Superfund: Stronger EPA-State Relationship Can Improve Cleanups and
Reduce Costs (Chapter Report, 04/24/97, GAO/RCED-97-77).
A growing consensus has emerged in recent years among many in the
administration, state governments, and Congress that the states should
take on more responsibility for leading the cleanup of the Superfund
program's highest-priority sites, which are included on the
Environmental Protection Agency's (EPA) National Priorities List. This
report examines ways in which interested states can successfully assume
greater cleanup responsibilities at National Priorities List sites. GAO
discusses (1) the lessons learned from the experiences of five
states--Minnesota, New Hampshire, Texas, Washington, and Wisconsin--that
already have led National Priorities List cleanups and (2) how EPA can
ensure that interested states are successful in their efforts to assume
increased Superfund responsibilities.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: RCED-97-77
TITLE: Superfund: Stronger EPA-State Relationship Can Improve
Cleanups and Reduce Costs
DATE: 04/24/97
SUBJECT: Federal/state relations
Hazardous substances
Industrial wastes
Pollution control
Environmental policies
Environmental monitoring
Technical assistance
Waste disposal
Strategic planning
IDENTIFIER: Minnesota
Washington
Wisconsin
New Hampshire
Texas
Superfund Program
EPA National Priorities List
Washington Toxics Cleanup Program
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Cover
================================================================ COVER
Report to Congressional Requesters
April 1997
SUPERFUND - STRONGER EPA-STATE
RELATIONSHIP CAN IMPROVE CLEANUPS
AND REDUCE COSTS
GAO/RCED-97-77
Stronger EPA-State Relationship Improves Cleanups
(160337)
Abbreviations
=============================================================== ABBREV
Management Officials
CERCLA - Comprehensive Environmental Response, Compensation, and
Liability Act, as amended by SARA
DES - New Hampshire Department of Environmental Services
ELI - Environmental Law Institute
EPA - Environmental Protection Agency
GAO - General Accounting Office
MPCA - Minnesota Pollution Control Agency
PRP - potentially responsible party
NPL - National Priorities List
RCRA - Resource Conservation and Recovery Act
ROD - Record of Decision
SARA - Superfund Amendments and Reauthorization Act of 1986
SITE - Superfund Innovative Technology Evaluation
TAG - technical assistance grants
TNRCC - Texas Natural Resources Conservation Commission
WDNR - Wisconsin Department of Natural Resources
Letter
=============================================================== LETTER
B-276235
April 24, 1997
The Honorable John Chafee
Chairman, Committee on Environment
and Public Works
United States Senate
The Honorable Robert C. Smith
Chairman, Subcommittee on Superfund,
Waste Control, and Risk Assessment
Committee on Environment and Public Works
United States Senate
In response to your request, this report (1) examines the lessons
that have been learned from five states that have had significant
experience in leading Superfund cleanups and (2) identifies how the
Environmental Protection Agency (EPA) can help to ensure that
interested states are successful in their efforts to take on
increased Superfund responsibilities.
As arranged with your offices, unless you publicly announce its
contents earlier, we will make no further distribution of this report
until 30 days after the date of this letter. At that time, we will
send copies to the appropriate congressional committees; the
Administrator, EPA; and the Director, Office of Management and
Budget. We will also make copies available to other interested
parties upon request.
Please call me at (202) 512-4907 if you or your staff have any
questions. Major contributors to this report are listed in appendix
III.
Peter F. Guerrero
Director, Environmental Protection
Issues
EXECUTIVE SUMMARY
============================================================ Chapter 0
PURPOSE
---------------------------------------------------------- Chapter 0:1
With the enactment of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), the Congress
authorized the Environmental Protection Agency (EPA) to remedy
contamination resulting from the release of hazardous substances and
to compel the parties responsible for generating or disposing of
hazardous waste to help conduct or pay for its cleanup. CERCLA also
established a trust fund (the Superfund), which is financed primarily
by taxes on crude oil and certain chemicals. EPA uses the trust fund
to implement the cleanup program and to pay for cleanup activities.
Under EPA's regulations, the states may participate in remedial
actions within their boundaries, either cooperating with EPA on
EPA-led projects or taking the lead on the projects themselves.
A growing consensus has emerged in recent years among many in the
administration, state governments, and the Congress that the states
should take on more responsibility for leading the cleanup of the
program's highest-priority sites, which are included on EPA's
National Priorities List (NPL). As agreed with the offices of the
Chairmen of the Senate Committee on Environment and Public Works and
of its Subcommittee on Superfund, Waste Control, and Risk Assessment,
this report examines ways in which interested states can successfully
assume greater cleanup responsibilities at NPL sites. Specifically,
the report identifies (1) what lessons have been learned from the
experiences of five states that already have led NPL cleanups\1 and
(2) how EPA can help ensure that interested states are successful in
their efforts to adopt increased Superfund responsibilities.
--------------------
\1 The five states are Minnesota, New Hampshire, Texas, Washington,
and Wisconsin.
BACKGROUND
---------------------------------------------------------- Chapter 0:2
The Superfund program's implementation differs from that of most
other environmental programs in the level of involvement by EPA and
the states. EPA usually relies heavily on the states to develop
discharge permits, monitor facilities' compliance, take enforcement
actions, and perform other basic functions. EPA sets general program
direction, provides technical support, and exercises oversight
responsibilities. In the case of the Superfund program, however, EPA
has historically exercised a lead regulatory responsibility and a
direct role in cleaning up most NPL sites.
When a hazardous waste site is identified, a series of evaluations is
conducted to determine whether the contamination is serious enough to
include the site on the NPL. Once listed, the site becomes eligible
for remedial actions financed by the Superfund to permanently clean
up the pollution. To identify the most appropriate remedial action
at each NPL site, a study is conducted to (1) assess the types and
quantities of hazardous waste present and (2) consider alternative
cleanup remedies. After these studies are completed, a remedy is
chosen, documented in a Record of Decision (ROD), designed, and then
constructed. For each site, either EPA or its counterpart at the
state level is usually identified as the lead regulatory agency. In
some cases, the agency that does not have the lead may still be
relied upon to carry out certain cleanup activities. These
arrangements are typically specified in a Superfund memorandum of
agreement between EPA and the state cleanup agency.
Regardless of who has the lead, EPA ultimately pays for large
portions of most publicly funded NPL cleanups. Through cooperative
agreements with the states, EPA usually supports the cost of
preliminary activities, such as site investigations, and up to 90
percent of the actual cleanup costs. The states assume the ultimate
responsibility for all operation and maintenance activities. If
companies responsible for the pollution finance the cleanup work,
then they pay for the entire cleanup.
Of 1,300 NPL sites nationwide, the states have assumed lead
responsibilities for about 140 sites (although many perform key
responsibilities at EPA-led sites).\2 A number of factors in recent
years have led many to conclude that a greater state role in leading
NPL site cleanups would be desirable. Chief among these factors is
the difficulty that EPA has had in achieving timely cleanups at NPL
sites--a problem the agency expects to persist in light of continued
budget constraints. For their part, many states maintain that since
they are closer to both the resources within their boundaries and the
parties involved in cleanup activities, they are frequently in a
position to conduct cleanup operations more efficiently and
effectively.
--------------------
\2 The five states GAO visited account for about 40 percent of the
NPL sites nationwide for which the state is leading the cleanup.
RESULTS IN BRIEF
---------------------------------------------------------- Chapter 0:3
On the basis of GAO's review of the five states' cleanup programs,
two critical factors affect a state's ability to successfully lead
cleanups at NPL sites: (1) the ability of EPA and the state to
develop a constructive and efficient relationship that is
characterized by a clear division of responsibility and by a level of
oversight by EPA that is commensurate with the state's cleanup
capabilities and (2) the availability of technical and financial
support to help a state perform its additional responsibilities. In
connection with the EPA-state relationship, GAO found instances in
which EPA disagreed with the state's view that it could assume added
responsibilities without EPA's detailed oversight. On the positive
side, however, GAO found cases in which the elimination of a
duplication of effort by EPA and state regulators led to a more
efficient utilization of resources and an ability to achieve cleanups
more quickly and at a lower cost. A useful practice in establishing
this relationship has been an explicit agreement between senior
management representing both EPA and the state agency that
articulates each agency's responsibilities and the manner in which
EPA's oversight will be exercised. In connection with technical and
financial support, all of the states contacted by GAO indicated that
(1) the need for EPA's research and technical support will continue
and, in some instances, may increase as the states' cleanup
responsibilities grow and (2) the states' capability and willingness
to participate in future Superfund cleanups will also be contingent
on continued federal financial participation.
GAO identified a number of areas in which action by EPA could help
ensure that greater state involvement in the Superfund program leads
to effective and more efficient cleanups. In particular, EPA has yet
to develop criteria needed by its regions to determine and
communicate the circumstances under which the states may assume
increased responsibilities. Guidance is also needed to (1) promote a
consistent approach among EPA regions that reduces the duplication of
responsibilities by EPA and state regulators and (2) encourage the
use of explicit agreements between the two parties to document and
communicate the understandings reached. In connection with the
states' technical and financial needs, EPA has acknowledged that it
must play an increased role in this area, but it has yet to detail a
specific plan that identifies what the states'specific needs are and
how the agency will meet them. Without such a plan, there is little
assurance that these needs will be met.
PRINCIPAL FINDINGS
---------------------------------------------------------- Chapter 0:4
STATES' EXPERIENCES MANAGING
NPL CLEANUPS
-------------------------------------------------------- Chapter 0:4.1
EPA and the states have undertaken efforts in recent years to improve
the efficiency of cleanups at NPL sites by reducing the kind of
duplication of effort by EPA and state regulators that had occurred
frequently in the past. The five states visited by GAO demonstrate a
range of experiences in this matter; three of them--Minnesota,
Washington, and Wisconsin--have been given considerable independence
to manage cleanups on the sites for which they have been given the
lead. In Washington, for example, state and EPA officials both
reported that a formal written agreement between EPA's Seattle office
and the state's Department of Ecology, which divides the
responsibility for cleaning up the state's NPL sites between the two
agencies, has helped greatly to reduce both the acrimony and the
duplication of effort that characterized their past relationship.
According to an analysis by the state, the changes contributed
significantly to a reduction of about 35 percent in the number of
staff needed to oversee cleanups at NPL sites.
On the other hand, New Hampshire and Texas have disagreed with their
respective EPA regions over the optimal balance of federal and state
involvement in cleanups at NPL sites. In each case, state officials
maintained that overlap and duplication of effort resulted in less
efficient cleanups and objected to what they perceived as EPA's
excessive oversight of their efforts. While the EPA regional offices
acknowledged their states' improved cleanup capability, they cited as
reasons for their close supervision of the states' activities the
need to (1) protect the federal government's financial interests in
cleanups and (2) ensure that cleanups follow EPA's regulations.
While the five states visited are among the most experienced in
leading cleanups at NPL sites, officials in each state acknowledged
that they still need EPA's technical expertise to complete some NPL
cleanups. They stressed in particular the need for EPA's assistance
in developing innovative cleanup technologies and in evaluating their
effectiveness, especially bioremediation techniques being proposed by
responsible parties.\3 Among other things, the states also discussed
the need for EPA's technical assistance in assessing sites' health
and environmental risks, generating standards and technical guidance,
and sharing information across states and regions. EPA has
acknowledged that it will need to provide such assistance and has
established a workgroup to ascertain states' specific technical
needs.
In addition to the technical challenges involved in leading complex
hazardous waste cleanups, the states have also cited budgetary
constraints as a significant factor affecting their inclination and
ability to take on additional cleanup responsibilities at NPL sites.
All five states rely to some degree on funding from EPA, primarily
through a variety of cooperative agreements, to pay for their cleanup
efforts at NPL sites. The states also acknowledged that EPA has
maintained the lead responsibility for some sites that the states
have not been able or willing to lead--such as those with unusually
complex remediations or those involving large-scale emergency removal
actions. In addition, each state has, on occasion, used the threat
of turning a site over to EPA as a tool for encouraging cooperation
by responsible parties. Officials cited EPA's role as a backup
regulatory authority as an effective way to encourage reluctant
companies to participate in site cleanups, and agreed that the option
to use EPA in this manner should continue.
--------------------
\3 Bioremediation uses microorganisms to break down contaminants into
less harmful forms, such as carbon dioxide and water.
EPA'S ROLES TO ENSURE THE
STATES' SUCCESS IN LEADING
NPL CLEANUPS
-------------------------------------------------------- Chapter 0:4.2
EPA officials at both headquarters and in the regions acknowledge the
desirability of a greater state leadership role in cleaning up NPL
sites--a theme voiced earlier this year in a position paper prepared
by the Regional Superfund Division Directors. However, the lessons
learned from the five states visited by GAO suggest that a number of
issues need to be addressed for such a transition to be successful:
Improving the EPA-state working relationship. In cases in which
there is uncertainty and disagreement about a state's capability to
lead cleanups at NPL sites, EPA's "readiness" criteria could help to
guide and communicate decisions on the circumstances in which states
may assume these increased responsibilities. Acknowledging a need
for this type of guidance, EPA headquarters officials have
established a workgroup to develop a process for the regions to use
in assessing the states' current readiness and developmental needs.
GAO acknowledges EPA's effort but notes that its success will depend
heavily on the agency's approach. On the basis of past experience
with another hazardous waste program and the general agreement among
the state officials interviewed for this review, GAO concluded that
detailed and prescriptive criteria--prepared without adequate state
input--could actually prevent, rather than encourage, a greater state
leadership role in cleaning up NPL sites. In addition, the
experiences of Minnesota, Washington, and Wisconsin suggest that once
states are deemed ready to accept these responsibilities, an explicit
agreement is needed to divide responsibilities between state and EPA
regulators. Officials in New Hampshire and Texas also expressed
strong agreement with such an approach.
Providing technical support. Superfund program managers in the five
states agreed that as their role expands in managing Superfund
cleanups, they will continue to turn to EPA for technical assistance.
Similarly, representatives from some industry and environmental
organizations also called upon EPA to move away from directly
managing cleanups, when possible, and to target its efforts in the
Superfund program to providing greater technical support to the
states. In some cases, these officials called for a continued role
for EPA in providing current services, such as developing standards
and providing technical guidance for state regulators to use in
making cleanup decisions. In other instances, they called for a new
or expanded commitment from EPA, such as a wider effort to promote
information-sharing among the states, industry, environmental
organizations, and communities affected by hazardous waste sites.
Continuing financial support. Officials in all five states
emphasized that in light of their own budget constraints, they could
not accept additional Superfund responsibilities unless EPA continues
its historical role of providing general program support and
site-specific funding. Texas, for example, leads 11 of 28 cleanups
of NPL sites and is studying another 11 sites for possible inclusion
on the NPL. However, the state is also working on 47 non-NPL sites,
many of which involve extensive cleanups. According to the director
of the Texas Superfund program, the state is already having great
difficulty funding its NPL and non-NPL responsibilities, and can
therefore take on additional duties only if EPA continues to provide
funding. All of the other states visited cited budgetary constraints
as a major factor in their programs, a factor that may also limit
their ability to take on additional responsibilities for NPL site
cleanups without federal support. Acknowledging these constraints,
EPA plans to study different ways of improving the efficiency of its
financial support for the states' efforts to clean up NPL sites.
Developing a comprehensive strategy. EPA has acknowledged that it
must play an increased role in helping to meet both the technical and
financial needs of participating states. As of March 1997, however,
the agency had yet to develop a strategy that identifies what the
states' specific needs are and how to meet these needs. Without such
a strategy, there is little assurance that the states' technical and
financial needs will be adequately addressed. To its credit, EPA has
established workgroups to obtain input from states and other
participants on many of these issues. Pursuing this process to its
logical conclusion, by developing a comprehensive strategy to
overcome key technical and financial barriers, would provide the
states with the tools needed to assume a greater role in leading
cleanups at NPL sites.
RECOMMENDATIONS
---------------------------------------------------------- Chapter 0:5
GAO recommends that the Administrator, EPA, direct the Office of
Solid Waste and Emergency Response to work with state representatives
in developing the following:
Criteria identifying the requirements and circumstances under which
states may be granted additional responsibilities to clean up
NPL sites. The process of developing criteria should involve
the states' participation, and its outcome should be consistent
with EPA's expressed desire to encourage greater state
responsibilities in cleanups at NPL sites.
Guidance on how EPA regions and the states can best divide NPL
cleanup responsibilities at NPL sites. The guidance should
recommend use of an explicit agreement articulating each side's
responsibilities and should reinforce the agency's stated goal
of eliminating duplication of effort by the EPA and state
regulators who oversee the cleanups.
A detailed strategy indicating how the agency will meet the states'
technical and resource needs so that they may take a lead role
in successfully cleaning up NPL sites. Among the kinds of
technical support such a plan may include are (1) providing
technical assistance at specific sites, (2) identifying ways to
accelerate research on innovative technologies, and (3) serving
as a national clearinghouse for information on new cleanup
technologies and other best practices. Among the potential
elements of EPA's plan to help address the states' resource
constraints are strategies to (1) use federal funds efficiently
to assist state-led NPL cleanups, (2) continue leading cleanups
at certain NPL sites, and (3) have EPA continue to serve as a
backup regulatory authority in order to encourage cooperation
between state authorities and responsible parties that are
reluctant to clean up a site.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 0:6
GAO provided copies of a draft of this report to EPA for its review
and comment. GAO staff met with EPA officials, including the
Director of the State, Tribal, and Site Identification Center, within
the Office of Solid Waste and Emergency Response. The EPA officials
characterized the report as an accurate description of EPA-state
relations in the Superfund program and as providing useful insights
into how to better involve the states in the program. The officials
also expressed general agreement with all of GAO's recommendations.
Their specific comments on GAO's recommendations, along with GAO's
responses, are included at the end of chapters 2 and 3.
Officials in each of the five states contacted by GAO also reviewed
sections of chapter 2 describing their Superfund programs and their
relationship with their respective EPA regional offices. In each
case, the officials agreed with the thrust of the information
provided but offered clarifications and suggested revisions. These
changes were incorporated as appropriate.
INTRODUCTION
============================================================ Chapter 1
In 1980, the Congress enacted the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), commonly known as
Superfund. The act gives the Environmental Protection Agency (EPA)
the authority to respond to releases of hazardous contaminants from
waste sites and provides a trust fund financed primarily by taxes on
corporate income, crude oil, and certain chemicals. This fund may be
used for, among other things, long-term cleanups at sites included on
EPA's National Priorities List (NPL), a register of the program's
highest priority sites. The law also authorizes EPA to compel the
parties responsible for sites to clean them up or reimburse EPA for
the cleanup costs.
The Superfund program has historically been implemented directly by
EPA with varying levels of assistance by states. In recent years,
there has been discussion within the administration, in the Congress,
and among states and other interested parties of the potential for a
greater state role in leading the oversight of NPL cleanups. This
report examines such an increase in state responsibility, focusing on
how a transition toward greater state leadership in the program can
be accomplished in a manner that results in greater cost efficiency
and environmental benefit.
FEDERAL AND STATE ROLES UNDER
THE SUPERFUND PROGRAM
---------------------------------------------------------- Chapter 1:1
When a hazardous waste site is identified, a series of evaluations is
conducted to determine whether contamination is serious enough to
include the site on the NPL. Once listed, the site becomes eligible
for trust fund-financed remedial actions to permanently clean up the
pollution. To identify the most appropriate remedial action at each
NPL site, a remedial investigation and a feasibility study are
conducted to (1) assess the types and quantities of hazardous waste
present and (2) consider alternative cleanup remedies. After these
studies are completed, a remedy is chosen, documented in a Record of
Decision (ROD), designed, and then constructed. In the case of each
site, either EPA or its state counterpart is generally identified as
the lead agency. In some cases, the agency without the lead may
still be relied upon to carry out certain cleanup activities.
The Superfund program's implementation differs from that of most
other environmental programs in the level of involvement by EPA and
the states. EPA usually relies heavily on the states to develop
discharge permits, monitor facilities' compliance, take enforcement
actions, and perform other basic functions. EPA sets the program's
general direction, provides technical support, and exercises
oversight responsibilities. In the case of the Superfund program,
however, EPA has generally exercised a lead oversight responsibility
and a direct role in cleaning up most NPL sites. Today, the agency
leads about 90 percent of NPL cleanups. At many of these sites, the
states perform certain cleanup activities under EPA's overall
direction.
EPA and the states share the responsibilities and costs of publicly
financed cleanups, often through cooperative agreements. In such
cases, regardless of whether EPA or the state has the lead oversight
responsibility, EPA uses the trust fund to contribute 90 percent of
the cleanup costs for sites that were privately owned or operated and
at least 50 percent for sites that were operated by the state or
municipalities. The states assume the ultimate responsibility for
all operation and maintenance activities. If potentially responsible
parties (PRP), that is, the parties responsible for the contamination
at a site, can be identified, such parties often conduct the cleanup
operations and may be liable for all cleanup costs, including
operation and maintenance. EPA Superfund officials estimated that
about 70 percent of all cleanups are performed by PRPs.
CALLS FOR A GREATER STATE
LEADERSHIP ROLE IN CLEANING UP
NPL SITES
---------------------------------------------------------- Chapter 1:2
In recent years, however, a growing number of states have
demonstrated both the capability and willingness to assume a greater
role in overseeing NPL cleanups. For example, whereas few states
during the last decade possessed the capability to clean up
NPL-caliber sites, the Association of State and Territorial Solid
Waste Management Officials (ASTSWMO), whose membership includes
environmental officials from each state, maintains that a majority of
states are now capable of taking on the lead regulatory
responsibility for all or part of the Superfund process. The state
environmental officials we interviewed echoed ASTSWMO's contention
that states are often in a better position than the federal
government to take the lead in protecting their natural resources.
For its part, EPA's difficulties in addressing NPL cleanups in a
timely fashion also argue for a greater state role to help shoulder
the burden. The agency acknowledges that it has taken longer than it
would like both to evaluate sites for placement on the NPL and to
clean up these sites after evaluation. EPA officials have indicated
that budget and staffing constraints will continue to hamper the
agency and that EPA regions and states should form partnerships to
tackle cleanups at contaminated sites.
The question of an increased state leadership role in NPL cleanups
has also been the subject of congressional debate. The principal
comprehensive Superfund reauthorization bills introduced in the 104th
Congress (S. 1285 and H.R. 2500) would have authorized EPA to
delegate Superfund program responsibilities at NPL sites to the
states. These bills would have established procedures for
delegation, and would have limited EPA's authority at NPL sites for
which states had assumed responsibility. The comprehensive
reauthorization bill introduced in the Senate in the 105th Congress
(S. 8) contains delegation provisions similar to those in S. 1285.
OBJECTIVES, SCOPE, AND
METHODOLOGY
---------------------------------------------------------- Chapter 1:3
In light of the growing interest in having states lead more NPL
cleanups, this report examines how such a shift of responsibilities
could be carried out successfully. Specifically, as agreed with the
offices of the Chairmen of the Senate Committee on Environment and
Public Works and its Subcommittee on Superfund, Waste Control, and
Risk Assessment, this report identifies (1) what lessons have been
learned from five states that have already led NPL cleanups and (2)
how EPA can help ensure that interested states are successful in
their efforts to adopt increased Superfund responsibilities.
We addressed both of these issues during face-to-face interviews with
EPA and state Superfund officials, industry representatives, and
environmental officials, both in Washington, D.C., and in several
states (and their corresponding EPA regional offices). In
Washington, D.C., we interviewed EPA Superfund officials to
understand the agency's goals for providing greater program
responsibility to the states, and its plans for achieving these
goals. Among other things, this information included updates on the
work of several EPA workgroups examining issues that need to be
resolved for such a transfer of responsibilities to succeed. We also
interviewed officials with key national groups having a stake in the
Superfund program, such as ASTSWMO.
Much of our work focused on obtaining information on the experiences
of five states that have led a substantial number of Superfund
cleanups--Minnesota, New Hampshire, Texas, Washington, and Wisconsin.
In addition to their extensive experience in leading NPL cleanups,
other considerations in selecting these states included (1) the need
for diversity in the size of the states to better understand how an
expanded state NPL cleanup role could be undertaken in both large and
small states and (2) the need to select states in different EPA
regions, both to reflect the variation in the types of Superfund
sites across the country and to understand how different EPA regional
offices deal with their state counterparts.
In each case, we obtained information on the state's experiences in
leading NPL cleanups and asked state officials for their views on
federal actions needed to help ensure the success of an expanded
state Superfund role. We sought comparable information from
Superfund officials in the cognizant EPA regional office and from
industry and environmental officials. In each state visited, we
attempted to obtain quantitative information on the effects of
alternative program strategies (e.g., time and money saved by
eliminating duplication of effort by state and EPA regulators).
However, in the rare instances in which aggregate data were
available, the task was complicated by the difficulty in separating
the impacts of the strategy in question from other variables.
Nonetheless, we obtained anecdotal information where possible that
would at least provide quantitative insights into the effects of the
strategies analyzed and have included this information in the report
where appropriate.
Finally, to better understand how new strategies for improving
EPA-state relations can be used to achieve greater efficiency, we
also studied three Superfund sites in Minnesota, Texas, and
Wisconsin, interviewing many of the participants and obtaining
detailed information about each site's cleanup. These case studies
were used to provide tangible illustrations of the techniques
mentioned by the interviewees noted above and to obtain information
and perspectives from the participants directly involved in cleanup
activities, such as civic association representatives and local
community action groups.
We conducted our work from July 1996 through March 1997 in accordance
with generally accepted government auditing standards.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 1:4
We provided copies of a draft of this report to EPA for its review.
GAO staff met with EPA officials, including the Director of the
State, Tribal, and Site Identification Center, within the Office of
Solid Waste and Emergency Response, to obtain their comments. In
addition, officials in each of the five states contacted by GAO
reviewed sections of chapter 2 describing their Superfund programs
and their relationship with their respective EPA regional offices.
The comments of the EPA and state officials, and GAO's response, are
discussed at the end of chapters 2 and 3.
IMPROVEMENTS IN EPA'S RELATIONSHIP
WITH THE STATES CAN LEAD TO MORE
EFFICIENT CLEANUPS
============================================================ Chapter 2
We found a strong consensus among the EPA, state, industry, and
environmental officials interviewed that with states taking on more
Superfund cleanup responsibilities, the EPA-state relationship is of
paramount importance in affecting how efficiently Superfund cleanups
are conducted. In the past, the EPA-state relationship has often
been characterized by frustration and duplication of effort,
adversely affecting the number, timeliness, and cost of cleanups.
Recent changes in several of the states and regions visited, however,
demonstrate that a cooperative relationship, characterized by a
division of responsibilities among EPA and state regulators, and a
collaborative arrangement for resolving disagreements early, can lead
to a more efficient utilization of resources. A useful practice in
establishing this relationship has been a formal agreement between
senior management representing both EPA and state agencies, which
articulates each agency's responsibilities and the manner in which
EPA oversight will be exercised.
While some states are clearly capable and willing to lead NPL
cleanups, we found instances in which there was uncertainty and
disagreement about whether the state should be granted the added
responsibility. In such instances, clear criteria would be useful to
guide and communicate decisions on the circumstances in which states
may assume increased responsibilities. Similarly, headquarters
guidance could also help to promote a consistent approach among EPA
regions that reduces duplication of effort by state and federal
regulators and encourages a level of oversight that is commensurate
with each state's capabilities.
PROBLEMATIC EPA-STATE
RELATIONSHIP HAS IMPEDED PAST
NPL CLEANUPS
---------------------------------------------------------- Chapter 2:1
The states play a significant role in the implementation of the
Superfund program. States may apply to EPA to carry out cleanup
actions under Superfund, and if EPA determines that the state is
capable of carrying out such actions, it may enter into a contract or
cooperative agreement with the state. The Superfund Amendments and
Reauthorization Act of 1986 expanded the states' role by authorizing
states to carry out related enforcement actions pursuant to the
contract or cooperative agreement. EPA regulations provide that
"states may either assume the lead . . . for the response action
or may be the support agency in EPA-lead remedial response." Even
when EPA retains the lead, the regulations provide that EPA shall
"ensure meaningful and substantial state involvement" in site
cleanups.
An unintended effect of this arrangement has often been duplication
of effort by and frustration among EPA and state regulators. A 1993
analysis reporting the views of EPA and state officials on this issue
pointed out that "virtually every government interviewee stated that
the major problem in the federal/state relationship is duplication of
effort."\1 According to the study, some interviewees said that "the
agencies spend as much time negotiating between themselves as they do
with PRPs." These findings are consistent with the views articulated
2 years later by ASTSWMO, which made the following observation in a
January 1995 position paper:
"The current Superfund program is not utilizing the resources of
both the federal and state governments in the most efficient
manner possible. At those NPL sites where the state has been
designated the lead agency responsible for site cleanup and all
dealings with the responsible parties, EPA still reserves the
right to select and enforce its own remedy . . . . The
overall result of this approach is a duplication of effort by
EPA and state agencies about the cleanup remedy and cleanup
standards required at these sites. This produces a slower, more
expensive and cumbersome Superfund process overall."
--------------------
\1 David L. Markell, "The Federal Superfund Program: Proposals for
Strengthening the Federal/State Relationship," William & Mary Journal
of Environmental Law (Vol. 18:01).
STATES DEMONSTRATE A RANGE OF
EXPERIENCES IN LEADING CLEANUPS
---------------------------------------------------------- Chapter 2:2
Our review of five states demonstrated a range of experiences in
EPA's and the states' roles in managing NPL cleanups and provided
insights on the efficiencies achievable through a division of
responsibilities that reduces duplication of effort, including a
level of EPA oversight that reflects a state's capabilities. Three
states (Washington, Minnesota, and Wisconsin) have moved toward a
greater state role with more autonomy. The other two states (New
Hampshire and Texas) have not established clear divisions of
responsibilities with their respective EPA regional offices. In
these instances, EPA and state officials have disagreed about the
readiness of the states to assume additional responsibilities and on
the level of EPA oversight required.
EXPERIENCES OF THREE STATES
IN DIVIDING CLEANUP
RESPONSIBILITIES WITH EPA
REGULATORS
-------------------------------------------------------- Chapter 2:2.1
Faced with both limited state and federal resources and a growing
number of hazardous waste sites, Washington, Minnesota, and Wisconsin
have established clear understandings about a division of
responsibilities with their respective EPA regions to clean up sites.
Officials from both the regions and states agree that they now use
their resources more efficiently as a result. In particular, they
agree that the arrangements have minimized the duplication of effort,
allowed federal and state authorities to address more sites, and
improved the accountability for the site cleanups. The summaries
below describe (1) the situation that existed before the agreements,
(2) the steps taken to improve the situation, and (3) the benefits
expected or already realized from the changes made.
WASHINGTON
------------------------------------------------------ Chapter 2:2.1.1
Washington's Department of Ecology has been heavily involved in the
cleanup process for NPL sites for many years; currently, it has the
lead for 23 of the 58 NPL sites in the state. The Section Manager
for the Washington Department of Ecology's Toxics Cleanup Program
explained that the primary impetus for the state to be involved in
cleaning up NPL sites was the passage of the state's Model Toxics
Control Act in 1988--coupled with the state's sentiment that cleanup
should be a state responsibility. At the same time, a state
petroleum tax provided the funding to implement the law and enabled
Ecology's staffing to rise from zero just 10 years ago to about 145
staff today. The increased staff levels contributed to the state's
ability to develop its capabilities to handle the cleanup
responsibilities at sites.
As the state's involvement grew, it also sought to apply consistent
cleanup standards to both federal and state toxic waste sites.
Ecology's Section Manager explained that EPA applied federal cleanup
standards to NPL sites that were federal facilities, such as
Department of Defense or Department of Energy sites, and that these
standards could be less stringent than those provided under
Washington's new law.
EPA and state officials both acknowledged that as the state took on
added cleanup responsibilities for NPL sites, both Ecology and EPA's
Seattle office grew increasingly frustrated with the way cleanups
were being handled. For example, when a PRP prepared any cleanup
document, both agencies reviewed and provided comments to the PRP
rather than having just one agency comment on the plan. Ecology's
Section Manager said that the PRP then had to respond to two sets of
comments, causing delays and frustration. Additionally, sometimes
these comments were in conflict with each other, often conveying the
appearance that EPA did not use the state's more stringent cleanup
standards to clean up federal facilities. This perception led to
increased concern by Ecology that federal facilities were being
treated differently from those sites that private parties cleaned up
under the state law. For its part, EPA officials were concerned that
the state did not have the expertise or experience to oversee
cleanups adequately without substantial EPA oversight. According to
officials from both agencies, their relationship became dysfunctional
to the point of a serious breakdown in communication that was
seriously affecting the cleanup process.
Acknowledging both the deterioration in their working relationship
and the inefficiency of having both state and EPA regulators heavily
involved in the same sites, Ecology and EPA regional management
signed a formal agreement in October 1994 that clearly documented a
division of responsibilities for each agency.\2 The agreement
specified a lead agency for each of the state's sites, identifying
several to be jointly managed (sites requiring "enhanced" oversight).
According to Ecology's Section Manager, the agreement was based on
trust between the two agencies. That is, each agency trusted that
the other was capable of overseeing the cleanup activities and
reaching acceptable cleanup levels at the sites it had agreed to
lead.
In a marked departure from the previous arrangement, in which EPA was
heavily involved in all NPL sites, the two agencies agreed that if an
agency was not the lead agency for a site, it would be involved only
at a few critical milestone briefings. These briefings include (1) a
project planning briefing, in which the conceptual site model and
site management are discussed; (2) a remedy selection briefing, in
which the proposed Record of Decision (ROD) or cleanup action plan is
discussed; and (3) a briefing at the end of the cleanup process to
propose to remove the site from the NPL.
According to both Ecology and regional officials, the milestone
briefings have allowed the non-lead agency an occasion to monitor
progress and to ensure that the needs of all concerned parties are
being met. Ecology's Section Manager cited a cleanup at the Puget
Sound Naval Shipyard as an example, noting that EPA raised concerns
at one of the scheduled meetings that the Navy's proposed remedy
might not work. On the basis of this meeting and the analyses that
followed, the Navy, Ecology, and EPA selected a better remedy. He
added that the experience demonstrated that the new process works
well in identifying problems and disagreements early on--before
important decisions are made and have to be reversed.
The Ecology Section Manager said that the agreement has gone a long
way toward improving the destructive and counterproductive EPA-state
relationship of the past. He pointed out that the cleanup process
operates more efficiently now because EPA and state staff spend more
time on cleanup activities and less time trying to resolve conflicts.
When asked whether Ecology had data quantifying the improved
efficiency under the new arrangement, he responded that it is
impossible to isolate the impact of the new process from the numerous
other factors that affect the use of financial and staff resources.
However, he did cite a strong consensus among Ecology staff that the
agreement has greatly reduced the duplication of effort originally
experienced by the region and state. He also noted that since the
agreement, the staff resources needed to oversee NPL cleanups have
declined by approximately 35 percent from fiscal year 1994 (the year
before the agreement went into effect) to fiscal year 1997.
EPA's Seattle officials concurred with Ecology's views. For example,
the region's State/Tribal Coordinator and some of her staff told us
that they have been able to (1) put to rest disagreements about EPA
and state responsibilities, (2) reduce the duplication of effort by
the two agencies, and (3) spend more of their time and energy
addressing contaminated sites. In hindsight, however, the
Coordinator said that some measure for periodically evaluating how
the agreement between EPA and Ecology was working should have been
incorporated into the original agreement.
Members of the affected community also expressed their support for
the agreement between the two agencies. A local representative of
the Sierra Club commented that having a single regulator at a site
made it easier for the community to figure out who they should deal
with and also made it harder for governmental agencies to "pass the
buck" when assuming responsibility for cleanups. A lawyer who has
represented several PRPs involved in site cleanups, and has served on
Washington's Model Toxics Control Act Policy Advisory Committee,
shared similar thoughts. In his opinion, PRPs prefer to work with
one agency rather than two because the PRPs know who they need to
work with to clean up the hazardous waste site.
--------------------
\2 See app. I for a memorandum summarizing the agreement between
Washington's Department of Ecology and EPA's Seattle office.
MINNESOTA
------------------------------------------------------ Chapter 2:2.1.2
According to Minnesota Pollution Control Agency (MPCA) officials,
before any formal agreement was established between EPA's Chicago
office and MPCA, the agencies had a good working relationship and
achieved success in cleaning up sites in Minnesota. EPA either led
NPL site cleanups itself or provided oversight of the state's cleanup
actions. However, in some cases, EPA's Chicago office closely
monitored or duplicated the state's efforts, leading to some
inefficiency in the cleanup process. They noted instances in which
the state would submit a site work plan to EPA for review, and EPA
would take 30 to 60 days to respond. This process would then be
repeated for each phase of the cleanup. According to the officials,
issues that could be resolved quickly often took several months to be
resolved.
Both the state and the region realized that many sites in the region
still needed to be assessed and cleaned up. According to EPA
regional and MPCA officials, the state's strong track record enabled
it to assume lead responsibilities on 26 of the state's 31 NPL sites.
Moreover, the two agencies entered into an agreement whereby the
state was given near-total independence in overseeing the cleanups of
13 of these sites, all of which are PRP-financed sites.
Specifically, in fiscal year 1995, EPA and MPCA formally agreed to
establish an Enforcement Deferral Pilot Project to demonstrate full
accountability for state enforcement-led NPL sites without federal
oversight or intervention.\3 Noting that "the Deferral Pilot will
gather information that can be used to demonstrate MPCA's capability
for state authorization and/or referral," the agreement clearly
delineates the roles of both MPCA and EPA's Chicago office. The
agreement also allows EPA to devote its resources to other states
that need its assistance.
The MPCA utilizes state authorities to investigate and clean up these
sites, take enforcement action when necessary, and report site
cleanup progress to EPA on an annual basis. Importantly, EPA's
Chicago office defers to MPCA on site decisions and no longer
oversees MPCA on the designated sites. EPA does not review technical
or decision documents, and its concurrence is not required on RODs.\4
However, EPA does retain approval of 5-year reviews and final site
closeout reports for sites in which EPA had previously concurred on
the RODs.\5
According to the agreement established between EPA's Chicago office
and MPCA, the pilot project's success will be systematically
determined by (1) the capability of MPCA to meet all or a majority of
the targeted milestones on or before the targeted date, (2) the
quality of the remedies being implemented, and (3) the level of
community participation. All key participants agree that reducing
duplication by EPA and state regulators has already had positive
results. Under the current operating scheme, EPA's Chicago office
exercises substantially less oversight than in the past. MPCA
officials noted in particular that EPA has basically stepped away
from the sites included in the pilot and that MPCA staff have more
flexibility to make decisions than in the past to achieve a more
efficient cleanup. MPCA's Site Response Section Manager noted, for
example, that an MPCA project manager may realize that rather than
conducting a full site investigation, a more limited investigation is
all that is needed to determine the contamination levels and identify
the affected areas. In the past, the project manager would have
completed a full investigation in all cases, whether warranted or
not. MPCA officials also confirmed that, as agreed, EPA regional
staff have refrained from second-guessing MPCA on cleanup decisions.
The Coordinator of Minneapolis' Community Development Agency, who
also serves on an MPCA advisory committee, observed that EPA and MPCA
officials have found an appropriate middle ground for their working
agreement. He observed that EPA has basically stepped away from the
sites included in the pilot, and that MPCA staff are willing to take
a few more risks than in the past. He also noted that EPA has
avoided the temptation to second-guess MPCA on its cleanup decisions.
--------------------
\3 See app. II for the text of the agreement between MPCA and EPA's
Chicago office.
\4 EPA does review the ROD to ensure that the selected remedies are
protective of human health and the environment and that the decisions
made are not inconsistent with EPA's Superfund regulations.
\5 EPA conducts two types of 5-year reviews. Superfund's
reauthorization in 1986 called for 5-year reviews (statutory reviews)
at certain sites where a cleanup remedy was selected after 1986 and
where waste remains on site. EPA has also decided to conduct 5-year
reviews (policy reviews) at sites where the remedies were decided on
before 1986. According to EPA, the purpose of the review is twofold:
(1) to confirm that the cleanup technologies remain effective at
protecting human health and the environment, and (2) to evaluate
whether the original contamination cleanup goals remain protective of
human health and the environment.
WISCONSIN
------------------------------------------------------ Chapter 2:2.1.3
In the early 1980s, EPA led the initial NPL site cleanups in
Wisconsin. In subsequent years, however, Wisconsin's Department of
Natural Resources (WDNR) developed and implemented its own
comprehensive cleanup program. The agency increased its staff levels
and its capacity for leading NPL cleanups as part of a broader effort
to address all contaminated sites in the state. As it increased its
cleanup capacity, WDNR staff began assisting EPA with various aspects
of NPL site cleanups. More recently, according to both state and EPA
regional officials, both agencies saw advantages in expanding WDNR's
role in leading NPL site cleanups. According to WDNR officials, WDNR
management believed that the agency was in the best position to
protect the state's resources and that it had demonstrated that it
could handle the cleanup responsibilities. For its part, EPA's
Chicago region indicated that an expanded state role would allow it
to reduce duplication of effort and to concentrate its own efforts on
cleaning up other sites. Currently, the state has lead
responsibility for 8 of the state's 42 NPL sites and is actively
involved in most of the other NPL sites.
Unlike Washington and Minnesota, WDNR has not entered into a formal
written agreement between the agency and the region to clean up the
sites. Instead, as sites are considered for cleanup, WDNR and EPA's
Chicago office officials determine which agency should take the lead.
Oversight of state-led cleanups is somewhat stronger in Wisconsin
than in Washington or Minnesota--WDNR staff are required to keep the
responsible EPA regional staff informed of the site's cleanup
progress on a quarterly basis. In addition, the EPA regional office
must approve the ROD for each site and reviews other key decisions as
the site cleanup progresses.
Nonetheless, state officials told us that the state and EPA currently
have a very effective relationship. According to the officials, EPA
typically provides support and information on the Superfund cleanup
process while the state provides the expertise to specifically
address the contamination at the site. Through this cooperative
effort, they said, effective remedy decisions can more often be made.
The WDNR officials cited the Sauk County Landfill as an example. In
reviewing the ROD, EPA agreed with WDNR that since groundwater
contamination levels had decreased, WDNR could upgrade the existing
cap rather than build a new cap as the ROD suggested.
Our discussions with industrial and local community group
representatives supported the EPA Chicago office's and WDNR's efforts
to implement a more effective working relationship. For example, the
Director of Environmental Policy for Wisconsin's Manufacturers &
Commerce said that his members are interested in having the state and
EPA continue their new working relationship because it has simplified
the cleanup process. He explained that having one agency lead the
cleanup minimizes duplication of effort and helps the responsible
parties know who they need to work with to clean up a site. In
addition, the President of the Evergreen Property Owners Association,
who represents the community directly affected by the Sauk County
Landfill site, was very appreciative of the work the WDNR did and the
information they provided to the community. Also, because of the
clear working relationship between EPA and the state, the community
knew to direct their comments and concerns to WDNR rather than EPA.
BENEFITS OF DIVIDING
RESPONSIBILITIES BETWEEN
EPA AND THE STATE
------------------------------------------------------ Chapter 2:2.1.4
Washington, Minnesota, and Wisconsin, along with their respective EPA
regions, have experimented with ways to clean up NPL sites more
efficiently by dividing responsibilities among EPA and state cleanup
officials. Because numerous factors affect cleanup time frames and
costs, it is difficult to quantify the savings attributable to these
arrangements. Nonetheless, a strong consensus has emerged among the
state and EPA officials we interviewed that efforts to divide
responsibilities among EPA and state regulators have reduced
frustration among regulators, reduced the duplication of effort, and
allowed officials to address a larger number of hazardous waste
sites. These views were also supported by those of other
stakeholders we interviewed (i.e., industrial representatives,
environmental activists, and local community representatives), many
of whom added that having a single regulatory entity responsible for
the cleanup reduces confusion and identifies a single point of
accountability for the cleanup.
Table 2.1
State-Led NPL Sites and the Use of a
Written Agreement Between EPA and the
State Cleanup Agency
Federa
lly PRP- Written agreements
financ financ delineating cleanup
ed ed Leads Total responsibilities?
---------- ------ ------ ------ ------ --------------------------
Washington X 23 58 Yes
Minnesota X X 26 31 Yes
Wisconsin X X 8 42 No
New X 10 18 No
Hampshire
Texas X 10 28 No
----------------------------------------------------------------------
TWO STATES HAVE HAD MORE
DIFFICULTY DIVIDING
RESPONSIBILITIES WITH EPA
-------------------------------------------------------- Chapter 2:2.2
New Hampshire and Texas experienced greater difficulty both in
obtaining greater responsibilities for leading NPL cleanups and in
exercising the responsibilities they do have without detailed EPA
oversight. While both states have had instances of productive
collaboration with their regional counterparts, they have not
established the same kind of clear division of responsibilities as
have Washington, Minnesota, and Wisconsin. This situation reflects
different perceptions between each state and its regional office
about the state's readiness to lead key NPL cleanup functions.
NEW HAMPSHIRE
------------------------------------------------------ Chapter 2:2.2.1
To date, New Hampshire's Department of Environmental Services (DES)
has exercised the lead responsibility at 10 of the state's 18 NPL
sites. At each of the 10 sites, the state has received the lead for
certain phases of the cleanup, rather than responsibility for the
entire site.
DES officials told us that the state would like to assume the
responsibility for more sites and would like to exercise that
responsibility with greater authority. The Director of DES' Waste
Management Division explained that DES has long maintained that the
state's hazardous waste problems can be most efficiently dealt with
by the state, partly because it is "closer to the problem" and partly
because it has a better relationship with the affected public than
EPA regional staff. DES officials also told us that they have
demonstrated the technical and administrative expertise to
successfully lead NPL projects.
DES' Waste Management Division Director and his staff also maintained
that EPA's oversight is too heavy in those instances in which the
state does exercise the lead responsibility. They note, for example,
that all technical and legal reports (e.g., feasibility studies, site
inspection reports, and administrative orders on consent\6 ) must be
reviewed by both DES and EPA regional management. They maintained
that having duplicate reviews of all documents is inefficient and
adds to a project's time frames.
Officials from EPA's Boston office explained that in general, they
are less certain than the state about its abilities to handle
enhanced NPL responsibilities, particularly with a great deal of
independence. For instance, in the opinion of the Associate Director
of Site Remediation and Restoration in EPA's Boston office, the
state's enforcement authority is currently not as stringent as the
federal statute and could therefore complicate enforcement actions
against PRPs and cause significant cleanup delays. In addition, the
EPA officials said that they need to closely monitor the state-led
sites because federal dollars are being used to fund the cleanups.
Both DES and regional officials, however, cited instances of
productive cooperation between the two agencies. DES officials, for
example, cited the Auburn Road Landfill site in Londonberry, New
Hampshire (a state-led site), where DES and EPA agreed to diverge
from the selected remedy--saving about $10.5 million in cleanup
costs.\7 Moreover, the Boston region does acknowledge the need to
move toward an arrangement that provides the state with both greater
responsibilities and greater autonomy in leading NPL
sites--particularly in light of the region's own limited resources in
addressing a difficult cleanup workload. In fact, the Boston
office's Associate Director of Site Remediation and Restoration,
cited the arrangement between Washington's Department of Ecology and
EPA's Seattle region as a potential model, noting that their
agreement to divide their responsibilities may be "the way to go" in
addressing NPL cleanups with DES.
--------------------
\6 An administrative order on consent is an agreement between the
lead agency and a PRP settling all or part of a PRP's liability at a
site and generally requiring the PRP to make a cash payment or to
perform specified site response actions.
\7 Specifically, the original ROD would have required that
contaminated groundwater be extracted and treated on-site. The
estimated cost of this remedy was $12.4 million. However, New
Hampshire officials argued successfully that the state's groundwater
protection rules were adequate to protect human health and the
environment and that the state's proposed remedy would cost
significantly less. The Boston region amended the ROD accordingly,
resulting in a final remedy costing $1.9 million.
TEXAS
------------------------------------------------------ Chapter 2:2.2.2
Texas' Natural Resources Conservation Commission (TNRCC) is currently
leading 10 of the state's 28 NPL sites, all of which are
fund-financed sites. As in the case of New Hampshire, Texas and EPA
regional officials have disagreed about both the extent to which the
state should be allowed to lead more NPL cleanups and the degree of
EPA oversight that should be exercised.
The Manager of TNRCC's Technical Support Section and some of his
staff told us that the state has been interested in leading NPL
cleanups for many years, echoing the reasons cited by officials in
other states--they believe that it is inherently a state
responsibility to protect Texas' environment and that they are closer
to both the problems and the participants involved in addressing
them. In addition, they expressed particular interest in taking on
the responsibility to lead cleanups of PRP-led sites, asserting that
they are in a much better position to negotiate with PRPs than EPA.\8
TNRCC officials also discussed the level of EPA's oversight in
connection with some of the sites for which the state has had the
lead. The Manager of TNRCC's Technical Support Section noted that
historically, the region typically reviewed and approved each
decision, a process that proved to be cumbersome, time-consuming, and
demoralizing to state staff. For example, the Section Manager said
that cleanup progress at the North Cavalcade site in Houston was
delayed between 4 and 6 months while EPA reviewed the state
contractor's engineering estimates. The TNRCC officials also
acknowledged, however, that the state's more recent experience with
EPA's oversight of state-led sites has been less onerous than in the
past.
EPA's Dallas region sees the question of an increased state role in
different terms. In connection with the number of sites that Texas
could lead, the Dallas office's Superfund Branch Chief explained that
in the early 1980s, the region was reluctant to allow TNRCC to lead
PRP-financed sites. The PRP sites were fairly large, and the region
did not want to give the lead to the state since its experience was
still limited, given the newness of the Superfund program. Since
then, the Superfund Branch Chief said that the Texas sites listed on
the NPL have generally been fund-led sites. He said that if PRPs are
identified for a site, the state tends to work with the PRP to clean
up the site under the state statute. In addition, he said that TNRCC
already "has its hands full" with fund-led sites and probably does
not have sufficient resources to take on additional responsibilities.
The TNRCC Technical Support Section Manager disagreed with this
explanation. He said that the decision to allow the state to lead
only fund-financed sites was made unilaterally by the region. He
said that if provided with adequate resources, TNRCC could handle the
responsibilities of a PRP-financed NPL site and would welcome the
opportunity to do so.\9
In connection with Texas' concerns about oversight, Dallas regional
officials cited the region's responsibility to account for the
expenditure of Superfund dollars. The region maintains that this
responsibility requires it to prepare the ROD and track closely how
federal funds are spent in the cleanup process. While TNRCC's
Section Manager said that EPA would be remiss if it did not monitor
how the states were spending federal dollars, he reiterated his
concern about the intensity of EPA's oversight and the problems it
can cause.
--------------------
\8 This point was substantiated in our interview with a Senior Vice
President of the Texas Chemical Council, who cited TNRCC's simplified
procedures as one reason why PRPs generally believe cleanups can be
performed faster under state oversight than under EPA direction.
\9 As we discuss later in this chapter, the availability of criteria
to guide and communicate EPA's decisions in these circumstances could
help to achieve agreement on the delegation of responsibilities to
the states and could serve as a vehicle for the region to explain and
justify its decisions.
NEW HAMPSHIRE AND TEXAS:
DIFFICULTIES IN DIVIDING
RESPONSIBILITIES WITH EPA
------------------------------------------------------ Chapter 2:2.2.3
The experiences of both New Hampshire and Texas point to the state
and EPA officials' significantly different perceptions of the states'
capability to lead NPL cleanups without EPA's detailed involvement.
In each case, state officials have pointed to the inherent advantages
of a state lead, including their closer connection to both the
environmental problems within their state and to the key stakeholders
involved in addressing these problems. They also cited their
experiences to date cleaning up both NPL sites and the larger number
of non-NPL sites within their jurisdiction. Accordingly, they
objected strongly to what they perceived as their regions' reluctance
to allow them additional lead responsibilities and the regions'
intense level of involvement in those instances where a state lead
was allowed.
The two states' EPA regional offices, however, expressed a different
view. While the Boston and Dallas offices have both acknowledged
their respective states' improved cleanup capability, each has
questioned whether the state had the resources necessary to lead
PRP-financed sites. And having restricted state-led cleanups in New
Hampshire and Texas to fund-financed sites, these regions believed
their responsibility for tracking federal expenditures necessitated
an active role in overseeing the states' activities. In recent
months, however, Boston officials have acknowledged the need to move
toward a greater division of responsibility with New Hampshire on the
management of that state's NPL sites.
IMPROVING EPA'S WORKING
RELATIONSHIP WITH STATES
---------------------------------------------------------- Chapter 2:3
The experiences of the five states we visited make it clear that an
improved EPA-state working relationship can improve the timeliness
and reduce the costs of NPL cleanups. A key prerequisite is a
systematic determination, negotiated between the state and its EPA
regional office, of the responsibilities the state should be
permitted to handle. The negotiations should be guided by objective
criteria prepared jointly by EPA and representatives of state
Superfund offices. Once these responsibilities are decided, EPA must
establish an arrangement that clearly articulates the roles and
responsibilities of the state and its EPA region and that minimizes
duplication of effort.
CRITERIA WOULD HELP EPA
JUDGE STATES' READINESS
-------------------------------------------------------- Chapter 2:3.1
As noted in chapter 1, EPA has acknowledged that in order to more
effectively address the nation's hazardous waste sites, it needs to
rely more on states' growing interest and ability to lead site
cleanups. At the same time, the agency also acknowledges that states
have made tremendous progress in recent years in developing their own
state programs and have gained experience in cleaning up both NPL and
non-NPL sites. Studies such as the Environmental Law Institute's
(ELI) 50-State Study\10
lend support to EPA's claim. For example, when ELI first studied the
states' programs in 1989, half of the states were actively managing
cleanup activities at non-NPL sites. By 1995, 44 states were
actively managing non-NPL cleanups.
Nonetheless, the states vary in their capability to assume greater
NPL responsibilities. A recent position paper prepared by the
Regional Superfund Division Directors for the Assistant Administrator
for Solid Waste and Emergency Response noted, for example, that while
some states have authorities, cleanup standards, staffing, and
technical resources that match or exceed those of EPA, others have
few or no specific authorities for cleaning up contaminated sites, no
independent cleanup standards, and/or limited staffing and technical
resources. In such situations, national criteria on states'
readiness to lead NPL cleanups could help guide regions and states
through their negotiations as they decide which responsibilities the
states should assume and which should remain with EPA.\11
The experiences of New Hampshire and Texas illustrate how such
criteria could help to achieve agreement on the delegation of
responsibilities to the state, and perhaps to explain and justify the
decisions made. In each of these cases, the state's perception of
its capability to assume added responsibilities without detailed
regional oversight was at variance with that of EPA. Specifically,
the two states believed that their experience, resources, and
commitment demonstrated that they were capable of overseeing cleanups
of PRP-financed sites as well as fund-financed sites. Their
respective regions (Boston and Dallas) questioned whether the states
had the resources to oversee these cleanups. In addition, the Boston
office questioned whether New Hampshire had the legal authority to
take effective action against PRPs if necessary.
Without any objective criteria for decision-making, a regional
determination under such circumstances could perpetuate the
appearance of an arbitrary regional decision--a problem that was
cited in earlier years in connection with EPA's delegation of the
hazardous waste management program under the Resource Conservation
and Recovery Act (RCRA). In a 1990 EPA analysis of that program
entitled, "The Nation's Hazardous Waste Management Program at a
Crossroads," a federal/state roles subcommittee--which included
representation from both EPA and state cleanup agencies--noted that
"regions, states, and some headquarters officials [felt] that
standards for what constitutes adequate state capability [were]
unclear and a moving target." The report quoted one respondent as
noting that the standard for sufficient capability was "one of the
great mysteries of life."
To help avoid repetition of this problem, written criteria--prepared
with state input--could help to (1) communicate the region's
rationale in making its decision, (2) convey to the state a better
understanding of the decision and any deficiencies that would need to
be addressed in order for the state to assume the responsibilities it
seeks, and (3) help to ensure that decisions on this matter are based
more on an objective assessment of a state's readiness and less on an
individual regional manager's preferences. Officials in both the
Boston and Dallas offices said that having such criteria would be
useful in helping to determine if states can lead NPL site cleanups
and in justifying the regions' decisions.
A recent EPA headquarters effort suggests that EPA may already be
moving to establish criteria to assess states' readiness to assume
greater NPL cleanup responsibilities. Acknowledging the increasing
interest among the states to assume greater Superfund
responsibilities, EPA is seeking to establish minimum standards
against which the state could compare its current program. In doing
so, the state and its EPA regional office would know whether the
state was ready to assume greater cleanup responsibilities, or
whether certain improvements needed to be made first. The agency
therefore established a workgroup, made up of both EPA and state
officials, to develop a process for regions and states to use in
assessing states' readiness and developmental needs. According to
the leader of the State Readiness Workgroup, this process will
consider all major programmatic areas, including technical response
activities, enforcement, and financial management.
To date, the workgroup has met with officials from other
environmental programs to discuss the criteria they use and the
lessons they have learned in determining states' readiness to assume
greater responsibilities for those programs. In addition, the
workgroup has identified various aspects of the cleanup process, such
as site identification and enforcement, and is attempting to identify
the resources needed to carry out these responsibilities.\12
--------------------
\10 Environmental Law Institute, "An Analysis of State Superfund
Programs: 50-State Study, 1995 Update" (ELI Project No. 941724).
\11 The term "criteria" refers to the critical program elements a
state needs to handle its lead responsibilities. Other environmental
statutes establish criteria that states must meet before EPA approves
their programs. For example, a state wishing to administer a
hazardous waste program under the Resource Conservation and Recovery
Act (RCRA) must apply to EPA for authorization. Unless EPA finds
that the state's proposed program is not equivalent to the federal
program, or is inconsistent with the federal or other state programs,
or would not provide adequate enforcement of compliance with RCRA
requirements, the state is authorized to carry out its program.
\12 The concept of developing criteria to assess states' readiness to
lead NPL cleanups was also considered by the Congress last year, as
part of the larger question of how to encourage a greater state role
in NPL cleanups. Specifically, two Superfund reauthorization bills,
H.R. 2500 and S. 1285, would have established procedures for
delegation and limited EPA's authority at NPL sites for which states
had assumed responsibility. Recognizing that the decisions to allow
states to lead site cleanups should be made consistently, both bills
would have required states to certify that they had adequate legal
authority and resources to carry out the delegated cleanup
responsibilities. Specifically, H.R. 2500 would have required the
states to certify that they have the legal authority to ask for and
receive the requested delegation and to enforce the authorities
requested for delegation. States without approved RCRA corrective
action programs would also have had to certify that they had the
financial resources to administer and enforce the requested
authorities. S. 1285 would have required the states to certify that
they have adequate legal authority, resources, and public involvement
procedures to carry out delegated authorities. Under each bill, EPA
could deny a state's request for delegation if it found that the
state did not possess the legal authority or resources addressed in
the certification.
CRITERIA SHOULD
FACILITATE, NOT
COMPLICATE, A GREATER
STATE ROLE
------------------------------------------------------ Chapter 2:3.1.1
We believe such criteria would be an important ingredient in any
strategy to provide states with greater NPL cleanup responsibilities.
Their success, however, will depend heavily on the approach taken by
the agency. Specifically, detailed and prescriptive criteria could
have the effect of preventing, rather than encouraging, a greater
state leadership role in NPL cleanups. The state officials
interviewed generally told us that this had indeed been their states'
experience with the hazardous waste management program authorized by
RCRA--a view widely supported in the 1990 EPA report noted above.
Among other problems, the report noted that "rather than examining
the overall environmental effectiveness of a program, the states
believe EPA compares every aspect of a state's program to some
theoretical ideal." The report further observed that "states believe
they are held to higher standards than those by which EPA judges
itself" and that meeting EPA's requirements in the reauthorization
process led many states to "question whether receiving and
maintaining authorization is worth this extensive use of state
resources."
These sentiments were echoed by officials from most of the five
states we visited, who all expressed their desire that EPA's criteria
not be used to impose unnecessary and unwanted program requirements
that limit states' flexibility to tailor their programs to meet their
needs. Each maintained that a repeat of the RCRA experience would
indeed discourage their states from assuming greater Superfund
cleanup responsibilities.
One way to help ensure that criteria facilitate, rather than
complicate, greater state involvement in the program is to provide
for state representation throughout the criteria development process
and to ensure that states' views are reflected in the final product.
It would also be useful if the ground rules for criteria development
include an understanding that the final product must be consistent
with EPA's stated intention of providing greater opportunities for
states to lead NPL cleanups.
WORKING AGREEMENTS HELP TO
CLEARLY DELINEATE AGENCIES'
ROLES
-------------------------------------------------------- Chapter 2:3.2
Once states are deemed "ready" to handle an increased cleanup
responsibility, they need an effective and efficient working
relationship with their EPA regional offices for the cleanup process
to work as intended. Such a relationship would minimize the
duplication of effort by both agencies, allowing both to use their
limited resources most effectively. The need for such an approach
was highlighted in the Regional Superfund Division Directors'
position paper cited above, which noted that:
"EPA regions and state agencies should form partnerships to
address contaminated sites. They should divide the work, using
both state and EPA funds and enforcement tools and resources,
minimizing overlap. The division of work will differ in each
state, based on the workload, interests, and resources of the
state and the EPA region . . . . EPA regions and states
should consult on a regular basis about their division of labor
on specific sites."
We found that EPA regions and their states could best achieve an
effective working relationship through an explicit agreement that
clearly divides EPA and state responsibilities. This lesson became
most abundantly clear in the case of Washington, where preexisting
conflict had led to paralysis among state and EPA regulators, to the
detriment of other participants and the cleanup process as a whole.
In this case, a written agreement signed by regional and state
management served both to institutionalize the arrangement and
communicate it to staffs of both agencies, PRPs, and other
participants in the cleanup process at all of the state's NPL sites.
Few states have achieved the division of responsibility experienced
by Washington and EPA's Seattle office. But it is reasonable to
assume that other states and regions could benefit from a systematic
analysis of how their efforts could better complement rather than
duplicate each other. In the cases of Texas and New Hampshire, for
example, efficiencies could still be achieved by reconsidering
whether all documents need to be approved by both state and EPA
authorities, or whether all state actions should require EPA's
approval before going into effect. Officials from each of these two
states supported this concept as an opportunity to eliminate much of
the duplication of effort that has affected their program. Their
respective regions, however, did not see a real need for an
"umbrella" type of agreement. Both the Associate Director of EPA's
Boston Office of Site Remediation and Restoration and the Branch
Chief of EPA's Dallas Superfund Division said the roles and
responsibilities are clearly delineated in each of the cooperative
agreements established between the region and state when the state
accepts the lead responsibility for a particular site.
EPA headquarters, however, recently established a workgroup to
promote agreements between states and EPA on how best to develop an
enhanced state role in cleaning up NPL sites. EPA created this group
in order to be in a better position in the event that Superfund is
reauthorized and provisions are included to enhance the states'
cleanup role. The group is made up of both EPA and state
representatives. According to the leader of the State-EPA Agreements
Workgroup, they are attempting to develop a model agreement to be
used by regions and states. Clearly defined EPA and state roles will
be critical components of the agreement. This workgroup is
cooperating with the other three workgroups and hopes to have its
model agreement drafted in the spring of 1997 based on the results of
the other workgroups and ongoing efforts to reauthorize Superfund.
We believe that the model agreement growing out of this workgroup's
efforts could help to promote greater efficiency in NPL cleanups
across the country. But much depends on the philosophy behind the
exercise. Specifically, the agreement should reinforce the position
stated by the Regional Superfund Division Directors' position paper,
and other parties within EPA and among the states, that the Superfund
cleanup process must move toward a greater division of
responsibilities between EPA and state regulators, and with a level
of EPA oversight that is commensurate with the states' cleanup
capabilities.
CONCLUSIONS
---------------------------------------------------------- Chapter 2:4
The concept of providing the states with greater responsibility to
manage Superfund NPL cleanups has broad support among EPA, the
Congress, and many other participants in the cleanup process.
Moreover, many states have substantially augmented their capabilities
to lead Superfund cleanups in recent years and have expressed an
interest in taking on these responsibilities. However, as the
regions move forward in making decisions about which responsibilities
should be delegated to individual states, clear EPA criteria will be
needed to help regions (1) communicate the rationale behind their
decisions to the affected states and (2) convey to the states a clear
understanding of any deficiencies that would need to be addressed in
order for them to assume the responsibilities they seek. Such
criteria would also help to ensure that decisions on this matter are
based on an objective assessment of a state's readiness. To avoid
repeating the problems widely acknowledged by EPA and state officials
as affecting the development of criteria under EPA's RCRA program,
the criteria should be developed with state input and should be
prepared in a manner that is consistent with EPA's stated intention
of providing greater opportunities for states to lead NPL cleanups.
Once these decisions are made, EPA and the states need a constructive
and efficient working arrangement characterized by a clear division
of responsibilities and a level of EPA oversight commensurate with
each state's capabilities. A useful practice in establishing this
relationship has been an explicit agreement between senior management
representing both EPA and state agencies, which articulates each
agency's responsibilities and the manner in which EPA's oversight
will be exercised.
RECOMMENDATIONS TO THE
ADMINISTRATOR, EPA
---------------------------------------------------------- Chapter 2:5
We recommend that the Administrator, EPA, direct the Office of Solid
Waste and Emergency Response to work with state representatives in
developing:
Criteria identifying the requirements and circumstances under which
states may be granted additional responsibilities to clean up
NPL sites. The criteria development process should involve
state representation and its outcome should be consistent with
EPA's expressed desire to encourage greater state
responsibilities in NPL cleanups.
Guidance on how EPA regions and states can best divide NPL cleanup
responsibilities. The guidance should recommend use of an
explicit agreement articulating each side's responsibilities and
should reinforce the agency's stated goal of eliminating
duplication of effort by EPA and state regulators overseeing NPL
cleanups.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 2:6
EPA officials said that we provided an accurate description of
EPA-state relations in the Superfund program, including how past
problems (such as duplication of effort) impeded cleanups and how a
better working relationship could improve the cleanup process. They
also agreed with our assessment that states have demonstrated a range
of experience in leading NPL cleanups. They agreed with our
recommendation that EPA develop criteria under which states may be
granted additional responsibilities and noted that it was consistent
with work being undertaken by the agency's State Readiness Workgroup.
They acknowledged the problems we identified with past efforts to
develop criteria under the RCRA program and agreed with our
recommendation that the outcome of the criteria development in the
Superfund program must be consistent with EPA's expressed desire to
encourage greater state responsibilities in NPL cleanups.
The officials also agreed with our recommendation calling for
guidance on how EPA regions and states can divide NPL cleanup
responsibilities, again noting that the agency is examining this
issue through another workgroup. The officials did not address the
specific recommendation calling for an explicit agreement
articulating EPA and state responsibilities for states' NPL sites.
We acknowledge the efforts of the agency's workgroup in this area.
On the basis of our findings during this review, we continue to
believe that the agency's efforts will stand a greater chance of
achieving their goals on this matter if those efforts (1) encourage
the use of an explicit agreement articulating both EPA and state
responsibilities and (2) result in guidance that is consistent with
EPA's stated goal of eliminating duplication of effort by EPA and
state regulators.
Officials in each of the five states reviewed sections of this
chapter describing their Superfund programs and their relationship
with their respective EPA regional offices. In each case, the
officials agreed with the thrust of the information provided but
offered clarifications and suggested revisions. These changes were
incorporated as appropriate.
STATES WILL NEED TECHNICAL AND
FINANCIAL SUPPORT IF THEY ARE TO
ASSUME GREATER SUPERFUND
RESPONSIBILITIES
============================================================ Chapter 3
A positive and constructive EPA-state relationship is important but
will only go part of the way toward enabling the states to carry out
additional NPL cleanup responsibilities successfully. Most face
technical and resource limitations in expanding their NPL cleanup
role--especially given the magnitude and complexity of these sites.
Officials in each of the five states visited acknowledged that they
have used, and must continue to use, EPA's considerable technical
expertise and resources to complete many NPL cleanups. They stressed
in particular the need for EPA's technical assistance in developing
innovative cleanup technologies and in evaluating the effectiveness
of such technologies. The states also discussed the need for EPA's
technical assistance in, among other things, assessing the health and
environmental risks of sites, generating standards and technical
guidance, and sharing information across states and regions. EPA has
acknowledged that it will need to provide such assistance but has yet
to develop a plan that identifies specific state technical needs and
a strategy to meet them.
In addition to the provision of technical support, officials in the
five states unanimously maintained that continued EPA involvement in
certain areas is needed to keep an expanded state NPL cleanup role
from imposing an unacceptable resource burden on the states. In
particular, they noted that EPA will need to continue leading
cleanups at some sites involving unusually large and complex
remediations, large-scale emergency removal actions, or cases in
which a PRP cannot be identified ("orphan" sites). In addition, each
state has, on occasion, used the threat of turning a site over to EPA
as a tool for encouraging cooperation from PRPs. Officials cited
this EPA role as an effective way to encourage reluctant PRPs to
participate in site cleanups and agreed that the option to use EPA as
a backup regulatory authority should also continue.
In addition, each state maintained that the federal government needs
to continue its financial commitment to NPL site cleanups. All five
states rely to some degree on EPA funding, primarily through a
variety of cooperative agreements, to support their current level of
participation in NPL cleanups. Officials in each state maintained
that while their respective states are willing to take on more of the
federal government's traditional role in leading NPL cleanups, they
are not in a position to assume an additional financial burden of
cleaning up these sites.
STATES LEADING NPL CLEANUPS
LOOK TO EPA FOR TECHNICAL
SUPPORT
---------------------------------------------------------- Chapter 3:1
Officials in the five states we visited indicated that they rely upon
EPA, to varying degrees, for technical assistance to help them lead
Superfund cleanups. In particular, these officials mentioned that
they rely on the agency to (1) provide expertise and advice about
technical issues that arise at specific state-led sites, (2) conduct
and fund research having potential applications for hazardous waste
cleanups, and (3) develop standards and technical guidance. All
agreed that their needs in these and other areas will continue if
they take on additional program responsibilities. In addition to the
state officials, other stakeholders in the Superfund process, namely
industry representatives and environmental organizations, also cited
instances in which they have relied, and expect to continue to rely,
upon EPA for technical support.
SITE-SPECIFIC ASSISTANCE
-------------------------------------------------------- Chapter 3:1.1
One of the key ways in which EPA has provided assistance to the
states leading Superfund cleanups has been to offer technical
expertise at state-led NPL sites. Officials described two situations
in which EPA has offered valuable technical assistance:
The agency has provided expertise on complex issues that are beyond
the state's own in-house technical capability.
States have used EPA as a consultant, or "sounding board," in
dealing with difficult problems or making difficult decisions.
One area in which EPA has provided particularly valuable expertise
has been in helping evaluate innovative technologies proposed as
remedies for NPL sites. As an example, New Hampshire officials cited
EPA's assistance in evaluating an innovative remediation strategy
proposed by a PRP for the Dover Municipal Landfill. The proposal
involved bioremediation, which uses microorganisms to break down
contaminants into less harmful forms, such as carbon dioxide and
water. The officials indicated that the state did not have staff
with the necessary knowledge to evaluate this proposal on their own,
and therefore they relied on a bioremediation expert from one of
EPA's Environmental Research Laboratories to help in evaluating the
proposal's feasibility. They found the EPA scientist's assistance
extremely helpful, noting that this expert also suggested ways to
pilot test the proposal's effectiveness before a final remediation
decision was made. On the basis of the scientist's advice and
guidance, state officials eventually concluded that the remediation
would indeed be effective and would cost about $10 million less than
the traditional pump-and-treat and capping remediation that would
otherwise have been used at this site.
Some of the state officials indicated that they also have found EPA
to be a valuable sounding board to get a second opinion on how to
handle technical problems at sites. For example, officials from
Texas indicated that some of their counterparts in EPA's Dallas
office have served as effective problem solvers on a number of
technical and/or engineering issues. Likewise, the state project
manager for the Centralia Municipal Landfill NPL site in Washington
described how helpful it was to "have the ability to check in with
EPA" on technical and policy issues. She explained, for example,
that it was useful to ask her EPA colleagues how to assess arsenic
contamination data at the site, particularly because the site is
located in an area with high background levels of the contaminant.
She said that getting a second opinion on such matters from EPA was
particularly valuable because the EPA staff could draw on the
agency's experiences in other states.
RESEARCH
-------------------------------------------------------- Chapter 3:1.2
In addition to obtaining site-specific technical assistance from EPA,
state officials have relied, to varying degrees, upon EPA for
research support. State officials told us that conducting or funding
such research is beyond the capabilities of most states. Some
officials also commented that such efforts would be inefficient for
each state to do on its own.
Some of the state, industry, and environmental stakeholders were
especially interested in EPA's efforts to promote the development of
cost-effective, innovative cleanup technologies.\1
Some cited the Superfund Innovative Technology Evaluation (SITE)
program as a particularly useful EPA effort. Through the SITE
program, EPA, among other things, provides financial assistance to
developers of new technologies undergoing laboratory tests and
disseminates information about the cost, performance, reliability,
and applicability of new technologies.\2
--------------------
\1 EPA considers a technology to be innovative if it has not been
used in a full-scale application or if it is the first-time
application of an existing technology to a new contaminant.
\2 For more information about the SITE program, see Superfund: Use
of Innovative Technologies for Site Cleanups (GAO/T-RCED-96-45).
STANDARDS AND TECHNICAL
GUIDANCE
-------------------------------------------------------- Chapter 3:1.3
As with research support, some state officials, as well as some
industry stakeholders, indicated that they look to EPA to provide
standards and technical guidance on a variety of matters. For
example, EPA has guidance for assessing risks at Superfund sites as
well as for selecting remedies for these sites.
Part of EPA's remedy selection guidance, dealing with presumptive
remedies, was cited by several stakeholders as being very helpful in
achieving timely and cost-effective cleanups. These documents
describe how to study particular types of sites (e.g., municipal
landfills or sites contaminated with particular chemicals) and then
offer the remedies likely to be useful for those sites. In addition,
the Wisconsin Department of Natural Resources' site manager for the
Sauk County Landfill cited as being very helpful EPA's guidance on
conducting remedial investigations/feasibility studies at municipal
landfills. According to this official, following this guidance
allowed early action to be taken toward capping the Sauk County site,
which ultimately cut more than a year from the time needed to
complete the remediation.
EPA'S FUTURE ROLE IN PROVIDING
TECHNICAL ASSISTANCE
---------------------------------------------------------- Chapter 3:2
Superfund program managers in the five states agreed that as their
states continue to take a larger role in managing Superfund cleanups,
they will continue to turn to EPA for technical assistance.
Similarly, some representatives from industry and environmental
organizations also called upon EPA to move away from directly
managing cleanups, when possible, and to target its efforts in the
Superfund program to providing greater technical support to the
states. In some cases, these officials called for a continued EPA
role in providing current services, such as in developing standards
and technical guidance for state regulators to use in making site
cleanup decisions. In other instances, they called for a new or
enhanced EPA role, such as a more concerted effort to serve as a
clearinghouse that promotes information sharing among states,
industry, environmental organizations, and communities affected by
Superfund cleanups.
Some of the state officials said that the overall need for EPA's
technical assistance will not only continue, but may well
increase--particularly since many of the states taking on greater NPL
cleanup responsibilities will generally have greater technical
assistance needs than the relatively experienced states discussed in
this report.\3 For example, technical training needs were discussed
by representatives of "small states" at the August 1996 Superfund
Managers' Conference sponsored by ASTSWMO. In discussing the states'
anticipated increased role in the Superfund program, the
representatives of these states indicated that they would need
considerable technical training from EPA in order to take on greater
Superfund responsibilities.
EPA has acknowledged its responsibility to meet this challenge but
has yet to detail a specific plan that systematically identifies
states' needs and how the agency intends to meet these needs.
Without such a plan, there is little assurance that states' technical
needs for site-specific assistance, new and more efficient cleanup
technologies, and other technical information will be met. On the
basis of our discussions with state and EPA officials and with
industry and environmental representatives, the following describes
some of the needs that such a plan may address.
--------------------
\3 As noted in chapter 1, the five states were chosen in large part
because they already have had significant experience leading NPL
cleanups.
CONTINUED NEED FOR
SITE-SPECIFIC TECHNICAL
ASSISTANCE
-------------------------------------------------------- Chapter 3:2.1
The state officials interviewed agreed that while their cleanup
capabilities will continue to increase over time, they will still
need to draw upon EPA's technical resources and expertise on
site-specific matters. For example, some mentioned the need for
continued EPA assistance in evaluating innovative remedy proposals at
state-led sites and for EPA's advice on complex technical or
engineering questions as they arise at specific sites.
Some officials also suggested creative ways in which future EPA
assistance could be made available. Officials from EPA's Seattle
office, for example, suggested that states may be able to take
greater advantage of EPA's pool of technical contractors. They noted
that in some circumstances, EPA's contractors may possess expertise
(e.g., cleaning up radiation waste) unavailable at either the state
or EPA. They suggested that the agency would still need to work
through the procedures by which states could tap into such contractor
expertise.
CONTINUED NEED FOR EPA
RESEARCH ON INNOVATIVE
CLEANUP TECHNOLOGIES
-------------------------------------------------------- Chapter 3:2.2
Officials from all five states, as well as other stakeholders,
indicated that EPA will need to expand its support for research and
development, emphasizing the need for research on innovative,
cost-effective hazardous waste cleanup technologies. They cited a
number of factors driving the need for such technologies, including
(1) the increasing number of hazardous waste sites (both NPL and
non-NPL sites), (2) constraints on state and federal cleanup budgets,
(3) the increasing costs of remediation, and (4) the need to
encourage the redevelopment of such sites, which they believe is not
likely to happen without cost-effective cleanups.
These officials suggested a number of ways in which EPA's research
role could be expanded, such as providing additional grants to
support university and private sector research. One state official
suggested that EPA could work with private companies to develop new
products or techniques useful in hazardous waste cleanups. In
return, the companies could get an "EPA endorsement" of their
products or techniques. Others suggested that EPA could use
fund-financed sites as demonstration projects for testing innovative
cleanup technologies. Under this strategy, Superfund, not private
PRPs, would absorb the financial risk if an innovative technology did
not work and a second, more traditional remedy had to be used
instead.
Several state officials expressed strong interest in future research
that would allow greater use of bioremediation in cleanups. On the
basis of applications of the techniques to date, bioremediation is
seen by many as holding promise for future cleanups. According to
the Section Manager of Washington's Toxics Cleanup Program, for
example, the state's experience suggests that while a cleanup using
bioremediation may take longer than one using more traditional
engineering methods, the cleanup using bioremediation can be more
cost-effective.
NEED FOR EPA TO PLAY A
GREATER ROLE AS AN
INFORMATION CLEARINGHOUSE
-------------------------------------------------------- Chapter 3:2.3
Many of the state, industrial, and environmental officials we
interviewed said that while they use EPA as a source of information
on a variety of technical issues, the agency's central role in
addressing the nation's hazardous waste problems should allow it to
serve more effectively as a national clearinghouse. State officials
and others in the cleanup process consistently told us that they want
EPA to provide easier access to information about what is happening
at other NPL sites across the country. The information needs they
mentioned included such items as toxicological data about chemical
contaminants and advice from community organizations with experience
in promoting effective public participation in the Superfund process.
The most frequently cited need, however, was for information about
innovative cleanup technologies. For example, officials from the USX
Corporation, a steel and energy company, told us that having been
involved at more than 80 Superfund sites, they have been frustrated
when EPA or state regulators from one region or state were reluctant
to consider the company's success in using innovative remedies at
other sites with similar contamination problems. The USX officials
said that it would be helpful if EPA headquarters could disseminate
this kind of information to EPA regional staff and state regulators
and encourage them to consider these alternatives' success at
different sites around the country. According to the USX officials,
this practice would also help promote consistency in the cleanup
decisions being made from one region of the country to another.
AN OVERALL STRATEGY WOULD
HELP EPA MEET STATES' FUTURE
TECHNICAL ASSISTANCE NEEDS
-------------------------------------------------------- Chapter 3:2.4
Aside from the specific roles suggested above, a well-focused
strategy would help EPA identify states' future technical assistance
requirements and help ensure that those requirements are met. The
need for such a strategy has indeed been recognized by some within
the agency, including the Regional Superfund Division Directors. In
their July 1996 position paper, for example, they noted that states'
technical capabilities vary widely and suggested a number of areas in
which the agency could augment its technical assistance (many of
which were also identified during our interviews).\4
In addition, EPA formed a workgroup last year to address these
issues. According to officials in EPA's State, Tribal, and Site
Identification Center, the workgroup has begun to gather perspectives
from state officials about their technical assistance needs and
expectations. We believe this is an important prerequisite toward
addressing the issues raised in this chapter by the state, industry,
and environmental representatives contacted during our work.
Completing this information-gathering exercise, and then following
through with a systematic plan identifying how these needs will be
met, would go a long way toward providing states with the tools they
need to assume greater NPL cleanup responsibilities.
--------------------
\4 Specifically, the position paper identified the need for
site-specific technical assistance to support state implementation of
investigations and cleanups; assistance on risk assessment and
sampling methods; and access to information on innovative
technologies.
STATES LEADING NPL CLEANUPS
LOOK TO EPA FOR ASSISTANCE IN
MEETING RESOURCE NEEDS
---------------------------------------------------------- Chapter 3:3
In addition to the technical challenges involved in leading complex
hazardous waste cleanups, states have also cited budgetary
constraints as a significant factor affecting their inclination and
ability to take on additional NPL cleanup responsibilities. State
officials asserted that federal dollars currently support significant
segments of their programs and constitute the greatest portion of
most publicly funded NPL cleanups. Overwhelmingly, these state
officials said that their states' budgets could not support new
Superfund responsibilities without continued federal financial
support. They also said EPA can help states conserve their resources
by (1) continuing to lead some cleanups and (2) retaining its
capacity to act as a backup regulatory authority to encourage
recalcitrant PRPs to cooperate with state cleanup authorities.
STATES DEPEND ON FEDERAL
FUNDING
-------------------------------------------------------- Chapter 3:3.1
Officials from all five states acknowledged that EPA's financial
support has been instrumental both in assisting them to build and
maintain their Superfund programs and to carry out site-specific
work. EPA's main vehicle for providing the states with such
financial support is the cooperative agreement. Cooperative
agreements support agency funding for non-time-critical removal
assistance, enforcement assistance, pre-remedial and remedial
planning, and remedial actions, and provide funding for core grants.
Core grants provide the states with general program management
assistance, such as recordkeeping and computer resources, while the
other categories provide site-specific assistance.\5
In connection with site-specific work, EPA and the states share the
responsibilities and costs of site cleanups, but ultimately EPA pays
for large portions of most publicly funded cleanups. For example,
during fiscal years 1991 through 1996, EPA provided the 50 states an
average of $144.3 million per year in cooperative agreement funds.
States depend on this funding to help finance their participation in
NPL cleanups. Cooperative agreements can provide states with
significant amounts of money to pay for particular cleanups. In
fiscal year 1994, for example, Texas received cooperative agreement
funds totaling almost $30.5 million, at least in part to pay EPA's
share of a remedial action.
In funding the implementation of a particular remedial action for
cleanups financed by the federal trust fund (regardless of whether
EPA or the state has the lead), EPA contributes 90 percent of the
cleanup costs for sites that were privately operated. The states
assume ultimate responsibility for performing 100 percent of all
operation and maintenance at fund-financed sites. If PRPs finance
the site remediation, then they pay for the entire cleanup, including
operation and maintenance.
Officials in all five states emphasized that in light of their own
budget constraints, they could not accept additional Superfund
responsibilities unless EPA continues its historical role of
providing general program support and site-specific funding. Texas,
for example, is the lead agency on 10 of 28 NPL site cleanups and is
studying another 11 sites for possible inclusion on the NPL.
However, the state is also working on 47 non-NPL sites--some of which
involve extensive cleanups. According to the director of the Texas
Superfund program, the state is already having great difficulty
funding its NPL and non-NPL responsibilities. As a result, he said,
the state could take on additional duties only if EPA continues to
provide financial support.
The EPA Regional Superfund Division Directors' position paper
acknowledged these resource constraints, adding that
"Now, as states are picking up more direct implementation
responsibility, EPA has an increasing role in providing
assistance and support to enhance the effectiveness of state
programs. EPA can assist in building the capacity of state
programs, and also provides ongoing support to maintain state
program capacity."
In particular, the paper noted that while many state cleanup programs
have grown in recent years, the total workload of contaminated sites
(NPL and non-NPL) is much greater than state resources alone can
handle--a problem exacerbated in many states by budget reductions.
Among the states we visited, Washington, Wisconsin, and Texas are
experiencing such cutbacks. In Washington, for example, state
funding for the Toxics Cleanup Program, which supports the state's
Superfund activities, has declined 30 percent since 1993. In
Wisconsin, according to the Director of the Bureau of Remediation and
Redevelopment, the state Superfund legislative appropriation has
declined roughly 40 percent over the past 2 years. And the Director
of the Texas Superfund program reported that his appropriation for
fiscal year 1998 has been reduced by almost 50 percent from its
fiscal year 1997 level.
EPA's workgroup on providing technical and financial assistance to
the states held its first face-to-face meeting in February 1997,
focusing on how current cooperative agreements can be combined to
provide states with greater spending flexibility. Currently, most
states have fairly large numbers of cooperative agreements for
pre-remedial, remedial, site assessment, and core activities.
Federal regulations restrict states in how they can use this money to
fund NPL cleanup activities. The technical and financial assistance
workgroup is studying ways that such multiple cooperative agreements
can be combined to make it easier for states to move federal funds to
program areas where they are needed most. EPA's Chicago and Denver
offices have pilot projects under way to test how this kind of block
funding might work. For example, Illinois and the Chicago office
have entered into an agreement whereby all of the state's Superfund
cooperative agreements (except for remedial actions and emergency
removals) will be combined into a single agreement. According to the
Director of EPA's State, Tribal, and Site Identification Center, this
type of arrangement requires only an exception from the EPA
regulations, which has been forthcoming in most cases. The workgroup
plans to have a follow-up meeting on these issues in May 1997.
--------------------
\5 In addition, EPA has provided funding for other Superfund
activities, such as technical assistance grants (TAG) for
communities. These grants permit community members to hire
independent advisors who can help them understand technical
information pertaining to an NPL site, such as remedy proposals or
information about the health risks posed by site contaminants. One
community group with whom we met stressed that TAGs are important
tools in keeping the local community involved in NPL cleanups, which
can help speed the remediation process.
SOME SITES REQUIRE AN EPA
LEAD
-------------------------------------------------------- Chapter 3:3.2
EPA regional officials, as well as several state officials, agreed
that even states with strong Superfund programs sometimes need EPA to
assume lead responsibilities at certain sites. According to these
officials, some sites can present a unique set of problems, or the
state may simply have its resources fully committed at other site
cleanups already under way.
For example, the Section Manager of the Washington Department of
Ecology's Toxics Cleanup Program noted that the Commencement Bay site
near Tacoma was a site that the state was glad to have EPA lead. He
elaborated that the site was enormous, covering the entire bay and
involving numerous industries, and that the state cleanup program was
somewhat new when the site was listed on the NPL in 1983. EPA's
presence at this site helped to get the various PRPs actively
involved, and it probably helped to get them involved more quickly
than if the state had tried to act alone. However, he added that
since the Washington program has matured, it does not necessarily shy
away from sites simply because they are large, complicated, or have
reluctant PRPs. He cited the Hanford Nuclear Reservation as a large
and complicated site for which the state has largely assumed the
lead. He noted, however, that there are instances in which it makes
sense for EPA to take the lead. Washington and EPA usually try to
agree on who should take lead responsibility on a case-by-case basis.
The lead designation is based on a joint assessment of the factors
involved at individual sites, such as whether the situation involves
great political sensitivity, unusually difficult technical issues, or
numerous PRPs.
A state's ability and willingness to assume the lead can also be
affected by its existing workload. For example, Wisconsin officials
told us they initially accepted the lead for the N.W. Mauthe site
but relinquished it when the state's project manager left the agency
and other qualified staff members were fully occupied at other sites.
EPA also typically carries out removal actions for large chemical
spills and other time-critical cleanups. Officials in New Hampshire
cited the Manville asbestos site as a large removal operation that
required EPA's resources and expertise. They noted that the state's
removal program can handle only relatively small spills and that the
state must rely on EPA for larger removals, such as Manville.
According to the Regional Superfund Division Directors' position
paper, some states have expressed an interest in carrying out such
emergency cleanups but may be precluded from doing so under current
regulations. They indicated that the agency could explore the
circumstances under which a state lead in these instances would be
advisable. EPA headquarters and its Boston and Dallas offices are
currently working with ASTSWMO and the states of New Hampshire and
Texas to pilot state-led, federally funded removal actions.
According to EPA, plans call for obtaining the necessary regulatory
approvals to initiate these pilots during fiscal year 1997.
EPA AS A BACKUP REGULATORY
AUTHORITY
-------------------------------------------------------- Chapter 3:3.3
The cooperation of PRPs is important, both because they are an
important potential source of revenue needed for the cleanup and
because their recalcitrance can drain the state's enforcement
capacity. However, such cooperation is sometimes difficult to
obtain. Superfund officials in all five states agreed, however, that
EPA's mere presence is often enough to gain cooperation from
recalcitrant PRPs because they generally prefer to deal with the
state rather than EPA.
The Section Manager of Washington's Toxics Cleanup Program, for
example, attested to the effectiveness of EPA's role as a backup
regulatory authority, noting that PRPs know that "EPA is only a phone
call away." He explained that PRPs know that if they do not deal in
good faith with the state, then they will have to deal with EPA, a
prospect that most of them find less desirable. Officials in New
Hampshire noted that it is not usually necessary to mention EPA in
the course of discussions with PRPs because they know that New
Hampshire will not hesitate to call on EPA for assistance, if
necessary. The director of the Texas Superfund program credited
EPA's enforcement presence as an important factor in the success of
the state's voluntary cleanup program. EPA's Regional Superfund
Division Directors also referred to this role for EPA in their
position paper, suggesting that
"If EPA's independent ability to take action at sites is
maintained and properly employed, it can be a tool to enhance
state programs. This independence can create incentives for
PRPs to cooperate with states when they otherwise might not."
These views were consistent with the opinions expressed during our
discussions with industry representatives. Business and industry
groups from New Hampshire, Texas, and Wisconsin all said that many of
their members would go to great lengths to avoid having to deal with
EPA, or become involved in the federal Superfund process. According
to these representatives, PRPs often find EPA-led sites more
expensive and EPA's process and procedural requirements less
flexible. They added that PRPs frequently find state officials more
accessible, allowing them to have a greater voice in decisions
affecting them.
CONCLUSIONS
---------------------------------------------------------- Chapter 3:4
Having gained substantial hazardous waste cleanup experience over the
years, many states have demonstrated both a willingness and
capability to take on additional Superfund cleanup responsibilities.
Moreover, citing constraints on its own budget and staff, EPA has
stated that the number and timeliness of cleanups can be improved
with greater state involvement. Yet even the most experienced states
will require some level of continued research support and technical
information from EPA, and less experienced states may require
additional assistance.
The states' capability and willingness to participate in future
Superfund cleanups will also be contingent on continued federal
financial participation. Other key EPA roles that could help
alleviate the states' resource constraints as they take on a greater
Superfund cleanup role include (1) continuing to manage cleanups and
large-scale emergency removals that are beyond the states' capacity
and (2) retaining its capacity as a backup regulatory authority to
encourage recalcitrant PRPs to cooperate with state cleanup
authorities.
EPA has acknowledged that it must play an increased role in helping
to meet both the technical and financial needs of participating
states, but it has yet to outline a strategy that identifies specific
state needs and the manner in which the agency intends to meet these
needs. Without such a strategy, there is little assurance that the
states' technical and financial needs will be adequately addressed.
To its credit, the agency has established workgroups to obtain input
from states and other participants on these issues. We believe the
agency needs to pursue this process to its logical conclusion by
developing the kind of comprehensive strategy needed to overcome the
key technical and financial barriers to a broader state role in
leading NPL cleanups.
RECOMMENDATION TO THE
ADMINISTRATOR, EPA
---------------------------------------------------------- Chapter 3:5
GAO recommends that the Administrator, EPA, direct the Office of
Solid Waste and Emergency Response to work with state representatives
to develop a detailed strategy indicating how the agency will meet
the states' technical and resource needs so that they may take a lead
role in successfully cleaning up Superfund sites. Among the kinds of
technical support such a plan might include are (1) providing
technical assistance at specific sites; (2) identifying ways to
accelerate research on innovative technologies; and (3) serving as a
national clearinghouse for information on new cleanup technologies
and other best practices. Among the potential elements of its plan
to help address the states' resource constraints are strategies to
(1) use federal funds efficiently to assist state-led NPL cleanups,
(2) continue leading certain NPL cleanups beyond the capability of
individual states, and (3) encourage cooperation by recalcitrant PRPs
with state authorities by serving as a backup regulatory authority.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 3:6
EPA officials generally agreed with our characterization of the
states' reliance on EPA for technical and financial support and with
our conclusion that such support will continue to be integral to the
states' programs as they accept more NPL cleanup responsibilities.
The agency officials also noted that our recommendation to develop a
strategic plan for providing the states with technical assistance was
useful.
The officials also requested that we cite additional information
about their past efforts to provide the states with financial
assistance. We added the information requested, identifying in
particular the aggregate amounts of financial assistance provided to
the 50 states through cooperative agreements. The officials provided
other technical clarifications and suggestions, which we incorporated
as appropriate.
(See figure in printed edition.)Appendix I
AGREEMENT BETWEEN WASHINGTON'S
DEPARTMENT OF ECOLOGY AND EPA'S
SEATTLE OFFICE
============================================================ Chapter 3
(See figure in printed edition.)
(See figure in printed edition.)Appendix II
AGREEMENT BETWEEN MINNESOTA'S
POLLUTION CONTROL AGENCY AND EPA'S
CHICAGO OFFICE
============================================================ Chapter 3
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================= Appendix III
RESOURCES, COMMUNITY, AND ECONOMIC
DEVELOPMENT DIVISION,
WASHINGTON, D.C.
Steve Elstein, Assistant Director
Eugene Wisnoski, Evaluator-in-Charge
Susan Swearingen, Senior Evaluator
OFFICE OF GENERAL COUNSEL,
WASHINGTON, D.C.
Richard P. Johnson, Attorney
CHICAGO REGIONAL OFFICE
Mary D. Feeley, Evaluator
*** End of document. ***