accurate do you think the estimates are, in general?
Mr. Stanislaus. Well, I don't have a comprehensive survey
or assessment in front of me but I can get back to you on some
of those sites.
Mr. Schrader. I guess a similar question, then, I would
like to get that information would be on the estimating how
long it takes to clean up a site. The time period for the
Hudson River dredging, how long did you think that was going to
take and how long did it eventually take?
Mr. Stanislaus. Sure, I will get back to you specifically.
I think the Hudson River was actually widely viewed as
successful by many, in terms of the timing and the
accomplishments there. But I will get back to you on the
specific timing.
Mr. Schrader. All right. And again, it raised a question
because I am not sure I am every going to agree with that
assessment.
And the biggest issue from I think, well many issues in the
Portland area, but the proposed plan compared to some of the
original suggestions is exactly the same plan, in terms of
dredging, capping, natural recovery, and yet the costs were,
seemingly, arbitrarily reduced from $1.4 billion down to $750
million with not a lot of change what actually is going on. And
we are very concerned that the local Region 10 is being overly
optimistic in its assumptions about how it is going to take to
do some of this stuff, what affect this new landfill location
closer to the Superfund site itself is going to have.
So, we are very concerned that unrealistic modeling is
going to cause some real serious problems for the folks that
are willing to step up, many that were not there when the
original contamination occurred, in trying to take care of the
place. So, I would hope that before the record of decision you
guys would re-look at that and take that into account.
Mr. Stanislaus. Sure.
Mr. Schrader. With that, I will yield.
Mr. Stanislaus. I would like to speak a little bit about
the change of the cost.
Mr. Schrader. Please.
Mr. Stanislaus. Clearly, it was driven by looking at some
optimization. So, the remedy has, in fact, changed from the
proposal, the extent of excavation versus capping. So, while
the basic elements are the same, the extent of each is what has
driven the cost. And I have personally reviewed it. I have had
my staff personally look at it. So, we are going to continue to
be involved in it and continue to review the comments. I know
there has been a lot of commentary that we are going to take a
look at.
Because we know that various parties, the local government
entities and private sector entities have commented as well as
the local community.
Mr. Schrader. If I could get the Chair's indulgence, just
for quick second, if I may.
Now, I am looking at the proposed plan remedy and the NRB
remedy. The cost of the proposed plan is $750 million.
Originally, NRB, $1.4 billion. Dredge volume 1.9 million cubic
yards in both situations. Construction duration 7 years in both
situations. Active cleanup areas 290 in the proposed plan, 300,
so a mere 10-acre difference there. Natural recovery, 1800
acres in both; 1900 lineal feet riverbank remediation,
virtually the same I both.
I am just not sure I have seen any change in the plan to
justify that reduction in cost. I am just very worried, sir,
just very worried.
And I yield back.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentleman from West Virginia, Mr. McKinley
for 5 minutes.
Mr. McKinley. Thank you, Mr. Chairman. And Mr. Stanislaus,
it is good to see you again.
Mr. Stanislaus. You, too.
Mr. McKinley. Your office has been very good to work with
over the years on some of these matters.
My district and Congressman Johnson, we share that along
the Ohio River, is an old area, old mature industries of
chemical and steel, glass, pottery, that have been ripe over
the years for problems with Superfund. So, I think that in my
career, or my life as an engineer, I have experienced quite a
bit of that about the Superfund sites and the contamination
that occurs with that.
Under the Superfund site, there is a concern that, and
maybe it is valid, is that when a Superfund site is designated
as a Superfund site, there becomes a stigma on that area. Would
you not agree that if you have got land, 100 acres or so that
has been designated a Superfund site, that would cause you to
be concerned about locating a school next door to it?
Mr. Stanislaus. Well, I think any contaminated site creates
a concern. We have done studies and I have independent studies
that show that once a site is cleaned up----
Mr. McKinley. No, no, I didn't say that. I say whether it
is designated. Once it is designated a site, because I am going
to lead into it----
Mr. Stanislaus. OK.
Mr. McKinley [continuing]. Is that I think it has a stigma
and an effect on other development around it.
And unfortunately, there was an article that came out
earlier this year--I would like you to respond it to it--by a
conservative group, the Daily Caller. But Ethan Barton came out
in April of this past year and through his investigation, found
out, and I think it follows a little bit about what some of the
other folks have been talking about, that these sites that get
designated as Superfund may not get any attention for years.
Let me give you some statistics that show up in this. That
there are two-thirds of the sites that have been designated,
nothing has been done with it. So, 771 of the 800 sites have
been waiting 5 years for something to be done with it; 154 of
those designated sites have been waiting 30 years before work
has even begun on it. And it is a stigma on that community and
people are concerned about what their water quality, any other
air quality, anything else that comes with it. And then they
found that once it gets designated in cleanup, sometimes,
according to that, that it might take 30 years, 13 years on
average to clean up a Superfund site. Look 54 of them
apparently took 20 years, 20 years to clean up and all that
while the water was contaminated or the air was contaminated
with it, the soil contaminated with it. The community was
stigmatized with it by having this.
So, Mr. Stanislaus, what can we do to address this problem?
Because once we designate this and we put this red mark on a
community or a site, why should we be waiting 20 years before
something happens with it or 54 years before something begins?
Mr. Stanislaus. So----
Mr. McKinley. I am sorry. I don't mean to blind side you
on that, but on Barton's article, have you seen this article at
all?
Mr. Stanislaus. I have not. I will take a look at it.
Mr. McKinley. If you would, take a look. I would like to
hear back from you on that.
So, what is holding it up?
Mr. Stanislaus. Well, I would say that the original stigma
is the mismanagement of site that comes from decades of work.
Mr. McKinley. I understand that, but we can't go back and
redo that. But once you have designated it, I want you to do
something.
Mr. Stanislaus. So 68 percent of sites on the National
Priorities List have what is called construction completion. So
that means all of the construction of the cleanup remedy is in
place. Now, sometimes, for example, groundwater, groundwater
does take decades but redevelopment can happen and that does
happen once you have construction completion.
Mr. McKinley. Completion but you just heard what I said.
Some of these sites have taken 54 years, on average it is 13. I
have seen some success and we have had it in the Weirton area,
the Business Development Corporation with Pat Ford and what he
has done out there. They took a site that had been abandoned.
It was a contaminated site and now they have got people working
on it. It is functioning. So, my hat is off to Pat Ford and the
whole group up there but they have got to get it finished, not
Pat Ford but on all these others.
If we have all these sites waiting 20 years, 13 on average,
that is too long. I want to know what does it take to get it
done quicker?
Mr. Stanislaus. Well, I think ongoing diligence of the
management of those sites, I completely agree. However, I don't
think 13 years is accurate from this perspective.
So, you can have productive activity at a site while the
long-term cleanup is going on. There are numerous sites where
companies have site on a Superfund site where groundwater
cleanup or other kind of cleanup is continuing.
Mr. McKinley. I have run out of time on that but again,
could you please get back to me and explain your perspective on
Barton's article?
Mr. Stanislaus. Sure.
Mr. McKinley. Thank you, I yield back.
Mr. Shimkus. The gentleman's time has expired.
The Chair now recognizes the gentleman from California, Mr.
McInerney, for 5 minutes.
Mr. McInerney. Well, I thank the Chair for holding this
hearing. I just wanted to respond to Mr. McKinley. If there is
no funds, then we are not going to be able to get this done.
And I think Mr. Gingrich did a good job of reducing funds. So,
we need to restore those funds if we want to get onto those
sites.
Mr. Shimkus. If the gentleman will yield, we could start
going down this route and talk about majorities and I think we
best just move forwards.
Mr. McInerney. Yes, thank you, Mr. Chairman, for that
bipartisan comment.
Mr. Stanislaus, much of the debate around Superfund sites
now revolves around whether pollution should be removed or
controlled on site using land restrictions or other
institutional controls. In most every site now, is that a
discussion? Is that a debate?
Mr. Stanislaus. Well, I think that, broadly, the extent of
removal of contaminants, whether you can treat contaminants on-
site or a mixture of that and leaving things in place, at the
end of the day, we are driven on preventing ongoing exposure.
So, it can happen through a mixture of those.
Mr. McInerney. Well, as an engineer, I understand what it
means for pollution at a site to be addressed through
engineering controls, on the one hand, or institutional
controls on the other hand. Institutional controls aren't as
clear as engineering controls. Can you explain what the
difference between those two is?
Mr. Stanislaus. Sure. Engineering control is really, for
example, a concrete barrier. Institutional control would be,
basically, a legal prohibition of doing certain activities. For
example, a legal prohibition of digging beyond this kind of a
cap for example.
I do agree with you that making sure that institutional
controls are effective is one of the things that I have really
tried to enforce since I have been in this job, really making
sure that there is ongoing consultation with the local
government to make sure that those kinds of institutional
controls are actually adhered to and effective and/or are
enforced.
Mr. McInerney. Do you think more clarity is needed either
in revisions to the National Contingency Plan or through
guidance on making these choices?
Mr. Stanislaus. Yes, I am not sure necessarily an amendment
to the National Contingency Plan is necessary. I mean just, I
am trying to remember, 3 or 4 years ago we issued a guidance on
the whole issue of institutional controls, making sure it is a
hard look at whether it is effective and implemental, this
consultation with the local government. So, I think rigor to
the use of that in the appropriate circumstance is really
important.
Mr. McInerney. Thank you. So, back to the funding issue.
How many employees do you have that work on the Superfund sites
issues?
Mr. Stanislaus. Let me get back to you with a hard number
on that.
Mr. McInerney. OK, are we talking thousands or are we
talking tens?
Mr. Stanislaus. Well, I mean it is in the hundreds but I
don't want to give a fixed number. Let me get back to on this
one.
Mr. McInerney. All right. How many Superfund site are
there?
Mr. Stanislaus. Well, on the National Priorities List, we
have a about 1700 on the National Priorities List. But we get
sites to our attention on a regular basis. These are just the
real-time remedial sites. Every day we have to immediate
response because of drums left behind, spills happening. So, it
is hundreds of sites that we kind of manage on a regular basis.
Mr. McInerney. Well, as my good friend Mr. McKinley said,
it takes 13 years on average, and I will take your word on
that. That sounds about right. How many new Superfund sites do
we get per year? I mean are we keeping ahead of it or are we
falling behind on the number of Superfund sites?
Mr. Stanislaus. Well you know we, as was noted earlier, we
have a backlog of about I think 12 to 15 sites that we need
funding for by the end of this fiscal year. But then in the
next fiscal year, that could probably be projected to grow to
20 to 25.
You know the function of the National Priorities List is to
identify the highest priority risk sites. And ideally, we have
a responsible party step up and address that. That is not
always the case because we have bankruptcy or inability or
unwillingness that the Federal Government has to step in. So,
there is a delta, there is a gap.
Mr. McInerney. Well, my district has Superfund sites and I
was just wondering what you think the cost of the communities
and the people living in the area is. I mean, Mr. McKinley
brought this up. It is a black mark on the community. Property
values are affected and this can go on for generations,
basically. So, how can we mitigate these effects on people's
lives?
Mr. Stanislaus. Yes. Well, yes, I completely agree that
delayed cleanup means delayed public health benefits and
delayed economic benefits. Within the constraints I have, I am
always given a certain flat amount in appropriations and we
have this prioritization process based on risk. And we take on
those sites based on the limited funding.
Mr. McInerney. Thank you, Mr. Chairman.
Mr. Shimkus. The gentleman's time has expired.
The Chair now recognizes the gentleman from Ohio, Mr.
Johnson, for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman. And Mr. Stanislaus,
thanks for joining us today.
Are you familiar with the Contaminated Sediment Technical
Advisory Group and the National Remedy Review Board? And if so,
could you please explain what those entities are and how they
fit into the remedial decisionmaking process?
Mr. Stanislaus. Sure. So, these are two national group of
EPA experts to provide independent advice on cleanups. So, the
National Remedy Review Board looks at sites, at this moment,
$50,000 or more, and have independent technical review, peer
review, looking at the nature and extent of investigation, the
potential cleanup options available to them.
The Sediment Group looks at, obviously, sediment sites,
with a similar function.
Mr. Johnson. OK. Well, what is EPA Headquarters doing to
ensure that technical recommendations from the National Remedy
Review Board and the Contaminated Sediment Technical Advisory
Group are being followed and incorporated into remedy
decisions?
Mr. Stanislaus. Sure. So, I mean directly we have
headquarters presence on both of those bodies. And then the
technical comments are transmitted to the region itself.
But then once you come to a proposed plan, we review the
proposed plan, in terms of have relevant aspects of those
comments been incorporated. And just more broadly, have the
pertinent guidance and regulations been adhered to in the
selection of the proposed remedy?
Mr. Johnson. Are there checks and balances? Specifically,
the Review Board or the Advisory Group recommends this. Was
this included the particular proposal? How are you ensuring
that the recommendations are being followed and incorporated?
I mean I hear what you say about how the process works but
I didn't hear the part about how are you making sure that the
recommendations are being followed.
Mr. Stanislaus. Well, I would say it is in the mix of
everything else we review. So, the Remedy Review Board would
transmit comments technically in nature.
Mr. Johnson. Is there any feedback to the Advisory Group or
the Review Board on where their recommendations stand?
Mr. Stanislaus. Yes, I would say, typically, there is back
and forth after the issuance of the recommendation. Sometimes
the recommendations are----
Mr. Johnson. I am sorry. I guess what I am looking for, is
there a scorecard? I mean from my military background, when the
IG comes in and the IG finds these kinds of issues in your
Operational Readiness Inspection, there is a report that goes
back from the organization to the IG to say this is how we have
addressed your recommendations or the requirements to mitigate
any short falls. Is there any kind of score card that ensures
that the recommendations from those bodies are being adhered
to?
Mr. Stanislaus. Well, I would say this body does not really
function as an IG. It really functions as a science----
Mr. Johnson. I know that. But the recommendations are
supposed to be adhered to, right?
Mr. Stanislaus. Yes. Yes, and so, again, some of those
comments are can you develop more data in this regard or
conduct more sampling in this area before I make the remedy.
So, we have reviewed that plus broader issues, in terms of
adherence to national guidance and regs.
Mr. Johnson. Well, obviously, you can tell from my
questions, that the committee is concerned with EPA regions'
compliance with both the National Contingency Plan and the
sediment guidance at sediment sites.
So, can you tell me the requirements for the regions to
document how they are following the sediment guidance?
Mr. Stanislaus. Well, the sediment guidance lays out almost
like the how in terms of how should sediment sites be
investigated and remedy selected. So, ultimately, that just
gets imbedded in the proposed plan. And then during the
proposed plan, then we solicit input from both potential
responsible parties and the public both in terms of have we
adhered to the guidance or other aspects of the proposed
remedy.
Mr. Johnson. OK, I am not sure I see the clear connection,
but my time has run out.
Mr. Chairman, I yield back.
Mr. Shimkus. The gentleman yields back his time.
The Chair now recognizes the gentleman from Texas, Mr.
Green, for 5 minutes.
Mr. Green. Thank you, Mr. Chairman. And thank you, Mr.
Stanislaus, for joining us today and to discuss ways we can
improve the Superfund and protect local communities from toxic
sites.
I know you heard from a lot of Members on their particular
problems. And in our district in East Harris County, Texas, we
are concerned about the San Jacinto River Waste Pits, a toxic
site that was polluted with dioxin, a cancer-creating chemical,
into the river in Galveston Bay for decades from the 1960s.
This site was added as a Superfund site in 2008 at both my
urging and Congressman Ted Poe. And nearly a decade later,
families in East Harris County are still waiting for the final
decision from the EPA and for some piece of mind that the site
will be permanently cleaned up.
Six months ago, a barge pierced the temporary covering over
the site and that polluted this historic river even more. We do
have a responsible party who is responsible for that cleanup.
Last week, the Harris County Health Department sent letters
to residents near the waste pits advising households not to
drink their tap water, due to the possible dioxins
contaminating local private wells. This area is an
unincorporated area, so people have private wells and there are
some water districts. It is not in the City of Houston or the
City of Baytown. It is between those two cities.
So, Mr. Stanislaus, what is EPA doing in response to the
county health department's advisement about the possible
pollution of ground water that these people drink?
Mr. Stanislaus. Yes, so we have worked with the county and
local government officials in terms of the conduct of the
sampling. In terms of the advisory itself, that is really the
province of the local government.
In terms of the long-term remedy, we expect by the end of
the summer to have a proposed remedy to have a permanent
solution to that situation.
Mr. Green. Well, I know the local government doesn't have
responsibility for groundwater, though. These people have
private wells on their own property and even businesses. But if
it is being polluted by dioxin from this facility, it is
actually the responsible party who is supposed to clean that
up. Is the EPA encouraging them to be able to provide bottled
water? I don't know what you can do if the groundwater is
polluted except remove all that dioxin that is there. And I
know in that particular region, we have had EPA clean up a
number of our dumping pits that were there before EPA was even
created and they have been able to move that soil. Although
this is actually in the water, so it is going to be even more
expensive to remove that as much as possible from that site.
Because to this day, it continues to pollute the San Jacinto
River.
What time line for the final decision? Did you say a final
decision may be by October?
Mr. Stanislaus. I think the plan is to present a proposed
plan later this summer. And they are going to have a series of
public hearings, public comment period. Based on that,
typically anywhere from 60 to 90 days. And then after that
time, we would incorporate the comments and make a final
decision.
Mr. Green. OK. I, along with our Harris County Attorneys'
Office and the local community organizations such as the
Galveston Bay Foundation and San Jacinto River Coalition, we
have called for the EPA to fully dredge and remove the toxins
from the San Jacinto River. And local residents believe
strongly that only the full removal of dioxin and toxic
chemicals in the Waste Pits will permanently protect their
families.
This is a growing area of Harris County but it is also an
industrial area, historically. So, we are concerned that EPA,
which used a cheaper option that would keep the dioxins in
place because a stone cap that may erode over time and fail
during a major hurricane. In 2008, Hurricane Ike actually went
over that facility there and the San Jacinto River off of
Interstate 10.
What is the EPA doing to ensure the community's wishes are
being fully considered?
Mr. Stanislaus. Well, that is definitely something part of
our current considerations and part of what we would engage the
community in the proposed remedy.
So, typically, we would present a primary or sometimes
alternative remedies, with a mixture of complete removal, part
removal, part and in place and walk through the regulatory
criteria for each of them. And we will have a public meeting
based on that.
Mr. Green. EPA had a hearing like that back in February and
the community was united on not having a short-term solution.
The temporary cap is not working. And even if you put a harder
cap on there, that area is growing with barge traffic. And
since it is right on the San Jacinto River, where there is a
great deal of barge traffic because of the energy industry,
that is why a permanent solution is the only solution.
And I appreciate you being here but we are going to keep
trying to make sure that that site, like the other sites in our
East Harris County who have been cleaned up, we want it removed
and permanently dealt with so the people there can feel
comfortable with what they are getting out of their
groundwater.
Mr. Chairman, I know I am over time but, as you heard from
other Members, these are really important issues in our
district. And I appreciate you being there. We will continue to
work with EPA to see if we can get a permanent solution.
Mr. Shimkus. The gentleman's time has expired.
The Chair now recognizes the gentleman from Texas, Mr.
Flores, for 5 minutes.
Mr. Flores. Thank you, Mr. Chairman. Thank you, Mr.
Stanislaus, for joining us today.
My first question is this. The States play an important
role in the Superfund cleanup process. Do you feel that the
current role of the States in the process is appropriate?
Mr. Stanislaus. Well, again, we make sure we view States as
a partner through this whole process. So, we do some up-front
sharing of resources, have the State lead on some
investigation, consult the States on before we list a proposed
site. But we also recognize the States have raised this issue
of whether we are appropriately and effectively incorporating
their requirements.
We have stood up this process with the States. I think you
are going to hear later from a witness. I think there is more
we can do, frankly.
Mr. Flores. Well, let us take that one step deeper. When
CERCLA was enacted, very few States had any sort of a cleanup
program under the Superfund process. And now, practically,
every State has its own cleanup program. Do you agree now that
we have--since the States have better infrastructure to deal
with this, should more sites be cleaned up under State
programs, where the States take the lead, rather than
Superfund?
Mr. Stanislaus. Well, I think it is a shared
responsibility. And I think we engage the States. There are
certain sites that States want to take the lead and that is
absolutely appropriate. A lot of times the States turn to us,
given the complexity and the magnitude of the site. Sometimes
it is an imminent situation.
So, I don't disagree with you that where the States want to
take the lead, we absolutely would support that.
Mr. Flores. OK. And the next question is this. What steps
is the EPA taking to ensure that any new financial assistance
program that is developed under CERCLA Section 180(b) reflects
real world scenarios and is not exaggerating the risk and cost
of future liability?
Mr. Stanislaus. Sure. I mean we are in the process of doing
that right now. We have engaged both industry, as well as the
States, particularly the largest States that have significant
mining, operations of financial assurance and we want to make
sure that neither is there any duplication or preemption. So
and our intention is to do that.
Mr. Flores. OK. Mr. Chairman, that is all the questions I
have and I yield the balance of my time to somebody that needs
it or I can yield back to you.
Mr. Shimkus. The gentleman yields back his time.
The Chair, seeing no other Members present, would like to
thank you, Mathy, for coming. Again, you have been here
numerous times.
We would ask that you respond to some of the colleagues who
have asked specific questions on more details or maybe one-on-
one conversations on specific sites. We know it is a difficult
process. We all think we can do better and that is what we will
explore in the years to come in the next Congress. So, what we
might be able to do to move the ball down the road a little bit
better.
So, with that, we would like to dismiss you and we will ask
the next panel to take their seats.
Mr. Stanislaus. OK, thank you.
Mr. Shimkus. So, we have got people coming and going. We
will let them leave the committee room and we will get started.
So, we want to welcome the last panel for today. We want to
welcome you for your presence and for sitting in all morning. I
think it is very instructive and we appreciate your expertise.
We will go for opening statements from the left to the
right. I have got the introductions here. So, we will start
with Ms. Brittain, who is in Environmental Programs Manager,
Site Remediation Section, Land Protection Division of the
Oklahoma of Department of Environmental Quality on behalf of
our friends at ASTSWMO. So, welcome.
You are recognized for 5 minutes. Your full statement is in
the record.
STATEMENTS OF AMY BRITTAIN, ENVIRONMENTAL PROGRAMS MANAGER,
SITE REMEDIATION SECTION, LAND PROTECTION DIVISION, OKLAHOMA
DEPARTMENT OF ENVIRONMENTAL QUALITY, ON BEHALF OF THE
ASSOCIATION OF STATE AND TERRITORIAL SOLID WASTE MANAGEMENT
OFFICIALS; MARIANNE LAMONT HORINKO, PRESIDENT, THE HORINKO
GROUP; STEVEN NADEAU, PARTNER, ENVIRONMENTAL PRACTICE GROUP,
HONIGMAN MILLER SCHWARTZ AND COHN, LLP; AND ROBERT SPIEGEL,
EXECUTIVE DIRECTOR, EDISON WETLANDS ASSOCIATION
STATEMENT OF AMY BRITTAIN
Ms. Brittain. Good morning, Chairman Shimkus, Ranking
Member Tonko, and members of the subcommittee. And I thank you
for the opportunity to speak at today's hearing.
As you said, I manage the Superfund Program for the State
of Oklahoma but I am here on behalf of the Association of State
and Territorial Solid Waste Management Officials, or ASTSWMO.
And ASTSWMO is an association representing the waste management
and cleanup programs of 50 States, five territories, and the
District of Columbia.
States play a key role in the Superfund process. We work
closely with EPA to ensure that cleanup of Superfund sites in
our States are appropriate, efficient, and cost-effective.
Additionally, the Association works to address inconsistencies
in how the program is managed from EPA region to EPA region.
An ongoing concern for our State members is a process EPA
follows to identify State regulations as potential applicable
or relevant and appropriate requirements or ARARs. States
across the country have raised concerns to EPA including
inconsistencies in ARAR determination from one site to another,
lack of written documentation on the rationale used to
determine ARARs, and lack of early opportunities for the States
to have a say in the ARAR list of a site.
Over this past year, EPA has invited representatives from
States to participate as members of a workgroup to develop
tools to improve the ARAR identification process. And ASTSWMO
appreciates that invitation but we suggest that the next step
is for EPA to continue to engage States and to have an open
direct dialogue with States on policy decisions on whether or
not a State regulation is an ARAR. Superfund sites should be
cleaned up to the same standard as other cleanup sites in our
States under our State programs.
Another growing concern for States is the financial burden
that we face with operation and maintenance cost, especially on
complex, long-term remedies such as groundwater treatment
systems.
Now that Superfund has been around for 35 years, a lot of
sites are now in this operation and maintenance stage and
States are obligated to pay 100 percent of operation
maintenance costs on these sites. States are working with EPA
to find ways to optimize remedies. EPA has implemented a remedy
optimization program to try to review sites and look for
potential optimizations. And States encourage EPA to perform
these optimizations as early as possible so that cost savings
and efficiencies are realized before the financial burden falls
entirely to the States.
Another issues that ASTSWMO is working on are Superfund
State Contracts. A Superfund State Contract is a binding
agreement between the EPA and an individual State that defines
the terms and conditions for both parties to share remedial
cost at a specific site. States have concerns with the lack of
detailed line item documentation on what EPA has spent on a
site remedy. States get very little information on how the
cleanup costs have been spent but we are expected to pay for 10
or 50 percent of the cost incurred.
Another issue is the lack of timeliness for final financial
reconciliation of these contracts. Many existing contracts have
never been reconciled.
Additionally, States have experienced lack of adherence to
the contract requirements by EPA.
With input from States, EPA revised the model clauses for
Superfund State Contracts in late 2015. The new model
provisions address several concerns of the State. However, many
existing contracts will continue to cause problems for States.
Superfund is a very important program that provides a
mechanism for cleaning up properties that pose a threat to
human health and the environment. State participation in this
program is critical to success. States are important
stakeholders because of the financial obligations of MATCH and
long-term operation and maintenance. As co-regulators, States
want to be real and meaningful partners in this process and
will continue to work with EPA to address challenges.
Thank you for the opportunity to testify today.
[The prepared statement of Ms. Brittain follows:]
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Mr. Shimkus. Thank you very much and we are happy to have
you here.
And now I would like to turn to Marianne Horinko, President
of the Horinko Group. And for the record, we know that you
served in the EPA for many, many years and bring a wealth of
experience. We are glad to have you here. You are recognized
for 5 minutes.
STATEMENT OF MARIANNE LAMONT HORINKO
Ms. Horinko. Thank you, Chairman Shimkus, Ranking Member
Tonko, members of the panel. This is an important hearing and I
appreciate your raising public attention to this critical
environmental program. I will be the first to say, given my
years in the program, that it has accomplished a great deal in
35 years--controlled exposure at over 1,400 sites, controlled
groundwater migration at over 1,100 sites, and most
importantly, leveraged billions of dollars in private party
investment, not just responsible parties, but developers,
lenders, others who really want to clean up these properties
and get them back into productive use.
At the same time, as the chairman said, it is not 1980.
Much has changed. And so I am going to recommend both some
statutory, programmatic, and policy topics for oversight for
the committee.
Statutorily, the number one change is the role of States.
As we have said, in 1908, perhaps only New Jersey had a
program. Now, virtually every State, and often, many urban
cities, such as New York City, have their own cleanup programs.
So, capacity has increased enormously and yet, Superfund still
acts as though it were in a vacuum. And certainly, there are
ways to sort of patchwork solutions but I think a more
fundamental reform is needed and that the committee should
consider actually providing for a statutory change that will
allow for a formal State authorization to run the Superfund
program. All of the other Federal cleanup statutes, RCRA, the
Underground Tank Program, the Brownfields Program have a
delegation for States. The States are up and running; they are
very capable. So, I think it is time to contemplate a statutory
change to allow States to formally run the Superfund Program.
Secondly, I think it is important to take a hard look at
the National Priorities List. Why are we still listing sites
today? Shouldn't the RCRA program have prevented operating
industries from mismanaging chemicals? I recommend that the
Government Accountability Office take a very careful look at
the composition of sites coming onto the NPL in the past 5 to
10 years and see are these sites all really Federal programs.
Are there State and local programs that can remediate these
sites in a more expeditious manner? So, I would take a hard
look at the composition of the NPL.
Then I would also the committee to do as it is doing today
for some accountability. Why have some of these sites been on
the NPL for 30, 35 years? In the early days of the program, it
was very easy to put sites on the NPL. People thought, wow,
this means a lot of money, so States were listing sites at the
rate of 80 to 100 a year. Well, maybe not all those sites would
qualify as Superfund sites using today's ranking. So, let's
take a hard look at why some of these sites haven't aged out of
the system and also ask other accountability questions and sort
of get the agency really thinking about deadlines and
delivering results.
Programmatic changes--oh, one last statutory change. And
that is EPA needs the ability to manage its resources more
efficiently. Right now, they are constrained from moving full-
time equivalence people from one region to another. The sites
are more mature in some regions than other, providing some
congressional fix that would allow EPA to manage its resources
and deploy them more efficiently would be very helpful.
On the policy side, I think the National Contingency Plan
is ripe for overhaul, in terms of removing a lot of the process
that bogs it down. If you look at the remedial program and the
emergency removal program, which only EPA would create a
program that is akin to picking someone up on the street having
a heart attack and taking them to the hospital of removal. But
it is a program that works. It is very effective. Similarly,
the Brownfields Program, very flexible, very effective.
So, let's look at what works and incorporate those changes
into the National Contingency Plan so sites can get cleaned up
and not get bogged down in miles and miles of paperwork.
The other thing that I would recommend is looking at the
Six Sigma or LEAN process. Some of the EPA regions are piloting
this in the RCRA Corrective Action Program and it has created a
different culture, a culture of accountability, a culture of
deadlines, a culture of daily looking at how can we fix things
and meet our expectations for our customer, the community. So,
take a look at that LEAN process and see how that can be
implemented in Superfund.
And lastly, cultural changes. Cultural changes are perhaps
the most challenging to implement because it requires people to
think differently. Often people don't embrace change but I
think we need to try.
So, I recommend the following two cultural evolutions. The
first one concerns technology. It has dramatically transformed
our lives in many ways and transforming institutional controls
is one area where it is taking place now. EPA's Mid-Atlantic
Region is piloting a tool that will create a GPS-enabled app
that you can use on you smart phone and take anywhere in the
country and lat/long a site's property boundaries and then also
tell you where is the plume. Is it PCE? Is it dioxin? Is it
mercury? Where is it going? What rate of speed is it going?
Essentially, this tool could create a whole army of citizen
enforcers of the environmental law, which is daunting but also
very promising.
So, take a hard look at technology and see how that can
help us use our resources.
The other thing I would say is education. EPA has lost many
key employees to retirement. It is hiring to make up backlog.
These new risk managers need to learn what we have learned in
35 years and how not to repeat the mistakes of the past. So,
doing some very robust education, I think, would be much
needed.
Lastly, partnerships. I am delighted that the Edison
Wildlife Group is here because that represents the kind of
partnership that really I think bring promise to the agency. We
have learned that we don't have enough time or resources in the
public or private sector. So, partnering with NGOs, educational
institutions to do things like Region VII is doing where they
put a pollinator garden on a former recycling Superfund site I
think is very promising.
So, again, I thank the committee for its attention and I
commend you all for your leadership and I appreciate your time.
[The prepared statement of Ms. Horinko follows:]
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Mr. Shimkus. Thank you. The Chair now recognizes Steven
Nadeau, a partner at Honigman. You are recognized for 5
minutes. Your full statement is in the record.
STATEMENT OF STEVEN C. NADEAU
Mr. Nadeau. Thank you. Thank you, Chairman Shimkus, Ranking
Member Tonko, and members of the committee. Thank you for
holding this important oversight hearing on the implementation
of CERCLA, commonly known as Superfund.
My name is Steven Nadeau, and I am an environmental
attorney with more than 3 decades of experience with
potentially responsible parties at complex Superfund sites
across the country and I have served as the Coordinating
Director for the Sediment Management Working Group since 1998.
I spent years working with industry and the EPA in
developing site remedies for complex Superfund sites. I am
delighted to be here today to share my experience with
the Superfund program. However, before I do I must say that
these views are my own and do not represent the views of any
particular client or organization.
Congress enacted CERCLA in response to a growing desire for
the Federal Government to ensure the cleanup of the Nation's
most contaminated sites and to protect the public from
potential harm. For over 30 years, the EPA has successfully
identified and remediated hundreds of Superfund sites,
typically old abandoned landfills or industrial properties.
However, the typical Superfund profile has changed from those
abandoned landfills and industrial properties to complex mining
and river sediment sites, often referred to as mega sites.
These mega sites are far more complicated, expensive, and time
consuming that traditional Superfund sites.
Mega sites, such as those involving former mining areas,
where contaminated sediments are widespread and a costly
problem for this country. According to the 2004 EPA Office of
Inspector General, evaluation of mega sites, hard rock mining
sites nationwide have the potential to cost between $7 billion
and $24 billion. Mining sites present unique challenges to the
Superfund Program. Uncertainties about party's liability, their
long-term viability and efficiency, and the effectiveness of
existing hard rock mining remedies make the challenges
insurmountable.
Similarly, contaminated sediments in our Nation's
waterways, which are the result of hundreds of years of urban
and industrial activity from hundreds and even thousands of
sources present unique challenges to the Superfund Program.
These sites represent the future of the Superfund Program.
And as you can see in a map, there it is.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The issue of contaminated sediment is not unique to one
region. Over a hundred potential sites are listed across the
country in that time frame and many more have been added since.
These sites present the challenge of addressing the health and
environmental impacts of ongoing urban industrial use, rather
than cleaning up discrete releases from specific individual
entities, as is in the case of the older, traditional Superfund
sites.
For example, large-scale contaminated sediment remediation
projects on urban rivers, like the Willamette River in Oregon,
can often involve dozens of PRPs, cost over a billion dollars,
and drag on for decades.
To assist EPA regions and managers in making scientifically
sound risk management decisions at these sites, EPA issued two
critical policy guidance documents, Principles for Managing
Contaminated Sediment Risk at Hazardous Waste Sites and the EPA
Sediment Guidance.
The EPA Sediment Guidance was meticulously developed by EPA
over a 5-year period and was the subject of internal review,
comments from EPA regions and extensive public comments. The
substance of the sediment guidance presents a comprehensive
technically sound policy roadmap for addressing complexities
associated with contaminated sediments. However, as I describe
in greater detail in my written testimony, the EPA's disregard
of the sediment guidance and the failure to follow the National
Contingency Plan's requirements on, for example, short- and
long-term effectiveness, implementability and cost-
effectiveness, particularly at the regional level, are severely
limiting the effectiveness of the Superfund Program at sediment
sites, delaying the remediation of impacted sites and delaying
the redevelopment of our Nation's waterways.
For example, some EPA regions have ignored the sediment
guidance risk reduction focus in its recommendation to use the
phased approach and instead favor bank-to-bank dredging
remedies at mega sites. This can lead to more harm than good
and delay the recovery of the water body for decades due to the
releases of contaminants from the sediments themselves during
dredging.
The EPA's failure to follow the NCP and he sediment
guidance is causing lengthy and costly delays. The failure to
adequately characterize and control upstream and adjacent
contamination sources, which then can result in
recontamination, implementability issues, such as significant
challenges associated with rail and highway transport, aging
super infrastructure and disposal of millions of cubic yards,
significant long-term impacts on communities trying to use a
water body when dredging occurs 24 hours a day for decades.
Thank you once again for the opportunity to testify here
today. I believe that appropriate application of CERCLA's NCP
provisions and the sediment guidance and the recommendations
outlined in my written testimony, of which there are seven,
will help make remedy selection decisions at the EPA faster,
fairer, and more efficient. Implementing these recommendations
will help protect human health and the environment, ensure
cost-effectiveness, and provide for efficient use of our
natural resources and save taxpayer dollars.
I look forward to answering any questions you may have.
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Mr. Shimkus. Thank you very much.
And finally, last but not least, Robert Spiegel, Executive
Director of the Edison Wetlands Association. Again, you are
recognized for 5 minutes. Your full statement is in the record.
STATEMENT OF ROBERT SPIEGEL
Mr. Spiegel. Sure. And unlike the rest of the speakers
here, I am not going to try to get my 5 minutes and speak
everything I have on my testimony because it is entered into
the record. I want to really just go over a few things, based
on what I have heard as well as what other people have said.
My name is Bob Spiegel. I am the executive director of a
nonprofit called the Edison Wetlands Association. And, unlike
many of the people that have spoken here, actually I am not a
lawyer. I am not an environmental engineer. What I started out
as was a pastry chef. I went to school for cooking, and I ended
up taking a shortcut, or I should say a long cut, when I saw
the condition of the environment in New Jersey and when I saw
just how bad things had gotten in our State. New Jersey has got
the distinction of having the highest population density. It
also has got the highest cancer rate: 1 in 3 in the State, and
that is something that is unacceptable.
And many of the people that spoke earlier talked about
illness in communities throughout the State. And it just
appears to me that you shouldn't have to die, your family
shouldn't have to get sick just because you picked the wrong
ZIP Code to live in. And I think that it is beholden up this
committee and also all our elected representatives, both in the
House and the Senate and our President to reauthorize Superfund
so that we have the funds needed to clean these sites up once
and for all.
We work with communities all throughout New Jersey. We work
with the Ramapough Lunaape, who were featured in an HBO
documentary, Mann v. Ford. We have worked with communities
large and small. And one of the things that we saw was when
there was a robust Superfund program, the cleanups got done.
They got done quickly. They were done comprehensively.
As a matter of fact, we got the last check from the
Superfund Trust Fund to clean up the chemical insecticide
Superfund site. It was a site that had green rabbits on it as a
result of the chemicals. And Congressman Pallone had been to
the site many times and met some of the people that lived
around the site. It was next to a roll bakery that made rolls
for McDonald's in the Tri-State area. And I went and testified
for the widows of those people that worked at the roll bakery.
And because of the amount of attention, we were able to
actually get a lot of media attention. And Molly Ivins actually
put a chapter in her book, Bushwhacked dedicated to the green
rabbits and the yellow streams. Low and behold, Christy Whitman
shows up with an oversized novelty check and the site now is
clean.
It cost almost $50 million and now the site is actually a
dog park. We actually used Green Acres money, the first time in
the State of New Jersey, and bought the property and converted
it into a dog park and now it is a community asset. It is
something that brings the community together; something that
once made Agent Orange and other defoliants that killed
servicemen in Vietnam is now a clean community asset. Why?
Because we had money in the Superfund Trust Fund.
The polluters that caused this problem need to be the ones
that pay for it. Now, there is other recommendations that I
could talk about that would make the program better, like using
the removal program and the remedial program, which I think Ms.
Horinko had talked about, and we call it ``remove-ial.'' It is
kind of a hybrid using the removal program to fast track the
cleanup investigation work which was done at Raritan Bay Slag
and get it up to the point where the cleanup work can start.
So, I would echo that recommendation that you look at the
removal program and the remedial program closer and let them do
the work that they do well and then, that way, we could
expedite cleanups.
Another thing that we want to see is there could be more
available funding, if only the EPA and the legislators would
pierce the corporate veil of the companies that are responsible
for this pollution. More times than not, we see companies like
Ford Motor Company, and Pfizer, and companies that have the
wherewithal to lobby make decisions that get done in Washington
that affect the cleanups. They get lower cleanup standards. The
cleanups are delayed. And as a result, children get sick and
die.
One of the last things I just wanted to talk about is that
when you look at the original--oh, the one thing that we didn't
talk about was the fact that principle threat waste is a major
component and it used to be of all Superfund cleanups. They
used to have cleanups that used to deal with principal threat
waste, which meant they took out the highest threat at a site
and then sometimes the site would be capped, if they couldn't
get all the waste out, but the major threats were removed. That
is no longer done.
Principal threat waste removal at sites is done less and
less frequently and I would like to see that trend reversed and
the only way to do that is with proper funding.
Just one quick comment. Congressman Eckhardt, during 1979,
at his waste disposal hearings, in the survey, in the final
report, show that the chemical industry used our entire country
as their own private chemical dump. And there was no town that
was exempt from industry's practices. And the Superfund sites
that they created are listed in that report. You can look at
them. In every town in every State in the United States in that
final report that was done in 1979, it lists every single State
and every single community was a dumping ground. And that is
why we have so many Superfund sites today because no one ever
thought the magnitude of the problem that existed actually
turned out to be the case.
Thank you for letting me come and testify. And I am here to
answer questions you may have.
[The prepared statement of Mr. Siegel follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you very much. We appreciate your
attendance and your testimony. So, I will start with my 5
minutes for opening questions.
First of all, just really for Ms. Brittain and anyone else
can chime in real quick, the EPA today, and we have heard them
numerous times, say they really, they feel the States are
valued partners in this process. Do you think States feel that
they are valued partners in the process?
Ms. Brittain. I think that there are several parts of the
process that States do not feel as valued as other parts. And
it varies from State to State and region to region and how much
involvement there is.
But, yes, there are definitely areas that ASTSWMO works on
to try to encourage State participation in the process.
Mr. Shimkus. Does anybody else want to chime in on that?
Mr. Spiegel. Yes, I actually would like to say one thing
about the State process. We have 25,000 toxic waste sites,
besides the Superfund sites, in our State and we have no site
remediation program. They made it all voluntary.
So, there really is no oversight. They let the polluters
self-regulate in our State and so we really don't have it.
Mr. Shimkus. OK, so for the State of New Jersey, you don't
think the States do. I don't want to get into State for State.
Mr. Spiegel. No, but it is a completely voluntary program
that self-regulates and they dismantled the site remediation
program.
Mr. Shimkus. OK.
Mr. Spiegel. The one thing----
Mr. Shimkus. Thank you. Let me just move on. We will get
back to you.
Mr. Spiegel. Can I just make one point?
Mr. Shimkus. It depends how quick.
Mr. Spiegel. OK. Yes, the only thing that I would say that
they should include more States in--State-recognized Indian
tribes that are recognized by the State should have a seat at
the table, and not only federally recognized tribes like the
Ramapough Lunaape.
Mr. Shimkus. OK. Yes, thank you.
All right, Ms. Horinko, and you have already laid out where
you think areas, and so did Mr. Nadeau about different ways we
can improve the system, we appreciate that. So, I am going to
jump to my second question for you, Ms. Horinko, because you
laid those out pretty well.
Let's talk about administration reforms. Having come out of
the EPA, what administration reforms you think could be added
to the list of how we can improve the Superfund Program?
Ms. Horinko. The number one administrative reform to me
would be looking at ways to streamline the process. I couldn't
agree more; the ``remove-ia''l program was actually piloted in
Region III, I believe in the late '80s, early '90s.
Mr. Spiegel. I thought that was my term.
Ms. Horinko. Well, victory has a thousand fathers. But we
can concur that that program was very successful. It focused on
the concept that was alluded to earlier. If we know we are
going to put the stuff in a truck and drive it to a permanent
landfill, let's do that.
So, that would be the number one recommendation I would
have, is looking at the ``remove-ial'' program.
Mr. Shimkus. Great. Ms. Brittain, do you believe that it
would make for faster and more efficient and cost-effective
cleanup if States were authorized to implement CERCLA?
Ms. Brittain. I think it would be a good thing. And I can
speak for the State of Oklahoma right now. We often ask for
lead on our Superfund sites. So, the State takes the lead in
performing those cleanups. And we have the staff and we have
the willingness and we are there in the community.
So, we can get back with you on the other States. So, it
might depend but yes, there are States that like to take the
lead.
Mr. Shimkus. Because we have had these hearings on
Superfund. This is not our first one and I have been on the
subcommittee now for 5 \1/2\ years and there is always, I think
there is a part of this debate is forgotten, is how much the
States are asked to pay. That is why the bill of sale or what
are the actual costs, so that you can look at, well, we are
going to provide this much, this percentage, what are the real
cost drivers? That is issue one.
Issue two is then the continued review of the site after
the EPA finishes. Then that is on the State, that cost.
So, you want to be there at the planning and the execution
because you are going to have the burden of the cost infinitum,
once the site gets removed. Is that correct?
Ms. Brittain. Yes, that is correct.
Mr. Shimkus. Mr. Nadeau, States play an important role, as
we were just discussing, in the cleanup process. Do you think
that States should be authorized to implement CERCLA?
Mr. Nadeau. There has been a division of labor where they
take the lead and then EPA has oversight. I think that part is
still important because the sediment guidance and the NCP
provide a really good roadmap on how to make risk-based
decisions.
And what I wasn't able to say earlier is that the number
one problem we have right now is you have sediment guidance in
the NCP and there is no accountability by the regions to
headquarters.
Mr. Stanislaus pointed out there is a lot of discussion but
I don't feel that headquarters even feels it is in their
responsibility to direct the regions if they are off the
tracks. And that is a serious problem because even, for
example, on a cost-effectiveness requirement of the NCP
requiring a proportionality between the remedy and the cost, no
one is even running that analysis, even though it is a
regulation of the U.S. Government. And likewise, it is very
important at these sites that the experts in the NRB and in
CSAG, when those recommendations are made, it is not part of
the decision. It is purely voluntary and advisory. And the
regions, basically, and many of them, have disregarded the
recommendations. So, there is no accountability.
And the length of these studies, if you look at Williamette
River in Oregon, as Congressman Schrader pointed out, 15 years
of study, over $100 million before anything is cleaned up. When
you have five to seven companies that are willing to start
tomorrow to clean up but, because of the all the bureaucracy
and the conservatism of figuring out why this is here and why
is that here. This is not that complicated. They are complex
but you can figure out pretty early on in an adaptive
management or operable unit staged approach. This would be the
biggest change that could be implemented. If you can figure
out----
Mr. Shimkus. Yes, I need to get to my colleagues. You will
get a chance to follow up. My time is way expired.
So, the Chair now recognizes the ranking member of the
subcommittee, Mr. Tonko, for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair. And to all of our
panelists, welcome.
Mr. Nadeau, can you explain the changing profile, if there
is such a change, of our Superfund sites? In what ways are they
becoming more complex?
Mr. Nadeau. The sediment sites and mining sites, for
example, are geographically large. When you are dealing with
contaminated sediments under a river, you can't see it and get
your arms around it. Basically, we learned a lot of lessons
with land but you can get your arms around it, you can see the
edges, you can test it.
Then, with sediment sites, it is mixed. It is moving. You
have ongoing sources that are adding. If you clean up a
sediment site to a level a lot of it being suggested in the
Pacific Northwest, let's just pick a number. Let's say it is
ten. There are still 12 or 15 or 100 parts per million of the
same material coming because of other sources.
So, they are complicated but there is no reason it should
take 10 or 15 years to get them done. And there are ways to
streamline that. And the nice thing about this is we think that
the EPA policy is right on target; it just has to be applied.
And if you apply the sediment guidance in good faith, you will
get cost-effective streamlined remedies and you won't need 15
years to do it.
And if you implement a big dredging project, like as
proposed for some of the large sites, maybe it is 15 years to
get there, but then it may be 15 years of dredging. And unlike
land sites, another counterintuitive part about this, is when
you dredge more, no matter how carful you are, it creates a
problem.
And in Commencement Bay in Washington, the State of
Washington has looked at data from before dredging started and
after. And 20 years after the dredging started, the numbers
went from 38 before the problem was fixed to up to as high as
211 in fish and then down to now it is 70 or 80, after 20
years.
So, we have basically made it worse.
Mr. Tonko. Thank you.
Ms. Horinko, do you agree with that assessment? Are the
Superfund sites becoming more complex?
Ms. Horinko. The nature of the challenge is becoming more
complex. And this is intuitive. You think about it, the sites
that were easy to clean up, the drum sites, the more focused
sites were cleaned up in the 1980s and the 1990s and the early
part of 2000. What is left is the very large contaminated
watersheds and mining sites that it took hundreds of years for
them to get that contaminated. And so it is going to take a
long time to put them back into productive reuse.
Mr. Tonko. Which types of sites would you recommend be
given high priority under the Superfund program?
Ms. Horinko. It is a hard question to answer because as
someone who formerly ran the program, of course all of my sites
are important. But I would look at sites where people are
exposed immediately. So, where people are actually consuming
contaminated fish or exposed to chemicals in their water
supply. I would immediately look at sites where people are
exposed. Those should be the highest priority.
Mr. Tonko. And do you believe that States may be inclined
to list a site on the National Priorities List if there is not
a viable responsible party to bill for the site's cleanup?
Ms. Horinko. That may well be the case or, in some States,
the State will threaten to list as a way to get a recalcitrant
responsible party to the table. And that is a very valuable
strategy. I have seen many sites get proposed for the NPL and
never go final because the PRP woke up and said oh, my
goodness, maybe I will snap to attention. So, that is very much
a tool.
Mr. Tonko. And I agree that there may be more we can do to
empower our State programs. I do not think, however, this
solves the problem of orphaned sites. I believe complex and
expensive cleanups, where there is no responsible party, will
likely continue to be passed on to the Federal National
Priorities List and, thus, Federal taxpayers.
With that, Mr. Spiegel, from your experience, if given
enough resources, can Superfund sites be returned to productive
use?
Mr. Spiegel. We actually work a lot with both Brownfields-
to-Greenfields and Brownfield redevelopment, where they get a
balanced redevelopment along the Raritan River. We are working
on a very large one right now. It is about 660 acres as the
Keasbey Redevelopment. And we are getting rateables. They are
being cleaned up. And there are resources that are coming to
these cleanups from both the EPA and from the State because
they are generating rateables but it is when groups come
together, when there is emphasis on certain brownfield
redevelopment and we look at balance, I think that works the
best, overall, with brining all stakeholders together.
So, yes, we do see them being cleaned up.
Mr. Tonko. OK and just quickly, you have the experience to
suggest that Superfund Programs have resources challenges. We
know that there are orphaned sites where there is not a
potentially responsible party to clean it up. Are there also
sites where a PRP does exist but does not engage with the EPA
because it knows that the EPA does not have the ability to
clean up the site and send them the bill?
Mr. Spiegel. Yes, we see that more and more often. As
Congressman Pallone has said, the responsible parties will do
things to stall or delay. And oftentimes, they will do things
like trying to drag in municipalities and try to bankrupt
municipalities and so that delays the cleanup and then turns
the municipality against its own residence.
And so if we could find better ways to pierce the corporate
veil, we would make more money available for cleanups. We would
have less delay and we would have more fair cleanups overall,
at least in New Jersey, if not in the country.
Mr. Tonko. Well, my time has expired and with that, Mr.
Chair, I yield back.
Mr. Shimkus. The gentleman's time has expired.
The Chair now recognizes my colleague from Mississippi, Mr.
Harper, for 5 minutes.
Mr. Harper. Thank you, Mr. Chairman, and thanks to each of
you for being here on a very important topic.
Ms. Horinko, does the National Contingency Plan need to be
updated? And if so, do you have suggestions regarding what
needs to be done?
Ms. Horinko. I do, Congressman Harper. I would take a look
at the copious amount of procedural steps that need to be
addressed as part of the National Contingency Plan, in order to
make long-term remedial decisions. It is stultifying the
process. It is bogging down the ability of States and local
governments, and the regions, even, to get the cleanup
decision.
So, that would be the first thing I would look at is all
the steps in the long-term remedial program. Can those be
collapsed and made more efficient?
Mr. Harper. Right. Your written testimony suggests that the
role of States in implementing Superfund needs to be seriously
reexamined.
Would you please elaborate and explain what changes may
need to be made?
Ms. Horinko. Yes, the States now have such a deep bench of
capability that didn't exist 35 years ago. Not in every section
of the country but in many sections of the country they have
the capability to manage most of the sites that come our way.
So, I am not saying do away with the NPL. I am not saying
do away with the regional presence, by any means. You will
always need that Federal backstop, but the States are now so
robust in terms of their capacity that I think that they should
be empowered.
Mr. Harper. OK, should States be authorized to implement
CERCLA?
Ms. Horinko. I think so.
Mr. Harper. OK. How could EPA utilize the process it
undertakes for removal action to make remedial actions more
timely, cost-efficient, and efficient?
Ms. Horinko. I would look at the tools that the removal
program has used over the past 35 years. Instead of the
cumbersome RIFS process, which is years' worth of study around
the remedial investigation of feasibility tools, I would look
at the engineering evaluation and cost assessment and see how
we can do in terms of attacking pieces of the problem at a time
in these complex watersheds. I think doing a one size fits all
approach is just bogging things down. I think we need to pick
some spots where we can make improvements today and implement
those changes now.
Mr. Harper. Ms. Horinko, your written testimony discusses
the Six Sigma or LEAN Program and notes that it has been used
to make the RCRA Program more efficient.
How could that process be utilized to make CERCLA more
efficient?
Ms. Horinko. Well, I will commend the EPA for first of all
piloting this process and, secondly, trying to do training
across all ten regions. And I was privileged to attend 3 days
of training in Columbus, Ohio, last year, with the Ohio
Remedial Project Managers.
So, I think more awareness, more training. I am working
with members of industry, who have used Six Sigma LEAN
processes in their industrial operations, to bring those
lessons learned and share best practices. So, I think that kind
of cultural change is very beneficial.
Mr. Harper. Well, let's discuss technology for just a
moment. How can technology that is available, what is available
now, be utilized to make the Superfund Program more efficient?
Ms. Horinko. One of the challenges that was discussed
earlier at this hearing is the integrity of long-term
stewardship controls, engineering controls, legal controls.
If you have made a decision that some contamination has to
be left in place for some period of time because it is just not
technically possible to get it out, no matter how hard you try,
then you need to make sure those engineering controls,
institutional controls have integrity. And by using technology,
such as GIS tools and mapping tools and apps on your smart
phones, not only EPA and the State can ensure that those
institutional controls are structurally sound but citizens,
real estate agents, neighbors, property owners can say wow, I
see this plume here. What is being done about it? So, it is
very empowering.
Mr. Harper. You were the Assistant Administrator for OSWER
and presumably worked on Superfund guidance regarding how to
clean up contaminated sediment sites during your time at EPA.
What is your experience with respect to how well EPA is
currently applying the guidance?
Ms. Horinko. My experience has been that the results today
are all over the map. Some regions are adhering closely to
those adoptive management principles. Some are forging their
own path.
And so the most common complaint I hear is that you get a
different remedy, depending on what region of the country you
are in and that doesn't seem right to me.
Mr. Harper. Well, can you give me a specific example of
where EPA is doing a good job and perhaps one where maybe they
are missing the mark?
Ms. Horinko. Sure. Sure, the sites where EPA is doing a
good job tend to be not as controversial, not the ones grabbing
the headlines like the Passaic or the Williamette. The
Williamette especially because it is so front page news these
days, is a site where I see the region sort of forging its own
path, not necessarily look at adaptive management approach. So,
I think that is a site where some near-term fixes could be
made.
Mr. Harper. And my time is up. I yield back. Thank you, Mr.
Chairman.
Mr. Shimkus. Great questions, Mr. Harper. And I will yield
to Congressman Schrader from Oregon for 5 minutes.
Mr. Schrader. Thank you very much, Mr. Chairman. I
appreciate the panelists for being here.
I guess I will start with Ms. Horinko. I wonder if you
could comment a little bit about the State's role in the EPA
Superfund process.
Ms. Horinko. I would be happy to do that. As I indicated
earlier, the States have really matured in terms of their
capabilities over the past 35 years. And I, when I was
Assistant Administrator, helped to defer many sites to State
attention because they have the ability to manage these
cleanups. The States also have the ability to be much more in
tune with their communities because they are on the ground.
So, I think the States can play a very important role in
the Superfund going forward with legal authority.
Mr. Schrader. Thank you. Again, I am focused a little bit
on the Portland Harbor, obviously. I am concerned about, you
know I hear estimates of costs of $50 million to fix this or
that or $100 million. And here, we are talking hundreds of
millions of dollars, if not over a billion dollars.
So, it is a very complex project. Every panelist, including
Mr. Stanislaus has talked about this is not your grandpa's
cleanup program anymore. Very complex, difficult approaches and
hence, the adaptive management suggestions that have come out
of the agency over the years and stuff.
So, I would like both Ms. Horinko and maybe Mr. Nadeau talk
about why Portland is not being used in an adaptive management
approach.
Ms. Horinko. The beauty of adaptive management is that you
don't have to do everything at one time. When you are talking
about ten river miles, you can't clean up 10 river miles at one
time. It is just not possible.
And so adaptive management is let's try some different
projects in areas where the risk is greatest. And then test out
how that approach worked and then come back and readjust our
plan so that we are constantly improving, constantly
incorporating new science, new data.
It is not let's study everything forever and then see if we
can make a decision for all time. Making a decision for all
time is very difficult. Making a decision for the next 5 years
is not that hard of a process.
So, I think that is the key thing that I would like to see
applied to this site.
Mr. Schrader. Thank you. Mr. Nadeau, do you agree?
Mr. Nadeau. I think Ms. Horinko has said it very well.
Mr. Schrader. Do you have anything else?
Mr. Nadeau. It allows you to get started on a cleanup
early. Instead of waiting until you think you have the perfect
solution, you could start early. You can address something in 2
years, or 3 years, or 4 years. And then it is a great case
study to prove whether the remedy is working in combination,
typically, of dredging and capping or capping alone. And these
are early areas.
In a site like the Williamette, you could probably reduce
70 to 80 percent of the risk in an adaptive management mode and
then monitor it. You may find very well that you have done your
job and you just monitor it indefinitely. It is much more
efficient. You can get much more done earlier. And companies
are willing to do this.
Companies want to do the right thing. They don't want it to
drag out 15 years. No one is stalling.
Mr. Schrader. No. I know that is not the case. They want to
get this thing done. They are as tired as everybody. The
community, the businesses, EPA itself want to get this done.
And so I agree with that and that sounds like that is a very
good approach.
I am concerned, Mr. Nadeau, you talk about the
sedimentation guidelines and perhaps not being looked at in a
serious way, that EPA is not following its own recommendations.
Now, I am a little bit of a scientist myself, having spent 30
some years in veterinary medicine. It seems very logical to me
that the dredging does stir up a lot of stuff, things that
haven't been put in suspension.
In some of your written testimony, you talk about a couple
of sites where once it was all dredged up, now they are still
seeing more contamination than before the remediation was put
into play.
Could you comment on how the sediment guidance might be
more helpful for a site like the Portland Superfund site?
Mr. Nadeau. Well, the sediment guidance right now requires
examination of source control so that you don't get
recontamination but it also requires your decision to be on a
risk-based approach. And that also includes the risk of harm by
doing an implementation of the remedy. So, no matter how
careful you are, you are not going to get rid of 100 percent of
the problem.
The newer techniques of capping, which are not new anymore,
will allow you to seal in a lot of that contaminated sediment,
not creating this big uncontrolled cloud. So, no matter,
everyone's intent is to get 100 percent. No one is successful
at that.
So, by applying adaptive management, you also get the
benefit of learning the lessons of what worked under the
specific conditions of the sites. It will really allow the
environment to be remediated more quickly and in a very strong
protective way and in an cost-effective manner.
Mr. Schrader. Thank you both very much, all of you. I
really hope that EPA looks at the adaptive management
guidelines, the sedimentation guidelines, before they make
their record of decision because, again, I think everyone wants
to do the right thing.
And I yield back, Mr. Chairman.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the ranking member of the full committee, Mr.
Pallone for 5 minutes.
Mr. Pallone. Thank you, Mr. Chairman.
I want to thank Bob Spiegel, my constituent for testifying
before the subcommittee today. He and I have worked for many
years on Superfund cleanups in New Jersey.
When he was talking about the green rabbits. that was at
the CIC site in Edison, which was, at one point, ranked as the
worst, the most toxic site on the Superfund list. And the used
to manufacture Agent Orange. And then they dumped the Agent
Orange on the site, which is just incredible.
But anyway, I wanted to ask you some questions. You know we
talked about how Superfund cleanups are essential for
protecting public health and funding has been cut considerably
over the last decade. And the GAO released a report last year
looking at funding and found that the number of non-Federal
Superfund sites increased by 10 percent in the last 15 years,
while funding for the program in the same period fell from $2
billion to $1.1 billion. And obviously, we can't expect to
successfully clean up more sites by slashing funding for the
program.
So, Bob, I just wanted to ask you, in your experience, how
has this drop-off in funding affected cleanups and have you
seen delays in addressing contamination at specific sites?
Mr. Spiegel. At sites where there are orphaned sites, ones
where either there is no viable responsible party or one that
is recalcitrant, the cleanups have pretty much come to a halt.
And in a lot of these projects are what they call shovel-
ready. In other words, all the studies are done. All the work
that needed to be done to be done to determine the best type of
cleanup or the most protective cleanup, it is done. They are
just waiting for funding. Then, we are being told that the
funding is not coming.
But also, more so, and I think you mentioned this before,
sites where we do have a viable responsible party, the threat
of treble damages is no longer a viable threat because they
know the U.S. EPA is not going to come in. They don't have the
resources to do a 10 or a 20, or a $30 million cleanup, which
might be what is required, as is in the case of the Ringwood
Mine Superfund site, where you have drinking water for 2
million people at risk.
And so Ford has been just dragging their feet with the
cleanup, when everybody knows that the pink sludge that has
been dumped in the mines up there and the poisoning of the
Ramapough Lunaape tribe, that that sludge has to be taken out,
in order to protect the drinking water for two million people,
and to protect the ancestral rights of the people that live on
the mountain. But Ford knows what has to be done but they have
the ability to drag it out and delay.
And that is what we seeing more and more, took, is not just
with orphaned sites but with other sites where there is a PRP
that does have the resources just delays for no real reason,
other than they can.
Mr. Pallone. I appreciate that. Before we run out of time,
I wanted to deal with this issue of robust and effective
cleanups, as opposed to capping, for example. And during the
first panel, I asked Mr. Stanislaus about the drop-off in
funding and how has that affected the quality of the cleanups.
So, in your experience, have you seen cost, rather than
health concerns, influence the remedies selected for cleanups?
And do you agree with Mr. Stanislaus that the drop-off in
funding hasn't affected the quality of the cleanups?
Mr. Spiegel. I think all you really have to do is to look
at the remedies that have come out since the Trust Fund has
been depleted to look and see what remedies have been chosen
and more and more remedies in New Jersey and in Region II that
I have looked at, they are leaving behind the principle threat
waste, which is what EPA used to always try to remove. Even if
they had to cap some residual waste, they would remove the
principle threat waste as a means to get rid of the source.
And now we are seeing that that is no longer being done
across the board. I could probably rattle off 20 sites that I
know of where the principle threat waste is being left behind.
It used to be the exception to the rule and now it seems to be
the rule.
And when you put a plastic pool cover on a site, all you
are doing is creating a future problem because I think the
people on this panel will agree all caps eventually fail and
they require maintenance. So, what you are doing is creating a
problem for the future and it is always cheaper when you take
and you take these costs and you expand them out to clean up a
site and get rid of the contamination than to have to cap it
and monitor it and babysit it forever.
Caps always fail. It is just a question of when.
Mr. Pallone. All right, I appreciate all that you do, Bob.
Really, you know, Mr. Chairman, I know he is my constituent.
You would just say, ``Oh, you are just saying that because he
is your constituent'' but----
Mr. Shimkus. No, I am not.
Mr. Pallone. No, I know. But, I mean, this guy has been
unbelievable. You know he started out in Edison, which is in my
district, but the Edison Wetlands Coalition is essentially the
main organization in the whole State of New Jersey that deals
with these sites and tries to seek remedies and do cleanup. So,
even though he is in my district, he is really the number one
guy in the State on this issue.
Mr. Spiegel. Come visit our dog park, too, the CIC site and
see what happens when you have money in the fund. And the dog
park actually opened last week, so it is something that is----
Mr. Shimkus. I look forward to getting my invitation to
visit the dog park.
Mr. Pallone. Thanks, Mr. Chairman. Thank you, Bob.
Mr. Spiegel. It is certainly better than an Agent Orange
manufacturer.
Mr. Shimkus. Amen. Amen.
So, thank you. We appreciate your testimony. This
committee, especially the subcommittee, we just really had a
pretty good successful run on reforming the TSCA. And I think
it is somewhat similar. I think we all knew program was broken.
We all knew we could do better. And then that started the
process.
So, I am not sure where I will be in a 5-year process but I
do think we could better and if we start talking together,
maybe we can move this process and get some of these reforms
and get a quick remediation. So, I appreciate my members and
having the ranking member, especially, Mr. Pallone, stay here
for the end. That is unique, and that is special, and we
appreciate that.
And with that, I will adjourn the hearing. Thank you for
your testimony.
[Whereupon, at 12:33 p.m., the committee was adjourned.]
[Material submitted for inclusion in the record follows:]
Prepared statement of Hon. Fred Upton
Superfund is now some 36 years old, and the truth is some
cleanup projects that we are working on seem as old as the law
itself. The Kalamazoo River cleanup has been underway most of
the time that I've served in Congress, but finally we are
seeing some light at the end of the tunnel. While we are by no
means finished on the Kalamazoo River, we have made some
significant headway.
If red tape were a toxic material, the CERCLA law would be
the biggest Superfund site of them all. Today we ask, ``Does it
have to be that way?'' If the Federal Government is to have a
role, it should be to bring parties together to speed cleanups.
Instead, CERCLA seems to slow them down. What changes do
stakeholders suggest to speed things up? How can we make CERCLA
more efficient? Can we reduce the red tape? Should the States
and communities have a bigger say-so in cleanup plans, and have
it sooner? I know that when EPA began to listen to local and
State stakeholders on the Kalamazoo project, a more workable
and acceptable solution began to emerge.
I thank Assistant Administrator Mathy Stanislaus for
returning to the committee. He has been one of our most
frequent witnesses through the years, and we appreciate his
consistent and congenial testimony.
We are also glad to hear from our panel of stakeholders and
experts as well. A hearing in this subcommittee would not be
complete without the voice of the States and other partners.
We also welcome two of our House colleagues, Ann Wagner and
Lacey Clay, who will share their frustration over the pace of a
cleanup in Missouri. Effective advocates for their
constituents, they are willing to think outside the box to find
the most efficient solution. So are we, and that's why we are
having this hearing. Let's find solutions that produce, not
just more process and more delays, but workable, effective
cleanups.
All of our Members appreciate the chance to take a deeper
dive into these thorny issues that impact so many Americans and
we are looking for constructive solutions. Let's listen
carefully so that we can find them.
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