[Senate Hearing 115-143]
[From the U.S. Government Publishing Office]
S. Hrg. 115-143
CHALLENGES FACING SUPERFUND AND WASTE CLEANUP EFFORTS FOLLOWING NATURAL
DISASTERS
=======================================================================
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
__________
DECEMBER 6, 2017
__________
Printed for the use of the Committee on Environment and Public Works
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Available via the World Wide Web: http://www.govinfo.gov
______
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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
DECEMBER 6, 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... 3
WITNESSES
Shaw, Bryan W., Chairman, Texas Commission on Environmental
Quality........................................................ 5
Prepared statement........................................... 8
Responses to additional questions from:
Senator Carper........................................... 15
Senator Whitehouse....................................... 17
Hester, Tracy, Professor, University of Houston Law Center....... 19
Prepared statement........................................... 21
Responses to additional questions from:
Senator Carper........................................... 29
Senator Whitehouse....................................... 30
Rodriguez, Matthew, Secretary, California Environmental
Protection Agency.............................................. 33
Prepared statement........................................... 35
Responses to additional questions from Senator Carper........ 44
Response to an additional question from Senator Harris....... 46
Responses to additional questions from Senator Whitehouse.... 47
CHALLENGES FACING SUPERFUND AND WASTE CLEANUP EFFORTS FOLLOWING NATURAL
DISASTERS
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WEDNESDAY, DECEMBER 6, 2017
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund, Waste Management,
and Regulatory Oversight,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m. in
room 406, Dirksen Senate Building, Hon. Mike Rounds (Chairman
of the Subcommittee) presiding.
Present: Senators Rounds, Ernst, Harris, and Booker.
OPENING STATEMENT OF HON. MIKE ROUNDS,
U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA
Senator Rounds. Good afternoon, everyone.
The Environment and Public Works Subcommittee on Superfund,
Waste Management, and Regulatory Oversight is meeting today to
conduct a hearing titled Challenges Facing Superfund and Waste
Cleanup Efforts Following Natural Disasters.
In the past 4 months, three major hurricanes brought record
setting flooding and rainfall to Texas, the Gulf region, and
the Caribbean. They also threatened the dozens of contaminated
Superfund sites located in their path.
Further, in October deadly wildfires scorched over 245,000
acres in California. These wildfires left an estimated $85
billion of economic damage in their wake. This hearing is
especially appropriate today as California again finds itself
facing wildfires in southern California.
These ongoing fires have forced tens of thousands of people
to evacuate their homes. Natural disasters such as these not
only cause loss of life, but also billions of dollars in damage
to the economy, infrastructure, and homes.
They also have the potential to expose communities and the
environment to hazardous chemicals stemming from contaminated
Superfund sites that could be damaged by the storm. The
Comprehensive Environmental Response Compensation and Liability
Act of 1980, also known as CERCLA, was created to manage
hazardous substances and to respond to environmental
emergencies, spills, and natural disasters.
As the lead agency, the EPA coordinates cleanups, hazardous
waste management, and emergency responses with various other
Federal agencies such as FEMA, the U.S. Army Corps of
Engineers, as well as State and local officials.
Throughout Hurricane Harvey, the EPA worked with the Texas
Commission on Environmental Quality to secure dozens of
Superfund sites in the Houston area and monitored for potential
leaks from the sites. Following the hurricane, the EPA used
aerial imaging to conduct assessments of these sites, but State
and Federal officials faced significant challenges in assessing
these sites for testing.
Of the 13 sites the EPA identified as being possibly
damaged, only 2 were immediately accessible for sampling. The
remaining 11 were inaccessible due to flood waters requiring
officials to wait until the waters receded before the sites
could be evaluated.
Shortly after Hurricane Harvey, Hurricane Irma threatened
22 current or former National Priority List sites within
Florida's southernmost 100 miles. In anticipation of the
hurricane, technical staff in the EPA Region 4 office reviewed
sites to secure any potential vulnerabilities. Many of these
sites remained secure after Irma made landfall.
Two weeks later, as Hurricane Maria hit Puerto Rico and the
Virgin Islands as a Category 4 storm, 19 Superfund sites were
at risk. Of these, 5 sites in Puerto Rico were deemed
especially hazardous to human health and the environment.
Today, nearly 2 and a half months after Hurricane Maria
made landfall, the relief and remediation effort in Puerto Rico
is ongoing.
In addition to these deadly hurricanes, throughout the
month of October, California experienced some of the deadliest
wildfires in its history. These wildfires necessitated a
Federal cleanup effort that involved hundreds of EPA staff and
weeks-long efforts to remove thousands of hazardous waste
products--largely consisting of household chemical products--
from the area.
Today this Subcommittee will conduct a review of the
response, remediation and recovery challenges faced by States
and public officials tasked with securing Superfund sites and
managing waste debris in the aftermath of these natural
disasters. Our goal today is to conduct oversight of the agency
coordination among Federal, State, and local officials
following these destructive events.
We will also hear about the preparations made to secure
Superfund sites in advance of these natural disasters occurring
and hear suggestions on how the planning and preparation for
natural disasters can be improved.
In general, CERCLA provides substantial discretion to the
EPA to expand requirements for disaster planning and post-
disaster response. While CERCLA does provide the EPA with
flexibility in disaster planning and remedial actions, there
are few statutory requirements for proactive disaster planning
and response.
I am hopeful that today's hearing will provide suggestions
for improvement to disaster planning and post-disaster response
so we can make certain that in the event of a natural disaster,
these sites remain secure and pose no threat to the surrounding
communities and environment.
I would like to thank our witnesses for being here today,
and I look forward to hearing your testimonies.
Now, I would like to recognize Senator Harris for her
opening statement.
OPENING STATEMENT OF HON. KAMALA HARRIS,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Harris. Thank you, Mr. Chairman, and for your
thoughtful remarks about California and the devastation we
experienced because of the wildfires.
There are many Boys and Girls Clubs in California, but
there is one--the Harbor Gateway Boys and Girls Club in Los
Angeles--that is a little different. That is because it is
right near the Del Amo Montrose Superfund site.
Literally less than 5 feet away from where kids play, there
are two underground Superfund sites filled with the chemical
DDT and old tire rubber which combines to form a toxic sludge.
Every day there are kids playing at this Boys and Girls Club,
and many have no idea that they are right next to these toxins.
That is just wrong. When you are a kid, you should be
having fun, not worrying about cancer causing toxins.
Unfortunately, the Harbor Gateway Boys and Girls Club is
not the only place in my State where vulnerable Californians
are exposed to dangerous chemicals. In 2015 an EPA analysis
found that many communities in California, especially in
southeast Los Angeles County, the Inland Empire, and the San
Joaquin Valley, are among the most at risk neighborhoods in the
nation. They are at risk due to their proximity to landfills,
refineries, rail yards, and other polluting facilities.
Many of the Californians in these high risk areas are
people of color, Black, Latino, and Asian people who face heavy
burdens from air pollution, traffic congestion, lead paint,
hazardous waste sites, and yes, Superfund sites.
For example, Watts, California, is one of the most polluted
areas in the State. It is only about 20 miles from Brentwood,
but life expectancy in Watts is nearly 12 years lower than in
Brentwood. That is what we are talking about when we talk about
the impact of pollutants on public health and vulnerable
communities.
Communities were suffering even before the wildfires and
hurricanes. These disasters made a bad environmental crisis
even worse. As of yesterday Governor Brown declared another
state of emergency for three wildfires, the Thomas, Creek, and
Rye Fires in the counties of Los Angeles and Ventura.
This natural disaster has thus far burned more than 83,000
acres, destroying at least 200 structures and forced the
evacuation of over 27,000 nearby residents. Thankfully, our
firefighters are responding as quickly as possible, and the
Federal Government should do everything we can to assist the
victims.
This comes on the heels of my visit with Senator Feinstein
and Governor Brown to Sonoma and Napa Counties on October 14 to
observe a series of wildfires that ultimately burned nearly
245,000 acres, destroyed 8,900 structures, and claimed the
lives of 43 human beings.
Hurricanes have devastated Florida, Texas, Puerto Rico, and
the U.S. Virgin Islands. I saw this devastation first hand when
I visited Puerto Rico and the U.S. Virgin Islands with Senators
Murkowski, Carper, Franken, Risch, and Kennedy on November 5 as
people struggled to rebuild and put their lives back together.
On top of that, because of these disasters, contaminants
have spread, communities are still dealing with damage, debris,
waste, and destruction. For example, after the California
wildfire, hazardous waste such as Freon chemicals, batteries,
and asbestos fibers--which could become airborne--were
scattered everywhere.
After Hurricane Harvey the EPA reported that a dangerous
chemical--a chemical linked to cancer and birth defects--may
have washed downriver from the San Jacinto River waste pits in
Houston. In Puerto Rico, they are facing a humanitarian crisis.
Only 50 percent of the island has power. There is a lack of
food and clean water, and disease is spreading due to
unsanitary conditions.
A recent study linked wildfire smoke exposure to
respiratory issues and asthma. Asthma was a severe problem due
to pollution but increased dramatically for folks breathing
smoke from the wildfires.
Families in the California Central Valley have been sending
their kids to the ER for asthma attacks 3 to 4 times a year or
more. That was before the wildfire pumped soot into the sky.
Children across the Central Valley in California are
choking on the very air they breathe. They will grow to
adulthood certainly, as we are hearing, with lung disease. Our
job is to protect people, and frankly, we are failing.
We must and we can do better. Because this is about health
and safety of our children, our families, and our communities,
and while our most vulnerable communities may be the hardest
hit, let us not forget that clean air and clean water are
universal needs. Whether you live in a red State or a blue
State, none of us want the water coming out of the tap to be
brown.
Today we have a chance to hear from folks on the ground.
This is an opportunity to learn how we can do a better job of
cleaning up these sites and protecting the health of the
American people and the environment in which we live.
Thank you, and thank you, Mr. Chairman.
Senator Rounds. Thank you, Senator Harris.
Our witnesses joining us today are Mr. Bryan W. Shaw,
Chairman, Texas Commission on Environmental Quality; and Mr.
Tracy Hester, Professor, University of Houston Law Center.
Now I would like to yield to Senator Harris to introduce
our third witness.
Senator Harris. Thank you, Chairman Rounds.
It is my great honor to introduce one of our witnesses
today, Matt Rodriguez, Secretary of the California
Environmental Protection Agency. He was the Chief Assistant
Attorney General for the Justice Department's Public Rights
Division in 2008 shortly after Jerry Brown won election as
Attorney General.
He supervised the land law, environmental law, natural
resources law, consumer law, civil rights enforcement,
antitrust, and corporate fraud sections of the office.
During his tenure, he worked to make our community safer by
enforcing hazardous waste disposal laws and regulations
protecting groundwater from underground storage tanks and the
leaks of those tanks.
Secretary Rodriguez also oversaw the legal team that
defended the State's greenhouse gas rules and against
challenges. This was a fight for the right of Californians to
combat climate change, and Matt played a critical role of
leadership.
Prior to heading the California EPA, Secretary Rodriguez
served briefly as Acting Chief Deputy Attorney General while I
was the Attorney General of the State of California. During
that time and throughout his career, I have trusted and
depended on him for his advice and counsel, especially on
environmental issues.
Matt Rodriguez is known throughout California and
nationally as being an expert on all these issues and being a
dedicated lifelong public servant. It is an honor to have you
before this Committee.
Thank you.
Senator Rounds. Welcome, Mr. Rodriguez.
Now we will turn to our first witness, Mr. Bryan Shaw, for
5 minutes.
Mr. Shaw, you may begin.
STATEMENT OF BRYAN W. SHAW, CHAIRMAN,
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Mr. Shaw. Thank you, Mr. Chairman, Ranking Member Harris,
and members of the Subcommittee. Good morning, and thank you
for the chance to visit with you about the Texas Commission on
Environmental Quality and our response to Hurricane Harvey.
My name is Bryan Shaw, and I am the Chairman of the Texas
Commission on Environmental Quality. My agency's mission is to
protect our State's public health and natural resources by
ensuring that the air and water are clean and that waste is
disposed of safely. Fulfilling this mission is critical during
and after natural disasters.
With the challenges we face with this and other issues in
the State, it continues to be critical that we coordinate with
local, State, and Federal officials to address the human and
environmental impacts of Hurricane Harvey and its aftermath.
The cooperation between agencies during the hurricane
response highlighted how well the EPA and the States can work
together. The hurricane response and recovery efforts provided
a direct opportunity to put into practice key elements of the
Environmental Council of the States' Cooperative Federalism 2.0
effort which is designed to improve the relationship between
the EPA, and State and regulatory agencies.
The TCEQ, EPA Region 6, and EPA headquarters all worked
together efficiently and cooperatively during this time to
quickly address the many issues that resulted from Hurricane
Harvey. The TCEQ continues to be involved in multiple response
and recovery efforts, including efforts related to debris
management and Superfund sites.
Talking about some of the debris management, specifically
construction and demolition debris associated with Hurricane
Harvey and the recovery, presents a potential health risk as it
can harbor mold, bacteria, viruses, rodents, and mosquitoes.
Construction debris can also contain household hazardous
chemicals, such as pesticides or cleaners stored in the home.
Proper management of construction debris is imperative to
reduce exposure to these potential infectious agents and
harmful wastes.
The first step is to rapidly remove the material from the
houses, especially if it has been wet from waste from flood
waters, as those are always contaminated with microorganisms.
Getting them out quickly helps to prevent growth and spread of
mold, bacteria, and viruses indoors.
Once out of the house, it becomes critically important to
quickly move the construction and demolition debris from curbs
to temporary debris management sites. This helps to reduce
public exposure to these wastes and the vectors associated with
those piles of waste at the curb. Once at a temporary site, it
is crucial to dispose of materials and hazardous wastes
properly, as well as getting rid of construction debris
materials in a way that is environmentally protective either
through recycling or proposal disposal in a lined, permitted
landfill.
The TCEQ is actively working with local governments on
siting and approving those temporary sites in a quick and
expeditious but safe manner. We have permitted about 208 of
those since the hurricane went through, 90 of which are still
active. Those typically are operating 24 hours a day to
facilitate getting those materials off the curb so we can get
those communities healthy as well getting folks back into their
homes in a safe place to live.
Our staff worked continuously to ensure we are inspecting
for both environmental as well as fire protection purposes in
the management of those temporary sites. So far our best
estimate is about 25 million cubic yards with regard to debris
associated with Hurricane Harvey that will be need to be
disposed of in the State of Texas. About 10.4 million cubic
yards, less than half of that, has been removed as of this
date. At this point, there is about 1.6 million cubic yards in
those temporary sites between the curb and in their final
disposition in landfills.
We have efforts on our Web site to make sure we work with
our local officials and others to ensure that we encourage them
about the most efficient and effective methods to deal with
those materials so that we do that safely and quickly and can
return those communities to a healthy standard we all strive
for.
In keeping with Governor Abbott's disaster proclamation, we
requested that certain rules be suspended that would hinder,
delay, or prevent any necessary actions associated with the
response, dealing with debris management, and controlled burns
associated with that. The Governor has renewed that
declaration, and it will not expire until December 19 unless he
extends it further.
We always had the authority to issue temporary permits,
authorizations at our municipal landfill sites to allow them,
for example, to exceed their permitted threshold in emergency
situations on a temporary basis. Those are up to 180 days with
a possible 180 day extension. Those would then have to go
through either removing that material or a subsequent
permitting process to make those permanent.
We worked to try to ensure that the enforcement discretion,
as well as the issues we put forward with the Governor asking
for exemptions from the rules, that we do not exceed those time
frames and can move forward in a way that allows for proper
disposal quickly of those materials.
I will quickly finish by saying of the Superfund sites that
we have in the State, 34 of those are Federal and 17 are State.
Mr. Chairman, you mentioned that the key to that is making sure
prior to landfall that we secure those sites.
This can include making sure storage tanks, vessels, and
containers are secured so that they do not wash away, making
sure they are secured so that people do not get into them, and
ensuring we are taking other protective measures to ensure we
minimize the likelihood of offsite contamination associated
with those Superfund sites.
I am happy to answer questions as time permits.
[The prepared statement of Mr. Shaw follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Thank you for your testimony, Mr. Shaw.
We will now turn to our second witness, Mr. Tracy Hester.
Mr. Hester, you may begin.
STATEMENT OF TRACY HESTER, PROFESSOR,
UNIVERSITY OF HOUSTON LAW CENTER
Mr. Hester. Thank you, Mr. Chairman. It is an honor and
privilege to be here. I appreciate the opportunity to speak
with the Committee.
As you mentioned, my name is Tracy Hester. I teach
environmental law at the University of Houston Law Center.
Prior to that I spent about 20 years as a practicing
environmental lawyer at the law firm of Bracewell LLP.
I appear here in my personal capacity and do not speak on
behalf of any of those organizations or any other group I work
with.
My testimony centers on ways the system could be tweaked or
modified to make CERCLA and Superfund site responses more
resilient in the face of disasters.
As you mentioned in your opening statement, EPA already has
substantial grant power under CERCLA to do that. Under Section
104, the Federal Government has the capacity to select
remediation actions that can encompass and include the capacity
to be prepared for disasters and to have excess resilience if
they get struck by a hurricane or other weather event.
In addition and probably more on point, Section 106 gives
EPA the express power to issue abatement orders that require
responsible persons to take steps to prevent the imminent
threatened release of a hazardous substance that would cause an
imminent substantial endangerment. That gives a built in
capacity to respond to disasters that create risks to the
community.
As you also mentioned, the statute does not include a broad
array of any explicit mentions to any kind of disaster capacity
or response. There are some specific areas where the statute
could have some modifications made to build in that capacity.
There are three areas. First, make the site selection
remedies basically resilient to protect it against release in
the first place in the face of disaster. In particular, you
could add disaster risk resilience as one of the statutory
criteria that EPA must observe when they select remedial
action.
There is a long list of them included in Section 9621(b)(1)
of the statute. Just add at the end, subsection (H) to make
specific reference to disaster recovery and response as part of
the remedy selected for a site.
Two, you could direct EPA to do a prospective and proactive
review of all health and safety assessments that have built
into them emergency response and capacity. Essentially,
identify which sites are in the path of a natural disaster or
likely to suffer one, and go through that portfolio in advance
and identify whether or not they have emergency response plans
in place that can deal with the black swan event. If they do
not, make sure they get upgraded in advance.
Three, take a look at all the sites as a universe and then
review and rank them as to which ones pose the greatest risks.
Currently under the statute, there is a mandatory review period
that every site's remedy must be looked at again in 5 years,
and make sure it is still protective of human health and the
environment.
That review includes what other new data has come into play
including changes in weather patterns and risks of disasters.
Make that part of the 5 year review cycle. You could also make
sure that any State based laws that require disaster resilience
in planning become considered as applicable or relevant
appropriate requirements under the statute under Section
9621(d).
Last, make some clarifications as to the act of God events.
Some of the members of the responsible party community had some
questions as to whether or not an event like Harvey or a 500
year or 1,000 year storm was an act of God that created some
issues in terms of their responsibility to clean up sites they
had already cleaned up.
If there was some clarity on that, you could speed up the
response and participation of the parties.
Last, if disaster strikes, build more capacity to respond
to it. One of the biggest concerns, at least as I observed as
someone who was in Harvey and is still dealing with the
aftermath of that, was concerns of the public as to whether or
not there had been release from the sites based on what they
are hearing second hand from the press and from visual
observations.
One way to address that is in addition to the initiatives
already undertaken with mobile laboratories and aerial over
flights which are enormously useful and great initiatives,
there is capacity I think to add capacity for drones and
unmanned aerial vehicles that are able to go to the sites much
more quickly when the roads are washed out.
There is discussion already underway at the Office of
Enforcement and Compliance Assurance at EPA to have drones that
can take samples or do multispectral remote analysis so that
you can actually get at least preliminary data to assuage
concerns of the public.
In doing so, you probably need to have a pilot program to
make sure you have those tested and that they are reliable and
ready to put into use when the moment comes.
Bottom line, in conclusion, I want to emphasize the State
and the Federal Government stepped up and really built a
success story of working together on the front lines in the
face of disaster. They really need to be commended for that.
There are no atheists in foxholes; there is no turf in the
middle of a natural disaster, but there are ways we could
improve the system. I would be glad to answer questions about
that if time permits.
[The prepared statement of Mr. Hester follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Thank you for your testimony, Mr. Hester.
We will now turn to our third witness, Secretary Matthew
Rodriguez.
Secretary Rodriguez, you may begin.
STATEMENT OF MATTHEW RODRIGUEZ, SECRETARY, CALIFORNIA
ENVIRONMENTAL PROTECTION AGENCY
Mr. Rodriguez. Thank you very much.
Good afternoon, Chairman Rounds and Senator Harris. It is a
pleasure to be able to testify before you today. I will use my
testimony today to summarize several points made in my written
submittal.
First, and most importantly, I do want to emphasize that
California does need Federal resources, and we do need
coordination with the Federal Government in order to prepare
for our future. It is a future that will see more intense and
frequent natural disasters, unfortunately, fueled by changes in
our climate.
You well described and I appreciate the understanding in
Washington of the disasters that have occurred in California in
the last 6 months and those occurring right now. It really has
been a test of our working relationship with the Federal
Government, but I am pleased to say that we have been working
very, very well together.
I have a picture, and I understand Senator Harris was
there, but this gives you a sense of the devastation that
occurred in the fire in northern California. Thankfully no
Superfund sites were affected by this fire.
As you mentioned, Senator Rounds, that does not mean there
is not a hazardous waste component to this. In fact, Region 9
has worked with the State to inspect 8,000 burned structures so
far. That has led to the removal of 100 tons of hazardous waste
and asbestos containing material.
As Dr. Shaw alluded, once hazardous waste has been removed,
you still have the much larger task of removing the ash and
fire debris and preparing these properties for rebuilding. So
far, we have looked at about one-tenth of the properties or
removed materials from one-tenth of the properties in the burn
area with the northern California fires. That alone has led to
a little over 288,000 tons of ash and debris.
Obviously, we have a long way to go before these
communities can recover and start rebuilding, but the Federal
Government has been a significant partner in this rebuilding
exercise.
The threat from natural disasters is only going to be
greatly magnified when Superfund sites are in harm's way. In
California, this is an especially critical concern because the
State has 98 sites on the Superfund National Priorities List,
many of them in areas of high risk from earthquakes, flooding,
or fires.
This danger is growing as a result of climate change that
we have been seeing in California, which we see as a risk
multiplier for these natural disasters. We are already seeing
impacts from climate change in California. Average temperatures
have increased by 1.8 degrees in the past century. Fire seasons
are now longer and more devastating as we are experiencing.
The State recently endured a historic 5 year drought which
has contributed to the death of 100 million trees in the State
which no doubt is contributing to the fire we are experiencing
now.
To better understand the extent of the problem we are
experiencing in California and how it may affect Superfund
sites in the future, we have been mapping out and preparing, as
Professor Hester suggested, a list of the Superfund sites that
are likely to be affected by future disasters. Here you see a
map of areas in high fire zones. The red, orange, and yellow
are in high fire zones. You can see a number of Superfund sites
are implicated by these maps.
Additionally, we have been looking at sites that could be
affected by sea level rise. We recently convened a meeting in
the Bay area to look at the effects of sea level rise in the
Bay area. Again, you can see there are several significant
Superfund sites right around the Bay that would be affected by
a sea level rise, coupled with a 100 year storm event. These
are areas that would release DDT into the Bay and a number of
carcinogens.
We are trying to step up, we're trying to assess the scope
of the problems so that we can work with local communities and
the Federal Government in the future to respond to these
problems. It is going to require planning on our part and in
coordination with the Federal Government when we see these
issues.
We have some good examples. We have dealt with a
significant problem at a mine, the Argonaut Mine site in
Jackson, in Calaveras County, which threatened to flood the
small town of Jackson with 15 feet of toxic, arsenic laden
sludge. We have also worked to rebuild in some of the areas
that have been affected by fires in the past to make sure they
are more resilient, more fire resistant, and that we are
helping those communities to respond to any future fires in
those areas. Again, Federal funding was significant in those
areas.
That very briefly describes the scope of the problem we
have in California, what we are doing to be proactive and get
ahead of that problem, and work with the Federal Government to
plan and address these issues in the future.
As I said, we have had a good working relationship with
Region 9 in particular. FEMA has been very helpful to us
recently, but we know there will be disasters in the future,
and we are trying to get ahead of the curve so we will be
prepared to deal with them in the future.
I appreciate the opportunity to speak to you today. I am
available to answer any questions you might have.
[The prepared statement of Mr. Rodriguez follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Thank you, Secretary Rodriguez.
Normally, we take about 5 minutes apiece for questions on
behalf of all of us Senators. Today, as usual for the United
States Senator, time management is not the best. They have
notified us that we will be having votes very shortly.
I would like to complete this Subcommittee discussion
before we leave for the votes. There is the announcement.
I want to be specific with regard to the Superfund sites in
particular. Mr. Shaw, looking at the fact that you had a number
of sites that were impacted by the hurricane, are you aware of
any releases from any of the Superfund sites within your
jurisdiction due to the impact of the hurricanes?
Mr. Shaw. We have two sites that likely had or may have had
a release. One is a State Superfund site. It is not obvious
where the source of that was. There was a sheen seen on the
water days after the storm. It appears to have been a minor
release, but we have contained that and made sure it is not
there.
There was some release there. No impacts have been noted
from that, but there was a release at that site.
The other is the San Jacinto waste pits where dioxin is
stored. In fact, the EPA recently released their decision for
final disposition of that site. The protective cap was removed
so we know that the material was exposed.
What we have seen from the testing is it is difficult to
determine how much, if any, of that material was actually
released, but it is possible that those releases did occur. I
know the testing that occurred subsequent to repairing the cap
shows the concentrations, both in the sediment and the water,
are similar to what they were pre-storm, but that section of
the river has a fair amount of contamination from dioxin from
many sources over many years.
Senator Rounds. Mr. Hester indicated several statutory
changes that might be very helpful, basically some common sense
approaches, making some changes in advance, doing some analysis
in advance, doing some pre-planning and so forth.
Your full remarks, without objection, will be included in
the record for this Subcommittee hearing.
In listening to those remarks, do you believe some of those
recommendations Mr. Hester made would have been beneficial had
they been implemented beforehand?
Mr. Shaw. I think it is very possible that some of those
suggestions could be helpful. Some are done already, so I think
the question would be trying to make sure we encourage and
incentivize without becoming too proscriptive so that the one
size fits all approach does not get in the way of solving those
problems.
I mentioned very briefly in my testimony, for example, that
prior to the storm, we try to make sure those things that
systematically are not protected, barrels, drums, and things
that have to be out where they may be exposed to the hurricane,
that you secure those.
I think it makes sense a good engineering design for that
solution take into account that resiliency. I think there is
potentially some benefit to pointing that out, as he discussed,
where you look at that and make sure we encourage and
incentivize that lessons learned approach, how do we make sure
we are doing things in advance that make it easier to protect
it should a natural event occur.
Senator Rounds. Mr. Hester, I appreciated the comments you
made and the suggestions you indicated. They will be carefully
reviewed.
I believe Mr. Shaw makes a good point: one size does not
fit all. Can you elaborate a bit on your thoughts in terms of
his comments just now?
Mr. Hester. Absolutely. First, I want to acknowledge that
my experience has been that EPA staff, especially on the scene
coordinators, do an extraordinary job during incredibly tight
time pressure when a hurricane is approaching.
I have seen them not only secure tanks and containers; we
have built emergency berms on the spot with bulldozers to make
sure sites are protected and pumped down wastewater lagoons to
the point they can handle large influxes of water. All of those
are done on a very fast turnaround basis and very much on an ad
hoc basis.
My endorsement would be please keep doing that, but I also
think there might be some good policy to have that done in
advance in terms of making the remedies selected for sites
better able to accommodate those kinds of actions when there is
an expectation we will have these kinds of extreme weather. I
would also suggest that, to a certain extent, you can pre-stage
and have the resources available and identified to be able to
quickly do that if you need to.
Senator Rounds. Thank you.
Mr. Rodriguez, I am going to allow my counterpart, Senator
Harris, to do most of the questions for you, but I think right
now, with all of the activity going on in California, the fires
you have had and so forth, it brings to light the challenges
that are out there and our need for a constant oversight of the
different areas. The recommendations you make I think are very,
very relevant in this particular case.
I thank you for being here today as well.
Senator Harris.
Senator Harris. Thank you.
For Secretary Rodriguez, on October 14 I had the
opportunity to survey the damage of the wildfires in California
first hand. There was still minimal containment while I was
there. As you know, eventually 245,000 acres in northern
California burned. I previously mentioned the lives and
structures lost.
The Fourth National Climate Assessment, a Federal
Government report, recently stated that we have experienced an
increase in large wildfires since 1980 and that as the climate
warms, the number will probably continue exponentially.
Climate change, as I think you would agree, acts as a force
multiplier in extreme weather conditions. I think it important
this Committee understands how toxic Superfund sites are
impacted by these disasters as we have discussed. To that end,
my colleagues and I have submitted a letter to the Government
Accountability Office requesting a report on how the EPA is
taking climate change impacts into account when assessing
Superfund sites.
What do you believe are some of the concerns that
California EPA has regarding how climate change may impact
Superfund and hazardous waste sites?
Mr. Rodriguez. There are a number of concerns that we have.
Obviously these are very, very dangerous sites. As you noted in
your opening statement, they are very dangerous sites because
of the chemicals often still on the site, and they pose a
threat, if they are not controlled, to the surrounding
communities.
We have done a lot of work in California identifying what
we call disadvantaged communities in California, communities
that are largely poor and already dealing with a large number
of environmental burdens and what we can do to help those
communities.
One of the things we can do to help those communities is to
deal with these sites and make sure they are properly
regulated. In order to do that, we have been working very
closely with these communities. The discussion we had with the
Bay area community is an example of that.
We try to work with the communities to understand what
Superfund sites are in those areas, understand the threats that
we see being posed to those areas in the future because of
changing climate and changing sea level, and work with them to
understand what we can do at the State, Federal, and local
levels to respond to those issues.
I will say we have a number of guidelines in the works
right now that set out standards we and the community can be
using to help plan in the future to both prepare the Superfund
sites and also help the communities around these sites.
We also have an assessment that will be coming out next
year that will talk about the extent of the problems in some of
these communities. We also have an adaptation guideline that is
going to be coming out next year that will talk about how we
can prepare our communities to respond to floods, natural
disasters, and fires. We have also updated our guidelines for
planning in the States to deal with fire hazards.
We want to take some of those lessons we are learning in
those situations and work with the USEPA to help them
appreciate what we are doing at the local level and include
them in the planning process, because we think that is the key.
We are looking at these issues and standards we think can
be applied in California. We need to have the buy in of the
Federal Government as we work collaboratively to deal with the
issues there.
I will note it is helpful to have a Federal Government we
can work with on climate issues just generally. We look forward
to working with the Federal Government to deal with the changes
in climate and work on programs to prevent climate change from
occurring.
Senator Harris. How are you incorporating the fact of
climate change into the reporting and planning you have
described?
Mr. Rodriguez. It will be showing up in our land planning
in terms of resiliency. As you well know, it will be looked at
as we go through our elaborate sea growth planning process. We
will be looking at how to incorporate steps to protect those
Superfund sites from changes that might occur as we can
identify they are in an area where there is a fire hazard or a
hazard from sea level rise.
Are there additional protections we need to build into that
project in order to make sure they are not susceptible to those
changes? We need to take a long term view.
As Professor Hester mentioned, for example, through the
Department of Toxic Substances' control process, every 5 years
they will be reviewing the permits that are out there to make
sure they are up to date and we are taking into account any
changes that have occurred, circumstances in the preceding 5
years, and whether we need to do more in order to protect those
areas.
Senator Harris. Thank you.
Senator Rounds. Senator Booker.
Senator Booker. Thank you very much, Mr. Chairman.
This is an issue I have been talking about since I first
came here. In my opinion, we are in a state of crisis with a
lack of urgency to address that crisis.
Across the country, we have unrelenting, dangerous
Superfund sites sitting in our neighborhoods close to
populations that are literally poisoning our residents. For me,
this is unacceptable.
I am going to today again introduce the Superfund Polluter
Pays Act, with which I am sure you are familiar. The bill would
reinstate the excise tax on polluting industries to provide
funding for Superfund cleanups.
When this excise tax was last reauthorized, it was passed
by the Senate 86-13. It passed and was signed into law by
President Ronald Reagan. The bill was needed because funding
for Superfund sites continued to decrease. It is now at its
lowest point in 25 years. In fact, if adjusted for inflation,
we are currently funding the Superfund Program at 40 percent of
its 1987 levels.
The problem with that is now we have longitudinal data. We
know what these sites are doing to the surrounding populations.
I know this because New Jersey has more Superfund sites than
any other State, and it is more densely populated than any
other State.
As you know and I am sure you have discussed in this
hearing, nationwide 11 million Americans live within a mile of
a Superfund site; 3 million to 4 million of these people are
children. We now factually know, because of longitudinal data,
babies born within 1 mile of a Superfund site, prior to the
site cleanups, have a 20 percent higher rate of birth defects--
a 20 percent higher rate of birth defects.
We also know that these Superfund sites are
disproportionately in communities of color, indigenous
communities, and low income communities. When we call this
environmental injustice, it is painful to me that the folks
being harmed by this are disproportionately seeing themselves
exposed to hazardous waste and pollution in this data I am
showing at 20 percent higher rates of birth defects.
In one example, a recent EPA and HUD analysis showed that
the majority of Superfund sites are located within 1 mile of
HUD funded low income housing. As a guy who lives next to HUD
funded low income housing that has two Superfund sites in my
community, I live in a neighborhood where the median income is
$14,000 per household and as thousands of my residents who live
next to and near these Superfund sites, we have to do something
about this.
The first question, Mr. Rodriguez, is do you support
reinstating the excise tax on polluting industries like Ronald
Reagan signed into law, like Senator Mitch McConnell and many
of my other colleagues voted for?
Do you believe we should reinstate this excise tax to clean
up Superfund sites, especially knowing Senator Boxer and I
questioned whether the net number of Superfund sites in the
United States of America is increasing or decreasing, it has
been increasing in recent years. Do you believe we should
reinstate this excise tax?
Mr. Rodriguez. I am not sure as we sit here whether the
Governor has taken a position on that specific excise tax, but
I will say certainly additional funding is necessary for the
program. As you mentioned, the funding for the Superfund
program has gone down through the years, but the need has not
gone away. In fact, the need is as great as ever. That is
something we are testifying to today.
In particular, I agree with your observations concerning
the communities around these Superfund sites. In many
instances, in California, they are the communities least
capable of responding to some of the problems themselves
because they tend to be disadvantaged, low economic
communities.
More needs to be done to focus funding in these areas and
to help these areas. I think additional funding is certainly
something that is warranted.
Senator Booker. The facts are this is a growing problem in
our country. There are orphan sites right now but for the
funding being available, we could be cleaning them up and
taking millions of children out of risk's way.
I heard the conversation as I walked in a bit about climate
change, but I want to press that question right now. We had 40
Superfund sites at risk of damage during Hurricane Harvey,
sites that TCEQ, the Federal Government, and the responsible
parties knew to be contaminated and harmful to human health.
We also knew Harvey would hit before it did, and we
generally know the Gulf Coast is going to continue to face
these extreme weather events. What is often less acknowledged
though is the environmental injustice communities bear, this
disproportionate burden when these things impact.
As my time expires, I would ask did TCEQ provide any
special attention or preparation to these environmental
injustice communities prior to Hurricane Harvey making
landfall? What ongoing monitoring are we doing to deal with
what is going to continue to happen in the United States of
America, especially along the Gulf Coast and southeastern coast
of the United States?
Mr. Shaw. With regard to the Superfund sites, we continued
to monitor those, prepared for and monitored after the landfall
where it appeared there was damage. Specifically, the San
Jacinto waste pits is the one Federal Superfund site where
damage occurred that had the potential for exposure.
It is a Federal lead site, so they took the lead in that
doing sampling and developing a plan with the responsible
parties to quickly reinsert the cap and protection on there to
minimize any ongoing damage.
They followed up with fairly extensive sampling to try to
determine if there were offsite impacts from that. I mentioned
earlier that the results were that there was an exposure of
those materials, but it appears from the sampling that took
place after the cap was replaced, that the levels in the
sediment and water are similar to what they were prior to the
hurricane.
In a sense we may have dodged a bullet with regard to that.
On the other hand, that river is also contaminated with dioxin
from many sources over many years. It is not a great story from
the standpoint that the problem has gone away. There is still a
need to make sure we are working proactively to ensure we are
being protective of that site and other sites in that area.
Senator Rounds. Because I think it is a valid question, I
would like to have the other members to have a chance to do
this, but I have to go vote. Would you consider that a QFR and
allow them to answer that for the record?
Senator Booker. There is a reason why you are the Chair.
Clearly you have a lot of wisdom. I will follow you to vote
right now and appreciate their QFR.
Senator Rounds. Very good.
We would simply ask if each of you would respond to the
Senator's question for the record. That would be greatly
appreciated. Thank you.
Thank you, Senator Booker, for participating as well.
This is important. It is important that we do the oversight
and learn each time we run into one of these what we can do to
do a better job. I thank you all for taking the time to come
and contribute. Hopefully, we do a better job in the future.
Once again, I would like to thank all of our witnesses for
taking the time to be with us today. I would also like to thank
my colleagues, who have attended this hearing, for their
thoughts and their questions.
The record will be open for 2 weeks which brings us to
Wednesday, December 20.
With that, this hearing is adjourned.
Thank you.
[Whereupon, at 3:21 p.m., the Subcommittee was adjourned.]
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