[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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               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

                              ----------                              


                      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:]
    
    
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    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:]
    
    
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    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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