[Senate Hearing 115-86]
[From the U.S. Government Publishing Office]




                                                         S. Hrg. 115-86

   OVERSIGHT OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY'S SUPERFUND 
                                PROGRAM

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

                                HEARING

                               before the

 SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, AND REGULATORY OVERSIGHT

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             AUGUST 1, 2017

                               __________

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








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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                     ONE HUNDRED FIFTEENTH CONGRESS
                             FIRST SESSION

                    JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma            THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
JOHN BOOZMAN, Arkansas               BERNARD SANDERS, Vermont
ROGER WICKER, Mississippi            SHELDON WHITEHOUSE, Rhode Island
DEB FISCHER, Nebraska                JEFF MERKLEY, Oregon
JERRY MORAN, Kansas                  KIRSTEN GILLIBRAND, New York
MIKE ROUNDS, South Dakota            CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska                 TAMMY DUCKWORTH, Illinois
RICHARD SHELBY, Alabama              KAMALA HARRIS, California

              Richard M. Russell, Majority Staff Director
               Gabrielle Batkin, Minority Staff Director
                              ----------                              

             Subcommittee on Superfund, Waste Management, 
                        and Regulatory Oversight

                  MIKE ROUNDS, South Dakota, Chairman
JERRY MORAN, Kansas                  KAMALA HARRIS, California
JONI ERNST, Iowa                     BERNARD SANDERS, Vermont
DAN SULLIVAN, Alaska                 CORY A. BOOKER, New Jersey
JOHN BARRASSO, Wyoming (ex officio)  THOMAS R. CARPER, Delaware (ex 
                                         officio)
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                            C O N T E N T S

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                                                                   Page

                             AUGUST 1, 2017
                           OPENING STATEMENTS

Rounds, Hon. Mike, U.S. Senator from the State of South Dakota...     1
Harris, Hon. Kamala, U.S. Senator from the State of California...     4
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware, 
  prepared statement.............................................   128

                               WITNESSES

Nadeau, Steven C., Partner, Environmental Practice Group, 
  Honigman Miller Schwartz and Cohn, LLP.........................     6
    Prepared statement...........................................     9
    Responses to additional questions from Senator Inhofe........    38
Steers, Jeffery A., Director of Regional Operations, Virginia 
  Department of Environmental Quality............................    41
    Prepared statement...........................................    45
    Responses to additional questions from Senator Inhofe........    52
Probst, Katherine N., Independent Consultant, Kate Probst 
  Consulting.....................................................    54
    Prepared statement...........................................    56
    Responses to additional questions from Senator Inhofe........   126

                          ADDITIONAL MATERIAL

Environmental Council of the States (ECOS) press release, 
  President's Proposed EPA Budget Cuts Will Adversely Affect 
  State EABs, March 16, 2017.....................................   138

 
   OVERSIGHT OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY'S SUPERFUND 
                                PROGRAM

                              ----------                              


                        TUESDAY, AUGUST 1, 2017

                               U.S. Senate,
         Committee on Environment and Public Works,
              Subcommittee on Superfund, Waste Management, 
                                  and Regulatory Oversight,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:59 a.m. in room 
406, Dirksen Senate Office Building, Hon. Mike Rounds (Chairman 
of the Subcommittee) presiding.
    Present: Senators Rounds, Harris, Ernst, and Booker.
    Also present: Senators Boozman, Carper, and Markey.

            OPENING STATEMENT OF HON. MIKE ROUNDS, 
          U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA

    Senator Rounds. Good morning. The Environment and Public 
Works Subcommittee on Superfund, Waste Management, and 
Regulatory Oversight is meeting today to conduct a hearing 
entitled ``Oversight of the U.S. Environmental Protection 
Agency's Superfund Program.''
    Today we will hear testimony from witnesses with extensive 
involvement in cleaning up Superfund sites. Our witnesses will 
discuss their experiences in working with the EPA, State 
governments, and local communities to clean up and repurpose 
these sites, as well as offer suggestions on how cleanups can 
be completed quicker and more efficiently while best utilizing 
taxpayer dollars.
    Since 1980 the Comprehensive Environmental Response, 
Compensation, and Liability Act, or CERCLA, has been a 
cornerstone of our nation's hazardous waste management program. 
CERCLA, also known as Superfund, was enacted by Congress to 
give the Federal Government authority to clean up contaminated 
and hazardous waste sites, and respond to environmental 
emergencies, oil spills, and natural disasters.
    The program created a trust fund that is dedicated to 
cleaning up abandoned waste sites and gives the Agency the 
authority to work with Potentially Responsible Parties to 
facilitate a site cleanup. It also allows for two types of 
cleanup actions: short-term removals in emergency instances 
that require prompt action and long-term remedial response 
actions that allow for the permanent reclamation and reuse of 
the site.
    Superfund sites take many forms. They can be abandoned mine 
lands, manufacturing facilities, military installations, or 
shuttered chemical facilities. Common contaminants at these 
sites include lead, asbestos, and dioxin, all of which can pose 
a great danger to human health and can contaminate soil and 
groundwater. They are located in all of the 50 States and 
several U.S. territories.
    These sites pose a risk to human health, the environment, 
and can contaminate the water supply and prevent valuable land 
from being used to benefit the community.
    Created in 1983, the National Priorities List, or NPL, 
consists of 1,336 sites across the country that are a national 
priority for cleanups. These sites represent those that pose a 
great risk to human health and the environment. Now, in 
addition to these 1,336 sites, there are 53 sites proposed for 
listing on the NPL. Three hundred ninety-three sites have been 
successfully cleaned up and deleted from the list.
    While the Superfund program has been vital to reclaiming 
previously contaminated sites, cleanups are often delayed due 
to a complex bureaucracy and a delayed decisionmaking that can 
hinder the cleanup process. These delays result in contaminated 
sites languishing in communities--at times for decades--while 
stakeholders and other parties involved in the cleanup 
determine the best path forward for the site.
    These cleanups should not be delayed or halted because of 
bureaucratic red tape and lingering disagreements among the 
parties. When these delays occur, it is the citizens and the 
local communities that pay the price.
    When contaminated sites are allowed to languish and no 
progress is made toward a cleanup, the site continues to pose a 
potential risk to human health and valuable property that could 
benefit the community remains unused.
    The EPA, under the leadership of Administrator Pruitt, has 
made cleaning up Superfund sites a priority for the Agency. 
Earlier this year, Administrator Pruitt established a Superfund 
task force that was tasked with providing recommendations on 
how the Superfund Program can be improved.
    Last week the task force released their report, which 
provided 42 recommendations that can commence within 1 year and 
are currently within the EPA's existing statutory authority. 
These recommendations aim to expedite cleanups and remediation, 
reinvigorate Responsible Party cleanups, encourage private 
investment, promote redevelopment and community revitalization, 
and better engage partners and stakeholders.
    On the same day the report was released, Administrator 
Pruitt issued a memorandum directing the EPA to immediately 
begin implementing 11 of these recommendations. I am encouraged 
that Administrator Pruitt has made cleaning up these sites a 
priority, and I am hopeful that the recommendations provided by 
the task force will result in programmatic improvements that 
allow for quicker and more efficient cleanups.
    The EPA should strive to work in a transparent, cooperative 
fashion with State and local governments and stakeholders to 
make certain these sites are effectively cleaned up and can be 
safely redeveloped for the benefit of the communities in which 
they are located.
    I would like to thank our witnesses for being here today, 
and I look forward to hearing their testimony, as well.
    Now I would like to recognize Senator Harris for her 
opening statement.
    Senator Harris.
    [The prepared statement of Senator Rounds follows:]

                    Statement of Hon. Mike Rounds, 
              U.S. Senator from the State of South Dakota

    Today we will hear testimony from witnesses with extensive 
involvement in cleaning up Superfund sites.
    Our witnesses will discuss their experiences in working 
with the EPA, State governments, and local communities to clean 
up and repurpose these sites, as well as offer suggestions on 
how cleanups can be completed quicker and more efficiently 
while best utilizing taxpayer dollars.
    Since 1980 the Comprehensive Environmental Response, 
Compensation, and Liability Act, or CERCLA, has been a 
cornerstone of our nation's hazardous waste management program.
    CERCLA, also known as Superfund, was enacted by Congress to 
give the Federal Government authority to clean up contaminated 
and hazardous waste sites and respond to environmental 
emergencies, oil spills, and natural disasters.
    The program created a trust fund that is dedicated to 
cleaning up abandoned waste sites and gives the agency the 
authority to work with Potentially Responsible Parties to 
facilitate a site cleanup.
    It also allows for two types of cleanup actions:
     Short-term removals in emergency instances that require 
prompt action, and
     Long-term remedial response actions that allow for the 
permanent reclamation and reuse of the site.
    Superfund sites take many forms. They can be abandoned mine 
lands, manufacturing facilities, military installations, or 
shuttered chemical facilities.
    Common contaminants at these sites include lead, asbestos, 
and dioxin--all of which can pose a great danger to human 
health and can contaminate soil and groundwater.
    They are located in all of the 50 States and several U.S. 
territories.
    These sites pose a risk to human health, the environment, 
and can contaminate the water supply and prevent valuable land 
from being used to benefit the community.
    Created in 1983, the National Priorities List, or NPL, 
consists of 1,336 sites across the country that are a national 
priority for cleanups.
    These sites represent those that pose a great risk to human 
health and the environment.
    In addition to these 1,336 sites, there are 53 sites 
proposed for listing on the NPL.
    393 sites have been successfully cleaned up and deleted 
from the list.
    While the Superfund program has been vital to reclaiming 
previously contaminated sites, cleanups are often delayed due 
to a complex bureaucracy and delayed decisionmaking that can 
hinder the cleanup process.
    These delays result in contaminated sites' languishing in 
communities--at times for decades--while stakeholders and other 
parties involved in the cleanup determine the best path forward 
for the site.
    These cleanups should not be delayed or halted because of 
bureaucratic red tape and lingering disagreements among 
parties.
    When these delays occur, it is the citizens and the local 
communities that pay the price.
    When contaminated sites are allowed to languish and no 
progress is made toward a cleanup, the site continues to pose a 
potential risk to human health, and valuable property that 
could benefit the community remains unused.
    The EPA, under the leadership of Administrator Pruitt, has 
made cleaning up Superfund sites a priority for the agency.
    Earlier this year, Administrator Pruitt established a 
Superfund Task Force that was tasked with providing 
recommendations on how the Superfund program can be improved.
    Last week the Task Force released their report which 
provided 42 recommendations that can commence within 1 year and 
are currently within EPA's existing statutory authority.
    These recommendations aim to expedite cleanups and 
remediation, re-invigorate Responsible Party cleanups, 
encourage private investment, promote redevelopment and 
community revitalization, and better engage partners and 
stakeholders.
    On the same day the report was released, Administrator 
Pruitt issued a memorandum directing the EPA to immediately 
being implementing 11 of these recommendations.
    I am encouraged that Administrator Pruitt has made cleaning 
up these sites a priority and am hopeful that the 
recommendations provided by the Task Force will result in 
programmatic improvements that allow for quicker and more 
efficient cleanups.
    The EPA should strive to work in a transparent, cooperative 
fashion with State and local governments and stakeholders to 
make certain these sites are effectively cleaned up and can be 
safely redeveloped for the benefit of the communities in which 
they are located.
    I'd like to thank our witnesses for being here today, and I 
look forward to hearing your testimony.

           OPENING STATEMENT OF HON. KAMALA HARRIS, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Harris. Thank you, Mr. Chairman.
    Mr. Chairman, I am really pleased to be with you today. 
This is my first time serving as a Ranking Member for a 
committee hearing in the U.S. Senate, and this hearing 
certainly speaks to a topic that is part of a core mission of 
the U.S. Government, which is to keep the American people safe.
    CERCLA statute, more commonly known as Superfund, was 
created to help make sure that anyone who puts public health at 
risk by releasing hazardous waste is held accountable for 
cleaning up the damage they created. This is a matter of basic 
justice. Communities and families should not have to pay the 
price for someone else's pollution. This is a matter of basic 
economic justice.
    We should clean up our communities so that jobs can be 
created and properties can be used for good. This is a matter 
of basic opportunity, the notion that all Americans should have 
a chance at a healthy and productive life, regardless of where 
they happen to call home.
    That is why I am so glad to be holding this hearing with 
you, Mr. Chairman. We share a common goal of improving the 
cleanup process to better protect public health by restoring 
contaminated sites, without cutting corners. This is something 
we have a real opportunity to do, and I look forward to working 
with you and the members of our Committee to help make it 
happen, and I am heartened to see strong bipartisan interest in 
figuring out ways to make Superfund work better.
    Our work is guided by two key principles that Superfund 
laid out nearly four decades ago to guide its implementation: 
first, that toxic waste contamination threatens public health 
and requires a comprehensive cleanup response; second, that 
polluters should be held accountable and pay for the damage 
they cause.
    While Superfund has successfully cleaned up thousands of 
the most heavily contaminated sites across the country, there 
are still 53 million Americans who live within 3 miles of the 
nation's more than 1,300 Superfund sites. Poor communities and 
communities of color are disproportionately likely to live near 
these sites. This is true from the mountains of Appalachia to 
the cities and streets of Los Angeles.
    The Americans who are most likely to be exposed to toxic 
waste are the same Americans who have the fewest resources to 
deal with the consequences. I think we can all agree that that 
is wrong and that it is something we need to do more to 
address.
    However, I am concerned by some of the signs I have seen 
from the EPA Administrator about the direction the EPA will 
take on Superfund. On the one hand, I am encouraged that he has 
said that he considers cleaning up contaminated lands to be a 
core responsibility of the EPA and that, last week, a Superfund 
task force was created, which he created, and offered 42 
recommendations on ways to expedite cleanups. Truly am 
heartened by this action. And some of these recommendations I 
believe may be genuine efforts to help the program operate more 
efficiently and effectively, and produce better outcomes for 
the people we all represent.
    On the other hand, other recommendations give me pause, 
especially in light of the Administrator's skepticism of 
science and prioritization of corporate interest over public 
health. Examples of this include weakening requirements that 
polluters show they can pay for cleanups they agree to or 
reducing Federal oversight of cleanups. When you add on top of 
that the 30 percent proposed cut for the upcoming 2018 fiscal 
year to the Superfund account at EPA, and the 24 percent 
proposed cut to the office that enforces the law, the rhetoric 
and the reality may not add up.
    We should reject efforts to expedite cleanups if it means 
cutting corners on health and environmental standards, if it 
means letting polluters off the hook for the harm they have 
done, or if it means shutting out input from members of the 
public that are bearing the brunt of the harm.
    So, Mr. Chairman, I look forward to holding a hearing with 
EPA officials in the near future, and I would like to hear how 
the Agency plans to accelerate the pace of cleanups while 
significantly cutting the sources of funding to do that 
cleanup. And I look forward to working with you to find ways to 
make sure this program is working for all Americans, regardless 
of where they live, who they are, or who polluted their 
community.
    Again, thank you, Mr. Chairman, and I look forward to our 
hearing today.
    Senator Rounds. Thank you, Senator Harris.
    Now I would like to introduce our witnesses today. To begin 
with, Steven C. Nadeau. He is a partner with Honigman Miller 
Schwartz and Cohn LLP; Jeffery A. Steers, Director of Regional 
Operations, Virginia Department of Environmental Quality; and 
Katherine N. Probst, Independent Consultant, Kate Probst 
Consulting.
    Welcome to all of you. Your full statements will be made a 
part of our record today. I would ask that we begin with 
opening statements, and if you could limit them to about 5 
minutes, that would be appreciated.
    We will turn to our first witness today, Steven Nadeau, for 
a 5-minute introduction.
    Mr. Nadeau, please proceed.

STATEMENT OF STEVEN C. NADEAU, PARTNER, ENVIRONMENTAL PRACTICE 
          GROUP, HONIGMAN MILLER SCHWARTZ AND COHN LLP

    Mr. Nadeau. Thank you, Chairman Rounds, Ranking Member 
Harris.
    Good morning, Chairman Rounds, Ranking Member Harris, and 
members of the Subcommittee. Thank you for holding this 
important oversight hearing on implementation of CERCLA. My 
name is Steve Nadeau, and I am an environmental attorney with 
more than three decades of experience working with industry and 
EPA on developing remedies for complex Superfund sites across 
the country. I have also served as the Coordinating Director of 
the Sediment Management Workgroup since 1998.
    I am delighted to be here today to share my experience with 
the Superfund program. However, before I do, I should note that 
these views are my own and do not represent the views of any 
particular client or organization.
    As you know, Congress enacted CERCLA to ensure that the 
nation's most contaminated sites would be cleaned up. For more 
than 30 years EPA successfully identified and remediated 
hundreds of Superfund sites, typically old abandoned landfills 
or industrial properties. However, the typical Superfund site 
profile has changed to complex mining and river sediment sites, 
often referred to as mega-sites. These mega-sites are far more 
complicated, expensive, and time consuming than traditional 
Superfund sites, often exceeding 10 to 15 years of study with 
pre-remedy selection costs ranging from $100 million to $150 
million.
    Contaminated sediment sites are the results of hundreds of 
years of urban industrial activity from hundreds of sources, 
presenting unique challenges to the Superfund program. These 
large scale cleanups often cost more than $1 billion and drag 
on for decades.
    That is why I am pleased to see a diligent effort by the 
new Administration to address concerns with the entirety of the 
Superfund process, from initial assessment to remedy selection. 
This includes the Administrator's change to the Superfund 
Delegation Authority on May 9th, requiring all CERCLA remedial 
decisions expected to cost more than $50 million to be approved 
by the EPA Administrator, rather than being decided exclusively 
by the regions.
    Subsequently, the Administrator created a task force on May 
22nd to recommend improvements to the Superfund program 
resulting in the release last Tuesday of 42 recommendations 
designed to achieve a number of worthy objectives to expedite 
cleanup and remediation, such as promoting the use of a phased 
approach at large and complex sites, further incorporating 
technical and scientifically sound review, engaging partners 
and stakeholders, prioritizing redevelopment, and encouraging 
public-private partnerships.
    My oral and written testimony is consistent with and builds 
upon these valuable regulatory improvements, but also 
identifies additional issues that need to be addressed.
    There are several steps in the Superfund process, and each 
one can cause undue delay in putting sites back into productive 
use if not conducted according to EPA policy.
    There are two steps that often cause the most delay and 
expense. The first is the collection of excessive amounts of 
data, rather than focusing on the data needed for 
decisionmaking. This is often driven by a desire to eliminate 
all uncertainty, which is an unachievable goal. A second 
example is the protracted debate that often occurs over the 
appropriate assumptions for determining the assessment of risk.
    In addition, some EPA regions impose conservative 
assumptions at the project level that go well beyond the scope 
of what is required by applicable Superfund guidance on 
virtually every aspect of the site. These assumptions 
unfortunately result in an artificially inflated risk that 
significantly skews the information the Administrator will need 
to decide whether to approve a proposed remedy.
    Another issue I have observed is that some EPA regions have 
ignored the sediment guidance risk reduction focus, and instead 
favor the far greater dredging component that is technically 
necessary, particularly at the larger sediment sites.
    Historically, some EPA regions have also set 
unrealistically low background concentration levels for the 
sediment, which result in cleanup goals that are unattainable 
because the sediments are likely to become re-contaminated to 
the levels above the cleanup goals due to the ambient 
conditions.
    In 2005 EPA issued a policy guidance document for 
contaminated sediment sites, commonly known as the Contaminated 
Sediment Guidance. This represents a comprehensive, technically 
sound policy, a roadmap for addressing complexities associated 
with contaminated sediment sites. However, the disregard of the 
Sediment Guidance and the failure to follow the national 
contingency plan requirements, particularly at the regional 
level, are severely limiting the effectiveness of the Superfund 
program, delaying remediation of impacted sites, and stymieing 
redevelopment along our nation's waterways.
    So, in terms of solutions, I respectfully request that you 
consider the following recommendations to improve and 
streamline the site investigation and remedy selection 
decisions at contaminated sediment sites.
    No. 1, EPA headquarters should require the regions to 
strictly adhere to CERCLA, the NCP, and the Sediment Guidance 
at all phases of the site investigation risk assessment, remedy 
evaluation, and remedy selection stages at all contaminated 
sediment sites.
    No. 2, EPA should restore its Contaminated Sediment 
Technical Advisory Group independent review of the region's 
recommended remedy prior to the National Remedy Review Board 
review. In addition, CSTAG and NRRB reviews of the region's 
proposed remedy should be required to include a specific 
recommendation of the appropriate remedy for the site. This 
recommendation would be provided to the Administrator for 
review of sediment remedies expected to cost more than $50 
million.
    This would allow for the Agency's most experienced staff 
with contaminated sites to have direct input and recommend a 
remedy to the Administrator, which we feel is important. 
Moreover, EPA's regions should be required to consult with 
CSTAG on certain steps in the Superfund process, including the 
scope of the remedial investigation, where things often get 
bogged down, the assumptions for developing the risk 
assessment, and a review of the remedial options during the all 
important feasibility study phase.
    No. 3, EPA regions should be required to apply the well 
established Superfund process of adaptive management at the 
sediment mega-sites, rather than waiting for years, and 
sometimes decades, before beginning construction. This would 
also solve one of the most problematic approaches of Superfund, 
which is attempting to address virtually all of the site 
issues, large and small, up front, in one massive 
ultraconservative remedy. In contrast, the adaptive management 
approach will accelerate cleanups while achieving a 
scientifically supportable remedy.
    No. 4, every sediment site ROD should comply with the cost 
effectiveness requirement of the NCP by including a detailed 
and transparent analysis demonstrating the proportionality 
between the anticipated risk reduction of each remedial 
alternative and the incremental cost of each such alternative. 
This way you can balance the benefits and the costs of each 
remedy under consideration.
    No. 5, EPA should formally incorporate a sustainability 
analysis in its Superfund remedy selection evaluation. 
Sustainability is consistent with the Superfund NCP criteria 
and should be incorporated into the CERCLA remedy evaluation.
    No. 7, existing authority should be used to develop an 
approach that addresses contaminated sediment sites through 
collaborative public-private partnerships. This would build 
upon the highly successful Great Lakes Legacy Act model where 
sites after sites have been addressed in a very timely and very 
efficient manner.
    So, in conclusion, implementing these recommendations will 
protect human health and the environment, will accelerate 
sediment cleanups and redevelopment of adjacent sites, and 
provide for efficient use of our Federal resources by ensuring 
cost effectiveness, saving the EPA and taxpayers money.
    I want to thank the Subcommittee for holding this important 
hearing, and I look forward to answering your questions.
    [The prepared statement of Mr. Nadeau follows:]
    
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Senator Rounds. Thank you, Mr. Nadeau. I appreciate your 
testimony.
    We will now turn to our second witness, Director Jeffery A. 
Steers.
    Director Steers, you may begin.

     STATEMENT OF JEFFERY A. STEERS, DIRECTOR OF REGIONAL 
    OPERATIONS, VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY

    Mr. Steers. Good morning, Chairman Rounds, Ranking Member 
Harris, and members of the Subcommittee. My name is Jeffery 
Steers, and I am the Director of Regional Operations for the 
Virginia Department of Environmental Quality. Virginia DEQ is a 
member of the Association of State and Territorial Solid Waste 
Management Officials, or ASTSWMO, of which I previously served 
as President.
    ASTSWMO is an association representing the waste management 
and remediation programs of the 50 States, the territories, and 
the District of Columbia. Our membership includes State program 
experts with an individual responsibility for the regulation or 
management of waste and hazardous substances, including 
overseeing the cleanup of Superfund sites. ASTSWMO appreciates 
the opportunity to provide testimony on oversight of EPA's 
Superfund cleanup program.
    While States do not assume primary CERCLA authority, we do 
play a role in its implementation. The decisions made by 
Congress and those made by EPA can have a profound impact on 
State resources. States share a common goal with the Federal 
Government, though, in ensuring that risks to human health and 
the environment are mitigated and appropriately addressed in a 
financially responsible manner. Our association is committed to 
ensuring that this is done in an efficient, cost effective way.
    We support any legislation that encourages greater State 
collaboration with our Federal partners while ensuring that our 
voice and opinions are not diminished. ASTSWMO and its member 
States enjoy a positive working relationship with EPA and does 
not wish to discount these collaborative efforts. We do wish, 
however, to offer the Subcommittee some comments on 
opportunities to enhance the program.
    States value the relationship with EPA and together, 
through several types of cooperative agreements both as 
individual States and as an association, continue to make great 
strides in addressing some of the most contaminated lands in 
the United States. ASTSWMO supports EPA Pruitt's May 22nd, 
2017, memo stating that the Superfund program is a vital 
function of EPA and the Agency cannot have a successful program 
without substantial State involvement. Furthermore, the States 
support the input and role of local government in the 
communities in which contaminated sites exist.
    Opportunities exist for improvements to the program to deal 
with costly and delayed cleanups that continue to have a 
negative impact on communities across this nation. While 
efficiencies can be realized administratively, without 
legislative changes to CERCLA or EPA's authority, there exists 
an opportunity to modernize certain aspects of the statute to 
acknowledge the roles that States, as co-regulators who operate 
sophisticated programs across the country, our members, and to 
some extent, our regulated community continue to be challenged 
with the skyrocketing financial obligations associated with 
remediating contaminated lands.
    This past week EPA released the recommendations of a task 
force on Superfund appointed by Administrator Pruitt. ASTSWMO's 
member States are encouraged that the Administration recognizes 
the need for improvements to a program whose purpose is to 
ensure American communities are protected from contaminated 
sites.
    While States are still reviewing this recently released 
report, we take note of the fact that the schedule for 
implementation is aggressive. Given the proposed reductions in 
the Agency's staffing and budget, States stand ready to assist 
EPA in meeting this schedule and hope that they can efficiently 
work with us in adopting and implementing some of these 
recommendations.
    Experiences in working with EPA regional office has 
historically demonstrated inconsistent application of policy 
and guidance developed by headquarters. One of the task force 
recommendations states that regions are encouraged to consider 
greater use of early and/or interim actions, including use of 
removal authority or interim remedies to address immediate 
risks, prevent source migration, and return to portions of the 
site to use pending more detailed evaluations or other parts of 
sites. Regional offices must be held accountable in ensuring 
that consistent implementation of this and other 
recommendations are followed.
    One area of difficulty for our member States is EPA's 
process to identify State regulations as potential Applicable 
or Relevant and Appropriate Requirements, or ARARs. Our main 
areas of concern include inconsistent application of ARARs from 
site to site, documenting EPA's decisions in these matters, and 
allowing States early interaction in the development of ARARs 
on specific sites. ASTSWMO recently participated in a process 
improvement team with EPA to identify tools that could 
streamline the process while providing States with meaningful 
involvement. While the exercise was successful and agreement on 
the path forward was gained between the Superfund program and 
the State participants, the outcome was thwarted by EPA's 
Office of General Counsel, who created bureaucratic roadblocks 
that prevented the project from being implemented. This is an 
example of a lost opportunity in improving Federal and State 
relations.
    Another growing concern is the ongoing escalation of costs 
incurred by States on fund lead sites listed on the National 
Priorities List. As you may be aware, States are required to 
cost share 10 percent of the remedy construction, while 
incurring 100 percent of the operation and maintenance costs. 
States need to be given more authority in remedy selection and 
the up front cost decisionmaking early on, and often, in the 
process. Prior to transfer to States for O&M, EPA should be 
given the authority to consider evaluating whether the State 
has sufficient funds to take on O&M obligations. Even though 
the State agreed to assume O&M obligations in this process, it 
could be that projected costs haven't been appropriately 
updated by EPA. If the State does not have sufficient funding 
to take on the O&M at the time of transfer, the statute should 
allow for a process that identifies options on how to address 
and fund State shortfalls.
    The role that communities and local investors may play in 
the redevelopment of Superfund sites has historically been 
diminished. States are encouraged that the task force report 
recommends EPA identify sites for third party investment and to 
pilot how accelerating the remedies might be accomplished under 
these circumstances. While not mentioning State involvement in 
this recommendation, EPA must involve ASTSWMO members in the 
process as we have robust brownfield redevelopment programs and 
other tools that can facilitate expedited reviews, remedy 
implementation, and pragmatic yet protective long-term 
monitoring at these sites. Investors require a level of 
certainty not typically found in the Superfund program. The 
States can assist EPA in facilitating and negotiating 
agreements with third parties, and we stand willing to do so.
    With respect to Responsible Party or RP-led sites under 
Superfund, States typically find themselves in a secondary 
oversight role. It is customary for a State to enter into a 
Cooperative Agreement which defines our role with EPA while 
providing a funding mechanism for State oversight. In Virginia, 
we have recently reached out to four Responsible Parties to 
gauge their interest in a pilot program where they enter into a 
Cost Oversight Agreement, agreeing to pay DEQ's project 
overcosts directly in lieu of funneling the money through EPA, 
and that results in administratively less burdened Cooperative 
Agreements for both EPA and DEQ. This approach is much more 
cost effective for the RP, increases DEQ's budget forecasting, 
positions Virginia to provide better customer service, and 
helps ensure that we have an opportunity to voice State 
specific concerns such as costs at key decision points.
    Another State engagement issue related to RP oversight is 
where EPA enters into consent decrees or other types of 
settlement documents with RPs to settle costs of their cleanup. 
EPA often does not include the State in this settlement 
process, which can make it difficult for a State to engage the 
RPs to do additional work that may be needed to recover the 
State's current and projected oversight costs. This issue can 
be compounded if the site has the issue of less stringent or 
different ARARs than the State would require for the site.
    Finally, coordination on local high profile sites must be a 
team effort between EPA, the State, and local government. Two 
recent examples in Virginia illustrate the need. In one case, 
the State had been working closely with local State health 
departments to characterize neighborhood drinking water next to 
an NPL site that contaminated private wells. The State provided 
a temporary solution of installing onsite filtration systems 
while a long-term fix was developed. Eventually, all parties 
agreed that a connection to the public water supply would 
reduce the exposure pathway for neighboring residents. However, 
there was a delay in getting public water extended to the area 
despite that being the apparent intended desire of all parties, 
largely due to EPA's very long step-wise process under 
Superfund that didn't easily facilitate connecting the public 
water.
    In another case, the local community----
    Senator Rounds. Mr. Steers, I am going to have to ask you 
to wrap it up.
    Mr. Steers. OK. In conclusion, States have positioned 
themselves to be effective partners with EPA on Superfund 
implementation and have developed working relationships with 
local government and communities that are home to contaminated 
sites on the NPL. We encourage continued Federal and State 
cooperative regulatory oversight as improvements continue to be 
made to the Superfund program.
    Thank you for allowing me to testify, and I would be happy 
to answer your questions.
    Thank you.
    [The prepared statement of Mr. Steers follows:]
    
    
  
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    Senator Rounds. Thank you, Mr. Steers.
    We will now turn to our third witness, Katherine Probst.
    Ms. Probst, you may begin.

               STATEMENT OF KATHERINE N. PROBST, 
         INDEPENDENT CONSULTANT, KATE PROBST CONSULTING

    Ms. Probst. Thank you.
    Members of the Subcommittee, thank you for inviting me to 
testify before you today. My name is Kate Probst, and I am an 
independent consultant. For over 20 years I have worked as a 
researcher and policy analyst evaluating the Superfund program. 
I am the sole author of the recently released report Superfund 
2017: Cleanup Accomplishments and the Challenges Ahead, an 
independent report commissioned by the American Council of 
Engineering Companies. I was also the lead author of the 2001 
Report to Congress, Superfund's Future: What Will It Cost?, 
which was published by Resources for the Future, a Washington, 
DC, think tank where I was a senior fellow. The conclusions, 
recommendations, and opinions in my testimony today are mine 
and mine alone, and do not represent any other person or 
organization.
    In my testimony, I am focusing on what do we know and what 
do we not know about Superfund cleanups. And I would note none 
of my data or anything has anything to do with Federal 
facilities; they are all sites that are not owned and operated 
by the Federal Government.
    What do we know? First, we know that over two-thirds of the 
1,555 sites on the NPL at the end of fiscal year 2016 either 
have been deleted from the NPL or are construction complete. 
The remaining 28 percent are in some stage of the remedial 
pipeline and will require additional actions by EPA and 
Potential Responsible Parties to complete implementation of all 
cleanup remedies. Those sites that are construction complete, 
but not deleted, also have more work to be done.
    Second, funding for the Superfund program has declined 
markedly since fiscal year 2000, and it appears that the 
remedial program is facing a funding shortfall. In constant 
2016 dollars, annual Superfund appropriations declined from a 
high of $1.9 billion in fiscal year 2000 to a low of $1.09 
billion in fiscal year 2016, a decrease of 43 percent. Funding 
for the remedial program has declined as well, from a high of 
$740 million in fiscal year 2004 to a low of $501 million last 
year, a decrease of 33 percent.
    Over the past 5 years the end of the year funding 
shortfalls for remedial action projects has averaged $67 
million. Much more difficult to quantify are more subtle 
results of funding constraints: sites not added to the NPL, 
sites studied and remedial projects spread out over a longer 
time period, and other less visible actions not taken or 
delayed due to lack of resources.
    Third, cleanup progress has slowed in recent years. Since 
the beginning of fiscal year 2000, 462 sites have achieved 
construction complete status, an average of 27 a year. That 
average dropped to 12 sites a year for the 5 years from fiscal 
year 2012 through fiscal year 2016.
    Fourth, sites needing Federal attention continue to be 
identified and added to the NPL. There continues to be a need 
for Federal dollars, Federal enforcement, and Federal expertise 
to address contaminated sites. Since fiscal year 2000, a total 
of 310 non-Federal sites were added to the NPL.
    What we don't know. First, why is it taking so long to 
complete cleanup at some of the sites on the NPL? There are 189 
non-Federal sites that were added to the NPL before fiscal year 
2000 that are still not construction complete. The question is 
why. Possible explanations include lack of adequate EPA 
funding, PRP inaction, EPA inaction, the sheer magnitude of the 
site and contamination, and technical limitations of available 
cleanup technologies. Any initiative by EPA to speed cleanup 
should begin by identifying the specific factors that are 
contributing to delay at these and other NPL sites. It is not 
possible to solve a problem if we don't know what is causing 
it.
    Second, how much will it cost to complete cleanup at all 
current NPL sites? In order to evaluate whether annual 
Superfund appropriations are sufficient, we first need to have 
an estimate of how much money is needed to complete cleanup, as 
well as an estimate of remedial pipeline funding needs on an 
annual basis. Sadly, the last time such an estimate was made 
public was the 2001 Report to Congress, of which I was the lead 
author.
    Third, why are contaminated sites still being added to the 
NPL? EPA should, of course, continue to list sites that need 
Federal cleanup dollars, enforcement, and expertise. However, 
it would be helpful to have a better understanding of the 
factors that have resulted in sites' being added to the NPL 
over the past 5 years. For example, are sites continuing to be 
placed on the NPL because they are truly orphan sites, that is, 
there are either no known PRPs or the PRPs are not financially 
viable? Do the types of sites being listed suggest gaps in 
other regulatory programs or inadequate financial assurance 
requirements? Are the sites being added to the NPL more 
expensive on average than in the early years of the program? 
Are they more complex technically? Are States referring certain 
kinds of sites to EPA for action that they do not have the 
financial or technical resources to address?
    A better understanding of the factors leading to sites 
being listed on the NPL would be invaluable in efforts to close 
regulatory gaps, investigate needed cleanup technologies, and 
estimate future funding needs.
    Fourth, and last, what is the financial capacity of State 
Superfund programs? Some have suggested that there is little or 
no need for a Federal cleanup program and that the program 
should be delegated to the States. Yet few, if any, States have 
the financial resources to pay for the cleanup of an NPL 
caliber site, much less a mega-site costing $50 million or 
more. To address this issue, as well as State concerns about 
their financial burden of operation and maintenance at NPL 
sites, EPA should commission an independent analysis of the 
financial capacity and legal authorities of State Superfund 
programs.
    Thank you for asking me to testify before you today. I 
would be happy to answer any questions.
    [The prepared statement of Ms. Probst follows:]
    
    
    
    
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    Senator Rounds. Thank you for your testimony, Ms. Probst.
    Senators will now each have 5 minutes for questions. I will 
begin our questioning.
    This one I would like to ask the panel, and I most 
certainly appreciate all of your backgrounds in this. I am just 
curious. There is a process, Risk-Based Corrective Action, or 
RBCA. It is a method of managing contaminant release sites in 
which the amount of environmental management to protect human 
health and the environment is based on a scientific assessment 
of the risks posed by contaminants.
    Now, in South Dakota this was a management technique that 
we have used successfully for cleanup of petroleum sites.
    I am just curious, does EPA currently use the RBCA process 
as a means of managing Superfund cleanups, or is this something 
that could potentially be utilized by the EPA to manage 
cleanups more effectively and efficiently? Just curious if any 
of you are familiar with this particular process and what your 
thoughts are.
    Mr. Nadeau.
    Mr. Nadeau. Yes. Thank you, Senator Rounds. The RBCA 
program was very, very successful and is successful because it 
focuses on the risk based approach. The Federal Superfund 
statute and all of its regulations, the national contingency 
plan, and the case of contaminated sediments are all risk based 
as well, and I think a lot of the RBCA concept were reflected. 
The problem we are seeing is we are getting bogged down on the 
study phase, and the risk based approach falls by the wayside 
when a conservatism factor is applied to the remedy selection. 
This is why an adaptive management approach would allow us to 
deal with the worst issues first and monitor. These sites would 
get cleaned up more efficiently. And people who come to the 
table, companies that are involved want to get this done. So 
the RBCA approach, if we follow it as written already in our 
Federal program, would really help things accelerate, and we 
would get better cleanups and earlier cleanups.
    Senator Rounds. Director Steers.
    Mr. Steers. I would agree with my colleague. Again, we get 
bogged down with looking at risk and what is the appropriate 
risk in the use of the property, especially if it is trying to 
be redeveloped. So a RBCA model--especially on large mega-
sites, we have one in Virginia--would help when you look at the 
adaptive management and being able to assure that you have the 
appropriate level of risk, because you can take risk assessment 
to an extreme level, and I think it needs to be tempered with 
what is the appropriate risk for that site and those 
conditions.
    Senator Rounds. Ms. Probst.
    Ms. Probst. I don't think I have the right expertise to 
answer that question.
    Senator Rounds. OK, thanks.
    Mr. Nadeau, how would expanding the role of the National 
Remedy Review Board, or the NRRB, and the Contaminated 
Sediments Technical Advisory Group, CSTAG, in remedy decisions 
improve EPA decisionmaking at sediment sites?
    Mr. Nadeau. The CSTAG organization was founded because 
contaminated sediment sites are far more complex than anything 
we have ever had to address in the past. You can't get your 
arms around them easily. By having the Agency's most 
experienced practitioners from the regions, you have basically 
a peer review of the best and the brightest. If you have that 
kind of input, this will even out the disparity we see in how 
the guidance is applied.
    It is a unique situation. The guidance is a terrific 
document. If we follow the guidance, we can make this work. So 
we are encouraged that we are taking a separate look at this 
through the task force and the actions that follow.
    The NRRB and CSTAG review, by making it part of the 
decisionmaking process where a recommendation of a remedy will 
allow for a second look at whether we are complying with the 
sediment guidance, which is a risk based program, it has all 
the ingredients we need to make this work, and it will really 
change the decisionmaking landscape so we can get these sites 
underway, which I think everyone is looking forward to doing.
    Senator Rounds. Director Steers, in your testimony you say 
there is an opportunity to modernize certain aspects of CERCLA 
without making a legislative change to the statute. Can you 
elaborate on what you believe are some of the improvements that 
can be made to CERCLA that EPA can undertake with its current 
statutory authority?
    Mr. Steers. I think, generally, one of the problems that we 
have seen is the level of involvement with States and 
contractors that are working for EPA. Oftentimes they work 
directly with their contractor, and cost control isn't 
necessarily on the top of the list as it maybe should be, and 
working with the States, especially on fund lead sites, we want 
to be able to look at where the expertise is and making sure 
that people that understand how to control the costs are 
involved.
    If you look at the removals actions program, where you have 
emergency removals, and you have project managers at EPA that 
do that for a living, they are very much in tune with trying to 
control costs; not so much on the remedial project managers on 
long-term Superfund cleanups. So there needs to be a dialogue 
and a work-together on how contractors and EPA and the States 
can work in looking at reducing costs for the construction of 
the remedy and the long-term O&M, as an example.
    Senator Rounds. Thank you.
    Senator Harris.
    Senator Harris. Thank you, Chairman.
    And before my questions, Mr. Chairman, Ranking Member 
Carper had to leave for another hearing, but asked me to ask 
for unanimous consent that his statement be made part of the 
record.
    Senator Rounds. Without objection.
    Senator Harris. Thank you.
    [The referenced statement follows:]

                  Statement of Hon. Thomas R. Carper, 
                U.S. Senator from the State of Delaware

    Thank you, Chairman Rounds and Ranking Member Harris, for 
holding this hearing today.
    Mr. Chairman, I appreciate your continuing leadership of 
this Subcommittee and the important oversight work it does.
    Ranking Member Harris, I want to congratulate you in your 
new role, and I know your experience as a former Attorney 
General for the State of California will benefit all of our 
understanding of the challenges--the legal and remediation 
challenges--that States face as they clean up contaminated 
sites.
    EPA's Superfund program is vitally important in my home 
State of Delaware, as I am sure it is important to most all 
members.
    Delaware is a small State, but we have 21 sites on the 
National Priorities List and one proposed in Newark just this 
week. Like all of you, I want to see those sites cleaned up as 
quickly as possible.
    We also want to make sure they're done right. That means 
ensuring that remediation actions will permanently protect the 
public against exposure to toxic and hazardous materials. It 
means making sure that the communities in which these sites are 
located have a seat at the table and a say in how cleanups get 
done.
    It means making sure that the financial resources needed to 
do these cleanups are available to communities. And finally, it 
means that decisionmaking with regard to cleanups is driven by 
science and public health considerations, not political 
considerations.
    I hope that the cleanup priorities I've just outlined are 
ones to which the members on both sides--and the 
Administration--would also agree.
    Mr. Chairman, I hope that in the near future we will have 
the opportunity--either at the Subcommittee or perhaps even at 
the full Committee--to hear from EPA officials directly about 
the Superfund program.
    It is important that we understand how the Administration 
plans to accelerate cleanups without cutting corners or 
shutting out community input.
    I hope our witnesses today will speak to all these things, 
and I look forward to hearing their testimonies and thank them 
all for their willingness to be here today and share their 
perspectives.

    Senator Harris. This is a question for each of you. What do 
you believe will be the impact of the Trump Administration's 
proposed 30 percent budget cut to the EPA's Superfund program 
from $1 billion to $762 million? And as part of your response, 
if you could tell me if you believe it would be helpful, and I 
am assuming it would, that Congress would appropriate money to 
help close that gap, but also what else could be done to 
address what will be perhaps a shortfall in terms of the 
resources that are available.
    I will start with you, Mr. Nadeau.
    Mr. Nadeau. Yes. The folks at EPA have been working very 
diligently on these issues. By streamlining a lot of the steps 
of the review, we can accelerate our progress, but it would 
still be helpful for the Agency to have the resources 
necessary, especially at the senior levels, to bring experience 
to bear on these important issues.
    We do think that the other changes that we are recommending 
will also help the process, too, and we can get from A to Z in 
half the time and start cleaning up the sites with early 
actions, and this will, I think, take some of the burden off 
these 15-year studies. We don't need 15 years to study the 
problem. Study for 3 or 4 years, identify the areas to be 
addressed, and it will take the pressure off the staff, and it 
will mean that all of our resources are applied to clean up and 
not excessive study, so it all will fit hand in glove.
    Senator Harris. So does that mean that you think there will 
be no change to the ability to address the issue, the budget 
cut won't have an impact?
    Mr. Nadeau. I think there will be pressures, there is no 
doubt, but I think that if there is more funding available to 
provide review on the key issues like contaminated sediment 
sites or mining sites, that would be helpful. We think that it 
is important to have staffing. But we feel that whatever 
happens, we can make it better, and we will all just have to 
live with it.
    Senator Harris. Thank you.
    Mr. Steers, again, what do you believe this 30 percent 
budget cut will do in terms of the ability to address the 
cleanup that is necessary?
    Mr. Steers. I believe the States are concerned about that. 
Obviously, we work as partners with them. The cuts in both 
staff and/or in construction of projects could end up causing 
certain additional delays, but also looking at remedies that 
maybe aren't the best remedies that we need for some of these 
sites, especially ones where the State needs to take them and 
carry them through their long-term monitoring and operation.
    We also feel that, even if you have some cuts, we still 
need to look at efficiency. And you can absorb some cuts if you 
are also being efficient and working with your partners and 
being able to streamline the process, as we mentioned this 
morning, because in lieu of having any ideal budget, you also 
have to be able to effectively use that money, and I think 
there are opportunities, especially when we talk about how 
project managers consistently apply guidance across EPA 
regions; that can escalate costs easily. So we understand it is 
not an unlimited budget, there is not unlimited funds to 
address these sites, but we do need to work together, and you 
know, States need to be at the table when we are talking about 
budget cuts.
    Senator Harris. Have the States, as a group, discussed or 
even addressed this potential 30 percent cut to the budget?
    Mr. Steers. We are still trying to understand what the 
impacts of that might be.
    Senator Harris. Can you follow up with this Committee when 
you have some sense of that? I am very interested, as I am sure 
my colleagues are, to know what the impact to the States will 
be of this 30 percent cut.
    Mr. Steers. Sure, we can do that.
    Senator Harris. Thank you. This proposed 30 percent cut.
    And Ms. Probst.
    Ms. Probst. Thank you. First of all, having worked at EPA 
in my past life, a 30 percent cut in 1 year is huge. I mean, 
that is going to really hurt the program, regardless of how one 
feels about the Superfund program. It is just very hard to 
absorb huge cuts quickly. The easiest way is to take it out of 
what are called extramural dollars, which are the same dollars 
that fund cleanups, whether removal or remedial. It is very 
hard to cut staff quickly and have that payoff, so, one, 
forgetting this program, a 30 percent cut to any program in 1 
year is probably going to shut down a lot in the program. I 
think that is just a reality.
    The second thing is the Superfund appropriations have 
different pockets. There is the money that goes out of the 
Agency for cleanups, the money that goes out of the Agency for 
removal actions, and then there is staff and other things. We 
know that the remedial program budget has declined in real 
dollars. It is very hard to see how you can accelerate cleanup 
and cut the budget without basically becoming a removals only 
program, where you are basically going in and addressing 
current risk, immediate risk. But it is hard to imagine that 
you can continue to do long-term cleanups with that kind of a 
Draconian cut.
    The second point, which I have made 100 times for 20 years, 
it would be really good to know how much money they need. This 
is not a Republican or a Democratic issue. I have to say I 
don't understand it, but ever since the report that we issued 
in 2001, they have stopped estimating what is called their out 
year liability. I don't know why, but it is very hard to say 
what the impact of a cut is if you don't actually know, well, 
OK, to clean up the 1,555 sites on the NPL, this is what we 
need for the Fund lead actions, this is what we need for 
enforcement, this is what we need for oversight. That is 
doable. EPA will tell you, maybe, that it is hard. It is 
actually not hard as long as we are not trying to go to the 
Moon. We are just trying to get a ballpark estimate of the 
funding they need.
    So I would argue the first thing somebody needs to do is 
tell you how much money they need and what the implication of 
the cuts are.
    I can't remember if there was something else you wanted to 
know.
    Senator Harris. I think our time is up, but Mr. Chairman, I 
would urge that we follow up on this point. I think it is a 
very important and valid point that we should have an estimate 
of the costs, if our budget is actually going to be relevant to 
the task at hand. So perhaps we can figure out how to follow up 
with Ms. Probst and other expert suggestions on how exactly we 
would create a process for evaluating the cost estimate for 
cleanup.
    Thank you.
    Senator Rounds. A bipartisan recommendation.
    Senator Harris. Absolutely. Fantastic.
    Senator Rounds. Thank you.
    Senator Boozman.
    Senator Boozman. Thank you, Mr. Chairman, and thank you and 
the Ranking Member for having this hearing.
    Director Steers, Administrator Pruitt frequently mentions 
cooperative federalism and the desire to have the EPA work 
together with the States, specifically in the Superfund 
process. How can States partner with the EPA to better leverage 
Superfund funding to stretch money to more sites?
    Mr. Steers. I think States are positioned to be able to 
help in working with EPA through cooperative federalism, as 
Administrator Pruitt has defined that. The Environmental 
Council of States, which represents all the State regulatory 
environmental agencies, has helped in defining how our role as 
States can be in doing that. To leverage the resources that are 
needed to address these sites, as was mentioned earlier, I 
think first we really do need to understand what is the needed 
cost and prioritizing. We have a lot of sites on the NPL. 
Virginia has 31 of them, I believe, that are NPL sites. We need 
to look at how do we prioritize and manage that risk.
    I think working with EPA and each region, so we work in 
Virginia with Region 3, in helping to define how do we 
prioritize and what is the budget we have to deal with the 
universe that we are dealing with in our State, and how can we 
maximize that. States don't have the funds to be able to fund a 
full Superfund program. Some States have a Superfund program, 
but it is not on the level, obviously, of what EPA does. But 
States are there to be able to--there is some assistance that 
we can provide in looking at the remedy, where there is a 
Responsible Party, helping to leverage a working agreement 
where we get the Responsible Party to help pay the cost in an 
efficient way and doing it timely, because one of the issues is 
that time value of money and how long things take. And even if 
you are a Responsible Party, you want certainty with getting a 
cleanup done.
    Senator Boozman. Right. Tell me, a lot of times you have 
EPA and States duplicating studies and things. Perhaps you 
could give an example of that duplication and describe how it 
can delay the remediation cleanup and at cost.
    Mr. Steers. I think sometimes there is duplication in 
characterizing a site, for example, where we have, you know, 
EPA has done some studies, the States have studies, and we keep 
looking at collecting data. And collecting data for 
characterizing the hazards on a site can be very expensive, and 
we have State resources that will review the data, EPA has 
contractors and project managers that review the data. So you 
have a lot of people wanting to look at data, create more data, 
and there needs to be a point where there is an agreement 
between the Federal and State agencies on what is the 
appropriate level of characterization of a site to get what we 
need for looking at it, and the future use of that site.
    I think, you know, we are encouraged that EPA is trying to 
redevelop some of these sites, and they talk about wanting to 
do that. We have opportunities in Virginia, too, where they can 
be reused if you have the appropriate cleanup being done where 
you have some long-term Responsible Party that is able to step 
in with some certainty and do things to monitor the site and 
restrict certain aspects of the property, for example, if you 
are leaving some type of a risk in place. So there is 
duplication there that I think we should be able to work closer 
with.
    Senator Boozman. Very good.
    Mr. Nadeau, can you give an example of a successful public-
private partnership where sites have been able to be remediated 
quickly?
    Mr. Nadeau. Absolutely. One of the great success stories, 
as I mentioned, was the Great Lakes Legacy Act, and it is a 
program which is completely public-private partnership driven. 
So here you add the Federal aspect, the State aspect, and the 
industry aspect. Folks start off on the same page as partners, 
and these sites are getting cleaned up. There is a funding 
component, too, that is helpful, but the key is everyone is 
trying to problem solve from day one, and the atmosphere is so 
different. We can get through a complex site, not maybe the 
biggest ones around, but still hundreds of thousands or 
millions upon millions, $60 million remedy, we can do that in a 
couple years, and it is such an improvement, and it will save 
on the budget, will save on resources because all those factors 
of the cooperation and the unified purpose of reducing risk in 
a timely manner would change the entire Superfund landscape. 
And it is the most successful cleanup program I think we have 
ever seen. If we can borrow some of those concepts and add and 
expand the public partnership and private partnership, we can 
really, really get things done.
    Senator Boozman. Thank you, Mr. Chairman.
    Senator Rounds. Senator Booker.
    Senator Booker. Thank you very much, to the Chairman and 
Ranking Member, for holding this important Committee hearing.
    It has been said already that there are Superfund sites in 
every single State. New Jersey, unfortunately, has the most. 
About 50 percent of all New Jerseyans live within 3 miles of a 
Superfund site, and unfortunately, when I was mayor of Newark, 
I saw this in my own city, Superfund sites, where these 
poisonous chemicals were having real effects. People with 
hazmat suits walking into neighborhoods where there were 
playgrounds, sitting in meetings with parents and children 
worrying, telling stories about cancers, about respiratory 
problems.
    This is an incredible crisis, and I don't think we really 
understand the gravity of it all and the urgency of it all. I 
really don't. And now we have longitudinal data about what 
effects it actually has on people that live within a mile of 
Superfund sites. About 11 million Americans live within a mile 
and 3 million to 4 million of our children, the most precious 
asset this country has, and we now know that babies born to 
mothers living within 1 mile of a Superfund site prior to clean 
up had a 20 percent higher, greater incidence of kids being 
born with birth defects. Twenty percent higher.
    So this should be an alarm, alarming to everyone. It is 
absolutely utterly unacceptable that, as Senator Harris said, 
this is the job of government, to protect people. But yet we 
seem to have a declining sense of urgency to deal with this 
crisis.
    Now, I held a hearing on this topic in 2014 and was told by 
the Region 2 administrator that there were many sites in New 
Jersey that were ready to be cleaned up, but stalled for the 
simple reason of lack of funding. And then in 2015 Senator 
Boxer and I requested from the Government Accountability Office 
a report on the state of the Superfund sites, and they pointed 
out that the annual Superfund site, as was said by Ms. Probst, 
had declined from about $2 billion to $1.1 billion between 1999 
and 2013. And because the EPA prioritizes funding work that is 
ongoing, the decline in funding led the EPA to delay the start 
on about a third of the projects, again, due to funding.
    So, for me, the question that was asked earlier, it is 
unconscionable to me that President Trump's budget calls for a 
30 percent reduction, which, as Ms. Probst said, will cripple 
these programs. And what is incredibly irresponsible about that 
is that this is a time that we should be trying to figure out 
how to expedite cleanup, do more to do it.
    Mr. Nadeau, I don't mean to take personal offense to what 
you said, but your answer was, you know, we will just have to 
live with this. Now, I live in Newark, New Jersey. I live about 
a mile from a Superfund site. My 10-year-old niece lives with 
me. She was born in that community. And for us to have this 
resignation, what I consider a hateful hypocrisy, because if 
everybody in Congress lived within a mile of a Superfund site, 
had their children being born there, there might be a sense of 
urgency and outrage that we are debilitating our ability to 
clean these up.
    So it is hard for me to sit comfortably, having just come 
from my house last night in a poor community, in an inner city 
community, in a black and brown community, and have to tell my 
neighbors who still pack community meetings, concerned about 
the Superfunds within our city.
    So you have already answered my question, Ms. Probst, about 
the problem, but I just want to ask simply this. I am going to 
reintroduce in this Congress a Superfund Polluters Pay Act, 
which would reinstate a small tax, a tax that Reagan 
reauthorized, that some Senators here now, on both sides of the 
aisle, voted for. And this would put a small tax on polluting 
industries, petrochemical industries that I visited in places 
like Cancer Alley, Louisiana, where they are plowing more 
toxins into the air.
    Paying for Superfund cleanups cannot be a partisan issue. 
So my question is, to Ms. Probst, a reliable source of funding 
at a greater rate than now, not cutting--I am introducing 
legislation that we should spend 5 percent of a trillion dollar 
infrastructure plan, just 5 percent could satisfy all the 
funding needs of the current priority list. Just 5 percent of 
our infrastructure needs.
    Would that take care of the problem, as you see it?
    Ms. Probst. I don't know about the exact number. It is 
certainly true that congressional appropriations to the 
Superfund program were higher when there were dedicated taxes 
and there was a balance in the trust fund. I mean, in theory, 
Congress can do whatever it wants. There is nothing precluding 
Congress from saying we want to appropriate $1.6 billion a 
year. But you know, history shows us that where there was a 
dedicated tax and where there was a balance in the trust fund, 
the EPA was given more money.
    Senator Booker. And the sites were being cleaned up.
    Ms. Probst. There weren't the same concerns about funding 
shortfalls. Although when we did this report in 2001, Tim 
Fields, whom I adore, who was the Assistant Administrator, 
said, you know, we are not putting mega-sites on the list 
because we don't have the funds. So, again, it gets back--I 
mean, there are lots of different issues. What you are talking 
about--where we have sites where there are real risks now, and 
in the report I show how many sites don't have human exposure 
under control, and even more disturbing is where we don't know 
if it is under control or not, which, to me, I am kind of 
horrified by that latter beast. And then we have sediment sites 
and mining sites.
    So Superfund sites are not all unique, but they are not 
homogenous. So one of the things I think is to pull out these 
subset of sites and figure how do we go at them. So there are 
inner city sites where there really are people being at risk, 
right? And then we have New Bedford Harbor and the Hudson River 
and the Passaic, and those are very different kinds of sites.
    But as I say, history shows that where there is money in 
the trust fund, EPA gets more money. But again, there is 
nothing that precludes the appropriations committees from 
saying we are going to give them more money. So that is kind of 
a--sorry.
    Senator Booker. Thank you, Mr. Chairman.
    Senator Rounds. Senator Markey.
    Senator Markey. Thank you, Mr. Chairman, very much.
    I was an original coauthor of the Superfund law in 1980 on 
the Committee, and one of the issues that, of course, came 
right to me was when Anne Anderson, a mother with a young son, 
Jimmy Anderson, visited me in my office and told me that the 
boy had leukemia and that she had organized other mothers in 
Woburn, Massachusetts, to go door to door to find other 
children who had leukemia in this part of Woburn.
    Along with Love Canal and a couple of other sites, that 
became the motivating force for the creation of Superfund. In 
fact, it became the movie A Civil Action, the book A Civil 
Action. And the mothers were the ones who identified this 
problem, not the experts, not the city officials; it was the 
mothers. In the movie, they make the lawyer the hero. It was 
the mothers. Now, Jimmy died from leukemia, and on that site 
now is a huge development, industrial development, and the 
Jimmy Anderson Transportation Center as well. So we have 
actually converted it.
    But the first and most important goal we had was just to 
make sure that kids didn't die, that they weren't drinking the 
water, that they weren't put in situations that could lead to 
these human tragedies.
    So as I look at what we are talking about right now, I see 
the EPA making a decision that they have to choose between the 
sites that have an impact just on the health of families and 
those that actually could be redeveloped. And then this limited 
budget would kind of prioritize those that could also be 
redeveloped for commercial purposes.
    And that is the kind of triaging that is absolutely 
unacceptable. I mean, this program is there in order to make 
sure that you don't have to make that kind of a choice; that 
families that have kids who are exposed to these toxins are not 
ever exposed, regardless of whether or not the property can be 
redeveloped.
    So as you, Ms. Probst, look at this kind of dramatic 
downsizing of the Superfund program, what are the implications 
for those families that have kids in areas that will never be 
redeveloped?
    Ms. Probst. Well, I am not a scientist or health 
professional, so I am not sure I can totally answer your 
question, but I think you raise a really good point. I mean, 
the thing that I think concerned me most about the task force 
report is that over a third of the 42 recommendations are about 
redevelopment and reuse, and last time I read the statute, 
there is nothing in the statute about redevelopment and reuse. 
And while it may be a good thing, I am not a local government 
official, I did spend time with Mayor Rabbitt, who was at the 
Industri-plex Site near Woburn, and what he was very happy 
about were the tax revenues to his city.
    And I think that the idea that redevelopment and reuse is 
more important than cleaning up sites or reducing human 
exposure is wrong and not consistent with the statute. So it is 
fine to be happy about redevelopment and reuse, but to place 
that first seems to me really bad public policy.
    Senator Markey. Exactly. And so, yes, there was a wonderful 
side benefit to Woburn that they got to redevelop the site, but 
the first and foremost goal that we had to have was just to 
make sure that all these children didn't have other equivalents 
around the United States, and we used it as the example.
    And what we are seeing here is, once again, kind of a 
denial of what this program means to families. In fact, in 
1984, when Anne Gorsuch was the head of the EPA, Rita Lavelle, 
who was in charge of the Superfund program, actually went to 
prison for lying to our Committee over on the House side about 
that program. She actually had to do time.
    So this has been very controversial right from the 
beginning. It was slow rolled by the Reagan administration. It 
has never been a program, obviously, now that the Trump 
administration is in, that they really embrace, that they will 
give the hug to and say I understand why this funding has to be 
there in order to help children, in order to help families 
avoid the kinds of catastrophes which we have seen in the past.
    In Massachusetts, if you could, if you are expert, if you 
know Mayor Rabbitt in Woburn, that is great, and he was a big 
ally of mine at that time, and it took a lot of courage for him 
to stand up. How could this impact the remaining Superfund 
sites in Massachusetts? We have a lot of them. What's the 
consequence in Massachusetts if this kind of funding cut 
occurs?
    Ms. Probst. I think there is no way to know exactly what 
the consequence is right now because we haven't seen how the 
cuts would be taken at EPA, but obviously it could slow down 
cleanup, it could cut staff, it could affect the enforcement 
program. I mean, again, a 30 percent cut is just a huge cut in 
one fiscal year to a Federal program, so I think that it would 
cause just a lot of disarray, and having to figure out how to 
deal with the cut, just like when there is a threatened 
furlough and everything shuts down. But I can't--I must admit, 
I can't tell you exactly in Massachusetts, but it is fair to 
say that a 30 percent cut is----
    Senator Markey. Is it fair to say that even if the EPA task 
force comes back with constructive recommendations, that if 
there is a 30 percent cut in the funding for the remediation of 
these sites, that there is going to be great harm because the 
triaging will have to in fact occur, and that a vision without 
funding is a hallucination? You know, saying that you care, 
here is the vision, but then cutting the funding by 30 percent 
only results in more kids being exposed around the country.
    Ms. Probst. Again, nobody has said this to me, and I am 
not--the concern is that you end up with a program where all 
you have is the removals program. That when you have a huge cut 
and you can't really fully fund remedial actions under the law, 
that what you end up--and the removals program is considered 
very successful, it is just a different program.
    But the concern of somebody like me or various people is 
that you basically move away from the NPL cleanup remedial 
action program and you end up with removals only, which are not 
really short-term, but in theory less money and less time, and 
addressing immediate risk but not addressing long-term hazard. 
And that is the thing to watch out for, is if you took a huge 
cut, if I were the AA or the office director, that is what I 
would do. I mean, again, you only have certain choices. So that 
is the thing to sort of watch out for, is are you really 
choking off the long-term cleanup program or not.
    There is nothing in their report that says that. I could be 
completely wrong, but over the past 25 years that is what one 
has concerns about, is are you gutting the long-term cleanup 
program or not. Again, there is nothing that says they are, but 
that is kind of what you want to watch.
    Senator Markey. I got it. A 30 percent cut is like moving 
kryptonite over toward Superfund, and it will really 
significantly harm its strength in its ability to be able to 
help.
    Ms. Probst. But I want to be Wonder Woman instead.
    [Laughter.]
    Senator Markey. I thank you so much for all your work.
    Thank you, Mr. Chairman.
    Senator Rounds. Thank you.
    In listening to the testimony, and I most certainly 
appreciate what all of you bring to the table here, it seems to 
me that part of the challenge for us as we look at oversight of 
the Superfund and the Superfund activities is to begin to 
restore and to confirm trust in the process itself, give 
confidence in the system of being able to show successes where 
they are at.
    And in doing that we also have to have, as Ranking Member 
Harris has indicated, the accurate assessment of the costs to 
come yet, where the costs are at in the future so that as we 
look at the planning for the trust fund and so forth, and as we 
ask questions of the officials at the Environmental Protection 
Agency, to be able to have a straightforward assessment to be 
able to share with the American people these are the 
anticipated costs for this program in the future.
    And then along with that comes a responsibility to 
efficiently deliver that program, to use these entrusted 
dollars as efficiently as we can in order to actually address 
the goals of the program in the first place, which is life and 
safety for individuals who are impacted. But that side benefit, 
as indicated here today, of being able to reutilize those 
properties, as well, and to bring them back in, neither of 
which is a bad goal to have.
    So let me just end by just once again thanking Ranking 
Member Harris and the members of the Committee for their 
participation, to our guests for your participation. As I 
indicated earlier, your full statements will be included for 
the record. I would also like to thank, once again, everybody 
here who has attended.
    The record will be open for 2 weeks on this hearing, which 
will bring us to Tuesday, August 15th.
    With that, once again, Senator Harris, thank you for your 
participation in this, and without further ado, this hearing is 
adjourned.
    [Whereupon, at 11:09 a.m. the Committee was adjourned.]
    [Additional material submitted for the record follows:]
    
    
    
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