[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]







 
           OVERSIGHT OF FEDERAL FACILITY CLEANUP UNDER CERCLA

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

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        SEPTEMBER 11 & 16, 2015

                               __________

                           Serial No. 114-73


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




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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, Vice Chairman          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)














  
                             C O N T E N T S

                              ----------                              

                           SEPTEMBER 11, 2015

                                                                   Page
Hon. John Shimkus, a Representative in Congress from the State of 
  Illinois, opening statement....................................     1
    Prepared statement...........................................     3
Hon. Paul Tonko, a Representative in Congress from the State of 
  New York, opening statement....................................     4
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, prepared statement...................................     5
Hon. Frank Pallone, Jr., a Representative in Congress from the 
  State of New Jersey, opening statement.........................     6

                               Witnesses

Mathy Stanislaus, Assistant Administrator, Office of Solid Waste 
  and Emergency Response, U.S. Environmental Protection Agency...     8
    Prepared statement...........................................    11
    Answers to submitted questions...............................    89
Mark Whitney, Principal Deputy Assistant Secretary for 
  Environmental Management, U.S. Department of Energy............    19
    Prepared statement...........................................    22
    Answers to submitted questions...............................   104
John Conger, Performing the Duties of the Assistant Secretary of 
  Defense for Energy, Installations, and Environment, U.S. 
  Department of Defense..........................................    27
    Prepared statement...........................................    29
    Answers to submitted questions...............................   117
Alfredo Gomez, Director, Natural Resources and Environment, U.S. 
  Government Accountability Office...............................    36
    Prepared statement...........................................    38
    Answers to submitted questions...............................   145
  
                           SEPTEMBER 16, 2015
                               Witnesses

Elizabeth Dieck, Director of Environmental Affairs, South 
  Carolina Department of Health and Environmental Control, on 
  behalf of the Environmental Council of the States..............   150
    Prepared statement...........................................   153
    Answers to submitted questions...............................   204
Bonnie Buthker, Chief Southwest District Office, Ohio EPA, on 
  behalf of the Association of State and Territorial Solid Waste 
  Management Officials...........................................   166
    Prepared statement...........................................   168
    Answers to submitted questions...............................   211
Michael Houlemard, Jr., Executive Officer, Fort Ord Reuse 
  Authority......................................................   174
    Prepared statement...........................................   177

                           Submitted Material

Statement of the Department of the Interior......................   196



       OVERSIGHT OF FEDERAL FACILITY CLEANUP UNDER CERCLA, DAY 1

                              ----------                              


                       FRIDAY, SEPTEMBER 11, 2015

                  House of Representatives,
       Subcommittee on Environment and the Economy,
                           Committee on Energy and Commerce
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 9:02 a.m., in 
room 2123, Rayburn House Office Building, Hon. John Shimkus, 
(chairman of the subcommittee) presiding.
    Present: Representatives Shimkus, Harper, Murphy, Latta, 
Johnson, Bucshon, Hudson, Upton (ex officio), Tonko, Schrader, 
Green, DeGette, and Pallone (ex officio).
    Also Present: Representative Luj AE1an.
    Staff Present: Will Batson, Legislative Clerk; David 
McCarthy, Chief Counsel, Environment/Economy; Tina Richards, 
Counsel, Environment; Chris Sarley, Policy Coordinator, 
Environment and Economy; Dan Schneider, Press Secretary; Peter 
Spencer, Professional Staff Member, Oversight; Christine 
Brennan, Minority Press Secretary; Jacqueline Cohen, Minority 
Senior Counsel; Tiffany Guarascio, Minority Deputy Staff 
Director and Chief Health Advisor; Rick Kessler, Minority 
Senior Advisor and Staff Director, Energy and Environment; and 
Alexander Ratner, Minority Policy Analyst.

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

    Mr. Shimkus. We are going to call the hearing to order.
    I want to thank everyone for the early start time, both 
from the agencies and my colleagues. As we know, Friday fly-out 
days are challenging for Members, so it is good to get started.
    Just, also, a point of notice is that there are really two 
panels. This is the first panel of our hearing, and then we 
will have other stakeholders later on.
    So, with that, I will recognize myself for an opening 
statement, 5 minutes.
    I welcome today's witnesses, and thank you all for 
appearing to discuss protection from and cleanup of hazardous 
waste at Federal Government facilities. Today we will hear 
perspectives of the Department of Defense, the Department of 
Energy, the Environmental Protection Agency, and the Government 
Accountability Office.
    Thousands of ordinary citizens in private-sector companies 
face the daily challenge of controlling costs and making a 
profit without leaving behind a trail of hazardous waste. The 
same citizens and companies must meet both Federal and State 
prevention and cleanup standards.
    In meeting all these challenges, they face distinct 
disadvantages when compared with their Federal agency 
counterparts. One, they can't rely on the U.S. taxpayer to 
cover either their compliance or their cleanup costs. They also 
can't always choose their own remediation options. And they 
can't fall back on the defense of sovereign immunity when they 
are taken to court.
    While those private-sector companies focus on making a 
profit while complying with the Environmental Protection Agency 
standards, the Defense and Energy Departments focus on national 
security. And national security can be a messy business, 
involving everything from motor oil to munitions waste. And 
even national security is no excuse for leaving a mess in your 
neighbor's backyard.
    As we drill down into specifics on an agency-by-agency 
basis, we will learn that some of our Federal partners are more 
successful than others in juggling these dual responsibilities 
to their core mission and to protecting land and water. The 
agencies' challenges are not uniform, and neither are their 
budgets.
    We have four objectives today. The first one is to get a 
detailed update on where agencies stand on meeting their good-
neighbor obligations. The second one is to find out what the 
challenges are and how those challenges vary from agency to 
agency. The third one is to understand what the resource 
management relationship is between each of these agencies and 
the EPA. And, finally, to get GAO's perspective on who is doing 
a good job, who is not, and what they can do to improve.
    Next week, a second panel for this hearing will provide the 
state perspective. Under our system of government, states have 
primary responsibility for protecting their own natural 
resources, including land and water, from environment 
degradation. But a state's challenge is made more difficult, if 
not impossible, to meet if the entity responsible for the 
environmental mess is a Federal agency, with all the power that 
status implies.
    After the episode last month in Colorado with the release 
of contaminated water into the Animas River, I wouldn't be 
surprised if some in our audience thought first of EPA when 
they heard the phrase ``Federal agency responsible for an 
environmental mess,'' but the Colorado mine release is not the 
focus of this hearing.
    Since we first got the news of the blowout, our committee 
has been looking into the Colorado mine incident on a separate 
track from this hearing. At the beginning, we had lots of 
questions and almost no answers. Gradually, we have been 
piecing together the facts as best we can. We are not finished 
yet. I trust our friend Mr. Stanislaus and everyone in the 
administration will cooperate with our committee as we pursue 
that inquiry.
    Correct, Mr. Stanislaus?
    And he shakes his head ``yes.''
    Thank you.
    Today I hope that we can focus on the Federal facilities 
issue and whether important agencies such as the Department of 
Defense and the Department of Energy are good neighbors and 
good stewards of the land and water that they touch wherever 
they have a presence.
    I will now just end with--my background is also as a 
military officer, understanding national security and the 
challenges that face us. So the balancing of that and also 
being a good neighbor toward folks is very important to me, but 
I would also want to say I appreciate the work that the DOE and 
the Department of Defense does in protecting our citizens.
    With that, I yield back my time and yield 5 minutes to the 
ranking member, Mr. Tonko.
    [The prepared statement of Mr. Shimkus follows:]

                Prepared statement of Hon. John Shimkus

    I welcome today's witnesses and thank you all for appearing 
to discuss protection from, and clean-up of, hazardous wastes 
at Federal government facilities. Today we'll hear perspectives 
of the Department of Defense, the Department of Energy, the 
Environmental Protection Agency, and the Government 
Accountability Office.
    Thousands of ordinary citizens and private sector companies 
face the daily challenge of controlling costs and making a 
profit without leaving behind a trail of hazardous waste. The 
same citizens and companies must meet both Federal and state 
prevention and clean-up standards.
    In meeting all these challenges they face distinct 
disadvantages when compared with their Federal agency 
counterparts:
     they can't rely on the U.S. taxpayer to cover 
either their compliance or their clean-up costs.
     they can't always choose their own remediation 
options. and
     they can't fall back on the defense of sovereign 
immunity when they are taken to court.
    While those private sector companies focus on making a 
profit while complying with environmental protection standards, 
the Defense and Energy Departments focus on national security. 
And national security can be a messy business involving 
everything from motor oil to munitions waste. But even national 
security is no excuse for leaving a mess in your neighbor's 
back yard.
    As we drill down into the specifics on an agency-by-agency 
basis, we'll learn that some of our Federal partners are more 
successful than others at juggling these duel responsibilities, 
to their core mission and to protecting land and water. The 
agencies' challenges are not uniform and neither are their 
budgets.
    We have four objectives today:
     to get a detailed update on where agencies stand 
meeting their good- neighbor obligations;
     to find out what the challenges are and how those 
challenges vary from agency to agency;
     to understand what the resource management 
relationship is between each of these agencies and theEPA; and
     to get GAO's perspective on who's doing a good 
job, who's not, and what they can do to improve.
    Next week a second panel for this hearing will provide the 
State perspective. Under our system of government States have 
primary responsibility for protecting their own natural 
resources, including land and water, from environmental 
degradation. But a State's challenge is made difficult if not 
impossible to meet if the entity responsible for the 
environmental mess is a Federal agency with all the power that 
status implies.
    After the episode last month in Colorado with the release 
of contaminated water into the Animas River, I wouldn't be 
surprised if some in our audience thought first of EPA when 
they heard the phrase ``Federal agency responsible for an 
environmental mess.'' But the Colorado mine release is not the 
focus of this hearing.
    Since we first got the news of the blow-out, our Committee 
has been looking into the Colorado mine incident on a separate 
track from this hearing. At the beginning we had lots of 
questions and almost no answers. Gradually, we've been piecing 
together the facts, as best we can. We are not finished yet. I 
trust our friend, Mr. Stanislaus, and everyone in the 
Administration, will cooperate with our Committee as we pursue 
that inquiry. --Mr. Stanislaus?
    Thank you. Today, I hope that we can focus on the Federal 
facilities issue and whether important agencies such as DOD and 
DOE are good neighbors and good stewards of the land and water 
that they touch wherever they have a presence.

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

    Mr. Tonko. Thank you, Mr. Chair.
    And good morning, and thank you to our witnesses for 
participating this morning.
    And I thank the chair for holding a hearing on this very 
important topic.
    Congress enacted the Comprehensive Environmental Response 
Compensation and Liability Act, commonly known as Superfund, 
some 35 years ago, but communities across the country are still 
dealing with the legacy of toxic waste. After a rough start, 
the Superfund program has had success in containing and 
cleaning up serious contamination problems in many of our 
communities, but there is still much work to do and too few 
dollars available to do it.
    The good news is that sites are being cleaned up. 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.
    In addition to the sites on private or State land, there 
are many Superfund sites on Federal land. The Federal 
Government operates facilities across our country on millions 
of acres of land. Some of the Federal site contamination is due 
to the government's activities, but there are also many areas 
where mining, drilling, and industrial activities by private 
parties took place decades ago, leaving a legacy of 
contamination.
    The Federal Government is subject to the Superfund law, and 
the government spends billions of dollars annually to clean up 
hazardous contamination at Federal facilities.
    A few years ago, I asked the Government Accountability 
Office to look at the status of cleanup activities on Federal 
lands and to focus on the agencies and departments other than 
the Departments of Defense and Energy. These department sites 
are generally well known and have received considerable 
oversight and attention. The situation for the United States 
Department of Agriculture, the Department of the Interior, and 
other Federal agencies was less clear.
    Under the Superfund law, Federal agencies are required to 
identify, assess, and clean up contamination on the properties 
that they administer, but cleanups cannot begin if sites have 
not been identified and characterized. As Mr. Gomez and his 
team found, this first crucial step has not been completed in 
the case of these other departments. And because of the nature 
of the sites on Department of Interior and Department of 
Agriculture lands and the limited budgets for these activities, 
it does not appear we will have a complete, reliable inventory 
in the near future.
    We spend a lot of time these days worrying about how much 
the government is spending. I worry about that, as well, but I 
also worry about how we are distributing these dollars that we 
do spend. Across-the-board cuts and arbitrary caps are 
preventing us from doing some of our most important and 
difficult tasks: setting priorities and ensuring that we are 
providing funds to programs that deliver sustained benefits to 
our citizens. And returning contaminated land to productive 
use, preventing pollution migration, and reducing people's 
exposure to dangerous toxins certainly is a sustained benefit.
    With the passage of Superfund, we made a commitment to 
identify and clean up contaminated properties. We should 
fulfill that commitment. I don't know that new legislation is 
required to do this. I do believe that additional oversight of 
this program, however, would be very useful. This hearing makes 
an important contribution to that effort.
    Mr. Gomez, thank you and your team for your work on this 
issue. You have given us a lot to consider and provide some 
constructive recommendations.
    I do appreciate the opportunity for the subcommittee to 
examine our Superfund program. The citizens living in 
communities with these sites are anxious, and they are anxious 
to have them cleaned up and returned to safe, productive use. 
The responsible parties, whether public or private, want to 
accomplish those cleanups in a cost-effective manner. These are 
goals that we can all support, so I do hope to work with you, 
Chairman Shimkus, and the other members of the subcommittee to 
achieve these goals.
    And I thank all for participating in the hearing this 
morning and next week, and I look forward to your testimony on 
what is a very important issue.
    With that, I yield back.
    Mr. Shimkus. The gentleman yields back his time.
    I would like to submit, with unanimous consent, a statement 
for the record from Chairman Upton for his opening statement.
    [The prepared statement of Mr. Upton follows:]

                 Prepared statement of Hon. Fred Upton

    Today's hearing examines the important role federal 
agencies play in protecting our land and water resources 
through cleanups at federally owned and operated facilities.
    Federal officials in all branches, but particularly at EPA, 
want to exert leadership in environmental protection. As most 
successful coaches know, inspiring leadership comes first by 
setting a good example. Federal agencies must set a good 
example in how they assess contamination and conduct cleanups 
if they expect the American people to take their efforts to 
prevent and clean up hazardous materials seriously. We know 
that federal agencies do many things well but there is room for 
improvement. Not all agencies have the same level of success at 
conducting environmental cleanups and today's hearing will 
examine what works and what doesn't with respect to Federal 
remediation under CERCLA. We should work to figure out what can 
be done to improve cleanups to better protect our nation's land 
and water.
    EPA may have room to improve how it conducts response 
activities under CERCLA too. Last month we learned that an EPA 
contractor working at a mine in Colorado somehow triggered a 
release of contaminated water into the Animas River. This is 
unacceptable and we are still investigating the incident to 
find out:
    What exactly went wrong? Who was responsible? What were the 
standards of care the personnel at the site were operating 
under and did they breach those standards? What can be done to 
prevent future such incidents?
    I hope that lessons we learn from this incident can help us 
make good, corrective policy choices. No one ever wants to see 
headlines like that again.
    But today I thank witnesses from the Department of Defense, 
Department of Energy, EPA, and GAO to compare their 
perspectives on CERCLA cleanups. And next week we will welcome 
back the Environmental Council of States and the Association of 
State and Territorial Solid Waste Management Officials who will 
be sharing with us the State perspective on federal facility 
cleanups.
    I commend all my committee colleagues for working together 
on these issues.

    Mr. Shimkus. Is there anyone on the majority side wishing 
to seek time?
    Seeing none, the chair now 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 and our ranking 
member, for calling this hearing on the Superfund program.
    Superfund has been an incredibly important tool for 
protecting public health and the economy in my home State of 
New Jersey and throughout the country, and thousands of 
contaminated sites have been cleaned up and revitalized, 
including many former Federal sites.
    As successful as Superfund has been, there is still so much 
important cleanup work to be done. I expect we will hear from 
today's panel about the staggering number of abandoned mine 
sites--just a subset of Federal sites and even smaller subset 
of contaminated sites nationwide. And I hope that my colleagues 
on this subcommittee will join me in working to ensure that 
EPA, other Federal agencies, state and local communities, have 
the resources needed to get these cleanups done.
    Superfund sites are contaminated with toxic substances that 
can make their way into drinking-water wells, creeks and 
rivers, backyards, playgrounds, and streets. Communities 
impacted by these sites can face restrictions on water use and 
recreational activities as well as economic losses as property 
values decline due to contaminated land. In the worst cases, 
residents of these communities can face health problems such as 
cardiacimpacts, infertility, low birth weight, birth defects, 
leukemia, and respiratory difficulties.
    The major environmental laws that are truly the powerful 
legacy of this committee have consistently held that polluters 
must pay for environmental harms. The principle is the heart of 
the Superfund program and should be preserved. For Federal 
facility cleanups, that means that we in Congress have a duty 
to ensure funds are appropriated to cover cleanup needs. For 
private facilities, that means we have a duty to reinstate the 
Superfund tax and stop charging taxpayers for cleanups.
    In 1995, despite opposition from myself and other 
Democrats, a Republican Congress allowed the Superfund tax to 
expire. Before its expiration, the collected taxes were placed 
into a Superfund trust fund that was used for the cleanups of 
so-called orphan sites, where the party responsible for the 
pollution either no longer existed or could not afford the cost 
of the cleanup. The thousands of abandoned mines across the 
Western United States are examples of such sites. Without those 
revenues, important Superfund cleanups have been delayed, the 
backlog of sites needing cleanup has grown, and the costs have 
shifted to the taxpayers.
    As many of you know, I have routinely introduced 
legislation, the Superfund Polluter Pays Act, which would 
replenish the Superfund trust fund by reinstituting the taxes 
that the oil and gas companies paid between 1980 and 1996. The 
legislation reinstates a 9.7-cents-a-barrel tax on petroleum, a 
tax on 42 chemicals, and a corporate environmental income tax 
of 12 percent on taxable income in excess of $2 million. This 
would help ensure that the EPA has sufficient funds available 
for the costs of investigation and cleanups of these toxic 
sites.
    Reinstating this tax should be a part of any conversation 
we have in Congress about Superfund, but the tax itself is not 
enough. We need higher appropriations for Federal agencies with 
responsibility for cleanups, and we need financial 
responsibility requirements to stop the proliferation of 
abandoned mines and other orphan sites.
    Under section 108 of Superfund, EPA has been working to 
establish such requirements for hard-rock mining and eventually 
for other polluting industries. Financial responsibility 
requirements would ensure that any company undertaking the 
dangerous practice has the resources necessary to cover the 
costs of anticipated cleanup needs.
    Republicans have blocked these requirements in recent years 
through appropriation riders, a practice that I hope will stop 
in the wake of the Gold King Mine spill last month.
    Removing public health hazards by cleaning up contaminated 
sites is incredibly important for the surrounding communities. 
Cleaning up toxic Superfund sites not only reduces human health 
risks, it helps create jobs during the cleanup and, through 
newly uncontaminated and productive land, makes it ready for 
redevelopment. So we should all support cleanup efforts and 
should ensure that those efforts are funded.
    Again, I look forward to today's testimony. I thank both 
the chairman and Mr. Tonko for calling this hearing.
    I yield back.
    [The prepared statement of Mr. Pallone follows:]

                 Prepared statement of Hon. Fred Upton

    Today's hearing examines the important role federal 
agencies play in protecting our land and water resources 
through cleanups at federally owned and operated facilities.
    Federal officials in all branches, but particularly at EPA, 
want to exert leadership in environmental protection. As most 
successful coaches know, inspiring leadership comes first by 
setting a good example. Federal agencies must set a good 
example in how they assess contamination and conduct cleanups 
if they expect the American people to take their efforts to 
prevent and clean up hazardous materials seriously. We know 
that federal agencies do many things well but there is room for 
improvement. Not all agencies have the same level of success at 
conducting environmental cleanups and today's hearing will 
examine what works and what doesn't with respect to Federal 
remediation under CERCLA. We should work to figure out what can 
be done to improve cleanups to better protect our nation's land 
and water.
    EPA may have room to improve how it conducts response 
activities under CERCLA too. Last month we learned that an EPA 
contractor working at a mine in Colorado somehow triggered a 
release of contaminated water into the Animas River. This is 
unacceptable and we are still investigating the incident to 
find out:
    What exactly went wrong? Who was responsible? What were the 
standards of care the personnel at the site were operating 
under and did they breach those standards? What can be done to 
prevent future such incidents?
    I hope that lessons we learn from this incident can help us 
make good, corrective policy choices. No one ever wants to see 
headlines like that again.
    But today I thank witnesses from the Department of Defense, 
Department of Energy, EPA, and GAO to compare their 
perspectives on CERCLA cleanups. And next week we will welcome 
back the Environmental Council of States and the Association of 
State and Territorial Solid Waste Management Officials who will 
be sharing with us the State perspective on federal facility 
cleanups.
    I commend all my committee colleagues for working together 
on these issues.

    Mr. Shimkus. The gentleman yields back his time.
    I would now like to recognize--and I will introduce you 
when your time comes to speak.
    First would be the Honorable Mathy Stanislaus, Assistant 
Administrator, Office of Solid Waste and Emergency Response at 
the U.S. Environmental Protection Agency.
    Your full statement is in the record. You have 5 minutes. 
And welcome back.

STATEMENTS OF MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE 
   OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL 
  PROTECTION AGENCY; MARK WHITNEY, PRINCIPAL DEPUTY ASSISTANT 
  SECRETARY FOR ENVIRONMENTAL MANAGEMENT, U.S. DEPARTMENT OF 
  ENERGY; JOHN CONGER, PERFORMING THE DUTIES OF THE ASSISTANT 
      SECRETARY OF DEFENSE FOR ENERGY, INSTALLATIONS, AND 
  ENVIRONMENT, U.S. DEPARTMENT OF DEFENSE; AND ALFREDO GOMEZ, 
 DIRECTOR, NATURAL RESOURCES AND ENVIRONMENT, U.S. GOVERNMENT 
                     ACCOUNTABILITY OFFICE

                 STATEMENT OF MATHY STANISLAUS

    Mr. Stanislaus. OK. Thank you.
    Chairman Shimkus, Ranking Member Tonko, Congressman 
Pallone, and members of the subcommittee, I am Mathy 
Stanislaus, Assistant Administrator for the Office of Solid 
Waste and Emergency Response. And, again, thank you for 
inviting me here to talk about the Superfund program.
    Specifically, I want to talk about the Federal facilities 
component of it, which is the focus of this hearing. The 
cleanup of Federal facilities is led by the Federal agencies 
who have delegated authority with properties under their 
responsibility, with the EPA having a discrete role, which I 
will get into in a second.
    CERCLA section 120 provides a framework for identifying 
contaminated Federal facility sites, assessing actual or 
potential environmental risks from these sites, and assuring 
cleanup and other actions to protect public health and the 
environment. Under section 120, Federal facilities are required 
to comply with CERCLA in the same manner and to the same 
extent, both substantively and procedurally, as private 
entities.
    Section 120 includes provisions and timetables that apply 
to Federal facilities only, including requiring the EPA to 
establish a Federal agency hazardous waste docket, requiring 
completion of a preliminary assessment by a Federal facility 
after docket listing, requiring a Federal agency to commence a 
remedial investigation and feasibility study within 6 months of 
that facility being placed on the National Priorities List, and 
requiring that the EPA and the Federal facility agency enter 
into an interagency agreement referred to as a Federal facility 
agreement at all NPL sites. Also, there are specific provisions 
that govern the transfer of Federal facilities to private 
entities.
    Under Executive Order 12580, Federal agencies are 
designated as the lead agency for carrying out many of CERCLA's 
statutory requirements at their facilities. However, EPA 
retains the final decision authority over a small subset of 
these. These are National Priorities List sites. If the Federal 
agency and department and EPA are unable to reach agreement on 
the selection of remedial action at these NPL sites, the EPA's 
Administrator makes the final decision.
    The shared responsibility of program implementation under 
CERCLA has unique challenges for EPA and other Federal agencies 
but has generally worked effectively. Currently, there are 157 
final Federal facility sites on the NPL, and another 17 Federal 
sites have been deleted from the NPL. Approximately 80 percent 
of these 174 sites are DOD component sites.
    The CERCLA framework has worked effectively for helping to 
ensure appropriate cleanup for more than 20 years. Moreover, 
because States are often parties to a Federal facility 
agreement and State laws and regulations may apply to State 
site cleanups, States and EPA work together to ensure that the 
NPL cleanups meet statutory requirements, protective of public 
health and the environment, and incorporate pertinent State 
requirements.
    The EPA is engaging with other Federal departments and 
agencies on a range of activities to maintain and accelerate 
cleanup progress at Federal facilities. For example, we are 
working collaboratively with DOD on tools for advancing 
geophysical classification to allow for more accurate and 
efficient cleanup of munitions sites, a fairly significant 
issue; improving site-level data quality; and resolving 
technical issues associated with emerging contaminants.
    Ensuring that people have environmental information about 
their communities is a top priority of my office. In 2010 and 
2011 as part of ongoing efforts to enhance community 
engagement, my office reached out to diverse stakeholders 
through the Federal Facility Dialogue, as well as the Federal 
agencies represented here today. What we heard from 
stakeholders is that there is a need for more transparent and 
easily accessible information on cleanup progress and long-term 
protectiveness.
    We have begun to move forward on some of these issues. For 
example, for the past 5 years, the EPA has led an interagency 
working group to make improvements to the 5-year review process 
that would force a greater transparency and participation from 
impacted communities. When wastes are left in place, EPA 
assesses whether remedies continue to be protective of public 
health and the environment through a 5-year review. And we are 
continuing to modernize the Federal Agency Hazardous Waste 
Compliance Docket and exploring ways to make the program data 
more accessible to communities and other stakeholders, as 
required by CERCLA.
    In 2012, the EPA, in collaboration with other Federal 
agencies and departments, completed a Federal facilities site 
evaluation project. This project evaluated the disposition of 
514 federally owned sites that EPA identified as potentially 
stalled in their progress. Through this process, EPA has been 
able to make an activity determination on 491 of the 514 sites 
on this list. Initiatives like this allow EPA to ensure the 
Federal facility information is up to date and communities have 
the most pertinent information on that site.
    I will close, and look forward to your questions.
    [The prepared statement of Mr. Stanislaus follows:]
    
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    Mr. Shimkus. Thank you.
    The chair now recognizes Mr. Mark Whitney, Principal Deputy 
Assistant Secretary for Environmental Management with the U.S. 
Department of Energy.
    Sir, you are welcome. You are recognized for 5 minutes.

                   STATEMENT OF MARK WHITNEY

    Mr. Whitney. Thank you, and good morning, Chairman Shimkus, 
Ranking Member Tonko, and members of the subcommittee. I am 
pleased to be here today to represent the Department of 
Energy's Office of Environmental Management and to discuss the 
Comprehensive Environmental Response, Compensation, and 
Liability Act.
    The Environmental Management program was established in 
1989 with the mission to clean up the largest and most complex 
nuclear waste sites in the world as safely, effectively, and 
quickly as possible. This involves some of the most dangerous 
materials known to humankind, and it is no simple task. But the 
EM has completed cleanup activities at the 91 sites across 30 
States since their inception, leaving the remaining cleanup 
work at 16 sites in 11 States. That is approximately $150 
billion worth of cleanup work completed since the inception of 
the program.
    Sites like Fernald in Ohio and Rocky Flats in Colorado have 
been cleaned up and are now wildlife preserves. We have 
decommissioned and demolished more than 2 million square feet 
of excess facilities and removed all EM special nuclear 
material from the Idaho National Laboratory. We produced nearly 
4,200 cannisters of vitrified high-level waste at Savannah 
River site and the West Valley sites combined, and we have 
closed 6 underground storage tanks at the Savannah River site. 
We demolished the K-25 building at the Oak Ridge site, which 
was once the largest building under a single roof in the would.
    The Federal Government's investment in EM is resulting in 
safe and secure nuclear waste and reduced risk to the American 
people and environment.
    One of the great success stories of the program is the 
cleanup of the Rocky Flats site, which is listed on the 
National Priorities List, and cleanup was guided by a tri-party 
interagency agreement. In October 2005, EM completed the 
cleanup significantly under estimated cost and schedule.
    A number of factors were important contributors to the 
success of the Rocky Flats cleanup, including a collaborative 
working relationship with the regulators, both the State 
regulators and Environmental Protection Agency; an incentivized 
and motivated management and operations contractor; consistent 
and reliable budget appropriations; a closure managed as a 
finite project; involved stakeholders; and engaged workers and 
public.
    The Department has a balanced approach under the regulatory 
frameworks of the applicable environmental regulations, 
including CERCLA, also the Resource Conservation Recovery Act, 
or RCRA, the Atomic Energy Act, and the National Environmental 
Policy Act. And this guides and directs our cleanup actions.
    EM continues to pursue its cleanup objectives safely within 
a framework of regulatory compliance, and the Department has 19 
sites currently listed on the EPA's National Priorities List. 
EM is responsible for the cleanup of 11 DOE NPL sites which are 
located across 7 states.
    Under CERCLA, EPA oversees the Department's cleanup actions 
at NPL sites, and, although States are not a delegated 
authority for oversight of DOE's NPL site cleanup under CERCLA, 
State regulators are active participants in the CERCLA process. 
We work with EPA in the States to determine site priorities, 
evaluate cleanup approaches, develop a schedule for cleanup 
activities, and specify the requirements the site cleanup 
actions and activity must meet.
    These collaborative decisions are memorialized as binding 
commitments in a Federal Facility Agreement or a tri-party 
agreement between the state, EPA, and DOE. And these regulatory 
frameworks set cleanup standards and govern our cleanup 
activities. Generally, cleanup levels are directly tied to the 
expected future land uses of our sites. We have nearly 40 
agreements at the 16 sites where we are working.
    Largely EM has had success working with state regulators 
when it comes to negotiating, updating, and improving 
compliance agreements. Our site office have weekly, often 
daily, interactions with our regulators, state and EPA, to keep 
them apprised of site activities.
    We also currently have one Federal Advisory Committee Act-
chartered Site-Specific Advisory Board, with eight local 
advisory boards organized under that umbrella. Members of these 
advisory boards include people directly affected by site 
cleanup activities, such as stakeholders from local 
governments, tribal nations, environmental and civic groups, 
labor organizations, universities, industries, and other 
interested parties and citizens.
    A collaborative relationship with state and Federal 
regulators and the public is essential to successfully 
completing our cleanup at our sites.
    In addition to the collaborative relationships with 
regulators and stakeholders, there is also a need for continued 
investment in research and development for our program. We 
believe through strengthening the scientific basis for 
decisionmaking, the improvement in the effectiveness of cleanup 
technologies, as well as development of new technologies that 
address difficult and one-of-a-kind, unique issues and 
challenges, it is our hope that costs and project timelines can 
be reduced.
    Mr. Chairman, Ranking Member Tonko, and members of the 
subcommittee, I am again honored to be here today representing 
the Office of Environmental Management. I appreciate your 
interest in our work, and I appreciate the funding provided by 
Congress for EM each year.
    We are committed to achieving our mission within a 
framework of regulatory compliance and will continue to comply 
innovative environmental cleanup strategies and to complete our 
work safely and efficiently, thereby demonstrating value to the 
American taxpayers.
    Mr. Chairman, I know you have had the opportunity in the 
past to visit the Savannah River site fairly recently and get a 
firsthand look at the magnitude and the challenges that we face 
on a day-to-day basis in implementing our cleanup work at our 
sites.
    I would invite and encourage every member of the 
subcommittee to visit our sites and would be happy to assist in 
arranging tours and those visits as appropriate.
    With that, I am pleased to answer any questions as we move 
forward that you may have. Thank you.
    [The prepared statement of Mr. Whitney follows:]
    
    
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    Mr. Shimkus. Thank you very much.
    Next, I would like to recognize Mr. John Conger, performing 
the duties of the Assistant Secretary of Defense, Energy, 
Installations, and Environment, U.S. Department of Defense.
    You are recognized for 5 minutes, and welcome.

                    STATEMENT OF JOHN CONGER

    Mr. Conger. Thank you, Mr. Chairman. Good morning.
    Chairman Shimkus, Ranking Member Tonko, distinguished 
members of the subcommittee, thank you for the opportunity to 
discuss the Department of Defense's cleanup activities and the 
progress we have made to date.
    The Department has long made it a priority to protect the 
environment. From a mission perspective, we want to ensure that 
we have the land, water, and air space that we need for 
military readiness. Moreover, we must protect the health of the 
military and civilian personnel and their families who live and 
work on our bases, to ensure our operations don't affect the 
health and environment of surrounding communities, and to 
preserve resources for future generations.
    While we are here to talk about cleanup of past 
contamination, I want to emphasize that we are committed to 
rigorously complying with current laws to minimize new 
contamination. Our funding requests, our strong relationships 
with Federal, state, and local stakeholders, and our continued 
progress reflect that commitment.
    The Department of Defense is responsible for approximately 
39,000 cleanup sites across hundreds of active and closed 
bases. And, if I could, I have heard the term ``site'' used by 
other witnesses, and I think they use it differently than I do. 
I am talking about specific instances of pollution. Multiple 
sites can occur on a single installation. So I think the 
numbers that I have heard earlier reflect that an entire 
installation would be a single site, and we break it out 
differently. But, in any case, 39,000 cleanup sites across 
hundreds of installations.
    In order to make the most impact, we continually reassess 
DOD's cleanup program to ensure that we address the highest-
risk sites first, a process we conduct in collaboration with 
EPA and with the States. At the same time, we are committed to 
completing cleanup or achieving ``response complete'' and ``no 
further action required'' at all of our sites.
    We appreciate Congress' support for the roughly billion-
and-a-half dollars a year we spend on cleanup. At this point, 
more than 80 percent of our 39,000 sites have reached 
``response complete.'' I am proud to say that we remain on 
track to meet our internally set goals of 90 percent ``response 
complete'' by the end of 2018 and 95 percent by the end of 
2021.
    None of our successes would have been possible without 
investments in groundbreaking research and development in 
environmental technology. These are aimed at tackling our most 
difficult cleanups. Recent successes include bioremediation 
techniques for groundwater cleanup and detection technology to 
help find buried munitions. We are beginning to focus our R&D 
on capabilities needed to accelerate cleanup of the complex 
sites that will remain after we achieve our 2021 goals.
    Finally, I would like to highlight the contributions of our 
state, local, and Federal partners. State and local 
stakeholders help us to develop site management plans, play an 
active role in remedy selection, and have important oversight 
responsibilities. To that end, we have established three high-
level working groups and approximately 200 restoration advisory 
boards for local input to provide forums for local communities, 
state regulators, and other Federal regulators to discuss 
cleanup issues and concerns with us.
    We are also committed to interagency efforts. For example, 
my staff and senior leaders from the three military components 
meet with EPA headquarters staff quarterly to ensure our 
programs are on track and moving forward.
    In conclusion, our focus remains on continuous improvement 
in the restoration program. We have been identifying cleanup 
sites since the 1970s and have come a long way. Still, we are 
fully aware of the magnitude of our mission, and we look 
forward to continuing our partnerships and making smart 
investments in technology to meet our outlined goals.
    Thank you again for the opportunity to testify today, and I 
look forward to answering your questions.
    [The prepared statement of Mr. Conger follows:]
    
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    Mr. Shimkus. Thank you very much. And, again, we welcome 
you here.
    Now, Mr. Alfredo Gomez, no stranger to this committee, 
Director of Natural Resources and the Environment at the U.S. 
Government Accountability Office.
    Welcome. You have 5 minutes.

                   STATEMENT OF ALFREDO GOMEZ

    Mr. Gomez. Thank you, Mr. Chairman.
    Chairman Shimkus, Ranking Member Tonko, and members of the 
subcommittee, good morning. I am pleased to be here today to 
discuss our work on hazardous waste cleanup at Federal 
facilities.
    The Federal Government owns over 700 million acres of land. 
Some of this land is managed by the Departments of Agriculture, 
Interior, Defense, and Energy and is contaminated with 
hazardous waste that poses serious risks to human health and 
the environment. The cleanup of these sites can require 
substantial time and expense, as you have heard already.
    In response, Congress passed CERCLA, also known as 
Superfund, which requires owners and operators of hazardous 
waste to notify the Environmental Protection Agency of the 
existence of their potentially contaminated facilities. Based 
on the risks a site poses, EPA may place the site on the 
National Priorities List, a list that includes some of the 
Nation's most seriously contaminated sites. As of September 
this year, there are 158 Federal sites on the list.
    My statement today summarizes the results of several 
reports on the topic. I will talk about three key points: 
first, the number of contaminated and potentially contaminated 
Federal sites for the four departments; two, spending on and 
estimates of future costs for cleanup at these sites; and 
three, EPA's role in maintaining the list of contaminated and 
potentially contaminated Federal sites and ensuring that 
preliminary assessments of such sites are complete.
    The first point is that, while the four departments have 
identified thousands of contaminated and potentially 
contaminated sites, they do not have a complete inventory of 
sites, in particular for abandoned mines.
    Specifically, while the U.S. Department of Agriculture had 
identified over 1,400 contaminated sites and many potentially 
contaminated sites, the Department did not have a reliable 
centralized site inventory for abandoned mines. The 
Department's Forest Service estimated that there were from 
27,000 to 39,000 abandoned mines on its land. The Department of 
the Interior had an inventory of 4,722 sites with confirmed or 
likely contamination. However the Department's Bureau of Land 
Management had identified over 30,000 abandoned mines that were 
not yet assessed for contamination, and this inventory was not 
complete.
    The Department of Defense reported to Congress in June of 
2014 that it had 38,804 sites in its inventory of sites with 
contamination. The Department had the greatest number of sites 
on the National Priorities List. The Department of Energy 
reported that it had 16 sites in 11 States with contamination, 
and, as you have heard already, the Department is responsible 
for one of the world's largest environmental cleanup programs.
    Second, with regards to the cost of cleanup at these sites, 
the four departments reported allocating and spending millions 
of dollars annually on environmental cleanup, and an estimated 
future cost in the hundreds of millions of dollars or more in 
environmental liabilities.
    For example, the Department of the Interior allocated for 
fiscal year 2013 about $13 million for environmental cleanup 
efforts and reported $192 million in environmental liabilities. 
The Department of Energy received an annual appropriation of 
about $5.9 billion in fiscal year 2015 to support cleanup 
activities, and, in 2014, the Department estimated its total 
liability for environmental cleanup at almost $300 billion.
    Third, as of August 2015, EPA had compiled a docket of over 
2,300 Federal sites that may pose a risk to human health and 
the environment. EPA has noted that it is difficult to know 
about a site if the agencies have not reported it. EPA is also 
responsible for ensuring that Federal agencies assess the sites 
for contamination and has established 18 months as a reasonable 
timeframe for agencies to complete preliminary assessments. 
However, some agencies may take 2 or 3 years to complete an 
assessment.
    So, in summary, there are thousands of contaminated sites, 
and the list is not complete. The four departments have spent 
millions annually for cleanup and have estimated future costs 
in the billions of dollars. And, lastly, EPA has compiled a 
docket of over 2,300 Federal sites that may pose a risk to 
human health and the environment.
    Mr. Chairman, Ranking Member Tonko, members of the 
subcommittee, that concludes my statement, and I would be happy 
to respond to questions.
    [The prepared statement of Mr. Gomez follows:]
    
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    Mr. Shimkus. Thank you very much.
    Before I start with my questions, we are going to have two 
panels. The second panel is going to have the states 
represented, along with another person, who we don't know who 
that is yet. But it was the intent to maybe have it all on one 
panel so you could hear the concerns posed by the states. And 
it is my hope that you all will follow up and at least listen 
to the second panel.
    There are always 10 legislative or business days with 
followup questions, so a lot of the followup questions that we 
will present in writing will be based on the second panel 
testimony. I think it is going to be instructive and 
educational, and I hope you pay attention to that also.
    Having said that, let me start with my questions.
    Mr. Stanislaus, do you think that Executive Order 12580, in 
delegating lead cleanup status to agencies that may have caused 
contamination at a Federal facility and which are responsible 
for paying for cleanups, creates a potential conflict?
    Mr. Stanislaus. So all I can really speak about is those 
sites within our responsibility. So, of those sites within our 
responsibility, we do have an ability, EPA, to oversee that 
subset of sites. Those are sites on the National Priorities 
List. Other sites, we don't have that ability. It has been 
delegated directly to the other Federal agencies.
    Mr. Shimkus. So let me ask this again. Do you think that 
the funding mechanism--OK, so you have a Federal agency; they 
have a contaminated site. They are, because of the Executive 
order, given the authority for remediation, but the funding 
also comes out of their own budget.
    Does that cause a conflict? Does that make it difficult? Do 
they then make up--are they making a cost-benefit analysis 
based upon budgetary outlays?
    Mr. Stanislaus. Well, with respect to how the other 
agencies make that decision, I don't really know. But I can 
tell you from where EPA is involved in overseeing sites by the 
various Federal agencies, there is a real value to have 
independent review of everything from the scope of work and the 
implementation of the work.
    Mr. Shimkus. So let me go to Mr. Whitney.
    This is really the genesis of the questions that I am going 
to have for all the panelists. In the situation where DOE is 
both the primary responsible party and the lead agency making 
remedial decisions, can you understand the potential conflict, 
concern about conflict, and the worry that remedial decisions 
may be based on budgetary considerations?
    Mr. Whitney. Thank you, Chairman.
    So, for the Department of Energy sites, while we are the 
lead agency for the cleanup, we do not have a regulatory role. 
That regulatory role is by the EPA and the states. And so, sir, 
I don't see a conflict of interest. We work very closely and--
--
    Mr. Shimkus. But you are still the lead agency, whether 
there is an oversight role or not?
    Mr. Whitney. Yes, sir.
    Mr. Shimkus. OK.
    And, really, Mr. Conger, same question.
    Mr. Conger. Yes, no, I don't see a conflict. Most of the 
contamination that we are cleaning up, it dates from a long 
time ago, and it is not like there is a conflict at a 
particular location between the person cleaning something up 
and whoever had made the spill or whatever.
    We are pretty successful in getting appropriations for this 
cleanup. We have a very stable roughly billion-and-a-half 
dollars a year that we get into this program. We have schedules 
that have been fairly stable over the years worked out with the 
EPA and the states. I don't see any conflict or any problems on 
this.
    Mr. Shimkus. Let me go back to Mr. Whitney.
    What happens if two different Federal agencies assert lead 
agency authority?
    And, Mr. Conger, you can address it too.
    For example, if one agency currently owns the property but 
another agency caused the contamination, which agency, in fact, 
has the lead agency authority?
    Mr. Whitney. Sir, I am not aware of that with respect to 
DOE sites.
    Mr. Shimkus. Mr. Conger, are you aware of that?
    Mr. Conger. I can think of an example or two. So here is 
the dynamic. Where we cause the contamination and then transfer 
a property, through BRAC or whatever other mechanism--we have a 
responsibility for cleaning up all the contamination that we 
know about. That is the dynamic that we are dealing with. We 
have CERCLA responsibilities, and we uphold them.
    Mr. Shimkus. And we are not trying to play gotcha. A lot of 
this stuff is way before we were better environmental stewards, 
more focused on it. And so this is not an attempt at gotcha. It 
is just clarifying the record, trying to get answers for our 
questions.
    I want to make sure I get to Mr. Gomez for my last 
question.
    In your written testimony, you recommend that Congress 
should change section 120 of CERCLA to add a deadline for 
Federal agencies to complete their preliminary assessments. Can 
you explain that? Please explain that.
    Mr. Gomez. Certainly. Yes, we did note that in the report.
    EPA has essentially set 18 months as a reasonable timeframe 
for agencies to complete preliminary assessments. And what we 
found was that some agencies were taking 2 to 3 years to 
complete them. So we suggested that Congress consider giving 
EPA the authority to actually enforce that requirement. And we 
don't specifically set what that requirement should be, but we 
do note that EPA has already set a reasonable timeframe of 18 
months.
    Mr. Shimkus. So your recommendation is that the EPA have an 
enforceable deadline, and in your analysis you don't really 
choose what that is.
    Mr. Whitney. Correct.
    Mr. Shimkus. OK. Great. Thank you very much. I appreciate 
it.
    My time has expired, and I yield to the ranking member of 
the subcommittee, Mr. Tonko, for 5 minutes.
    Mr. Tonko. Thank you. And, again, I thank the chair for 
convening this panel to provide us with a progress report on 
Federal facility cleanups under Superfund.
    Last Congress, this committee considered legislation to 
change the treatment of Federal facility cleanups under 
Superfund. That bill was not based on an oversight record and 
included several misguided provisions. I did indeed oppose that 
legislation, as did all of my Democratic colleagues on the 
committee. So I welcome this opportunity to build the 
committee's record on these issues and hear from some of our 
agencies involved in Federal facility cleanups.
    I would like to start by asking about Federal 
responsibilities under current law.
    Mr. Conger and Mr. Whitney, under current law, are you 
subject to the liability and cleanup requirements of Superfund 
at sites where you are a responsible party?
    Mr. Whitney. Maybe I will go first, if that is OK.
    Yes, sir. The Department of Energy is subject to the same 
requirements as private entities under CERCLA.
    Mr. Tonko. Thank you. And----
    Mr. Conger. Yes.
    Mr. Tonko [continuing]. Mr. Conger, you are in agreement.
    Mr. Stanislaus, under current law, are all Federal agencies 
subject to the liability and cleanup requirements in Superfund?
    Mr. Stanislaus. Yes.
    Mr. Tonko. In fact, section 120 of Superfund imposes 
additional requirements on Federal agencies that private 
parties do not face, I believe.
    Mr. Conger, what obligations does Superfund place on the 
Department of Defense and other agencies before you can 
transfer land?
    Mr. Conger. Before we transfer--so it is a little 
complicated. We can transfer land that is contaminated with a 
guarantee to clean it up after the transfer; we can have that 
set up in the agreement. We have a responsibility for cleanup 
regardless of when the transfer occurs.
    Mr. Tonko. OK. And is that true also in regard to the BRAC 
process where we are addressing the realignment and closure of 
bases?
    Mr. Conger. Yes, that is generally true.
    I want to be careful not to--I am not going to pretend to 
be an attorney here. And so, as we go into the finer points of 
the law--I will double check for the record the answers to your 
questions.
    But, in a broad sense, we have responsibilities to perform 
the cleanup at BRAC sites or whatever other transferred sites 
we have. We have on occasion not let that hold up the transfer 
of property, but rather, you know, with eyes open to whoever is 
receiving the property either agreed to clean it up after the 
fact or made an agreement or arrangement to have it cleaned up 
after transfer.
    Mr. Tonko. And, Mr. Gomez, do private parties face these 
given obligations?
    Mr. Gomez. That is something I would have to get back to 
you, Mr. Tonko. I have to get back to you on that.
    Mr. Tonko. OK.
    I am sure that our ranker, Mr. Pallone, and others on the 
subcommittee will delve into the details more. But it is clear 
that there are a lot of potentially contaminated sites on 
Federal land that still need to be assessed and cleaned up, but 
a good deal already has been done, as I indicated earlier.
    Mr. Conger, can you describe the progress that DOD has made 
in cleaning up its inventory of Superfund sites?
    Mr. Conger. Certainly. And I won't just limit it to 
Superfund, because we track all of our cleanup sites together 
in a fairly large--it is 39,000 sites together in a single 
database. And I could probably break it out, but I don't have 
that available. I can get that for the record.
    But, frankly, we are complete with cleanup at 80 percent of 
our sites. We set fairly aggressive goals a few years ago to 
get to 90 percent by 2018. We are on track for that. We are 
looking at getting 95 percent of our sites cleaned up by 2021.
    We will have some complex sites that are left over at that 
point. I am not going to pretend that it is going to be done in 
a few years at that point, those last 5 percent. But that is 
why we use R&D. We attack the difficult problems with some our 
research funding to try and figure out how we are going to be 
able to accelerate timelines or to clean it up better.
    And when we do come up with something, like the 
bioremediation techniques that we came up for cleaning up 
groundwater, that is applicable to the private sector, as well, 
and they use those techniques, as well, once we figure it out 
for our own purposes.
    Mr. Tonko. Yes.
    And, Mr. Whitney, can you describe the progress with DOE?
    Mr. Whitney. Yes, sir. As I mentioned, we have cleaned up 
91 of our sites across 20 states, and we have 16 sites 
remaining.
    We have reduced the footprint, the cleanup footprint, in 
Environmental Management, the DOE complex, by 90 percent. And 
when we talk about our sites, we talk about square miles and 
not square acres. And we are down to about 250 square miles, 
and we were previously around 3,000 square miles when we 
started with the program.
    So we have had significant accomplishments across the 
complex. Now, as my colleague here has stated for DOD, we have 
some complex challenges remaining ahead of us. And probably the 
most difficult challenges remain ahead of us.
    Mr. Tonko. Yes.
    I see my time is up, so I will yield back, Mr. Chairman.
    Mr. Shimkus. Thank you.
    The chair now recognizes the gentleman from Mississippi, 
Mr. Harper, for 5 minutes.
    Mr. Harper. Thank you, Mr. Chairman.
    And thanks to each of you for being here.
    And I am just curious, Mr. Stanislaus, how many times have 
you now testified before a committee or subcommittee?
    Mr. Stanislaus. I think I should get an honor of some type.
    Mr. Harper. Surely.
    Mr. Shimkus. Oh, you are going to get one.
    Mr. Harper. Have you kept up with the number of times 
that----
    Mr. Stanislaus. I have to get back to you.
    Mr. Harper. Yes, yes. That was the answer I was looking 
for. Thank you very much.
    I am going to remember that one, Mr. Stanislaus.
    Mr. Gomez, you just testified, and, obviously, your 2015 
report noted that, while Interior and USDA have identified 
thousands of contaminated and potentially contaminated sites, 
they don't have a complete inventory of sites. Can you 
elaborate on that a little bit? And then tell me, how do you 
remedy that?
    Mr. Gomez. Sure.
    So, as I noted in the opening statement and also in our 
report, Interior and Agriculture have identified thousands of 
contaminated sites, but their inventory, particularly for 
abandoned mines, is incomplete, and in some cases not reliable. 
In the case of the Forest Service, the different regional 
offices have different ways of gathering information.
    And just one example on the Interior side is, for example, 
the Bureau of Land Management estimated an additional 100,000 
mines that have yet to be inventoried in three States. And 
those are the States of California, Nevada, and Utah. So they 
have, we believe, quite a bit of work to do when it comes to 
abandoned mines.
    Mr. Harper. And, also, Interior and USDA disagree over some 
of the docket listings that exist now. Tell us what the 
disagreement is about or if that is significant.
    Mr. Gomez. Sure.
    One disagreement is between EPA and Interior with regards 
to the overall approach to listing sites on the docket that are 
not reported to EPA by the agencies. Interior believes that 
CERCLA does not give EPA the discretion to list sites unless 
Interior reports those sites to EPA and that EPA should limit 
listing only sites that agencies report to it.
    Now, both Interior and USDA also believe that abandoned 
mines should not be listed on the docket. And the idea there is 
that these sites have contamination that wasn't caused by the 
agencies. EPA's view on that is, regardless of whether the 
contamination was caused by someone else or the Federal agency, 
these sites are now under the ownership of the Federal 
Government, and the Federal Government needs to take 
responsibility for it.
    Mr. Harper. So how do we get one list? How do we ever get 
to one list?
    Mr. Gomez. It is a work in progress at the moment. And that 
is why we call attention to it, the inventories are not 
complete, and there is disagreement about what should be added 
to the docket.
    Mr. Harper. And assuming we had a uniform list, it is not 
necessarily static, because you can have new sites that develop 
or become----
    Mr. Gomez. Correct.
    And, also, for example, the docket includes sites that no 
longer need to be addressed. So it has sites that are 
contaminated sites, that are potentially contaminated, and then 
sites that don't need to be addressed. There is no method 
currently to remove those sites from the docket.
    Mr. Harper. Gotcha.
    Mr. Gomez. The docket is more of a historical record.
    Mr. Harper. In your written testimony, you had mentioned 
that there is a lack of interagency agreements between DOD and 
EPA. Can you elaborate on that and explain why this could be a 
problem or is a problem?
    Mr. Gomez. So we did work a number of years ago where we 
looked at 11 DOD installations, those installations had yet to 
enter into interagency agreements with the EPA, even though 
they had already been listed on the National Priorities List, 
in some cases for years. And we found that the lack of these 
interagency agreements resulted in delays of cleaning up those 
sites.
    Now, as of March 2013, when we looked into the issue again, 
most of those sites had interagency agreements. There were only 
two that did not. And, currently, there is only one site that 
doesn't have an interagency agreement.
    Mr. Harper. OK.
    Are there similar problems with other Federal agencies 
conducting cleanups under CERCLA?
    Mr. Gomez. So the work that we did had focused on the 
Department of Defense because they have the majority of 
National Priorities List sites. We didn't look at the other 
agencies, so we don't know if that problem also exists there. 
Perhaps our witness from EPA might be able to shed some light 
on that.
    Mr. Harper. Thank you, Mr. Gomez.
    And thank you, Mr. Chairman, and I yield back.
    Mr. Shimkus. Thank you.
    The chair now recognizes the ranking member of the full 
committee, Mr. Pallone, for 5 minutes.
    Mr. Pallone. Thank you, Mr. Chairman.
    Superfund cleanups are essential for public health, the 
environment, and the economic vitality of communities around 
these sites. And, unfortunately, in many of these communities, 
the wait for a cleanup drags on because funds and resources are 
limited, and the backlog of potentially contaminated sites is 
huge.
    So I wanted to ask Mr. Gomez, with that in mind, can you 
share some recent estimates of the number of potentially 
contaminated sites with regard to USDA and Department of 
Interior?
    Mr. Gomez. Sure. Thank you.
    So, with regards to the Department of Agriculture, they 
have identified almost 1,500 sites that are contaminated or 
potentially contaminated. Also, the Forest Service estimates 
that from 27,000 to 39,000 abandoned mines on its land, and 
approximately 20 percent of those may pose some level of risk 
to public health or the environment.
    Now, on the Interior side, Interior has identified over 
4,700 sites with confirmed or likely contamination. And the 
Bureau of Land Management has also identified over 30,000 
abandoned mines that were not yet assessed for contamination.
    And I would also mention that, in addition to that, there 
was those additional 100,000 mines that need to be inventoried 
in three states.
    Mr. Pallone. What about the number of sites under control 
of Defense or Department of Energy?
    Mr. Gomez. Sure. So the work that we did, which was issued 
in January of this year, focused on the Department of 
Agriculture or the Department of the Interior. We have not 
looked at what the Department of Energy or Department of 
Defense have in its inventory.
    Mr. Pallone. OK.
    Are there additional Federal sites controlled by other 
agencies?
    Mr. Gomez. Yes. There are some, for example, NASA sites 
that are out there. There was some work that the NASA IG was 
doing. So we didn't look at NASA in our work.
    Mr. Pallone. These numbers are staggering themselves, not 
to mention the departments that you haven't looked at, but I 
think they are only part of the story.
    Can you share recent estimates of the cost to clean up 
these Federal sites?
    Mr. Gomez. Sure. So the estimates, as I noted also, are in 
the hundreds of millions of dollars.
    And just to give you some examples, maybe some examples 
that I didn't mention, is the U.S. Department of Agriculture, 
for example, allocated in fiscal year 2013 over $22 million to 
do environmental cleanup and then also reported $176 million in 
environmental liabilities.
    The Department of Defense spent almost $30 billion from 
1986 to 2008 across all environmental cleanup and restoration 
activities at its installations. And then in its fiscal year 
2014 financial report, DOD reported $58.6 billion in 
environmental liabilities.
    Mr. Pallone. So if you look at the amount of money that is 
being spent versus what is needed, there is a huge gap, 
obviously.
    Let me turn to the three agencies on the panel.
    Are consistent and reliable appropriations important for 
completing cleanups in a timely manner, in your opinion?
    Mr. Conger. I will start.
    Mr. Pallone. Sure.
    Mr. Conger. I think they are, and I think that is what we 
have had. As I have noted before, we spend about a billion-and-
a-half dollars a year. That is a very stable amount of money. 
And we have the ability to plan with that amount of money, 
where we work out schedules with the EPA and the states. 
Everybody knows the pace of the work that is going to be going 
on, and I think there is a comfort level with that.
    And just a clarification point on the environmental 
liabilities that were mentioned earlier. The cleanup liability 
is smaller than the number that was cited. That is the entirety 
of all of our liabilities that include all of our nuclear ships 
and the eventual cleanup for those and a variety of other 
items. But the cleanup liability is closer to $27 billion.
    Mr. Pallone. Let me just ask quickly ``yes'' or ``no,'' 
because then I want to ask one last question, could more 
cleanups be completed with greater resources? Just yes/no.
    Mr. Conger. I think that there are also possibilities, but 
we have a stable program right now, and I think----
    Mr. Pallone. How about the other two guys? Yes or no?
    Mr. Whitney. Yes, sir. I think it could be--we know what 
our cleanup lifecycle is. So I don't know if more cleanups 
could be completed, but the cleanups that we have could be 
completed quicker.
    Mr. Pallone. And your----
    Mr. Stanislaus. Well, I would say yes. And we have been 
subject to about a 20-percent cut of our resources to oversee 
the subset of sites that we have direct responsibility for, so 
that has, in fact, impeded the pace of work.
    Mr. Pallone. All right.
    Let me just ask quickly, because I know my time is up. I 
just wanted to know if more investment in--I will ask Mr. 
Stanislaus.
    Could more invest in Federal cleanup efforts lead to the 
development of new technologies and best practices that can 
improve the cleanups nationwide? Quickly.
    Mr. Stanislaus. I would say generally the answer is yes. 
And I think, as Mr. Conger noted, there are unique issues at 
the DOD and DOE sites. So, clearly, some technologies would 
help in some cases.
    Mr. Pallone. All right.
    Thank you, Mr. Chairman.
    Mr. Shimkus. The gentleman's time has expired.
    The chair now recognizes the gentleman from Ohio, Mr. 
Latta, for 5 minutes.
    Mr. Latta. Well, thank you, Mr. Chairman.
    And to our panel, thanks very much for being here.
    If I could start with you, Mr. Stanislaus, since I guess 
you have won the record as being here the most, so I will start 
with the questions.
    Do you believe that current and formerly owned Federal 
facilities should have to comply with the same state 
requirements as a private entity conducting a cleanup under 
CERCLA?
    Mr. Stanislaus. Well, I think CERCLA does, in fact, provide 
for that.
    Mr. Latta. How often do you--let me just follow up. How 
often do Federal facilities comply with state laws and 
regulations? Is it all the time?
    Mr. Stanislaus. Well, yes, I could only speak about those 
that we have direct responsibility for. So we do, in fact, 
engage the states continuously with respect to their role 
throughout the process of the investigation, the application of 
state requirements. So, with respect to those sites, the states 
play a partnership role.
    Mr. Latta. When you say that it depends on what your role 
is, what is the percentage that you would be involved in those 
sites then?
    Mr. Stanislaus. I will get you the exact percentage. It is 
relatively small, because we only have direct oversight 
responsibility on those sites that are listed on the National 
Priorities List, which, as I described earlier, there are lots 
of other sites under the responsibility of DOD, DOE, and the 
Department of Interior and Forest Service and----
    Mr. Latta. OK.
    Let me ask this. Is sovereign immunity often invoked by 
Federal agencies?
    Mr. Stanislaus. Well, we have not found--from our role in 
oversight, that has not been an issue, from our perspective, 
but that is as much as I know.
    Mr. Latta. OK.
    And, also, do you believe that section 120 of CERCLA is 
evidence that Congress intended to waive sovereign immunity 
under CERCLA and to require Federal entities to comply with 
state cleanup laws?
    Mr. Stanislaus. I may have to get back to that. I don't 
know the answer to that question. Let me get back to you on 
that.
    Mr. Latta. OK.
    Let me ask this then. Do you think that section 120 of 
CERCLA needs to be amended to make sure that Federal agencies 
do comply with state regulations and laws dealing with cleanup?
    Mr. Stanislaus. Well, again, just within the sliver of 
sites within our responsibility, we largely have the states as 
a party to Federal facility agreements so they have equal 
rights as the EPA. And, at least from where we are involved in 
Federal facility sites, we view the states as a partner. And I 
really can't speak to those sites that we don't have a role in.
    Mr. Latta. OK. Thank you.
    Mr. Conger, if I could turn to you, if I could ask, does 
DOD recognize and comply with state land use control laws and 
regulations related to environmental cleanups?
    Mr. Conger. So the answer is it depends. It is complicated, 
and my lawyers will, I am sure, hope that I don't give a simple 
answer to your question. So I will take that for the record 
formally, but let me give a sort of first-level answer to the 
question.
    Yes, of course, on those sites that we no longer own--on 
BRAC sites. Those are not Federal property, generally, and so 
those controls would apply. Where it is Federal property, it 
gets more complicated. And, again, not being a lawyer, I will 
take that specific instance for the record.
    Mr. Latta. Do you all look at, when you are doing your 
reviews, do you look at the state land use laws and how that 
deals with the environmental cleanup?
    Mr. Conger. Yes. And we are partners with the states when 
we do our cleanups. And, as Mathy indicated, most of the sites 
that we have, or at least a significant number, are regulated 
by the state regulators. We work with them. We work schedules 
out together, we work remedies out together. This is something 
we do in partnership. I am unaware of significant discontent in 
the states with how we are doing our program.
    Mr. Latta. OK.
    Let me follow up with another question, if I may. Would you 
please describe in detail how DOD measures success or, to the 
use of the term you used in your written testimony, achieves 
``response complete''?
    Mr. Conger. Yes.
    So, in every cleanup, there is a process, as you well know. 
There is an investigation, which includes the preliminary 
assessment, the site inspection, the RI, the FS, et cetera, et 
cetera. The actual remediation, once we have a remedy in place 
and once have conducted all of the operations, all the remedial 
operations, and satisfied the regulators at a particular site, 
then we have achieved ``response complete.''
    We will have some long-term monitoring in some places so 
that we go back and double check that the contamination hasn't 
recurred. But once we have taken all of the actions that we are 
supposed to take at the site, we achieve ``response complete.''
    Mr. Latta. One last real quick question. Do you measure 
that cleanup, then, with respect to the acres you clean up? Or 
how do you do that on----
    Mr. Conger. With respect to--I am sorry.
    Mr. Latta. On the amount of acres you have cleaned?
    Mr. Conger. No. Because not everything is about acres. 
Sometimes it is about groundwater. There are a whole variety of 
ways to measure, so we don't normally think of it just in terms 
of acres.
    Mr. Latta. Thank you, Mr. Chairman. My time has expired, 
and I yield back.
    Mr. Shimkus. The gentleman's time has expired.
    The chair now recognizes the gentleman from Oregon, Mr. 
Schrader, for 5 minutes.
    Mr. Schrader. Thank you, Mr. Chairman.
    Mr. Stanislaus, I would like to kind of move--in our area, 
one of the biggest sites we have to deal with is the Portland 
Harbor as a Superfund site. And defense industry, big partner 
in contaminating that during World War II and now not so much 
of a partner in cleaning the thing up at the end of the day, 
for a lot of the reasons that have been mentioned here.
    But I am concerned about EPA's approach to that harbor. You 
have a number of businesses that have stepped up, formed this 
Lower Willamette Group, trying to figure out a way to actually 
clean this up or be a partner in cleaning it up without the 
Federal Government, frankly, at this stage of the game. And I 
am worried about the science that is involved in this.
    And, particularly, I guess I wanted to know from you, is it 
common practice to a qualitative and not a quantitative 
analysis of the cleanup alternatives?
    Mr. Stanislaus. Well, I think we have, in fact, done a 
quantitative analysis of----
    Mr. Schrader. See, I would disagree with that. There is not 
a quantitative analysis done. In the report I saw on the 
feasibility study, there is no evaluation of what the 
concentrations of various contaminants would be, after 
different remedial actions have been taken.
    I think most of the businesses that are going to be funding 
this, anybody that is doing any scientific analysis, you are 
supposed to do a cost-effectiveness analysis. Once you have 
determined the health risk, then what are the most cost-
effective ways to take care of this stuff? And that is not what 
I am seeing in the report.
    I guess I would like you to get back to me with that 
information, where there is a quantitative analysis of that.
    The other question I had is regarding natural recovery. Is 
it common for natural recovery to be ignored by EPA when they 
do remedial action analyses?
    Mr. Stanislaus. No, if I can give a broad answer. So we 
have conducted a remedial investigation that identifies----
    Mr. Schrader. I am asking about natural recovery. What----
    Mr. Stanislaus. Yes. So as part of the alternative 
analysis, we would look at the various alternatives, including 
that kind of alternative----
    Mr. Schrader. Well, I appreciate you saying that, because 
that is not what is done in this particular feasibility study 
on the Portland Harbor. The natural recovery aspects, the 
quantitative aspects of what natural recovery are, are not 
being included at all.
    As a matter of fact, you can't, I would argue respectfully, 
scientifically evaluate how a particular remedial action, 
capping dredging, is going to work, what benefit you are going 
to get from that, unless you know what the natural recovery 
benefit is going forward.
    As a matter of fact, just up the river, at Willamette 
Falls, there is a site that was grossly contaminated. It was a 
paper mill. And environmental agencies have determined that it 
does not pose any real contamination risk because natural 
recovery has completely wiped that out. Admittedly, it is a 
higher-flowing river at that particular point.
    So I am not seeing that going forward.
    The other thing I am worried about is, in this particular 
case, is how they have evaluated these alternatives. Is it 
normal for EPA to assume that dredging is going to go on 24 
hours a day, 6 days a week, in a water work window? Is that the 
normal way you would evaluate?
    Mr. Stanislaus. Well, it would depend on the facts of the 
particular circumstance. So we evaluate alternatives, be it----
    Mr. Schrader. Would you assume that the dredging operation 
would go 24 hours a day, 6 days a week, in a recovery action?
    Mr. Stanislaus. Well, I can't say a generalized rule. It 
would depend----
    Mr. Schrader. I think most people--I apologize for 
interrupting you, but I would think most people would say that 
is unrealistic. That is not the way any operation works, at the 
end of the day. And what happens with that is then you are 
underestimating the costs of some particular remedial actions. 
And I see that in this particular feasibility study. I think 
that is unfair and unrealistic, and you end up skewing the 
results of your feasibility study and the effectiveness of 
different remedial actions when you do that.
    Question, also, on principal threat waste. How do you 
determine the levels of different contaminants so that they 
constitute a principal threat waste? What procedure do you use?
    Mr. Stanislaus. Let me get back to you regarding that. But 
the whole purpose of the draft feasibility is actually to 
entertain----
    Mr. Schrader. The reason I ask that particular question--
again, sorry to interrupt; I only have a limited amount of 
time--is that, I think that is important. What we are seeing 
here now is that there are low and unprecedented levels, I 
would argue, of determining these principal threat waste levels 
in this feasibility study for the Portland Harbor, and, as a 
result, you are doing treatments in addition to removal, in 
addition to capping, I mean, without any analysis as to is that 
treatment of this so-called principal threat waste going to 
give you any additional benefit.
    Again, the science that I see EPA not using in this group, 
with this willing set of businesses wanting to step up and do 
the right thing without any Federal largesse, and they are 
being cast aside. I think it is a terrible reputation that the 
EPA is developing, unfortunately, in our region.
    And it could drive the cost--we have heard costs of 
hundreds of millions of dollars. The whole defense industry, 
maybe a billion dollars a year. They are talking billions of 
dollars for this one little Superfund site. And I think that 
there are estimates by others that it could be in the millions 
to maybe hundreds of millions of dollars.
    So there is a big difference, respectfully, between what 
EPA is looking at and the assumptions they are using that their 
reasonable business and scientific experts would get to to do 
the same amount of cleanup at the end of the day. So I 
appreciate you getting back to me on some of that information.
    And I yield back.
    Mr. Stanislaus. Yes, I will get back to you. And I can 
assure you that we have discussed the science with all the 
stakeholders. And, in fact, we really appreciate the 
responsible parties stepping up. From the very beginning of the 
process, we looked at the scope of the science, conducted the 
science in an open and inclusive way, and we will continue to 
do so.
    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 I want to thank the panel for being here.
    Mr. Stanislaus, I was thinking earlier, as we were talking 
about how many times you have testified, if this were baseball, 
your number of at-bats and your own base percentage would be 
one of the highest in the league. So I commend you for 
continuing to step into the batter's box. I know these are 
tough issues.
    Mr. Whitney, I represent many of the hardworking people 
that are helping to clean up the former Portsmouth Gaseous 
Diffusion Plant in Piketon, Ohio, and many others who are 
dependent upon that work getting done so that they can 
reindustrialize that site and make it a productive, job-
creating site for the people that live there.
    I am shocked that the Department of Energy has now extended 
the deadline or the timeline for completing that cleanup 
approximately another 30 years. It makes absolutely no sense to 
me. The people who the commitments were made to, many of them 
could possibly be dead by the time the Department of Energy 
gets done doing what they committed to do.
    And it is very unfortunate that, for the third year in a 
row, jobs are at risk because the administration has failed to 
request adequate funding to complete this work. The Ohio 
delegation has repeatedly urged the administration to present a 
fully funded, comprehensive plan for decontamination and 
decommissioning activities at the site.
    Unfortunately, financial instability continues year after 
year. Back in May, the House of Representatives approved full 
funding, $213 million, for D&D operations, which surpassed the 
administration's request by $48 million, and yet we see this 
dragging-out process again.
    We are ready to work with the administration and you folks 
again this year on funding, but we got to have a willing 
partner here and a commitment on the part of DOE to move this 
project forward and meet the commitment, stand up and honor the 
promises that were made to the people of southern Ohio.
    So, with that said, what are DOE's plans to address this 
issue?
    Mr. Whitney. Thank you, sir.
    Yes, and we are committed to the cleanup of Portsmouth, and 
it is unfortunate that WARN notices had to be issued at the end 
of August.
    Our request for 2016 is actually a little bit more than the 
President's request for 2015 for Portsmouth, and it is about 
$227 million for 2016 in our request.
    Unfortunately, the request, as well as the House--even 
though the House mark was a very large increase over the 
President's request--and the Senate mark did put us in a 
position where we had to provide funding guidance that was 
lower than the 2015 request.
    Now, as you know, sir, on top of the $227 million request, 
we were able to take advantage of barter of uranium, which 
probably the proceeds, depending on the price of uranium at the 
time, is another $160 million approximately. So that is almost 
a $400 million investment in the----
    Mr. Johnson. I get that. I get that. But, see, the citizens 
of southern Ohio, they were not party to developing the formula 
that determined how this was going to be funded. They were the 
recipient of a promise by the Federal Government and the 
Department of Energy. I think the Department of Energy has a 
responsibility, as does Congress, to work together to figure 
out a formula.
    And I understand that the sale of uranium has caused a 
wrinkle, but we need to resolve the wrinkle and develop a new 
formula, if we have to, and not make it at the expense of the 
workers and the folks that live there.
    So, I would urge you to take back to your leadership, at 
least from my perspective--and I can't speak for all of the 
Ohio delegation, but I feel very, very certain that they would 
agree--this is unacceptable, to think and ask the people of 
southern Ohio to wait another 30 years to trickle this process 
along. It is just not right.
    Mr. Conger, in your written testimony, you state that DOD 
works together with Federal and state environmental regulatory 
partners to prioritize sites for cleanup based on worst first.
    Would you please explain the process that DOD uses to 
determine which sites are the worst?
    Mr. Conger. So, generally, it is a risk-based process that 
is looking at the risk to human health and the environment.
    Well, I say ``generally.'' I have heard the term ``risk 
plus.'' And what that means is there are other factors that we 
take into account, as well. If there is a low-risk site that 
happens to be collocated with a high-risk site, we might do 
them both because it is economical to do them both at the same 
time. So that low-risk site might be lumped in and done 
earlier.
    But, generally, as we rack and stack this list, it is based 
on risk to human health and the environment.
    Mr. Johnson. OK.
    Mr. Shimkus. The gentleman's----
    Mr. Johnson. Mr. Chairman, I have a lot more I could ask, 
and I appreciate the committee's indulgence to ask that first 
question, but I yield back.
    Mr. Shimkus. And the gentleman knows that you can submit 
questions for the record in written form.
    Mr. Johnson. And I will.
    Mr. Shimkus. Thank you.
    The chair now recognizes the gentlelady from Colorado, Ms. 
DeGette, for 5 minutes.
    Ms. DeGette. Thank you, Mr. Chairman.
    Thanks, everybody, for coming today.
    As you know, in Colorado, we not only have contaminated 
Federal munitions and chemical sites, but we also have legacy 
mines on Federal lands. And there are often questions of 
liability regarding the abandoned mine lands since many 
companies might have had those properties over the course of 
decades.
    Of course, a prime example of this is the Gold King Mine, 
which we saw this summer. And you all saw this on the national 
news. This is what the Gold King Mine looked--this is what the 
Animas River looked like. Why those people are kayaking there I 
don't know. But the Animas River was orange as it flowed down 
through Durango and down into New Mexico, and Cement Creek was 
also turned orange.
    So this is kind of the backdrop for the questions that I am 
going to be asking today.
    I want to ask you, Mr. Stanislaus, if the EPA is going to 
be pursuing reimbursement from the companies that left these 
millions of gallons of contaminated water at Gold King Mine to 
pay for the remediation of the site.
    Mr. Stanislaus. Yes.
    Ms. DeGette. That is good news to hear.
    I would like to know, if there were private owners, which 
there were, of that site and the adjoining mine, why was the 
EPA cleaning up the site in the first place?
    Mr. Stanislaus. Because there was a risk identified by the 
State of Colorado and the stakeholders that risk be addressed 
immediately. Roughly about 330 million gallons on a yearly 
basis was going into the Animas River.
    Ms. DeGette. And that is before it all came----
    Mr. Stanislaus. That is right.
    Ms. DeGette [continuing]. Rushing out and turned the river 
orange.
    Now, that site was not listed on the Superfund National 
Priorities List, correct?
    Mr. Stanislaus. That is right.
    Ms. DeGette. What the National Priorities List does, it 
targets the cleanup of sites without viable responsibility 
orders, and it puts it in priority for funding. Is that right?
    Mr. Stanislaus. That is correct. It identifies those sites 
that have the most risk in the country. It also makes that site 
eligible for Superfund resources.
    Ms. DeGette. And do you think the Gold King Mine would be a 
candidate for the National Priorities List?
    Mr. Stanislaus. Well, there have been discussions, and I 
was just in Silverton last week at the invitation of local 
stakeholders to continue that conversation.
    Ms. DeGette. So the decision has not yet been made?
    Mr. Stanislaus. No. We are continuing to have those 
conversations.
    Ms. DeGette. When do you think you will make that decision?
    Mr. Stanislaus. Well, again, we are engaged in that 
conversation. There is also kind of a technical evaluation of 
data, so we are in the process of evaluating that right now----
    Ms. DeGette. Right. So would that, like, 6 months? Twelve 
months?
    Mr. Stanislaus. I will get back to you on the timeframe.
    Ms. DeGette. That would be really fabulous. And what would 
be even better is if we had a very short timeframe to get that 
on the list.
    There are thousands and thousands of mines, as all of you 
have said, that are similar to the Gold King Mine across the 
West.
    Mr. Gomez, in your testimony, you note that both the USDA 
and DOI have significant inventories of abandoned mines that 
could potentially pose threats to health and the environment. 
Do either of these agencies have a system for prioritizing 
their most contaminated mines?
    Mr. Gomez. Yes. They go through the process of identifying 
the mines, and they are making their own assessments of it. But 
we didn't look specifically at that process. We were looking 
mainly at identification. Those are good questions that we can 
follow up with.
    Ms. DeGette. I would appreciate that, because it is my 
understanding that they actually don't have a priority list, 
and that would be really helpful.
    Gold King is the perfect example of a mine where everybody 
knew it needed to be cleaned up. But I think everybody could 
now stipulate that, in hindsight, the preparation for the 
cleanup, the recognition of the seriousness of the problem was 
grossly underestimated.
    Now, based on GAO's analysis of contaminated sites on USDA 
and DOI properties, do each of the agencies have sufficient 
environmental expertise of their own to plan and oversee 
cleanup of the sites?
    Mr. Gomez. So, for those cases that do end up on the 
National Priorities List, EPA does oversee those sites----
    Ms. DeGette. Right.
    Mr. Gomez [continuing]. And so EPA does provide that 
expertise.
    Ms. DeGette. To USDA and DOI?
    Mr. Gomez. Do they have that expertise?
    Ms. DeGette. Right.
    Mr. Gomez. Again, we weren't looking at the workforce of 
the agencies to see if they have the expertise or not. But, as 
I said, for those sites that end up on the National Priorities 
List, EPA is doing the oversight.
    Ms. DeGette. OK.
    Now, I want to ask you, Mr. Stanislaus, it is my 
understanding that USDA and DOI don't want mines that were 
Superfund cleanup to be listed on the National Priorities List. 
Does that impede the EPA's ability to oversee and ensure proper 
cleanup at the sites?
    Mr. Stanislaus. Our only ability to oversee sites is for 
those sites that are on the National Priorities List.
    Ms. DeGette. OK. So if they are not on that list, then we 
can't clean them up.
    Mr. Stanislaus. That is right.
    Ms. DeGette. So I guess, Mr. Gomez, I would like you to 
supplement your testimony to see what, in fact, the position of 
those two agencies is of putting their mine sites on that list.
    Mr. Shimkus. Would the gentlelady yield for a second?
    Ms. DeGette. I would be happy to.
    Mr. Shimkus. So we invited----
    Ms. DeGette. I am out of time.
    Mr. Shimkus. That is right. I am the chairman.
    Ms. DeGette. Yes. Seize control.
    Mr. Shimkus. We invited Department of Interior to testify. 
They, in essence, said they wouldn't. They did say they would 
submit a statement. They only sent it when we reminded them 
that they said they would send a statement. So maybe some 
followup on the Department of Interior might be appropriate.
    Ms. DeGette. Yes, Mr. Chairman, I think that is a great 
idea. Because if you can't list these on the list, then the 
agency with the expertise to clean it up won't be able to do 
it.
    Thank you.
    Mr. Shimkus. And maybe they will reconsider coming back 
next time we ask them.
    So thank you.
    Now I would like to recognize my colleague from North 
Carolina, Mr. Hudson, for 5 minutes.
    Mr. Hudson. Thank you, Mr. Chairman.
    And I would like to thank the witnesses for being here 
today. Really appreciate your testimony. It has been very 
informative and helpful for me to understand this process.
    I would like to start with Mr. Conger.
    What percentage of DOD's hazardous waste facilities have 
been identified on the Federal Facilities Hazardous Waste 
Compliance Docket as required in CERCLA?
    Mr. Conger. So I can't tell you what percentage of our 
sites are actually on the docket because we track all of them 
as a larger group. The 39,000 sites that I have talked about 
during my testimony include those on the docket, but we have 
far more sites than those that are on the docket.
    A couple years ago, we did a docket scrub. We went and 
looked at our database and EPA's database, the docket, to make 
sure that everything that needed to be on the docket was on 
there. And so we have done that reconciliation. But I couldn't 
tell you, out of all the sites we have, exactly how many are on 
the docket.
    Mr. Hudson. Would you mind following up with us with that 
number?
    Mr. Conger. Sure.
    Mr. Hudson. I would appreciate it.
    What percentage of DOD sites that you have identified have 
the required preliminary assessments been completed on?
    Mr. Conger. Well, out of the 39,000 sites that we have, I 
think only 4 percent of them are still at the preliminary 
assessment and site inspection phase. The breakout between PA 
and SI we can get you, but it is--so I would say, by 
definition, it is less than 4 percent are still in that phase.
    Mr. Hudson. Great.
    For those that you have completed the required assessment, 
have copies of those assessments and other relevant information 
been provided to the State and the EPA?
    Mr. Conger. Absolutely.
    Mr. Hudson. Great.
    What is the typical, on average, length of time it takes 
for DOD to complete one of these initial assessments?
    Mr. Conger. So I actually pulled the data out of the 
database because I saw that question coming. We have an average 
of 1.6 years for a preliminary assessment out of all the sites 
that we have cataloged.
    Mr. Hudson. So you would disagree with the assessment from 
GAO that it takes 2 to 3 years typically for----
    Mr. Conger. It can. So that is an average, 1.6 years. There 
are sites that are longer, without a doubt. It depends on the 
complexity of the analysis that you are doing. So some are 
shorter, some are much shorter; some are longer.
    Mr. Hudson. Gotcha.
    If Congress were to establish a deadline, as has been 
recommended, for completion of these assessments, would that 
help DOD complete these in a more timely fashion? Or do you 
think it is more just a factor of the complexity of----
    Mr. Conger. I think it is a factor of the complexity. I 
don't have a lot of folks coming back to us and saying that we 
are dragging our heels. We work out these schedules with the 
regulators, and so I think everybody is comfortable with the 
pace at which we are doing the assessments.
    Mr. Hudson. Well, thank you for that.
    Mr. Conger. But if there are specific cases, we can look 
into it.
    Mr. Hudson. Thank you.
    Mr. Whitney, I will sort of go down the same line of 
questioning with you. What percentage of DOE hazardous sites 
are actually on the list?
    Mr. Whitney. Yes, sir. I think it is a little easier for 
DOE because we do know the universe of our facilities, and, 
while the sites are large, the number of sites are not. And so 
all of our sites have been through that preliminary assessment 
process, the site evaluation process, and they either ended up 
on the National Priorities List or they did not.
    Mr. Hudson. Great.
    Well, for those that have gone through and completed the 
assessments, have copies of those been passed on to the 
relevant agencies--state, EPA, others?
    Mr. Whitney. Yes, sir.
    Mr. Hudson. Great.
    And how many of the sites that have been assessed required 
some level of cleanup?
    Mr. Whitney. Well, the 21 sites that were on the National 
Priorities List, all of those sites required some level of 
cleanup--has 11 of those sites remaining.
    Mr. Hudson. OK. I appreciate that.
    Mr. Stanislaus, going back to the issue of abandoned mines 
on Federal properties, how does EPA oversee the cleanup of 
these if they are on Federal property?
    Mr. Stanislaus. Only those sites that rise to the level of 
being Superfund sites. So we have 130 on the National 
Priorities List that are abandoned mine sites, but, clearly, 
there are a lot more, as other individuals talked about it. So 
we would only have oversight of just that small number.
    Mr. Hudson. OK. Well, of those, does EPA have a sense of 
how much contaminated mine drainage discharges from these mines 
on a daily, weekly, monthly, yearly basis?
    Mr. Stanislaus. I don't have that information in front of 
me, but I can see what I can pull together.
    Mr. Hudson. OK. Thank you.
    What steps do the various Federal agencies routinely take 
to prevent and stop these types of discharges?
    Mr. Stanislaus. Yes, I really can't speak for the other 
agencies. When we get involved, we would do what are called 
removal actions, which are shorter-term actions, to abate some 
of the most immediate risks and, when there are longer-term 
risks, looking at listing on the National Priorities List for a 
more permanent solution.
    Mr. Hudson. Gotcha.
    What are the impacts on stream water quality from these 
discharges?
    Mr. Stanislaus. Well, tremendous. In the Gold King Mine, 
about 330 million gallons were being emitted into the Animas 
River on a yearly basis. Basically, for a 10-mile distance on 
the Animas River, you basically have severely degraded water 
quality. Basically, fish survival was seriously compromised.
    Mr. Hudson. So who is legally responsible for cleaning up 
when you have these discharges on these sites that you have the 
jurisdiction over?
    Mr. Stanislaus. Well, when we have jurisdiction over that, 
we oversee the work. Sometimes it is by responsible parties, 
sometimes through Superfund resources. And the complexity of 
these sites makes it quite challenging.
    Mr. Hudson. So who is legally responsible?
    Mr. Stanislaus. Oh, who is legally responsible? I am sorry. 
If there is a responsible party, meaning the owner or operator, 
that party would be responsible for doing the cleanup.
    Mr. Hudson. Great. Thank you.
    And, Mr. Chairman, I believe I have exceeded my time.
    Mr. Shimkus. Your time has expired.
    Just a point of clarification. This Executive Order 12580 
is an answer to why we have--and Mathy is talking about items 
on the National Priorities List, but there are many that aren't 
on there. And then the question is, who is responsible for 
those? That is part of the hearing.
    Now I recognize the gentleman from Texas, Mr. Green.
    Mr. Green. Thank you, Mr. Chairman and Ranking Member, for 
holding the hearing on Superfund today.
    I represent a district in Houston, and, up until recent 
redistricting, my district bordered in east Harris County one 
of the more significant Superfund sites, on the San Jacinto 
waste pits bordering our district. At that time, Congressman 
Poe had the site, but I got the downstream.
    And EPA was very quick in putting it on the Superfund site. 
The site has been polluted since the mid-1960s. It was a 
dumping ground for paper mill waste, and it was left undetected 
for over 40 years. The local community is very concerned about 
the fears it may negatively be impacting human health and the 
environment.
    My questions are, Mr. Stanislaus, what opportunities will 
communities in east Harris County have to give input on the 
proposed cleanup plans?
    Mr. Stanislaus. Opportunity throughout the process.
    Mr. Green. OK.
    Dioxins are the primary hazard at the waste pits, which 
were used during the paper production process 50 years ago. Mr. 
Stanislaus, has the EPA taken any action to limit the use of 
dioxins and similar dangerous chemicals in paper production?
    Mr. Stanislaus. Limit the use of dioxin in paper?
    Mr. Green. Yes.
    Mr. Stanislaus. Well, that is outside of my office. I will 
get back to you on that.
    Mr. Green. OK.
    Does the EPA have a timetable for when the feasibility 
study report would be released?
    Mr. Stanislaus. Yes, I don't have that timetable, but I 
should note that we put in place certain measures to abate the 
release of dioxin from the site itself.
    Mr. Green. And I have been there; it is encapsulating. And 
what happened, because of subsidence in our area over the last 
50 years, those containment facilities may have been great in 
1965, but the subsidence, we actually have some of those 
containment facilities that are below water level in the San 
Jacinto River. And, so far, there is different evidence that 
the encapping of it is working. I think the last test I showed, 
it is doing well.
    What are the primary factors for EPA in its determination 
for the cleanup of waste?
    Mr. Stanislaus. The exposure and the various options to 
address that exposure. In some cases, we would completely clean 
it up. In other cases, they put a barrier to prevent further--
it all depends on the factors at the site.
    Mr. Green. Is the EPA taking under consideration the 
vulnerability? The site actually can be flooded because it is a 
tidal river, but, over my lifetime, we have also had floods 
coming down the river, and so it can dislodge it. Is that part 
of the EPA study also, the danger of a hurricane coming in or 
floodings upstream?
    Mr. Stanislaus. Well, typically, we would look at all those 
factors, but let me get back to you specifically on how we 
would consider that at this site.
    Mr. Green. OK. I appreciate it. The site is now in 
Congressman Babin's district. It is a neighbor of mine. And we 
are getting him the information that we have been working on 
for a number of years.
    These are questions for all the agencies on the panel.
    How does your agency ensure that states and local 
communities are involved in every stage of the cleanup under 
your control?
    Mr. Conger. I can start.
    We work closely with the state regulators. As Mathy had 
pointed out, a lot of our sites are overseen directly by the 
state regulators, so we work with them on remedies and on 
timetables.
    We also have restoration advisory boards that we set up 
with local communities to make sure that everything is 
transparent so that they know what is going on.
    It is very important for us to work with local and state 
stakeholders.
    Mr. Whitney. Yes, and we have a variety of avenues to 
achieve that type of involvement, as well, first and foremost, 
the states of course being regulators on the cleanup that we do 
at our sites. But that relationship with the local communities 
and other folks in the state is also very important to us, and 
we have site-specific advisory boards made up of citizens of 
the surrounding communities around our sites.
    We also provide grants to many organizations, such as ECOS, 
the Environmental Council of States, such as National Governors 
Association, the State and Tribal Government Working Group----
    Mr. Green. I only have a few seconds. I need to get one 
more question in, though.
    If a state preferred one cleanup remedy over another, how 
would the preference influence the decision over the cleanups? 
Would the Federal Government defer to the state agency?
    Mr. Whitney. It truly is a tri-party. For us, it is tri-
party.
    Mr. Green. So it is a cooperative issue?
    Mr. Whitney. Yes, sir.
    Mr. Green. OK.
    I appreciate it, Mr. Chairman. Thank you.
    Mr. Shimkus. Let me just chime in with your last 10 
seconds.
    I think what we have heard is everyone views the States as 
a partner, but no one is required to treat the State as a 
partner. And that is part of what our hearing is trying to get 
to.
    So, with that, now we would like to welcome a member of the 
full committee, not on the subcommittee. We welcome here to the 
subcommittee Mr. Luj AE1an from New Mexico.
    And you are recognized for 5 minutes.
    Mr. Luj AE1an. Thank you, Mr. Chairman, and thank the 
ranking member for holding this important hearing today.
    As you all know, where this breach ran into was in the 
Third Congressional District of New Mexico, into San Juan 
County, into the Animas River, which flows from Colorado to New 
Mexico, as well as to the Navajo Nation and to our brothers and 
sisters out in Utah and Arizona, as well as Colorado, that were 
all impacted.
    One of the concerns that I had as we began to learn about 
this issue, it wasn't through an alert from law enforcement 
officials, from officials that work for the Federal agencies; 
it was through a news feed, may have even been a Twitter feed, 
that our office was alerted to.
    And so we need to figure this out, to make sure that when 
there are disasters like this that are created, created by 
people as opposed to a natural disaster, that everyone is 
alerted promptly and timely.
    Since this incident, it appears that the State of Colorado 
is working to improve their communication systems to local 
governments, but I am not certain that we have seen what we are 
going to do with the EPA and, for that matter, for every 
Federal agency that there could be a system like this that 
sadly could hurt communities with a mistake that is made.
    So, Mr. Stanislaus, according to an EPA memorandum, the 
release occurred on August 5 at 10:51 a.m. However, EPA 
headquarters, Region 6, and Region 9 were not notified until 11 
a.m. The next morning. I just shared that my office found out 
through news accounts. San Juan County officials, Navajo Nation 
leaders, and the New Mexico Environment Department were not 
notified. They found out the same way that we did, is my 
understanding.
    So that is unacceptable, and we need to fix this and learn 
from this. So what are we doing to improve notification 
procedures down to downstream communities as well as impacted 
communities?
    One of the suggestions that I shared with Administrator 
McCarthy yesterday was looking to see what we could do to 
piggyback off of the AMBER Alert system for abducted children 
or to the national natural disaster alert system and weather 
disaster system, which notifies everyone with their mobile 
phones, on billboards, as everything happens. There is no 
reason that when something like this that tells people you 
can't drink water, you can't get in the water, you can't water 
your animals, you can't irrigate, that we can't use something 
like this.
    So can you share a little bit with what we can do and how 
we might be able to work with you, with the committee, to see 
what we could do to work with a system like that for alerts in 
the future?
    Mr. Stanislaus. Sure. Immediately after the event, I issued 
a directive to all the regions to work with states and local 
communities to make sure the notification is broad.
    So we currently have a notification system in place. And in 
the State of Colorado we had a plan in place where the State of 
Colorado took leadership of notifying. They in fact notified 
Durango and other folks, and those decisions were made to close 
off the water intakes.
    And you are entirely correct that the notification for New 
Mexico, for the Navajo Nation did not occur simultaneously, and 
we agree we need to do a better job of that.
    Mr. Luj AE1an. It didn't occur for days.
    Mr. Stanislaus. It occurred the next day. Yes.
    And just to be clear, all the notification occurred before 
the spill impacted any of those areas. In fact, we were able to 
do pre-incident sampling before any of the impact of the spill 
occurred in any of those areas.
    Mr. Luj AE1an. Ute Mountain tribal officials are the ones 
that reached out to their neighbors in San Juan County to say, 
this spill is passing us, you need to get ready for it, it is 
coming our way. That wasn't on the alert system that was put in 
place. That was one group of neighbors caring about another 
group of neighbors and doing their due diligence.
    This was a dismal failure from a communication perspective, 
and we have to fix it. I hope that the urgency for this--not 
just here but in any other part of the country. We need to just 
get this right so that people know what is coming their way.
    The other urgency that I would suggest is we need to make 
sure that we are working with all of the impacted communities 
to the utmost degree: both of the Ute tribes that were 
impacted, the Navajo Nation, the County of San Juan in New 
Mexico, the State of New Mexico, as well as our brothers and 
sisters in the other impacted States.
    There has been a frustration by the leadership of the 
Navajo Nation, and we need to make sure that we are working 
closely with them, that someone is appointed to work directly 
with them, whether it is from Region 9 or from headquarters, so 
we can make sure that all of their concerns are addressed.
    One of the other concerns that I have, Mr. Chairman, is, it 
is my understanding that the EPA's work order at the Gold King 
Mine site called for the construction of a holding pond to 
capture and treat contaminated water but that the pond was not 
completed before the accident. In addition, EPA Deputy 
Administrator Meiburg said that provisions for a worst-case 
scenario were not included in the work plan.
    I think it is important that we understand that, that we 
make sure that anytime work will be done in the future that we 
get to the bottom of that.
    And then lastly, Mr. Chairman, as we get an assessment of 
all of the abandoned mines that we have in the United States 
and especially those that are in a condition like the Gold King 
Mine, where a breach or an accident can impact the water supply 
for millions of people in surrounding communities, we need to 
have a real conversation in the Congress to make sure that we 
are working to fix this.
    Because this devastated not just the irrigators and water 
users in the district that I represent and in Colorado but 
entire water drinking supplies in the States of Nevada and 
Arizona that could be impacted depending on the kind of a 
breach that we see.
    So just, Mr. Chairman, I look forward to working with you. 
Thank you for the time today. And I look forward to submitting 
some additional questions to the record and getting some 
responses.
    Thank you, sir.
    Mr. Stanislaus. I would just add, I share those concerns. 
And we did an internal review, and the pond, in fact, was 
constructed, from my internal review team. But again, we were 
there because of the very risk that was identified in the work 
plan, that the State of Colorado and local stakeholders 
identified that risk. That is the reason that EPA was brought 
in to address that risk.
    Mr. Luj AE1an. But, Mr. Chairman, if I may just there, if 
the pond was built, why didn't it work? Something didn't work. 
With the amount of stuff that came out of that, which was 
originally estimated at 1 million gallons and then it turned 
out to be 3 million gallons, someone didn't do their job. If 
something was built, then it wasn't built the right way, 
because the breach still went and all this garbage still went 
into the river.
    So those are questions that we do need to get to the bottom 
of. If something was constructed, clearly it did not meet the 
means of what should have been done with an assessment of what 
was being held behind there. It didn't work. So, according to 
that mitigation plan, something needs to get better here, and 
that is what we are just trying to get to the bottom of.
    Thank you, Mr. Chairman.
    Mr. Shimkus. The gentleman's time has expired. And we thank 
him for his attendance, look forward to working with him.
    Again, the open question submissions for the record for 
about 10 business days, if you could get back to us. And I 
think there will probably be some followups.
    We appreciate it. We have a ways to go. And I do want to 
encourage you to stay tuned for the second panel, because I do 
think there is a--states are, in many cases, good partners and 
work well, but there are some concerns, as I think we will hear 
in the next panel.
    So I appreciate it. And, with that, we will recess this 
hearing for the second panel next week.
    [Whereupon, at 10:42 a.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]
    
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          OVERSIGHT OF FEDERAL FACILITY CLEANUP UNDER CERCLA, DAY 2

                              ----------                              


                     WEDNESDAY, SEPTEMBER 16, 2015

                  House of Representatives,
       Subcommittee on Environment and the Economy,
                           Committee on Energy and Commerce
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 4:04 p.m., in 
room 2322, Rayburn House Office Building, Hon. John Shimkus, 
(chairman of the subcommittee) presiding.
    Present: Representatives Shimkus, Harper, Pitts, Murphy, 
Latta, McKinley, Bucshon, Tonko, and Pallone (ex officio).
    Staff Present: Will Batson, Legislative Clerk; David 
McCarthy, Chief Counsel, Environment and Economy; Tina 
Richards, Counsel, Environment; Chris Santini, Policy 
Coordinator, O&I Chris Sarley, Policy Coordinator, Environment 
and Economy; Dan Schneider, Press Secretary; Dylan Vorbach, 
Staff Assistant; Jacqueline Cohen, Minority Senior Counsel; and 
Alexander Ratner, Minority Policy Analyst.
    Mr. Shimkus. We are going to call the hearing back to 
order. This is the second day and the second panel of a hearing 
that we started on Friday.
    We are glad to have you here. So all the opening statements 
have been done, so you don't have to listen to that.
    I will introduce you individually. You will have 5 minutes 
for your opening statement, and then your official statement is 
filed in the record already. And then we will go to questions. 
So thanks for coming.
    OK. So first we have Ms. Elizabeth Dieck, director of 
environmental affairs for the South Carolina Department of 
Health and Environmental Control, on behalf of ECOS, 
Environmental Council of the States, who have become good 
friends of mine.
    And we are glad that you are here. Welcome. You are 
recognized for 5 minutes.

   STATEMENTS OF ELIZABETH DIECK, DIRECTOR OF ENVIRONMENTAL 
AFFAIRS, SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL 
CONTROL, ON BEHALF OF THE ENVIRONMENTAL COUNCIL OF THE STATES; 
 BONNIE BUTHKER, CHIEF SOUTHWEST DISTRICT OFFICE, OHIO EPA, ON 
BEHALF OF THE ASSOCIATION OF STATE AND TERRITORIAL SOLID WASTE 
  MANAGEMENT OFFICIALS; AND MICHAEL HOULEMARD, JR., EXECUTIVE 
               OFFICER, FORT ORD REUSE AUTHORITY

                  STATEMENT OF ELIZABETH DIECK

    Ms. Dieck. Thank you.
    Chairman Shimkus, Ranking Member Tonko, and members of the 
subcommittee, good afternoon. My name is Elizabeth Dieck, and I 
am here today in my capacity as secretary/treasurer of ECOS, 
whose members are the leaders of the state and territorial 
environmental protection agencies. I serve as the director of 
environmental affairs for the South Carolina Department of 
Health and Environmental Control.
    I appreciate the opportunity to share with you the states' 
views on the progress of cleanup of contaminated Federal 
facilities and what solutions may help address the related 
challenges.
    ECOS commends the subcommittee for holding these hearings 
on the state of Federal facility cleanups in our Nation. Your 
attention to these sites is relevant to nearly every state and 
territory in our Nation where contaminated sites exist on lands 
managed by Federal agencies such as the U.S. Department of 
Defense, Department of Energy, Department of Agriculture, and 
the Department of the Interior.
    Your oversight of these cleanups, the resources being 
devoted to them, and the legislative actions that can be taken 
to advance cleanup progress is critical, as all Americans have 
a collective interest in seeing the hundreds of millions of 
dollars we allocate to these sites annually yield the most 
effective results.
    State environmental regulators are involved in every stage 
of the cleanup process, from identifying and reporting sites to 
staffing and overseeing cleanup efforts. We are on the front 
lines of answering questions from our citizens about the risks 
these sites may pose to their health and welfare, the scope of 
the contamination, the status of the cleanup progress, and the 
management of waste streams from building debris to more 
hazardous waste.
    We share with you and our Federal partners a priority 
interest in responding to these complex sites as expeditiously 
as possible and, when we can, returning them to productive use.
    I would first like to highlight for you where states have 
seen an improvement by Federal agencies in site remediation 
progress and in maintaining communication with us during the 
remediation process. This progress is due not only to 
thoughtful process improvements within the agencies but also in 
response to your oversight and legislation which passed the 
House last Congress and a series of GAO reports calling into 
question whether the Federal Government is moving expeditiously 
and with sufficient resources to achieve the needed results at 
these sites.
    It is important to know that the creation of state-Federal 
groups has allowed states and DOD to work towards mutually 
acceptable cleanup solutions. In addition to these DOD sites, 
states have played a major role, working with DOE, in the 
cleanup of heavily contaminated sites affected by the nuclear 
weapons complex. States work closely with DOE and U.S. EPA to 
eliminate risks posed by these sites and oversee the cleanup of 
sites within the complex through Federal facility agreements, 
permits, and consent orders.
    Collaboration between the states and Federal agencies has 
resulted in significant financial savings from reduced future 
maintenance costs that can be put towards further cleanup of 
sites within the complex.
    ECOS commends Federal agencies on progress. However, we are 
concerned that there are instances where the interests of the 
states are not being considered as thoughtfully as needed. We 
have three overarching concerns.
    First, the state voice in cleanup decision-making should be 
further strengthened.
    Where States have clear regulatory and enforcement 
authority under legislation, much progress has been made at DOD 
and DOE sites across the Nation, as Mr. Whitney and Mr. Conger 
have testified this past week. States are concerned, however, 
that assertions of sovereign immunity and CERCLA-led agency 
authority under Executive Order 12580 by Federal agencies have 
led to inappropriate or inconsistent interpretations of state 
law and have not supported cleanup to the same standards as 
private parties. This hampers states' abilities to oversee 
effective cleanup efforts and be accountable to their citizens.
    We encourage Congress to implement legislation that will 
acknowledge state authority and regulatory responsibility for 
oversight of removal and cleanup actions at current and 
formerly owned or operated Federal facilities and fully 
recognize states' regulatory roles at Federal facilities. There 
is no reason for Federal agency environmental cleanup 
activities to be subject to less oversight than private 
parties.
    Secondly, states frequently see the Federal agencies 
unilaterally changing site cleanup schedules and goals, pushing 
ultimate completion out by years and sometimes decades and 
compromising the sites' ultimate usability. Federal agencies 
effectively change cleanup schedules by failing to seek or 
allocate sufficient funding for their cleanup commitments.
    When a Federal agency unilaterally changes the terms of a 
cleanup by extending a deadline or changing other goals, the 
trust-based relationship breaks down, and it can lead to 
tension, and then it can lead to costly litigation, and that 
takes away from cleanup efforts. Federal agencies should 
consult meaningfully with states before seeking to change 
schedules or cleanup goals.
    Third, we are concerned that the available budget 
determines the remedial approach at some sites, meaning we may 
not be implementing the most effective and appropriate cleanup 
approach at a given site. Due to the complexity of the 
contamination of these sites and the proximity of many of them 
to communities, states recommend that Federal agencies, in 
consultation with the states, determine the most appropriate 
remedy and then work together to pursue sufficient and stable 
funding solutions to implement that remedy. Transparent 
statements about the actual funding necessary to achieve 
results are imperative.
    Mr. Chairman and members of the subcommittee, I hope that 
my testimony today sheds some light both on the progress that 
has been made as well as additional areas that are in need of 
attention in the area of Federal facilities. I look forward to 
answering any questions you may have.
    [The prepared statement of Ms. Dieck follows:]
    
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    Mr. Shimkus. Thank you very much. Great to have you.
    And now I would like to turn to Ms. Bonnie Buthker, chief 
of Southwest District Office for the Ohio Environmental 
Protection Agency, on behalf of ASTSWMO.
    You are recognized for 5 minutes. Welcome.

                  STATEMENT OF BONNIE BUTHKER

    Ms. Buthker. Thank you.
    Good afternoon, Chairman Shimkus, Ranking Member Tonko, and 
members of the subcommittee. I thank you for the opportunity to 
be here today to represent the Association of State and 
Territorial Solid Waste Management Officials and provide 
testimony.
    Our membership includes managers from the state 
environmental protection programs, including those responsible 
for overseeing the restoration and reuse of current and former 
Federal facilities. While Ohio EPA is a member of ASTSWMO and I 
work for Ohio EPA, today I am here representing ASTSWMO.
    While states do not assume primary CERCLA authority, we do 
play a role in implementation. States share a common goal with 
the Federal Government in ensuring that risks to human health 
and the environment are appropriately addressed. Like U.S. 
EPA's in NPL Federal facilities, the states' role is to ensure 
that remedies implemented will be protective of human health 
and the environment and in compliance with Federal and state 
law.
    While states try to work in partnership with both the 
Federal agencies and U.S. EPA, there are times when we disagree 
on what cleanup standards should be used and what remedies 
should be implemented. For these partnerships to work, all 
parties must focus on the technical and practical issues rather 
than focusing on the legal authorities, including sovereign 
immunity. Discussions involving legal authorities lead to 
protracted posturing, no-win situations, and delayed 
investigation and cleanup of these facilities.
    ASTSWMO has consistently supported any mechanism that 
encourages greater state collaboration with our Federal 
partners while ensuring that our voice and opinions are not 
diminished. ASTSWMO and our members actively engage with 
representatives of the U.S. EPA, DOD, DOE, and Federal land 
management agencies on national policy issues.
    ASTSWMO has had a long history of working collaboratively 
with DOD that began in the 1990s. In recent years, DOD and the 
military components have worked closely with ASTSWMO and the 
states to effectively resolve issues concerning the 
investigation and remediation of their current and former 
facilities.
    Since 2008, DOD and the military components have formed 
three different committees with states and ASTSWMO to resolve 
difficult challenges that were ongoing problems for several 
years. All three committees provide for collaboration among 
States and Federal agencies on several challenging cleanup 
issues, including remediation technologies and interim risk 
management, which can be especially challenging on property no 
longer owned by DOD.
    ASTSWMO continues to support legislation that clarifies 
that Federal agencies, like private companies, are subject to 
appropriate state regulations. While ASTSWMO appreciates the 
leadership DOD has shown in recent years by focusing on 
resolving issues with states versus their legal authorities, 
this has not always been the case.
    Throughout the years, states have had several experiences 
with Federal agencies being unwilling to ensure their 
investigation and cleanups were done in accordance with state 
regulations. When states tried to use their authorities to 
compel Federal agencies to comply with these laws, Federal 
agencies invoked sovereign immunity in an attempt to prevent 
state oversight.
    Because of this, ASTSWMO has had longstanding policy 
positions opposing the assertion of sovereign immunity by 
Federal agencies. These positions have not changed over time, 
because our members continue to have experiences where Federal 
agencies use sovereign immunity to avoid compliance with state 
requirements. These experiences involve all Federal agencies, 
including DOD, the Department of Interior, and the Department 
of Agriculture.
    For example, in 2013, ASTSWMO did a survey of state and 
Federal facility managers asking if they recently experienced 
Federal agencies' invoking sovereign immunity during the 
application, implementation, and enforcement of CERCLA or state 
regulations. Of the 19 states that responded, the states listed 
12 cases where they had had such experiences.
    And though Federal agencies have accomplished a great deal 
of cleanup at their facilities over the last 20 years, there 
are still difficult issues left to address, including 
complicated groundwater contamination, emerging contaminants 
unique to Federal facilities, and sites contaminated with 
munitions. Sovereign immunity could still be a barrier to 
states in ensuring compliance with state requirements and 
Federal agency decisions concerning such issues.
    States need funding so that they can provide necessary 
resources to be engaged in Federal facility investigations and 
cleanups. Both DOD and DOE have programs that provide funding 
to states for their involvement in the investigation and 
cleanup of their facilities. These programs have provided 
numerous benefits to both these agencies and the states, 
including cost savings, reduced litigation, expedited cleanup, 
and increased public trust in their investigations and 
cleanups. ASTSWMO, therefore, supports legislation that 
requires Federal agencies to reimburse states for costs 
associated with state involvement and oversight.
    Thank you for this opportunity to offer testimony, and I 
would be pleased to answer any questions you may have.
    [The prepared statement of Ms. Buthker follows:]
    
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    Mr. Shimkus. Thank you very much.
    And, finally, I will turn to Mr. Michael Houlemard, 
executive officer of Fort Ord Reuse Authority.
    And before I ask him to begin, I think the minority staff 
is pretty smart or they got lucky. The Monterey area and Fort 
Ord is my last duty station. So I served there when it was a 
jewel. And there are great locations there--beautiful golf 
course, new housing. I was just there a couple years ago--and 
University of California Monterey, which is very exciting. But 
obviously, there is a lot of the post that still has issues and 
challenges.
    So we are happy to have you here. Monterey is the second-
most-beautiful spot on the face of the Earth, right behind the 
15th District of Illinois. And so we are glad to have you here.

              STATEMENT OF MICHAEL HOULEMARD, JR.

    Mr. Houlemard. Chairman Shimkus, Ranking Member Tonko, all 
distinguished members of the subcommittee, I want to just thank 
you for that acknowledgement of how great Monterey is, but it 
is no better than Rantoul in Illinois.
    I would also like to note that, as the executive officer at 
the Fort Ord Reuse Authority, I have spent quite a bit of my 
last 20 years spending many hours back here in Washington, 
D.C., representing communities across the Nation. So I want to 
thank the committee for its decision that it would include 
communities as part of the testimony on this very important 
committee.
    I am honored to have spent those last 25 years of my career 
serving military communities. I served some of that time 
working with the Association of Defense Communities that has a 
Defense Communities Caucus support effort. And I know that it 
is important for all of you to recognize that the communities 
that have served this Nation by supporting military services 
have done it in a way that helps the Department of Defense 
increase its mission-effectiveness.
    I also want to take the time to acknowledge our colleagues 
in U.S. EPA that are tasked with the regulatory oversight that 
is required to address the many environmental conditions 
between military communities and their adjacent communities, 
whether they be active installations or closing or closed 
installations.
    Today I want to focus my comments on the Superfund 
relationship with military services and defense communities, 
which is at least an uphill battle given the limited resources 
and the potential for hazards, both recognized and emerging, to 
be present.
    I also, Mr. Chairman and members of the committee, assert 
that our defense in part relies on how DOD addresses the 
sensitive mix of downsizing and the burden of excess 
infrastructure in the future and its relationship to the 
ongoing environmental hazards that remain in many of our 
military installations. Our communities suffer from the many 
technical, regulatory, processing, resource, and other delays 
that affect our ability to have access to property in a safe 
and reliable way.
    And many communities across this Nation are provided 
partial or inadequate information about Federal or other agency 
contamination that will affect their exposure to potential 
catastrophic hazards. This is particularly acute with recent 
past property transfers from the Department of Defense to local 
communities after downsizing and closing former properties and 
then abandoning them to local jurisdictions.
    Remedial actions are often governed under the resource 
application decisions by and within the primary polluter's 
oversight. Those decisions are often determined to be under the 
regulatory control of the Antideficiency Act, even when DOD has 
determined them to be exempt from such limitations. In those 
cases, communities have to wait for the annual funding process, 
which often causes significant delays in mobilizing and 
demobilizing. In our case, we are looking at the possibility of 
another 7 to 10 years before getting full access to the Fort 
Ord National Monument for an installation that was announced 
for closure 25 years ago.
    Another item is, as a Superfund site due to subsurface 
remediation, we at the former Fort Ord are ineligible for 
funding resources and other support under brownfields that 
would greatly assist us in addressing these aboveground issues. 
We think that there is a conflict of the regulatory controls 
here and that Congress should look at that and understand the 
potential for helping communities. We now have projects that 
cannot survive even in the great Monterey Bay, with our 
underlying land value, because we are left with the burden of 
buildings that are contaminated, with considerable cost putting 
them under water economically.
    Another critical item--and this is not brand-new; I guess 
you have heard this repeatedly--but the long-term stewardship 
of properties that is being transferred from Federal hands to 
local communities is critical. In many, if not nearly every 
case nationwide, Federal agencies are motivated to complete 
cleanups that enable property transfers in a way that reduces 
long-term Federal obligations. And while that may be a great 
goal for the Federal agencies, it is real important for the 
communities to be able to have an economic recovery, which 
demands access to property and ability to manage the long-term 
stewardship.
    This is especially important that that long-term burden be 
provided in a way that is a part of a remedial action and 
assessed economically in the remedial action what is being left 
to local communities.
    How such responsibility transference is assessed is crucial 
under CERCLA. This is especially key as the EPA addresses 
emerging contaminants such as PFCs that may exist on properties 
already transferred but yet there is no current way for the 
Federal agency to return to take care of those problems.
    Five on my item list--I just finished the fourth--community 
voices are often not heard. It is my assertion that communities 
are often only provided the minimum opportunity to participate 
in the process, including CERCLA. Superfund regulatory 
requirements read like a checkoff list to meet certain public 
comment requirements, but those regulations fall woefully short 
of meeting the intent for engaging the community in the 
process.
    A true engagement process goes well beyond these citizen 
participation minimums, community involvement review timelines, 
or news publication requirements to encourage--that would allow 
for encouraging active engagement in communities in the forms 
and methods that solicit input in the way that communities 
interact.
    These technical assistance programs that are currently 
being funded must be proactive and not responsive to just those 
few communities that respond. Further, the EPA and other 
agencies need to help communities build capacity so that they 
strengthen their local knowledge base and that their comments 
are of value.
    I assert that the community engagement process is a full-
contact sport, and it has to be done in the full spectrum of 
what 21st-century communications are all about.
    Ultimately, I would like to add that this is a resource 
issue, as well. And given the limits of certain Federal 
support, U.S. EPA must be given the combination of 
decisionmaking power that allows flexibility between programs 
and supplemental authority that allows for an increase in the 
interface with states and local communities.
    This collaborative effort would greatly enhance our 
interactions over the serial reviews that we have today. In 
fact, we are under a process of collaboration that has been 
extremely effective at Fort Ord that brings all the parties to 
the table in a concurrent manner rather than in a serial 
fashion.
    So I assert that we have learned quite a few things: that 
it is difficult for citizenry to get up to speed with this 
complex, sophisticated effort; and it is important that we have 
property transfer and project delivery delays that are 
collaborative and use 21st-century communications. I ask that 
we eliminate contravening regulatory issues through focused 
oversight. And that is essential to community understanding. 
That also leads to community voices being heard that may not be 
heard today.
    And, finally, we must move to address the long-term 
stewardship issues that are current a major potential unfunded 
mandate to local communities and states.
    Chairman Shimkus, thank you for the communities' having a 
voice here at the table.
    [The prepared statement of Mr. Houlemard follows:]
    
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    Mr. Shimkus. You are welcome, and it is great to have you.
    So I will now open it up for the line of questions, and I 
will recognize myself, 5 minutes for the first round.
    And I asked this line of questions to our Federal witnesses 
last week, but I am guessing that I will hear different 
responses from the witnesses on the panel. I did talk to them 
and say please tune in to hear your voices when I spoke to them 
a couple times on Friday.
    My question stems from the issue of the delegation of the 
present CERCLA authority under Executive Order 12580 to other 
Federal agencies who are also potential responsible parties. 
And it is really the same question to all of you, and we will 
just go first to Ms. Dieck.
    Is there a conflict when a Federal agency is a potential 
responsible party because it caused the contamination or owns 
the contaminated property but the same agency is also the lead 
agency responsible for making cleanup decisions? Why or why 
not?
    Ms. Dieck. I would have to say there is a conflict. If you 
have the Federal agency that has created the contamination is 
responsible for the cleanup and is also responsible for 
selecting the remedial action, that is an inherent conflict.
    It has to be something that is coordinated clearly with the 
states so that our voice is heard and so that there is an 
understanding of what the appropriate remedial action would be 
so that the land can be protected and the proper protective 
measures are in place.
    Mr. Shimkus. Ms. Buthker, same question. And I can restate 
it if you need it, but----
    Ms. Buthker. No. I would say there is definitely a 
conflict. Because the Federal agencies, they are trying to look 
at the funding that they have and trying to do as much as they 
possibly can, and if they can put in a cheaper remedy at a 
facility than what maybe the state wants or the community 
wants, then they can use that money somewhere else. And so, 
definitely, there is a conflict.
    Mr. Shimkus. Mr. Houlemard?
    Mr. Houlemard. Thank you, Chair. I concur with my 
colleagues.
    I would add a quick note that the former Fort Ord, we had 
an experience that the United States Army, which serves as the 
president for the cleanup at the former Fort Ord--we elected to 
do our own cleanup under contract. And during the course of 
that process, we have attempted to be collaborative, but it 
breaks down at certain points.
    The United States Army had a certain concern about what the 
language was going to look like that directly related to the 
return of the United States Army to cover under 120(h). EPA had 
a difficult language issue. It took over 18 months to get that 
resolved, and we wound up with delays. Similar things have 
happened in Kansas and in Texas on similar kind of, but 
different, issues that create the delays.
    So I concur with my colleagues.
    Mr. Shimkus. Thank you very much.
    And a followup to Ms. Dieck: Your written testimony 
acknowledges that States are concerned that when Federal 
agencies assert sovereign immunity and when they assert a 
CERCLA lead agency authority under Executive Order 12580 that 
this has led to, in quotations here, ``inappropriate or 
inconsistent interpretations of state law that have not 
supported cleanup to the same standards as private parties,'' 
close quote.
    Can you explain what you mean by this?
    Ms. Dieck. Sure.
    Assertion of sovereign immunity or lead agency authority 
enables Federal agencies to bypass or partially meet state 
requirements that normally would apply to private parties. For 
example, if the lead agency does not deem that a state 
requirement is applicable, relevant, or appropriate, then that 
agency does not have to meet that particular requirement. So 
that is problematic.
    Mr. Shimkus. And, in my final time, in this debate of 
cleanup, the cost, the agency that could have created the 
problem is directed to clean up, but of course they do it based 
upon the money available.
    If you were to object--first of all, do you have a right to 
object? And then is that where the claim of sovereign immunity 
comes in, saying, well, thank you, but we can do whatever we 
want anyway?
    Ms. Dieck. Certainly that would be the case for sites on 
the NPL list. And, generally, the way they are reading it with 
the Executive Order 12580 and the language in CERCLA, that is 
the way that it is being applied, and that is problematic.
    Mr. Shimkus. Anyone else have----
    Ms. Buthker. I would say, definitely what you see happening 
is, because of the cost issue, a lot of times Federal 
facilities will look at the state requirements and say, well, 
if I can whittle down these state requirements that I have to 
meet, then I might be able to implement a cheaper remedy.
    So that definitely has that impact where you see that, and 
because they are lead agency and they are the final say on how 
that remedy is going to be implemented and what happens, then 
yes, the state can try to challenge that, but then that is when 
you have a situation with sovereign immunity. If the state 
says, well, I am going to sue you because you are not doing 
something consistent with what we would want you to do in this 
particular instance, they are like, OK, fine, sue me, but we 
have sovereign immunity.
    Mr. Shimkus. And you would agree, Mr. Houlemard?
    Mr. Houlemard. Yes, I would. I think the collaborative 
process is going to serve us all a lot better. In the case 
where we have--our experiences, the collaborative process 
treats the remediation as what is most effective rather than 
what is most cost-effective.
    Mr. Shimkus. Thank you. And I apologize for going over.
    Now the chair recognizes the ranking member of the 
subcommittee, Mr. Tonko, for 5 minutes.
    Mr. Tonko. Thank you, Mr. Chair. And thank you for 
convening this panel today so that we can hear from states and 
communities affected by the Superfund cleanups.
    At last week's panel, we heard that a lot of progress has 
been made to address dangerous contamination at Federal 
facilities owned by the Department of Defense and Department of 
Energy. So I would like to start by asking the panel, have you 
seen that progress in your states and communities? And what do 
these cleanups mean for communities around those sites?
    Ms. Dieck, if you want to start.
    Ms. Dieck. Sure.
    I would start by saying we do have a collaborative--a 
strong working relationship with DOE, and we have seen some 
tremendous successes at SRS. I think that the problems arise 
when, as I think I mentioned earlier in my testimony, there can 
be unilateral decisions that are made with regard to 
milestones, with regard to funding, that create a tension and 
make it difficult for the states to have that trust 
relationship.
    And so, while good things are happening, we have been able 
to achieve a lot, specifically at SRS, I think that we could do 
better.
    Mr. Tonko. Ms. Buthker?
    Ms. Buthker. There has been a lot of progress made in 
Federal facility cleanups, not just in Ohio, but throughout all 
our member states have said that. And a good deal of it has to 
deal with the fact that we have been able to collaborate with 
DOD and DOE on the cleanups and work through these issues.
    The problem, where it breaks down is when, whatever the 
Federal agency is all of a sudden decides that they don't want 
to collaborate anymore and they want it their way or the 
highway. And when that situation happens, then that is when we 
start having less progress. That is when we start getting into 
a lot more of these battles over jurisdiction.
    But there has been a great deal of cleanup that has been 
done because states have been working collaboratively. Most 
Federal facilities are not on the NPL, so the state is the only 
regulatory agency involved.
    Mr. Tonko. Thank you.
    And Mr. Houlemard?
    Mr. Houlemard. Well, yes, Ranking Member Tonko, I would 
agree that there has been a lot of progress made, but then 
there is still so much more to do. We still have 8,000 acres of 
property that we are seeking access at the former Fort Ord, and 
I could describe another dozen cases where access to property 
is crucial to their economic recovery.
    Mr. Tonko. Thank you.
    And it seems that some cleanups have progressed more 
smoothly than others and can offer best practices for how to 
work with states and engage communities. So can you cite for us 
observations of best practices to foster community involvement 
and strong cooperation amongst the stakeholders?
    Mr. Houlemard?
    Mr. Houlemard. Yes, I would give as examples McClellan Air 
Force Base in California; McClellan Army in Anniston, Alabama; 
and the Fort Ord Reuse Authority, where we as communities chose 
to collaborate with military services and the regulatory 
agencies to undertake a portion of our own cleanup and to make 
sure that we understood how it was happening, under effective 
cost working relationships, using private-sector companies to 
make sure that happened, with an insurance company that would 
assist us, and using collaborative processes. That worked for 
us, and we suggest that that is a formula that works many other 
places.
    Mr. Tonko. Thank you.
    Ms. Buthker?
    Ms. Buthker. I would say that some of the successes that I 
have experienced--Wright-Patterson Air Force Base. And it was 
very much that collaboration of working with the Air Force, the 
state, and U.S. EPA together, focused on how do we do the 
cleanup quicker, easier, more efficient. And we did a lot of 
things there.
    Several of our base closure sites in Ohio--Defense 
Electronic Supply Center, again, where we were working with not 
just U.S. EPA and the Air Force, but we were also working with 
the local community to ensure that, when that facility was 
cleaned up and transferred to them, that they could use it how 
they wanted to us it.
    So, yes, there definitely are those experiences.
    Mr. Tonko. Thank you.
    And Ms. Dieck?
    Ms. Dieck. I would echo what these folks have said. It is 
critical to have significant communication outreach efforts in 
place when you are dealing with contaminated sites in any area 
of your state. To have the education, the outreach, the 
understanding of what the contamination is, the status of the 
cleanup, what the implications are is critical. And you find 
that, with that collaborative approach, you can really see 
tremendous benefit.
    Mr. Tonko. Thank you very much.
    I think my time is exhausted. I was going to sneak one more 
question in, but thank you very much. I yield back.
    Mr. Shimkus. The gentleman yields back his time, and we 
thank him.
    The chair now recognizes the vice chair of the committee, 
Congressman Harper, from Mississippi, 5 minutes.
    Mr. Harper. Thank you, Mr. Chairman. Appreciate it very 
much.
    And thanks to each of you for being here to shed some light 
on a very important issue.
    I will start with you, Ms. Buthker. Your written testimony 
gives an example of DOD historically asserting sovereign 
immunity in order to unilaterally decide issues such as what 
constitutes a state applicable or relevant and appropriate 
requirement. And we also understand that Federal agencies 
assert or threaten to assert sovereign immunity and thereby 
discourage states from enforcing otherwise applicable state 
laws.
    Obviously, this is a problem for states, but can you please 
explain the issue?
    Ms. Buthker. Well, the biggest problem with it for states 
is that, when states inconsistently apply their cleanup 
regulations from private parties to Federal facilities, then 
the private parties can raise the issue about, why are you 
picking on me? We hear a lot about Federal agencies wanting to 
be treated by private parties, but when it really comes down to 
it, they don't necessarily want to do that.
    How that also creates problems with us is that, if ARAR is 
not consistent--applicable or relevant and appropriate 
regulation isn't consistently applied, then U.S. EPA can come 
in and say, well, since you are not consistently applying that 
on both your private-party cleanups and your Federal facility 
cleanups, we can waive that ARAR on our future cleanups because 
you are not consistently doing it.
    So both of those ways can impact the state.
    Mr. Harper. OK.
    You also mentioned that DOD previously took the position 
that enforcement actions taken by the state could constitute a 
breach of the Defense-State Memorandum of Agreement. Could you 
first explain what the Defense-State MOA is and then tell us 
why this is problem for states?
    Ms. Buthker. The Defense-State Memorandum of Agreement is 
the mechanism by which DOD and a state would come to agreement 
on how states would be reimbursed for their costs. It outlines 
what particular services the state provides. It doesn't say 
state oversight; it says the state will provide these services 
to DOD. But it also outlines the agreement that the state would 
agree to a prioritization system for funding, making sure that 
the most funding goes to the worst sites.
    But then it also had a provision in most DSMOAs that before 
the state could take an enforcement action on a facility that 
was listed under the DSMOA, then they were supposed to go 
through the dispute resolution process; it also had a dispute 
resolution process in it. And, initially, what states thought 
that that meant was that, for the cleanup part of the--because 
the DSMOA only covers cleanup--that that was where States 
needed to go through dispute resolution if they had a 
disagreement. Like, for number of monitoring wells or number of 
soil samples being collected, that is when they would use 
dispute resolution. But if there was something that was a 
violation of state law and it was even outside of the cleanup 
program, we felt that was off limits; we could still use our 
regulatory authority.
    And, before 2008, where the DSMOA program really started to 
have problems was that DOD started to any interpret that any 
regulatory program that the State was involved in that dealt 
with those facilities under our DSMOA, that would apply.
    And I can give you an example. If a base had their own 
drinking water system and they exceeded a contaminant level and 
were issued an NOV, there were concerns that states would end 
up jeopardizing their funding under the DSMOA and actually be a 
breach of DSMOA if they sent a violation letter to the facility 
for that.
    So that was pre-2008 when that was happening.
    Mr. Harper. Does DOD ever--do they ever currently assert 
this position?
    Ms. Buthker. In 2008, where the big shift in all this was, 
we actually formed--ASTSWMO states and DOD formed the DSMOA 
Steering Committee, where we worked through all these issues. 
And they clarified that that was not their intent, that the 
leadership at the time had misinterpreted what that clause was 
in the state's DSMOA. And it doesn't apply to any violation. It 
only applies to disagreements about the cleanup program itself. 
And they actually modified their guidance in 2011 in order to 
address that specific issue.
    But, again, that is guidance and policy statement that is 
in place now. If the leadership at DOD would change, we could 
have something that would happen again back to that same 
situation.
    Mr. Harper. I know we don't have time for you to answer and 
explain, but are there other agencies besides DOD that are 
doing the same thing in asserting sovereign immunity in order 
to decide what constitutes an ARAR?
    Ms. Buthker. Yes, there are other agencies. When we----
    Mr. Harper. Just tell me which agencies they are, and maybe 
somebody else will follow up.
    Ms. Buthker. Department of Interior and Department of 
Agriculture are two that specifically our members have cited.
    Mr. Harper. Thank you very much.
    Mr. Shimkus. The gentleman yields back his time members.
    And, for us members, DSMOA is Defense-State Memorandum of 
Agreement. So I am watching acronyms here.
    So the chair now recognizes the ranking member of the full 
committee, Mr. Pallone, for 5 minutes.
    Mr. Pallone. Thank you.
    I am trying to get through these questions because I wanted 
to get through a bunch of them. So, first of all, I wanted to 
ask about the funding limitations that can delay and complicate 
cleanups.
    Mr. Houlemard, can you describe some of the economic 
impacts cleanup delays have on communities around Federal 
facilities. And then, secondly, what about the economic impacts 
of successful cleanups? How do they help local communities?
    Mr. Houlemard. Thank you, sir.
    I would like to first address the second one. As we have 
been able to get access to the property at the former Fort Ord 
and the economics in our region have changed in the last 
several years, we have seen a boost in our activities, 
including the fact that, at the current time, we have about a 
billion dollars of construction underway, with new hotels, new 
residential, and many other activities. Getting access to the 
property is crucial. We had funding early that enabled us to 
get access to those properties.
    On the other side, we have not been able to get access 
fully to all of the properties on the former Fort Ord because 
of annual funding restrictions under the Antideficiency Act. 
While that means annually Congress has to approve, I know that 
DOD sometimes is able to overcome that because there is a DOD 
allowance that requires or allows multiyear funding. When you 
can use that kind of funding, you don't have to lose the time 
in mobilization and demobilization that we have lost every 
single year in creating new contracts, going through the USACE, 
United States Army Corps of Engineers, to be able to do that 
oversight.
    That saves time in processing, it saves time in 
mobilization and demobilization, and gets the properties 
cleaned quicker.
    Mr. Pallone. OK.
    Let me move to the second question. When Congress fails to 
fund agencies consistently because of sequestration, shutdown, 
or just short-term extensions that unfortunately become the 
norm, it can have a significant impact on cleanup schedules.
    So let me ask Ms. Buthker and Ms. Dieck: From the state 
perspective, are these budget fluctuations and schedule changes 
disruptive? Quickly, if you can.
    Ms. Buthker. Speaking on behalf of the members of ASTSWMO, 
having a stable level of funding for the cleanups so that can 
ask plan and prioritize definitely makes things work a lot 
easier. States can meet with DOD and say, these are the things 
we want to try to accomplish.
    In addition, because our funding that we receive from DOD 
is based on a set work plan, the activities under that work 
plan, if those things do not happen, then states don't get 
money. So they also have the issue about potentially having to 
pull off staff that were assigned to work with DOD on those 
particular Federal facility cleanups. So it could definitely 
cause some disruption there.
    Mr. Pallone. And let me ask Ms. Dieck quickly, because then 
I have a third question.
    Ms. Dieck. Well, very briefly, when Federal agencies--they 
don't always ask for the money that they need to meet the 
commitments that have been made to the states. And that becomes 
very problematic. That is why transparency is critical.
    We work with Federal agencies to come up with a plan that 
has certain goals and milestones put in place, and when we miss 
those goals, it can have economic impacts. If we don't have the 
land returned to productive use, it is problematic.
    So it is critical that we have reliable funding that we can 
count on.
    Mr. Pallone. All right. Thank you.
    Let me go back to Mr. Houlemard about the brownfields 
program. I was one of the--myself and Congressman Gillmor put 
together the first brownfields authorization years ago, and I 
am very interested in ways to strengthen the program and make 
it more effective.
    Could you just elaborate briefly on your suggestion that a 
flaw in the brownfields legislation must be fixed to allow 
unique sites like Fort Ord to qualify for the program?
    Mr. Houlemard. Yes. In the case of the former Fort Ord, 
fence line to fence line, we are Superfund under CERCLA for 
reasons having to do with groundwater contamination. The United 
States Army has a process that they are undertaking to remove 
the groundwater problem. It still has 15 years to go before it 
is going to be complete, maybe more. As a consequence, 
brownfields funding to support our efforts above ground are--we 
are not eligible because we are fence-line-to-fence-line 
Superfund.
    And so that is the way that the legislationhas been 
written. We have asked U.S. EPA about this issue in the past. 
They themselves recognize that there is a little bit of a 
conflict because our other environmental concerns of asbestos, 
lead, PCBs, and other things that are left to us by the United 
States Army cost significant amounts of dollars to remove.
    In fact, California State University, Monterey Bay, is 
spending $30 million just to remove buildings over the coming 
years. We have already spent $45 million just to remove 
buildings, and we don't have any kind of assistance or 
brownfields program that can help us with that kind of problem.
    Mr. Pallone. All right.
    Let me just say to the chairman and to the ranking member 
of the subcommittee, I hope we have an opportunity to work on 
potential improvements to brownfields in the coming months. 
When I worked with Congressman Gillmor years ago and President 
Bush signed the bill, we did it in a very bipartisan way, and I 
would like to see if we could do that again in terms of a 
reauthorization.
    Mr. Shimkus. The gentleman yields back his time.
    We thank you for that suggestion. And we all mourn the 
passing of Paul, and that is a good memory of Paul, of 
successful legislation, bipartisan, that was moved and passed.
    So now I would like to recognize, looks like, obviously, 
the member who took the seat of Paul Gillmor, Bob Latta, for 5 
minutes.
    Mr. Latta. Well, thanks very much, Mr. Chairman.
    And thank you very much for our witnesses for being here. I 
really appreciate it.
    And if I could start with you, Ms. Buthker, I am going to 
assume from your testimony that you believe that current and 
formerly owned Federal facilities should have to comply with 
the same state requirements as a private entity conducting a 
cleanup under CERCLA?
    Ms. Buthker. Yes.
    Mr. Latta. OK.
    And let me ask this: With your leadership at--and I hope I 
am pronouncing this right--at ASTSWMO, how often do Federal 
facilities comply with state requirements?
    Ms. Buthker. How often?
    Mr. Latta. How often, in your experience, at ASTSWMO do you 
see that the Federal Government, Federal agencies are complying 
with state requirements?
    Ms. Buthker. This issue of Federal agencies complying with 
state requirements and not saying that--or waiving them has 
pretty much been a constant issue for the 20 years I have been 
involved at ASTSWMO.
    Mr. Latta. OK.
    And do you believe that section 120 of CERCLA is evidence 
that Congress intended to waive sovereign immunity?
    Ms. Buthker. I believe that it is. But I am not an 
attorney, so I am saying that. But I would believe it is 
because they were--the way that I read it when I read it is 
that they are supposed to, especially the non-NPL facilities, 
they are supposed to be meeting state requirements.
    Mr. Latta. And does the current waiver of sovereign 
immunity in CERCLA result in less oversight of Federal agency 
cleanups than in cleanups by private parties?
    Ms. Buthker. I would say for the non-NPL sites that are 
under state oversight, yes, because you always have that 
specter of sovereign immunity in the picture.
    If you have good collaboration with DOD, DOE, or the other 
Federal agencies, then you can work through these issues and 
these problems and these disagreements as you have them. But if 
you have a Federal facility project manager who doesn't want to 
listen to the state or the community, then they can basically 
shut down the program because they are lead agency, and if the 
state tries to sue, then sovereign immunity raises its head.
    Mr. Latta. OK.
    One last question, with my remaining time here. Last 
Congress, I introduced and the House passed H.R. 2318, which 
was the Federal Facility Accountability Act--and kind of 
following up with what you were talking about--which ensures 
that current and formerly owned Federal facilities will have to 
comply with the same State requirements as a private entity 
doing a cleanup under CERCLA.
    And then, in your testimony, you discuss the need for this 
type of legislation and how your association's positions have 
not changed over time because your members continue to have 
experiences where Federal agencies use sovereign immunity to 
avoid compliance with state requirements during investigation 
and cleanup of Federal facilities.
    And can you describe some of the state requirements that 
the Federal agencies are trying to avoid?
    Ms. Buthker. Probably the biggest one or one of the biggest 
ones is land use control, state regulations that implement 
restrictions on property. A lot of states have developed their 
own environmental covenant programs, and Federal agencies do 
not like to use that format for restricting property. They want 
to use their own mechanism.
    How that causes problems for the states is, when there 
isn't a consistent means to restrict property, there is the 
potential that those restrictions can fail over time. And that 
is a very big issue for states. That is one.
    Cleanup standards. Some states have set generic standards 
for cleanup, and DOD may or may not or the Federal agencies may 
or may not want to clean up to those levels.
    There is also things such as how landfills should be 
capped. A lot of states have their own regulations for those, 
and there are times when DOD says, no, those--or I shouldn't 
say just DOD--all the Federal agencies will say those shouldn't 
apply.
    Mr. Latta. Thank you.
    And, Mr. Chairman, in the interest of time, I am going to 
yield back my time and also say it is a privilege to hold the 
seat that Paul held.
    Mr. Shimkus. Yes. Thank you.
    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.
    I missed the first portion last week when we began, so 
perhaps this question has come up, but I am just curious on 
your perspective, because you are coming at, it looks like, 
from a different panel than we had before. But I am curious 
about some of the discussion about the Animus River out in 
Colorado. And I know it is about 126 miles long, and the EPA 
caused some problem there. They caused the issue to occur at 
the Gold King Mine.
    Now, two things here with that is, are you hearing, from 
your perspective, did they solve it in a quick way? Do you 
think that--again, because we were talking earlier about if it 
is federally--if the Federal Government caused the problem, 
they can take a long time to get it resolved, or not, or they 
can find ways to cut corners, perhaps. I have heard some of 
this.
    Do you think they did a pretty good job out there? Have you 
heard anything from the states, from other people talking about 
how they cleaned up the river? Let me just start with that. Any 
comments about the--you haven't heard? You don't know anything 
about it?
    Ms. Dieck. I have to say, I know some things about it, but 
I would like to refrain from commenting on that.
    Mr. McKinley. OK. I am just thinking, since it touched 
several states and it had some impact on--again, it goes back 
to what you were saying, sir, about individual input. With 126 
miles long, there were a lot of people that were affected by 
that. Their farms were affected by it. I don't know whether or 
not they had a chance to participate in a solution of how--I 
know it is going to clear up themselves naturally, I understand 
that, but the damage has been done.
    So part of my point would be--or the second question would 
be, who should pay for the cleanup? The taxpayers? Or should 
the government pay for that out of their current funding? Who 
would you think? It is kind of input. We are sitting around a 
table now where maybe you don't have an official position, but 
who do you think should pay for the damage the government 
caused by what they did? Is that something we are going to ask 
the taxpayers to come up with the money, or do you think maybe 
it should come out of their budget?
    Does anyone have the courage to speak on this?
    Ms. Buthker. I really don't know enough about the 
situation. It hasn't----
    Mr. McKinley. But just in general, if a government causes a 
problem, should the government clean it up on their dime, or 
should they pass that on to the taxpayers of the country?
    Ms. Buthker. Well, I would say, when you are looking at 
Federal agencies and Federal agency cleanup and those Federal 
agencies caused the contamination, some of it were from 
practices that they didn't know were bad things to do at the 
time. And, in that case, the Federal agencies are cleaning it 
up, but that is also taxpayer money that is funding that.
    Mr. McKinley. Yes.
    Ms. Buthker. So I don't know if that answers your question 
or not, but----
    Mr. McKinley. It doesn't. It doesn't. Because this one is 
something--they directed the work to be done; it caused a 
problem. And I am just questioning--if they were a private 
person in the mining industry--I come from the coalfields of 
West Virginia. When they cause a problem, the mines are fined 
immediately, and they have to come up with the money.
    I am just curious on this, whether or not this is something 
that fits into some of this discussion about responsibility, 
where the Federal Government should be. So it is more of just a 
general discussion. It may be very generic rather than specific 
to the Gold King Mine, whether or not they should pay for it 
out of their budget rather than a separate appropriation to 
clean it up. Because it is going to be millions of dollars in 
damages to the farmers and the fisheries and all that are 
affected by that.
    So I go back to your point again, do the people have a 
chance to speak? Because from what I can understand from 
reading the newspapers out there, there are a lot of people who 
have been damaged out there, and I am just wondering whois 
going to compensate them. Is it going to be the taxpayers, or 
is it going to be the EPA for calling the wrong shot?
    Mr. Houlemard. I am not aware of the circumstances, sir, 
but I would always encourage the EPA and all Federal agencies 
to engage in a very active way with the local community, and 
the same would be for this case.
    Mr. McKinley. Thank you very much.
    I yield back my time.
    Mr. Shimkus. The gentleman yields back his time.
    That is all the members seeking time to ask questions. We 
appreciate you all being here. I think there is--with the 
comments from the ranking member of the full committee, there 
may be some issues that we can talk--on brownfields, and we 
will see where we go from here.
    That is why we have hearings, to identify problems and 
maybe address solutions. And I look forward to working with my 
ranking member, Mr. Tonko, as we have successfully in the past, 
and maybe there is something we can do.
    With that, I will adjourn the hearing. Thank you for 
coming.
    [Whereupon, at 4:59 p.m., the subcommittee was adjourned.]
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