[Senate Hearing 119-291]
[From the U.S. Government Publishing Office]
S. Hrg. 119-291
IMPROVING FUTURE MANAGEMENT OF THE
SUPERFUND PROGRAM
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
APRIL 9, 2025
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
62-808 WASHINGTON : 2026
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
SHELLEY MOORE CAPITO, West Virginia, Chairman
SHELDON WHITEHOUSE, Rhode Island, Ranking Member
KEVIN CRAMER, North Dakota BERNARD SANDERS, Vermont
CYNTHIA M. LUMMIS, Wyoming JEFF MERKLEY, Oregon
JOHN R. CURTIS, Utah EDWARD J. MARKEY, Massachusetts
LINDSEY O. GRAHAM, South Carolina MARK KELLY, Arizona
DAN SULLIVAN, Alaska ALEX PADILLA, California
PETE RICKETTS, Nebraska ADAM B. SCHIFF, California
ROGER F. WICKER, Mississippi LISA BLUNT ROCHESTER, Delaware
JOHN BOOZMAN, Arkansas ANGELA D. ALSOBROOKS, Maryland
JON HUSTED, Ohio
Adam Tomlinson, Republican Staff Director
Dan Dudis, Democratic Staff Director
C O N T E N T S
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Page
APRIL 9, 2025
OPENING STATEMENTS
Capito, Hon. Shelley Moore, U.S. Senator from the State of West
Virginia....................................................... 1
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode
Island......................................................... 3
WITNESSES
Fox, Robert, Esq., Senior Partner, Manko Gold Katcher Fox, LLP... 4
Prepared statement........................................... 7
Responses to additional questions from:
Senator Whitehouse....................................... 11
Radel, Steven B., President, Industrial Development Advantage,
LLC............................................................ 16
Prepared statement........................................... 19
Gomez, J. Alfredo, Director, Natural Resources and Environment
Team, U.S. Government Accountability Office.................... 23
Prepared statement........................................... 25
ADDITIONAL MATERIAL
Possible CERCLA Improvements--Suggested Topics for a Planned
Legislative Hearing, Walter Mugdan............................. 52
IMPROVING FUTURE MANAGEMENT OF THE
SUPERFUND PROGRAM
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WEDNESDAY, APRIL 9, 2025
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 10:03 a.m. in
room 406, Dirksen Senate Office Building, Hon. Shelley Moore
Capito (chairman of the committee) presiding.
Present: Senators Capito, Whitehouse, Lummis, Boozman,
Husted, Merkley, Kelly, Schiff, Blunt Rochester.
OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO,
U.S. SENATOR FROM THE STATE OF WEST VIRGINIA
Senator Capito. Thank you all for being patient with us. We
are starting this hearing; I note that there are several other
committees that have votes going on, one of which is one of my
committees, which is Commerce. I am going to make my opening
statement and go over there quickly. Senator Whitehouse has
very kindly stepped up to the plate here to move the hearing
forward.
Good morning. I am going to be in a good mood all day, all
day. Hold me to that.
Today we will discuss challenges facing the EPA's Superfund
program and solutions to ensure it can live up to its full
potential. Since I have become chairman, I have stressed that
EPA must refocus the agency's work on the core environmental
missions to deliver the cleanups and environmental solutions
that most benefit the environment and America's health and
welfare.
The Superfund program, as enacted, is one of the best
examples of the EPA executing that core mission. Cleaning up
our Nation's most contaminated sites directly improves public
health and can revitalize struggling communities. I have
certainly seen that in my own State.
Congress established Superfund in 1980 in response to
several high profile environmental disasters. The law was
designed to promptly cleanup heavily contaminated sites and to
make polluters responsible for the cleanup. These are important
goals, but the EPA's management of the Superfund program has
not delivered as intended. Communities now expect the Superfund
cleanup to take more than a decade, I have already heard that
from our witnesses in our informal conversations. That
prolonged timeline sends conflicting messages to communities
with a site nearby. You live near one of the most hazardous
places in the Country, but EPA will let it sit there for years
before they allow it to be fully cleaned up.
Despite the lengthy cleanup timeline, the Superfund program
has achieved some critical environmental and public health
victories and restored thousands of contaminated sites across
the Country. The reason for delays that robbed Superfund of its
full potential is that EPA's implementation of the law
prioritizes process over results.
The complexity of the law has made it one of the most
difficult environmental programs to administer. In practice,
the main winners in managing Superfund cleanups are the lawyers
who profit from endless litigation while communities wait for
promised relief.
To manage a law this complex, the EPA has built an
entangled web of bureaucracy, workgroups, task forces and
committees that too often slow progress instead of delivering
results. Cleaning up Superfund sites is naturally a costly
endeavor.
The problems with Superfund cannot be blamed on funding
alone. To better help communities get the most out of limited
taxpayer funding, Congress and the EPA must identify
efficiencies to accelerate the cleanups. This is particularly
important when considering the overall costs of Superfund
cleanups.
Superfund price tag is not just about the complexity of
environmental cleanup. This is what I call the Superfund
premium, the concept where the same environmental cleanup
becomes more expensive and time consuming under Superfund
compared to a State-led or a voluntary cleanup program.
Whether managed under Superfund authority or through a
State program, remediation is likely to involve the same core
work, removing contaminated soil, treating groundwater, and
restoring the land. Yet because of the Superfund premium, we
often see costs just balloon and timelines stretch once a site
is listed. It is not because the environmental standards are
higher, but rather because the program's process has replaced
the law's cleanup mission.
The program's complex bureaucracy generates enormous
transaction costs that have nothing to do with actual
environmental cleanup. Instead of removing contaminants,
limited time and financial resources are squandered on endless
meetings, redundant studies, and excessive overhead costs
completely unrelated to remediation. There is no shortage of
responsible parties that are ready and willing to remediate the
site. Even good Samaritans, well-intentioned individuals and
organizations, are often deterred from cleaning up sites
because of liability risks and financial barriers.
Our laws should encourage, not prevent, volunteer efforts
to address legacy pollution. Accelerating the pace of Superfund
cleanups does not mean cutting corners or sacrificing health
protections. It means defining an end goal with a clear plan
that gets it to a safe, productive end State as efficiently as
possible.
The ensuing cleanup is driven by that goal, to the benefit
of communities and the environment. Right now, the priority is
enforcement first, cleanup second, and leaving communities to
wait far too long. That needs to change.
I look forward to hearing from today's expert panel on how
to improve the Superfund program's efficiency and
accountability.
I now recognize Senator Whitehouse for his opening
statement.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. [Presiding.] Let me start by thanking
Chair Capito for this hearing, and our witnesses for appearing.
We are here today to talk about improving the EPA's Superfund
program, which is one of the best tools for holding polluters
accountable for contamination at our Country's most polluted
sites.
These sites exist in every State in our Nation. They are
complex. Cleanups can be laborious and long to complete. Rhode
Island has a long history with this program. Senator John
Chaffee, former chairman of this committee, authored the
Superfund program in 1980. His son and my predecessor, Lincoln
Chaffee, chaired the Superfund subcommittee and championed
bipartisan legislation to support the program, including
authorization of the Brownfields program.
I am happy here today to continue that support and address
bottlenecks to the cleanup process. However, speed must not
come at the cost of efficacy. Scientists, engineers and project
managers ensure that cleanups are done right. Investigators and
lawyers identify responsible parties and hold them accountable.
EPA employees in these roles often have specialized experience
with specific sites and communities, institutional knowledge
and relationships that, once lost, are hard to rebuild.
Budget, staff, and speed are interrelated. As we will hear
from Mr. Gomez, when annual appropriations declined from
roughly $2 billion to $1.1 billion, spending on remediation
fell, unsurprisingly, by roughly half.
The average project completion time increased from 2.6 to 4
years. Significant delays affected one-third of long-term
projects. When budgets are cut, work often slows down.
At his confirmation hearing before this committee,
Administrator Zeldin appeared before us and committed to
following the law. Slashing 65 percent of EPA's appropriated
budget and pushing out agency staff until there is no one left
to execute the law violates those promises that Administrator
Zeldin made. It will do immeasurable damage to American
families.
He said he would defer to the professional scientists at
EPA, then turned around and plans to remove EPA's independent
scientific research office. Without such expertise, how do we
make sure our Country's most polluted sites are safe?
For Superfund, this mess will delay cleanups and prolong
communities' exposure to harmful pollution. Let's be clear: the
winners from slashing EPA's budget and staffing and kneecapping
the Superfund program are the planet's biggest polluters. They
are behind this.
Administrator Zeldin sat in this room and said climate
change was real and must be addressed with urgency. Now he
mockingly refers to the climate change ``religion'' and
applauds himself for ``driving a dagger'' straight into its
heart.
Climate change will compromise the safety of Superfund
sites. According to GAO, 60 percent of EPA's Superfund sites
are located in areas prone to flooding, storm surge and/or
wildfire. EPA has therefore been integrating climate change
resilience into its Superfund efforts.
We need to plan for severe storms occurring more
frequently, coastal communities flooding more severely, and
wildfires scorching areas they have not before. Superfund staff
looked ahead at all that when conducting 5-year reviews to see
what amelioration or containment efforts need adjusting.
To be good stewards of taxpayer dollars, we must ensure
that climate risk remains part of the Superfund site evaluation
process. Otherwise, severe weather events will wreak havoc
onsites that were previously considered safe.
There are changes that can be made to improve the Superfund
program, and I am glad we are here today to discuss them.
However, if the Trump-Musk administration slash and burn
approach continues, it would not matter what improvements we
propose here today.
Senator Whitehouse. [Presiding.] With that, let me turn to
our witnesses for their opening remarks. Our first witness is
Mr. Robert Fox, Senior Partner at the law firm Manko Gold
Katcher Fox. He is a national Superfund expert known for
litigating high profile cases like Gowanus Canal, and advising
on CERCLA compliance liability and brownfields redevelopment.
Mr. Fox has previously testified before this committee on
the Superfund program. Welcome back to the committee, Mr. Fox,
and I recognize you for your opening statement. You have 5
minutes. Your full statement will be made a matter of record.
STATEMENT OF ROBERT D. FOX, ESQUIRE, SENIOR PARTNER, MANKO GOLD
KATCHER FOX, LLP
Mr. Fox. Thank you. Chairman Capito, Ranking Member
Whitehouse and members of the Environment and Public Works
Committee, thank you for the opportunity to testify.
My name is Robert Fox. After graduating from Harvard Law
School, I have practiced environmental law for 40 years. I have
taught Superfund as an adjunct professor for 27 years at Penn
Carey Law School.
My clients on Superfund matters range across all industry
sectors and municipalities, including the city of New York. My
testimony identifies common sense approaches to achieve
Superfund's primary goals. For the past 45 years, courts and
Superfund's legislative history make clear that Superfund has
two primary goals. First, incentivizing the prompt, voluntary
cleanup of the Nation's most contaminated sites; and second,
ensuring that polluters pay for those cleanups.
Undoubtedly, there have been significant accomplishments
under Superfund. It is equally clear that the Superfund program
has strayed from meeting those goals. However, solutions exist
within Superfund's existing statutory language, its existing
policies and with minor regulatory adjustments to realign
Superfund with its primary goals.
First, let's start with promptness. Superfund cleanups take
too long and that increases costs. I am aware of Superfund
sites listed on the National Priorities List in the early
2000's with no remedy selected to date. I am also aware of
Superfund sites where private parties submitted remedial
investigation reports to EPA and did not receive comments for
years and years.
Here is a proposed solution. EPA requires that private
parties adhere to strict deadlines for submitting required
cleanup reports, with penalties for non-compliance. Yet, EPA
has no timeframe for its own report reviews.
Many States administered cleanup programs that for years
experienced similar cleanup delays, but then adopted mandatory
agency review times. That cleared the backlog. EPA should adopt
a policy to do the same.
Second, incentivizing private parties to perform the
cleanup and making the polluter pay are two sides of the same
coin. To create proper incentives for private parties to
perform cleanups, their share of cleanup costs must be fair.
Otherwise, you do not get polluter pays, you get polluter
overpays.
EPA has relied upon joint and several liability under
Superfund to require the same deep pocketed parties at site
after site to pay for 100 percent of the cleanup costs, leaving
those parties to pursue tens and often hundreds of other
responsible parties through costly and time consuming
litigation. That approach is both unfair and inefficient and
dissuades private parties from coming forward to perform
cleanups.
The solutions to this problem already exist within the
Superfund statute and EPA's policies. EPA just has to use them.
For example, section 122(b)(1) of Superfund describes what is
known as ``mixed funding'' for cleanups. This takes the form of
either EPA pre-authorizing the Superfund to reimburse parties
performing the cleanup for a portion of the costs not
attributable to those parties, or EPA agreeing to perform a
portion of the cleanup itself, with the remainder performed by
the private parties.
In either case, EPA pursues other parties to recover EPA's
costs. That saves tremendous transaction costs for the parties
performing the cleanup.
EPA acknowledges that mixed funding promotes expeditious
cleanups rather than protracted litigation. Despite this clear
statutory authority, the Superfund program rarely uses mixed
funding. That should change.
Similarly, EPA has an ``orphan share'' policy. Pursuant to
this policy, EPA can settle with private parties who desire to
perform the cleanup, and compromise a portion of EPA's past and
future costs attributable to liable parties who are either
insolvent or defunct.
EPA's orphan share policy expressly states that it aims to
provide incentives to voluntarily perform cleanups and to keep
transaction costs low. Once again, the Superfund program uses
this policy too sparingly.
By the policy's own terms, EPA's compromise is limited to
the lesser of 25 percent of the cleanup costs or the total
amount of EPA's unreimbursed costs. The statute contains no
such limitation on an orphan share or past cost forgiveness.
One final suggestion. When private parties perform a
cleanup, EPA charges those parties with EPA's oversight costs,
a term not defined in the statute. Oversight costs include
costs for EPA's contractors.
Oversight costs also include costs attributable to the time
spent by EPA's personnel, with no limitation on how many people
work on a matter, or how many hours they spend. In other words,
private parties are required to reimburse EPA for work
performed by internal EPA employees on that matter.
Then, on top of these direct costs, EPA also pursues
reimbursement of an ``indirect cost'' premium for its overhead
expenses throughout a regional office, including rent,
utilities, computers, et cetera. This indirect cost premium can
sometimes exceed 100 percent. Personnel costs and a premium for
overhead are not appropriately reimbursable, foster
inefficiency and create a disincentive for parties to perform a
cleanup.
In conclusion, the Superfund program has proven
accomplishments. Going forward, the program needs these common
sense solutions to ensure that the program returns to meeting
its primary goals.
[The prepared statement of Mr. Fox follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Whitehouse. Our next witness is Steven Radel,
President of Industrial Development Advantage. Mr. Radel has
extensive experience in managing successful hazardous waste
cleanups, including Superfund sites. His company specializes in
acquiring contaminated properties and remediating them so they
can be safely redeveloped.
I will now recognize Mr. Radel for his opening statement.
STATEMENT OF STEVEN B. RADEL, PRESIDENT, INDUSTRIAL DEVELOPMENT
ADVANTAGE, LLC
Mr. Radel. Chairman Capito, Ranking Member Whitehouse and
members of the Environment and Public Works Committee, thank
you for the opportunity to testify today.
My name is Steve Radel. By way of background, I graduated
from Allegheny College with a degree in Environmental Studies,
and while working earned a master's in business administration
from the University of Pittsburgh and a law degree from
Duquesne University.
I have worked for over 40 years in the environmental
industry as an environmental consultant, a corporate
environmental manager, and a founder and principal in
Industrial Development Advantage, (IDA), an environmental
liability assumption company. Industrial Development Advantage
acquires contaminated sites and assumes the underlying
environmental liabilities, which we then resolve through
remediation and redevelopment.
Our transactions typically involve environmental insurance
that includes pollution legal liability insurance and excess of
indemnity coverage that can often be obtained by IDA for the
benefit of the seller. By way of example, IDA acquired the East
Chicago, Indiana Superfund site in 2022. IDA negotiated a
liability assumption agreement with the participating PRPs
(potentially responsible parties) and a prospective purchaser
agreement with the EPA to finish the operable unit soil
remediation.
Our focus at this site is on remediation, repositioning the
site and integrating development design with remediation to
ensure the work is performed in a manner that is protective of
human health and the environment and also promotes productive
reuse of the site.
East Chicago is a prime example of parties motivated to
complete a transaction to accelerate the cleanup process,
including the participating PRPs, EPA Region 5, and the State
and local governments. I will note that the EPA Region 5 folks
worked very hard to help make this happen.
There are a couple of takeaways from this example that
reinforce my hope and belief that it is absolutely possible to
redevelop a Superfund site quickly, efficiently and
protectively if the right motivations are in place.
First, without question, the default Superfund process is
cumbersome and prioritizes form and process over the ultimate
goal of remediating and returning a contaminated site to
productive reuse. When we approach a site we use the general
approach, what is the last chapter of this story, and we work
back from that.
IDA and our consultants can look at any contaminated site
and figure out what the likely remediation approach should be
and we look at it in the context of the end use or best
development option for that property, the last chapter. There
may be some data gaps to complete a conceptual site model of
the environmental conditions at the site, but for the most part
we can cost effectively figure out the best remedial approach
once we identify that last chapter or reuse of the site.
This can be done without the need to complete a number of
reports and plans that are typically required by the CERCLA
process. In short, we can take a site from a streamlined but
still comprehensive remedial investigation straight to remedial
action without the unnecessary time and expense of feasibility
studies or alternatives evaluations that are irrelevant to the
final chapter.
Our focus is on completing a risk-based cleanup based on
the planned development by identifying potential exposure
pathways and making sure they are eliminated as part of the
remediation while also integrating development considerations
into the overall remedial design. This significantly reduces
the timeline to redevelopment.
Second, the basic tools needed to make the CERCLA process
more efficient are already being widely used in other parts of
the environmental industry, for example, voluntary cleanup
programs that encourage the cleanup and reuse of sites with
prospective purchaser agreements, covenants not to sue and
appropriate institutional controls are already in place.
Third, private parties like IDA can be incentivized to bid
on and acquire contaminated sites for the expected costs of
remediation with assurances like the tools mentioned a moment
ago to ensure that we do not inadvertently become PRPs, while
at the same time holding us to our commitment to complete the
remediation on schedule and on budget. These deals also include
environmental insurance, which is a motivation for PRPs as
well, or can be.
Fourth, implementing our approach to more timely and
efficient cleanups can be facilitated and accelerated by
empowering more State-led CERCLA cleanups that place incentives
on more of a voluntary program risk-based approach that gets to
the final chapter efficiently, and by encouraging EPA to
provide comfort letters and ``ready for use'' determinations on
the front end of cleanups subject to approved remedy
implementation.
We note that States already have authority to lead
Superfund cleanups through cooperative agreements but in our
view or experience, few States have done so because they lack
clear direction from EPA.
Fifth, Superfund liens present difficult challenges for
Superfund cleanups, especially for environmental liability
transfer deals. These liens basically discourage innocent
parties from stepping in to facilitate cleanup. EPA already has
the tools to address this challenge by negotiating the release
or settlement of liens in exchange for completion of an agreed-
upon cleanup plan. Lien waivers do not affect EPA's ability to
go after responsible parties separately, but do help clear up
title for remediation and redevelopment. That is an excellent
tool that can be used.
Finally, making the de-listing process more efficient can
help achieve the last chapter more quickly and efficiently. A
prolonged delisting can delay investment and development.
Presently there are only two times a year when parties can
request a delisting, and the process is extremely burdensome.
We view this as an opportunity for reform.
In summary, in my opinion, the CERCLA program can be
improved to incentivize the cleanup and redevelopment of sites
avoiding unnecessary transaction costs and costly remediation
approaches. This will allow Superfund dollars to be used on
more sites and it will significantly reduce the timeframe to
clean up a site and make it available again for development,
shortening the timeline by years.
Communities with these black hole sites are significantly
and negatively impacted by the prolonged lack of progress,
which often has a negative ripple effect throughout the larger
community. This is a real negative opportunity cost in these
communities.
A clear path to success requires a ``last chapter''
focused, risk-based cleanup design to address the underlying
contamination and restore sites to their post-remediation
condition and use. This will speed up the time to get these
sites back into productive use and reduce the transactional
costs associated with the traditional Superfund process.
Thank you.
[The prepared statement of Mr. Radel follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Whitehouse. Thank you, Mr. Radel.
Our final witness this morning is J. Alfredo Gomez,
Director in the Natural Resources and Environment Team at the
U.S. Government Accountability Office, GAO. Mr. Gomez leads the
GAO's work on environmental protection, including hazardous
waste cleanups, toxic chemicals and agency management.
Welcome. I will now recognize Mr. Gomez for his opening
statement.
STATEMENT OF J. ALFREDO GOMEZ, DIRECTOR, NATURAL RESOURCES AND
ENVIRONMENT TEAM, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Mr. Gomez. Chairman Capito, Ranking Member Whitehouse, and
members of the committee, good morning. Thank you for the
opportunity to discuss GAO's past work on the Superfund
program.
The Environmental Protection Agency administers the
Superfund program to clean up sites contaminated by hazardous
substances. Some of the Nation's most seriously contaminated
sites are listed on the National Priorities List, (NPL).
Superfund sites can include mining sites, landfills, and former
manufacturing sites. As has been noted already, cleanups of
these sites are often expensive and lengthy.
My statement today is based on several issued reports as
well as on updated appropriations data. Specifically, my
statement discusses trends in Superfund program appropriations,
numbers of NPL sites and reasons for changes, and factors
identified as affecting the timeliness of NPL site cleanups.
Appropriations for the Superfund program have generally
declined since Fiscal Year 1999. In 1999, the program received
about $2.6 billion. In Fiscal Year 2024, it received $537
million. Since the Infrastructure Investment and Jobs Act and
the Inflation Reduction Act recently reinstated some Superfund
taxes, an additional $1.44 billion was also made available to
the program in Fiscal Year 2024.
The Superfund program also receives supplemental
appropriations in some years. For example, in 2009, the
Recovery Act provided $600 million, and the IIJA provided an
additional $3.5 billion in Fiscal Year 2022.
Regarding full-time equivalents, the Superfund program had
2,585 employees in 2023, a decrease of 274 positions over the
prior 10 years.
Regarding the number of NPL sites, as of March of this
year, there were 1,340 active sites, 459 sites that had been
deleted from the list. When we last reviewed the NPL site
cleanups, we found that the number of non-Federal sites added
to and deleted from the NPL generally declined from 1999
through 2013.
According to EPA, there are several reasons for the decline
in the number of non-Federal sites added to the NPL. For
example, some States may have been managing the cleanup of
sites with their own State programs, especially if a
potentially responsible party was identified to pay for the
cleanup.
The decline in the number of non-Federal sites deleted from
the NPL was because of the decline in annual appropriations and
the fact that sites remaining on the NPL were more complex and
took more time and money to clean up.
From our prior work, we have identified many factors that
can affect EPA's ability to clean up NPL sites in a timely
manner. One is that some sites are more technically complex to
clean up, because of site characteristics. For example,
complicating factors at sediment sites include their large
size, the location, tidal influences, multiple sources of
contamination, and difficulties related to sampling and
modeling at the site.
Another is challenges with stakeholder involvement, which
can take EPA time and resources to address. For example,
stakeholders such as surrounding communities, local government,
and industry may have different opinions and competing
interests. Their levels of knowledge of the Superfund program
may vary.
A third is decreases in agency resources can cause cleanup
delays. For example, shortages in EPA regional staffing levels
and a decline in State environmental agency personnel can cause
delays throughout the Superfund program from site assessments
to completion of remedial action projects.
In summary, EPA's Superfund program has generally faced
declining annual appropriations with influxes of supplemental
appropriations in some years. In addition, the Superfund taxes
are now providing additional funding.
Our previous work shows that the numbers of new sites added
to and removed from the NPL have generally declined from Fiscal
Year 1999 through Fiscal Year 2013. There are several factors
that can affect the timeliness of NPL site cleanups.
GAO has ongoing work for the House Majority that is
reviewing funding and expenditures of the program, as well as
planned work to examine NPL site cleanup status.
Chairman Capito, Ranking Member Whitehouse, this completes
my statement. I would be pleased to respond to questions.
[The prepared statement of Mr. Gomez follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Whitehouse. Thanks very much.
I guess I will begin, until the Chair can return. Let me
start with you, Mr. Gomez. Is there any doubt in your mind that
flooding of a Superfund site, whether from storm surge or
riparian flooding, or a wildfire burning through a Superfund
site, can create contamination issues and if not properly
managed, can interfere with the remediation process?
Mr. Gomez. Certainly, there is no doubt. In our past work
where we looked at this question, of the Superfund sites, and
then the potential effects from flooding, wildfires, storm
surge, there are many sites across the Country that are located
in places where these things are happening.
In fact, we traveled to several sites. We visited a site in
Houston, Texas, the San Jacinto River site, where because of
unprecedented rainfall from Hurricane Harvey, it actually
dispersed the contamination on the river. It is happening at
sites across the Country. I think the purpose of our work was
to show how many sites are located in places where these things
are happening. It is important, then, for EPA to ensure that
the remedy that is in place is going to be protective.
Senator Whitehouse. I would argue that recent experience
that you described in Texas, also in Florida, shows that this
is not a potential, it is actually happening, and we have to be
prepared. I would add my own editorial comment that the
flagrant errors in FEMA flood mapping create an additional
burden for people managing Superfund sites, because they have
to figure out what the real flooding risk is, not what FEMA's
phony baloney flooding risk is based on incompetent or
inaccurate mapping.
I have a specific question, because we have a Bradford Dye
and Finishing site on the Pawcatuck River in Rhode Island. It
is an American wild and scenic river. There is significant risk
of flooding and release of contamination there.
While we are going through the process of remediation,
there is significant danger of contamination out of lagoons
that have been prepared as sort of a catchment area.
What are the interim measures during the period of a
remediation that EPA could require for a site like this, while
the listing package is being prepared?
Mr. Gomez. In this case, EPA can explore other options. It
sounds like this is contaminated sediment, which really
complicates in terms of what the agency can do, just because of
the various things that are happening in place. In other
places, perhaps you could do a removal, where you could do a
removal, perhaps of the contaminations that are present, as the
continuing work takes place to figure out how you are going to
remediate it.
Really, I think in those cases, it is important for EPA to
have the expertise, to be able to figure out what are the steps
that they can take in that very site-specific place, and to
make sure that it has the expertise, and if it does not, that
it can go outside to get it.
Senator Whitehouse. Mr. Radel, another site-specific
question here. In the Navy property in Newport, Rhode Island,
there is an abandoned hospital, which is on extremely valuable
property, could be put to valuable reuse. It is within the
boundaries of a Superfund site, although it appears to have
itself very minor contamination.
In your experience, what would be the appropriate vehicles
for trying to assist with the development and reuse of that
hospital, even though it is within the Superfund boundary, if
it can be shown that the contamination specific to the property
is minor?
Mr. Radel. In my experience, if we could separate that
hospital location from the overall Superfund site through some
kind of segregation, modifying the parcel lots, I think that a
competitive bid process for folks to come in and evaluate it, I
think the market would take care of that one.
My suspicion would be, there is probably asbestos, ACM
contamination in the building.
Senator Whitehouse. In the building itself, yes.
Mr. Radel. That could be pretty significant. I think an RFP
for folks to come in and look, first an asbestos evaluation,
and then bring folks in to look at it, and kind of get a sense
for who would put an investment in to take on that risk would
be worthwhile. I could see that being a motivating factor for
folks to get involved in cleaning that up.
Senator Whitehouse. Waterfront property, no less.
Mr. Fox. EPA does have a policy called redefinition of
Superfund sites, where you can go through a process and
redefine the site boundaries and segregate that property.
Senator Capito. [Presiding.] I am going to go to Senator
Husted from Ohio, since I am just getting back into the
committee.
Senator Husted. Thank you, Chairwoman Capito. Welcome,
thanks for joining us today.
Ohio is a State that has traditionally been part of our
Nation's manufacturing heritage. Over time, it has had the
legacy of some of the challenges of those industrial sites. We
have had 38 Superfund sites, 31 of them have been addressed. We
have some that have been pending since 1993, one that has been
pending since 1993. Many of these that have been pending over
15 years are over major aquifers, which citizens in our
communities get their water.
Whether it be storm or hurricane or just the constant fact
that we get rain a lot, and there is drainage and there is all
kinds of things that happen to these sites over time and how it
can affect people's quality of life and health, what can we do
to speed this up? I am interested in learning from all of you
today what action can we take, what action can the government
take, what action can States take? I want your best thoughts on
how a State like Ohio can do a better job on cleaning up these
last seven that are hanging out there.
We will start with you, Mr. Fox.
Mr. Fox. Sure. First of all, I worked on the Painesville
Superfund site, so I am aware of what is going on in Ohio.
I really think that the Superfund remedy selection process
is completely broken. I will tell you why. I have done work on
the Superfund cleanups, RCRA cleanups, State voluntary
cleanups, and there are really three issues that really go to
what Mr. Radel said. It is who is exposed, meaning who are the
receptors, what contaminants are they exposed to, and how do we
cutoff those exposure pathways. Those are the three things.
We have gotten bogged down in making the perfect the enemy
of the good. The good is for the remedy to be protective. It is
always that, to make the remedy protective. The process is so
burdensome and cumbersome, and takes so long and is so costly
that we do not serve the cleanup----
Senator Husted. Is that a law or a regulator problem?
Mr. Fox. That is the way that the National Contingency
Plan, which is the process for selecting the remedy, is
actually implemented. It is not the law; it is the way it is
being implemented.
We can not have these be a science project. We want them to
be technically sound. That is everybody's goal. You can not
have a process where you do not get a remedy selected, as you
said, for 20 years. That has to change.
Also, just to give you one example of this, I mentioned I
worked on the Gowanus Canal, when a remedy was selected and
they looked at the cost of implementing two CSO, combined sewer
overflow, tanks, they thought that the remedy for that was
going to cost $77 million for the city of New York. The current
estimate for that is over $2 billion.
That has to change, too. A realistic cost of what the
remedy is to achieve the cleanup goals has to be incorporated
into this process.
Senator Husted. Mr. Radel?
Mr. Radel. I think Robert hit the key points. We have
talked about them in our summaries.
I would say, not knowing anything about these seven sites,
but the fact that they have been looked at and in the Superfund
process for 20-plus years. My recommendation would be bring in
a new team and audit all seven and just see where they are and
how we can get to, I will use a football analogy, how we can
get to the end zone. There has to be so much data on these
sites that you can almost come up with what are the hurdles
here, what are we waiting on.
I think sometimes there are issues on the community side
where maybe there is hesitancy to move things forward. The flip
side of that is the community has been waiting for 20-plus
years for something to happen, so that is why they are upset,
and who can blame them.
I think a fresh set of eyes to look and audit these
projects, and hopefully could clear the way that this is not a
30-year project, as Rob said. Let's get to the end chapter,
let's get to that end zone and let's look at it.
My inclination would be that there is so much data out
there that if there are some data gaps that have to be
completed, they are minor and there are things that should be
able to done in relatively short order, just in my opinion,
just because of the fact that these sites have been ping-ponged
around for 30 some years. I think a new set of eyes would help
audit that process.
Senator Husted. Mr. Gomez?
Mr. Gomez. Senator, I would say, because it is at the EPA
regions where the work is taking place, so that you want to
make sure that for Ohio, and Region Five, that they have the
people they need to do the work. I do agree that the remedy
selection process takes a long time. It takes a long time
sometimes to list sites on the NPL but then also to get them
cleaned up.
You want to make sure that you have the staff, the regional
staff who are doing the work, like the remedial project
manager, for example, for each of those sites.
Senator Husted. Thank you, Chairman Capito.
Senator Capito. Senator Merkley.
Senator Merkley. Thank you, Madam Chairman.
Back when I was first elected to the Senate, Congressman
Blumenauer took me out on the Willamette River for a 10-mile
stretch, Portland Harbor Superfund site. He said, this has been
going on for 10 years. This has to be resolved before I retire.
Well, he retired last January, and I have watched this with
enormous frustration. Essentially, the project involves testing
the soils along this 10-mile stretch, deciding what to
excavate, what to cap, and then doing that, doing those two
things, and what to leave to natural erosion, the natural
process.
Finally, 17 years after it was listed, there was a record
of decision about what to do. Still basically nothing has
happened for cleanup. It appears to me that the process is
stalled, waiting for resolution about who among the potentially
responsible partners will pay what, which means all kinds of
lawyering, lawyers being hired every which direction, all sorts
of subgroups being formed to challenge the EPA's decision in
court.
I think it has gone now through three rounds of testing the
river, because every seven or 8 years, it is like, oh, well,
maybe the river has changed, maybe we need to reexamine where
the contaminants are.
How do we stop this eternal process of planning and
actually do the damned cleanup? Do we need to dive into the
cleanup after the record of decision and not wait for the
potentially responsible partners to sort out who will pay for
it? How do we avoid this, now that we are 25 years into this
project? I think this is emblematic of what has happened to
many Superfund sites.
Whoever feels like they have the best insight on how to fix
this.
Mr. Fox. I am involved in a lot of that litigation that you
talked about. I will speak against interest here. That should
never, those transaction costs should never slow down the
cleanup.
EPA has many tools, I mentioned a couple, but they have
other enforcement tools to bring the parties forward to do the
work. They had to create the incentives for those parties to do
it, so that you can not go to the same companies, deep-pocketed
companies, every time and say, you have to pay 100 percent of
the cost, and you figure out how to sue the other 100 parties
and spend 10 years in litigation doing that. That is
inefficient,.
I agree with you, I know the Portland Harbor site.
Contaminated sediment sites are more complex than your typical
site. There are examples where there have been remedies
selected in two or 3 years and the work started and partially
completed.
That remedy selection process is the obstacle, it is not
private parties suing. That can happen separately, completely
separately from the actual remedy selection and the cleanup.
Senator Merkley. The remedy in this case was, the record of
decision was made. Should the Federal Government be paying for
the work until the responsible, potentially responsible
partners sort out who pays for it?
Mr. Fox. There are many options that they have. One is they
could do the work themselves and seek to recover it later. Two,
they could have the private parties come forward and do that.
In order to incentivize the private parties to do that, those
private parties want to know that they are not going to be in
years and years of litigation to recover.
If there are 100 parties at the site, and the Federal
Government says, you four do it, and then spend the rest of
your time going against those other 96, that is inefficient.
Senator Merkley. Okay. Well, it is massively complex, and I
have watched as personnel have changed in terms of trying to
drive the process forward. I think there are probably several
dozen very well-intentioned employees of EPA who have burned
out over the process of trying to drive this forward in the
context of the lawsuits and resistance and reexamining.
I would like to see the work done and get on with other
challenges as opposed to spending endless years and endless
amounts of money planning, replanning, replanning, trying to
figure this out. If it requires major changes in how the law is
designed, I want to understand those and see if we can make
this process work more effectively.
I am extremely concerned now about the cuts to EPA's staff
and how that may reverberate in terms of people continuing to
drive the process forward. My whole impression has been that
the potentially responsible parties understand every strategy
for delay and are intent on pursuing those. They do not want to
pay out, and this is going to be a billion dollar cleanup. They
do not want to pay for a billion dollar cleanup.
They have been very effective at working at that angle and
having EPA competent staff are essential to keep the project
moving forward. I am afraid with reductions in those staff we
may see the problem just get worse.
Senator Capito. Thank you.
I would like to, we are hearing a lot about what is driving
the costs. I talked about the Superfund premium. I think from
the testimony we may not have the same name for it, but it is
falling under the same umbrella of what I was talking about.
Let me just kind of dig deeper on this remediation plan
holdup, Mr. Fox, that you have talked about. Is it a matter of
the best strategy to clean up a particular site? Is it arguing
over the best way to do it? We have heard it is not really
arguing over who is going to pay for it. Or is that the holdup?
Or is it, the science has not been done? I do not know. Point
to one or two or three things in this process that we could
change that would make this go faster.
Mr. Fox. First of all, I want to say I do not think the
holdup is who is responsible for it. That is not the holdup in
my mind.
Senator Capito. Okay.
Mr. Fox. I am going to echo what Mr. Radel said, and that
is, there are very known ways to evaluate what the risk is at
the site, and how to clean them up. Some sites are more
complicated than others, but those general principles that I
mentioned about knowing who is exposed, knowing what they are
exposed to, and eliminating those pathways. I do not want to
use the wrong term, but it is not rocket science. We have been
doing this for a long time.
What happens it the process is so cumbersome, the reports,
and back and forth on scientific stuff. It is not a science
project where you have to study every molecule. You can get
there much faster, get a remedy selected.
By the way, Superfund contains a failsafe. The statute
requires that every 5 years, the remedy that is selected and
implemented is reviewed to see whether it is protective of the
environment. Let's get it done through a much more streamlined
remedy selection process. That is the major holdup as I see it.
Senator Capito. Mr. Radel, I am going to ask you, I am
assuming that you have done cleanups for Superfund sites and
cleanups for private or State level cleanups.
Mr. Radel. Correct.
Senator Capito. Okay. I want to contrast those. When you do
a cleanup, say, for a State or maybe for a private entity and
you do not have this cumbersome process, would you agree with
Mr. Fox that some of the things that are thrown into the
Superfund process--so how does that work in a different, when
you are doing it for the State or for a private entity? You
mentioned a site in West Virginia that is a Superfund site you
are getting ready to do, the McElroy Mine, is that correct?
Mr. Radel. That is not a Superfund site, but I have a
better example. The site we closed on in 2022 in Indiana was a
Superfund site. If we had done that cleanup under the voluntary
program of Indiana versus how we did it under the Superfund
program, just my consulting costs alone and to some extent my
legal cost probably two times more doing it on the Superfund
site than if we were doing that same work under a voluntary
program.
As Rob said, it is almost like when you have your little
kid anxious to go out and play, when we have a site, we want to
clean it up, we want to get started with a remedial
investigation and get to the RA. Superfund, you have to stop,
you have to do your QAPP, you have so many extra plans that you
have to do.
A QAPP, by way of example, Quality Assurance Project Plan,
where you go through basically a really thorough analysis of
the laboratories that you are going to use, the laboratory that
you are going to use to test the groundwater, the dirt, and
things. It is a very detailed process, it is an expensive
process, there are smart people involved.
We are using EPA certified labs----
Senator Capito. They're already certified?
Mr. Radel. We are already using an EPA certified lab. I
have to do this extra level of detail to satisfy the Superfund
requirements. That is one small example.
It just compounds, it compounds. Instead of getting focused
on what are the issues, how do we deal with them and how do we
clean them up to be protective of human health and environment
and then integrated development, we are still in this process
of this plan, that plan, this plan.
Senator Capito. Right. I mean it would, it begs the
question, if you are using an EPA certified lab, why do you
have to keep going back and recertifying----
Mr. Radel. Begs my questions, for sure.
Senator Capito. Mr. Fox, let me ask you, just from the
folks that live in and around Superfund sites, they have great
economic development promise, in my view, because they are
clean, it is much easier for a developer in some cases to come
in, because the work has already been done. What do you see
when you go into different communities about the restlessness
of, why is it taking so long, not adding the economics onto the
health issues that are sometimes associated with these sites?
I think what we are doing is we are stymieing communities
from being able to have confidence that they can redevelop, or
be living in a healthy community.
Mr. Fox. I agree with you 100 percent. I see it over and
over again. Communities are frustrated because the potential
exists for a win-win-win. Redevelopment of the site, protective
of their human health and the environment. The longer it goes
on, they become distrustful.
Senator Capito. Right.
Mr. Fox. They become distrustful of EPA, they become
distrustful of the private parties who are doing the work, and
it feeds upon itself. Speeding up the process will get this
back to productive use and eliminate the exposure of these
communities, and they will eliminate that distrust.
Senator Capito. Thank you.
Senator Blunt Rochester?
Senator Blunt Rochester. Thank you, Chairwoman Capito and
Ranking Member Whitehouse. Thank you to the witnesses. As you
can hear from the questions that are being asked, I think this
is an issue that cuts across party lines, it cuts across rural,
urban, wherever you are.
We know that the Superfund program is vital to communities
across the Country. It ensures that our lands are clean. It is
important for economic development issues. It helps protect the
health of Americans, even after the original polluters are
gone.
By cleaning up these industrial pollutants, we can decrease
the risk of cancer, heart disease, and respiratory illness.
Mr. Gomez, your testimony and extensive research on the
Superfund program highlights issues related to site complexity
as a factor in delays. Can you further discuss how site
complexity leads to delays, and how a project may utilize
funding to clean these types of sites?
Mr. Gomez. Sure. We have also been talking about the
sediment sites; I think everyone has had examples. Senator
Merkley talked about one in his State. Those sediment sites,
where the sediment is contaminated, it could be miles of
contamination along a river.
Those are areas that take a lot of work and resources for
EPA to sort of figure out the contamination, where it is
spreading. There are other site characteristics also that can
be complicated in terms of tidal movements.
Figuring out in those cases where the contamination is,
what is it, is it migrating, how to contain it, how to treat
it, that requires a lot of time and resources. Those are the
biggest sites. They take over a decade to work on. I think
Senator Merkley talked about over 20 years in his case. I know
that in your State there are some as well that are sediment
sites.
There is a lot of knowledge and information already on
treating and dealing with sediment sites, even though each
Superfund site is different. There is a lot of knowledge and
expertise already there that the agency needs to make sure that
it is using as it moves forward.
Senator Blunt Rochester. Yes, I would say we know that this
takes reliable and robust funding to really deal with the
cleanup of these contaminants. It is why the Bipartisan
Infrastructure Law was so important. Someone mentioned the IRA
as well.
In Delaware, we have Standard Chlorine, a site that is
known as an orphan site, because the original polluter has
since gone bankrupt. Again, back to how that impacts
communities, this has left the site in the hands of the State
and EPA to clean up and protect the community's health and
safety.
Mr. Gomez, the Standard Chlorine site is a complex site.
What factors should be considered before a cleanup takes place
or is completed?
Mr. Gomez. This is one of the orphan sites you were talking
about as well?
Senator Blunt Rochester. Yes.
Mr. Gomez. Right. The orphan sites is an area that EPA has
to figure out, if it tries to find a responsible party,
otherwise it has to do it itself and then try to recoup those
funds.
That is where appropriations do come into play, because you
want to make sure that funding is available to start new
projects in that case. EPA historically focuses appropriations
on ongoing remedial action.
What we have learned from our work is in the past, EPA does
not start new remedial actions, because it does not have the
funds to do it, because it is prioritizing the funds that it
has to continue the cleanup on those that are already taking
place. It is less expensive to just continue that. Whereas if
you stop them, you have to remobilize all of the equipment that
you are working on.
Yes, for orphan sites, that is a challenge. When there have
been supplemental appropriations, the agency has been able to
focus on those. You had mentioned the Infrastructure Act. That
allowed EPA, in fact I think their latest report to Congress
from last year, over 100 sites were able to start remedial
actions. They have been using those funds for that purpose.
Senator Blunt Rochester. I know we can all speak to the
health aspects of this. Could you speak specifically to it for
a complex site? For example, does the EPA need to consider
contamination migration? Can you talk a little bit about that
as well?
Mr. Gomez. Sure. For these sites, there is a lot of
sampling that has to take place and modeling. The sampling is
sort of getting at what you are talking about, figuring out,
first trying to characterize what the contaminants at the site
are, if they are migrating, where they are going.
The modeling aspect is again trying to sort of figure out
the inputs from the data that you are collecting in the
sampling to figure out again how the contaminations might
migrate, but also how it might affect the risk that is there.
Those are things that take a lot of resources and take a
lot of time from the agency. There is also uncertainty in the
model so that you have to spend enough resources to make sure
that the models are predictive of what might actually be taking
place.
Senator Blunt Rochester. I have run out of time. I will
submit more questions for the record.
Thank you so much to the witnesses, and I will also submit
some questions for the other witnesses as well regarding
complex sites.
Thank you, and I yield back.
Senator Capito. Thank you.
Senator Schiff?
Senator Schiff. Thank you, Madam Chair. Congratulations on
your former staff who moved forward in the confirmation
process.
Senator Capito. Yes, thank you.
Senator Schiff. She had the best training possible,
clearly.
Thank you all for coming in to testify. Mr. Fox, it is good
to see you again. In the interest of full disclosure, we are
law school classmates. Somehow you must be in a much less
stressful line of work; you still have much more hair than I
do.
Mr. Fox, you testified about one idea to improve the
timeliness of cleanup. That was mandatory agency review times.
I guess I have a couple related questions. One is, in the
States that have adopted those kinds of time periods, what is
the repercussion if the agency does not get the work done in
time? Is it an automatic approval of the remediation plan?
Then a related question is, if we are, and it is an
attractive idea that I have thought about in other contexts,
but if we do not have the staffing at EPA, if we further reduce
staffing at EPA, if the reason for the delays by the agencies
is there just are not the personnel, then does that work? Or
does that just result in remediation plans being approved
without any review?
How much of the issue of the current delays is simply lack
of capacity at EPA? Does your proposal work if we do not
address that?
Mr. Fox. That is a fair question. I do not think the
primary issue is the lack of staffing. I can relate
Pennsylvania and New Jersey examples of deemed approvals. It is
a deemed approval.
If you do not respond within specific timeframes, and there
are different timeframes for different reports, that is written
into the regulations, then it is a deemed approval.
You do not want a deemed approval, to be honest with you.
The goal is not to get something approved because the agency
has not reviewed it. The goal is to make the agency review it.
It has worked, it has speeded things up tremendously. I
would say we certainly have not overfunded our State agency in
Pennsylvania.
I think that is a real issue, but I do not think that is
the heart of the problem. It is the time it takes to review. It
can go on for years before you get a response. That just can
not happen.
Senator Schiff. We have seen that in California, where it
has gone on for years and years.
If it is not staffing, then what do you think it is that
accounts for such delays?
Mr. Fox. I think it is the overly prescriptive nature of
the Superfund remedial selection process, which has too many
bells and whistles that are unnecessary.
Steve gave one example of a QAPP. There are a number of
different examples. It is just overly prescriptive and
unnecessary to get to a protective remedy.
Senator Schiff. Mr. Gomez, do you have a similar or
contrary view on that?
Mr. Gomez. I think there is something to be said for that.
What we have learned from the work, that it is important to
have the staffing that is there. I think that the Superfund
program has been in place for a very long time. I think there
is an opportunity, especially as Congress is considering
changes, to look at the process and perhaps look to see where
most of the time is spent. We have some new work that we are
starting. We are going to be looking at the funding, and then
some planned work, to just look at the overall Superfund
process.
In those places, perhaps, where there are the longest
times, try to figure out why and what can be done to change it.
Senator Schiff. The DOGE website announced a few weeks ago
that it intends to shut down the EPA regional office in Los
Angeles. Can you describe, Mr. Gomez, a bit about what those
regional offices do and what will that mean in terms of
Superfund sites around L.A.?
Mr. Gomez. Sure. In the Superfund program, the work takes
places at the regional offices. You have to, if you are going
to make changes, any kind of changes, you have to keep in mind
how those regional resources might be affected, because those
are the folks that are doing the work.
Yes, I think we are also, in our work, waiting to see if
there are going to be any proposed changes, what that may mean
for how the program is carried out.
Senator Schiff. If that office closes, then they would just
have to deploy EPA personnel from farther away?
Mr. Gomez. I think that is one of the comments that is out
there, is that people might be given additional
responsibilities how that may affect their work is yet to be
seen, if that takes place.
Senator Schiff. Yes. Among others, you are probably
familiar with the Stringfellow Acid Pits in Riverside County,
that was added to the National Priority List. Apparently it has
been on that list year after year after year.
I appreciate your testimony and suggestions you have made.
Thank you, Madam Chair, for holding the hearing. We will
followup with some additional questions for the record.
Senator Capito. Thank you.
I believe Senator Kelly is on his way, so we will wait just
a few minutes, and while we wait, I want to ask an additional
question.
On the train derailment in Ohio several years ago, we had
testimony in this committee about EPA's role. We also heard
again, delays in cleaning it up. Part of the problem, from my
understanding, was that certain States decided, even though
they had certified, probably, EPA certified toxic, folks that
could take toxic material into their businesses, that is their
business, that certain States said, we do not want that in our
State. I believe Michigan, if I am recalling correctly, was one
of the States that said this.
Have you run into this type of issue as you are
remediating, either you, Mr. Fox, or Mr. Radel, where you have
had a refusal to accept toxic materials that you are taking? I
am assuming you do this, take it an EPA certified site. Is this
an issue?
Mr. Radel. My experience is that I have not run into that.
If we are going to an offsite location in whatever State it is,
that location is permitted to accept those hazardous wastes,
and they have a permitted facility that is either a landfill,
an incinerator, or whatever it might be.
They have the permit, you have the right DOT permits and
you have the right transporter, I have not seen an instance in
my experience where anything has been denied. We are using all
the proper protocol.
Senator Capito. Right. That is what I thought. Mr. Fox, do
you recall that?
Mr. Fox. There are two issues. One is, there is a limited
number of hazardous waste disposal sites. You do not have this
great selection.
I suspect that a lot of that was community opposition.
Senator Capito. It was.
Mr. Fox. Yes. That was, we do not want that. The facility
is properly permitted to accept it.
Senator Capito. Right.
Mr. Fox. The community says, I do not want that waste. You
are taking it off of there and putting it into my community.
I am assuming that was probably what was behind it.
Senator Capito. Yes, and it kind of blows up into a----
Mr. Fox. A political issue, as opposed to a regulatory
issue.
Senator Capito. Yes. I just hope--these are professionals
that are going to the letter of the law to be able to dispose
of this, and actually creating a business model that can help
you and help all these other sites. It was rather, I think kind
of shocking, not just to me but to them, that this was going
on, when these sites have been there forever, the cleanup
sites.
Mr. Fox. Trust me, to get a RCRA permit for a hazardous
waste disposal facility is a rigorous process.
Senator Capito. Right. My understanding as well.
All right, Senator Kelly.
Senator Kelly. Thank you, Madam Chair.
Mr. Gomez, good morning. I want to ask you for your
perspectives about a group of Superfund sites, the more than
500 abandoned uranium minds on the Navajo Nation. I have
discussed these frequently before this committee. I want to get
your perspective on how we address this issue.
First off, as you may know, the Navajo Nation is spread
across three States, actually four now with a little purchase
in Colorado. The majority of the Nation is in Arizona; it is
about the size of West Virginia, the Navajo Nation, in Arizona,
but it stretches into both Utah and New Mexico, and there are
abandoned mines in all three States, more than 500 of them.
As you may also know, those three States are all served by
different EPA regional offices. Arizona is Region 9, Utah is 8,
New Mexico is Region 6. While Region 9 is the lead office for
all issues on the Navajo Nation, we have run into issues
because of the split jurisdiction.
For example, mines just off of tribal land are coordinated
through other regional offices. Often it is other EPA regional
offices in New Mexico or Utah that have relationships with
hazardous waste landfills, contractors, and responsible parties
to carry out this mine cleanup.
Mr. Gomez, are you aware of other similar instances where a
group of Superfund sites stretch across EPA regions?
Mr. Gomez. That is a really good question, and I am not
aware that that is the case. We can look to see if other tribal
nations are sort of spanning across multiple EPA regions. At
this point, I can not recall one, but we will double check.
Senator Kelly. Okay. Congress has periodically established
geographic offices at EPA to help carry out programs within a
region that faces similar issues by virtue of geography,
including the Great Lakes Office or the Chesapeake Bay Office.
When it comes to Superfund cleanups, what role have these
offices played in helping to coordinate CERCLA efforts in a
more streamlined fashion?
Mr. Gomez. I am not sure that we have done work on that,
but we can look at that. I am obviously very familiar with the
Great Lakes Office, as you noted, that is a separate office as
well. We can look to see, to the extent that they have worked
with the EPA Region 5 in this case, for the Midwest, to see
whether they go back and forth and share information. That is a
good question.
Senator Kelly. Yes, I think, my sense is that they probably
do.
Mr. Gomez. Okay.
Senator Kelly. Another challenge that has been facing
cleaning up the Navajo Nation mines is that the remedial
actions identified for mine sites are extremely costly, and it
is technically challenging. In many instances, the preferred
solution would require digging up hazardous waste rock and
transporting it hundreds of miles to a waste repository.
This seems like a classic case of needing to find a new and
different technological solution to address this kind of
cleanup.
Mr. Gomez, what tools and authorities exist within the
Superfund program to help accelerate research and development
efforts to find new and more efficient and more cost effective
site cleanup methods?
Mr. Gomez. Currently, the Office of Research and
Development at EPA is the one that does a lot of that research
that the Superfund program relies on. For example, in toxicity
studies, on research on new technologies to make sure that the
remedies are working as intended.
There are those opportunities there that are currently
taking place, and go back and forth. You are right, that mining
sites are the sites that are very costly. In our past work,
when we have looked at the cost to remediate sites, mining
sites are pretty high, because of the things that you talked
about in terms of having to dig it out, transporting the waste,
removing it offsite, then treating it.
Those are challenges for EPA.
Senator Kelly. It is good that EPA has research and
development efforts underway to solve challenging problems like
this.
I will note that a lot of the west faces very similar
issues to what we are seeing on the Navajo Nation. I think the
entire region could benefit from the expertise of a geographic
office like the Great Lakes Office.
That is why Senator Lummis and I introduced legislation
called the Legacy Mine Cleanup Act, which would authorize an
Office of Mountains, Deserts, and Plains at EPA to address
issues unique to the western United States.
Madam Chair, I know we have had a good conversation with
your staff, and I hope to find a path forward for this
legislation through the committee process here in the coming
weeks.
Senator Capito. We will take a look at it. Thanks.
Senator Kelly. Thank you.
Senator Capito. I think Senator Whitehouse has a final
question.
Senator Whitehouse. If you do not mind, Chairman. Thank you
very much.
This is for Mr. Fox. You have obviously had a lot of
experience in this space. There is a phenomenon that I think is
real that I would like you to react to, which is that when
there is a focus on a particular Superfund site and there is a
particular potentially responsible party who has the deep
pockets to do the necessary funding to clean up the site, and
they become kind of a primary actor in that Superfund cleanup,
they can have motives of their own.
They can wish for control over how the remediation is done
and argue, hey, I am going to end up paying for this, I am
entitled to a voice in how it gets done. They can have the
desire for control over what happens with other potentially
responsible parties, and there have been cases in which the
primary target, if you will, the primary funder, stalls things
up to push EPA to look for a greater contribution from other
responsible parties.
Then they can have a third concern, which is that if they
can put a fixed expenditure on their books year after year
after year after year for this cleanup, so that it just does
not affect the bottom line particularly, then they have a
sudden incentive to draw out the remediation as long as they
can, both to keep the annual number under what they have
internally allocated as a problem, and because who knows?
Somebody might come along and throw out the whole EPA Superfund
team, and now they can come in and say, hey, we have all sorts
of new opportunities here to shut down our own responsibility.
It strikes me that the PRP is not necessarily the victim
entirely of bureaucratic delay, but in particular circumstances
can actually be a cause and protagonist in the question of
delay of the cleanup of the site. I would be happy to have you
respond to that now and I would also be happy to have you write
out a more thoughtful and complete answer, if you would like
to.
I see circumstances in which PRPs become part of the
problem and not part of the solution.
Mr. Fox. I think that is a fair question. It is a very
complex question, which I probably will have to write, but I
will just give you a couple of quick thoughts, if you do not
mind.
The first one is on the control over the remedy. I think it
is correct that private parties would like to control the
remedy.
Understand that the way the statute is written, ultimately
the decision on the remedy is always the agency's. Even if a
private party is under an order to suggest what the remedy
should be, the selection of the remedy is done by the agency
and the statute does not allow for pre-enforcement review of
that remedy selection.
There is only a certain amount of control you can get on
remedy selection.
The second point you made with respect to going against
other parties is undeniably correct. A central PRP is always
looking to spread those costs among other parties who are
liable, whether they do it through their own litigation or they
encourage EPA to pursue those parties. That is clearly a
dynamic that happens at site after site.
I would quibble with you a little bit on wanting to spread
out the costs over time. The reason I would quibble with that
is because the cost expands to fill the time. The longer these
go on, the costs increase, not just the transaction costs to
get to the remedy selection, but the cost of the remedy
increases as well.
I am not sure that in all cases it is actually in the
economic interests of the private party to say, let's string
this out over time. It may be better to have a more cost
effective remedy done quickly, and then try to spread those
costs among other parties.
I am happy to expound upon that in writing.
Senator Whitehouse. I think on that last point, while the
argument you have made may be the case in certain
circumstances, I do not think it obviates the prospect that
there are times in a large corporation when, to put something
under a cap so you know it is going to be forever, and you have
time value of money working in your favor because it is an out
year expenses that you are moving it out to, when the financial
object of the PRP's role becomes one that incentivizes delays.
Mr. Fox. I can not say that that never happens. I am just
saying it does not always happen that way.
Senator Capito. Okay, good. With no further questions, I
would like to thank the witnesses and all my colleagues for
participation.
Senators who wish to submit written questions for the
record have until 5 p.m. on Wednesday, April 23d, to do so. The
witnesses' responses to those questions are due back to the
committee no later than close of business Wednesday, May 7th,
and will be submitted for the record.
I would like to say just in closing that I think, first of
all, this has been an excellent hearing, because you are all so
knowledgeable on the issue, having lived it. I think we have
good bipartisan agreement here that the system is broken. We
have put more money into this recently. We want to see it
result in completions of these projects as much as you do.
Let's work together to try to find a solution, and
hopefully we can ameliorate some of the problems that have been
identified today.
Thank you very much.
Senator Whitehouse. I will second that emotion.
Senator Capito. Thank you. This hearing is adjourned.
[Whereupon, at 11:18 a.m., the hearing was adjourned.]
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