Hazardous Waste Sites: State Cleanup Practices (Letter Report, 12/24/98,
GAO/RCED-99-39).
As of October 1998, about 1,200 of the nation's most contaminated
hazardous waste sites were being cleaned up under the Environmental
Protection Agency's (EPA) Superfund program. States are addressing
thousands of other hazardous waste sites in their own cleanup programs.
Some of the state programs, which were originally modeled after the
Superfund program, have been modified over the years to encourage more
cleanups by site owners and others and to make cleanups more efficient.
This report (1) identifies practices that are both used in state
programs at sites that may be contaminated enough to qualify for
long-term cleanup under the Superfund program and that are believed by
State officials to reduce the time and expense of cleanups and (2)
presents the views of EPA, environmentalists, and other stakeholders
about whether the states' practices may be applicable to the Superfund
program.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: RCED-99-39
TITLE: Hazardous Waste Sites: State Cleanup Practices
DATE: 12/24/98
SUBJECT: State programs
Waste management
Pollution control
Environmental policies
Waste disposal
Federal/state relations
Hazardous substances
Liability (legal)
IDENTIFIER: Superfund Program
EPA State Voluntary Cleanup Program
EPA National Priorities List
EPA Brownfields Economic Development Initiative
Illinois
Massachusetts
Michigan
Minnesota
New Jersey
Pennsylvania
Texas
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Cover
================================================================ COVER
Report to the Chairman, Committee on the Budget, House of
Representatives
December 1998
HAZARDOUS WASTE SITES - STATE
CLEANUP PRACTICES
GAO/RCED-99-39
Hazardous Waste Sites
(160454)
Abbreviations
=============================================================== ABBREV
CERCLA - Comprehensive Environmental Response, Compensation, and
Liability Act
EPA - Environmental Protection Agency
GAO - General Accounting Office
ICMA - International City/County Management Association
NPL - National Priorities List
PCB - poly-chlorinated biphenyls
RFF - Resources for the Future
Letter
=============================================================== LETTER
B-281473
December 24, 1998
The Honorable John R. Kasich
Chairman
Committee on the Budget
House of Representatives
Dear Mr. Chairman:
As of October 1998, about 1,200 of the nation's most severely
contaminated hazardous waste sites were being cleaned up under the
Environmental Protection Agency's (EPA) Superfund program. States
are addressing thousands of additional hazardous waste sites in their
own cleanup programs. Some of the state programs, which were
originally modeled after the Superfund program, have been adjusted
over the years to encourage more cleanups by site owners and others
and to achieve cleanups more efficiently.
This report responds to your request that we (1) identify practices
that are both used in selected state programs at sites that may be
contaminated enough to qualify for long-term cleanup under the
Superfund program and that are believed by state officials to reduce
the time and expense of cleanups, and (2) obtain the views of EPA,
environmentalists, and other stakeholders about whether the states'
practices may be applicable to the Superfund program.
RESULTS IN BRIEF
------------------------------------------------------------ Letter :1
Hazardous waste program officials at each of the seven states we
contacted--Illinois, Massachusetts, Michigan, Minnesota, New Jersey,
Pennsylvania, and Texas\1 --identified cleanup practices that they
believe lead to faster or less costly cleanup of sites and that have
been applied at sites that are sufficiently contaminated to qualify
for the Superfund program. The practices were generally used in
several of the states, but two were used in only a single state.\2
State officials said that the practices facilitated cleanups in one
of three ways. First, some practices promoted faster decision making
about how to clean up sites, that is, decisions about which cleanup
"remedies" to use. In six states, for example, a state or a party
responsible for site cleanup can choose cleanup remedies on the basis
of preestablished standards for maximum contaminant levels in soil or
water, without the lengthy studies of the site's health and
environmental threats that EPA nearly always requires before remedy
selection at Superfund sites.
Second, officials of all seven states said that their programs allow
less costly cleanup remedies than the Superfund law requires, which
are nevertheless, they believe, protective of health and the
environment. For example, some of these states are more willing to
accept remedies that "contain" contaminants on site instead of
removing or destroying them in permanent remedies, so long as they
prevent human or environmental exposure.
Lastly, officials of two states said their state programs reduce
litigation costs, speed up cleanups, and improve the fairness of the
cleanup process by not holding some parties responsible for cleanup
who would be liable under the Superfund law. Although the officials
provided some anecdotal evidence illustrating the benefits of these
practices, none could provide a formal assessment of time and cost
savings.
The environmental policy stakeholders that we interviewed, including
EPA, state and national environmental organizations, and
representatives of local governments, generally did not dispute that
the state practices identified can facilitate faster or less costly
cleanups. Because they can reduce costs, the state practices are
generally advantageous to private companies and others responsible
for cleaning up sites. However, EPA and environmental and local
government groups said that applying some of the practices to the
Superfund program could have disadvantages. For example, while using
state-established standards to specify the end goals of a cleanup
without a site-specific risk assessment can save money, an EPA
regional official said that the use of such standards may not be
suitable at very complex sites, with numerous contaminants and
possible avenues of human exposure.
Environmental groups as well as representatives of state and local
officials noted that containment remedies leaving contamination at
sites would require controls over the use of the sites, such as
restrictive zoning, to reduce human exposure to the contaminants.
These groups were concerned that these controls might be changed over
time or might not be enforced in the long term. Some stakeholders,
such as a Michigan environmental group, opposed any changes that
would lessen the liability of parties at Superfund sites, because the
loss of their contributions to site cleanup would increase government
costs or result in fewer cleanups.
Finally, a number of stakeholders, including state officials, said
that a lessening of the Superfund program's more rigorous cleanup
requirements or liability standards could negatively affect the state
programs. They noted that states can refer sites at which parties
responsible for cleanup refuse to comply with state requirements to
EPA for possible action under the Superfund program. The belief of
responsible parties that the Superfund requirements are more onerous
than the states' is a powerful incentive for cooperation with state
authorities that might be weakened if the Superfund program became
more like the state programs.
--------------------
\1 We selected these states' hazardous waste remediation programs
because they are among the largest state programs in the nation and
were cited by environmental policy stakeholders, such as
environmental and industry groups and EPA, as likely to have
implemented practices that are different from EPA's. Profiles of the
state programs we selected are presented in app. I. App. III lists
the stakeholders that we contacted.
\2 App. II lists the states in which each practice was used.
BACKGROUND
------------------------------------------------------------ Letter :2
After a possible hazardous waste site is reported to EPA, it is
evaluated to determine whether it should be placed on the National
Priorities List (NPL), EPA's list of sites that present serious
threats to human health and the environment. The cleanup at an NPL
site consists of several phases. First, through the remedial
investigation and feasibility study, the conditions at a site are
studied, problems are identified, and alternative methods to clean up
the site are evaluated. Then, a final remedy is selected, and the
decision is documented in a record of decision. Next, during an
engineering phase, called the remedial design, technical drawings and
specifications are developed for the selected remedy. Finally, in
the remedial action phase, a cleanup contractor begins constructing
the remedy according to the remedial design. Under the Comprehensive
Environmental Response, Compensation, and Liability Act, (CERCLA),
which established the Superfund program, EPA must give preference to
those long-term cleanup actions that permanently and significantly
reduce the volume, toxicity, or mobility of hazardous substances at a
site.\3 Under CERCLA, parties responsible for cleaning up sites can
include site owners and operators, as well as generators and
transporters of hazardous waste.
As of August 1998, 1,193 sites were listed on the NPL, and another 56
were proposed for listing. Remedies had been constructed at 526
sites. Since the Superfund program began, 175 sites have been
deleted from the NPL. In addition, the program has conducted about
5,000 removal actions--short-term response actions to address
emergency and other situations--at NPL and other sites.
Our reviews have shown that the Superfund cleanup process can be long
and expensive. In March 1997,\4 we reported that the cleanup of
nonfederal sites completing the cleanup process in 1996 had taken an
average of 10.6 years after placement on the NPL and that remedy
selection at sites completing that phase of the cleanup process in
1996 had taken an average of 8.1 years after a site's listing. In
September 1997,\5 we reported on a growing number of expensive
Superfund cleanups. We said that in 1996 EPA had spent $10 million
or more in that year alone on nine sites, up from two sites with the
same level of annual spending in 1989. Spending on the nine sites,
which represented less than 3 percent of the sites where EPA spent
money for remedial actions, totaled about $238 million, almost 57
percent of remedial action spending at all sites.
Beginning in 1993, EPA launched a series of administrative reforms to
address a wide range of Superfund concerns. These reforms have
attempted to speed up site investigations, choose more cost-effective
remedies, reduce litigation, and make other improvements. According
to EPA officials, the reforms have begun to work. EPA officials
believe that cleanup durations have recently been reduced to an
average of 8 years.\6 In addition, the National Remedy Review Board
EPA created to review proposed site cleanup remedies, had saved $37
million as of November 1997 through its examination of 20 remedies.
EPA has also encouraged its regions to revisit remedy decisions when
new information or technical advances indicate that the intended
level of health or environmental protectiveness might be achieved at
less cost. According to EPA, these remedy updates had saved at least
$725 million at over 120 sites as of November 1997. EPA also made it
easier for parties with only minimal responsibility for site
contamination to settle their liability with lower legal expenses.
All 50 states have established their own clean up programs for
hazardous waste sites, according to a 1998 survey by the
Environmental Law Institute.\7 Some of these state programs can
handle highly contaminated sites, whose risks could qualify them for
the Superfund program, as well as less dangerous sites. Some states
initially patterned their cleanup programs after the Superfund
program, but over the years, in an effort to clean up more sites
faster and less expensively, have developed their own approaches to
cleaning up sites. States accomplish cleanups under three programs:
(1) voluntary cleanup programs that allow parties to clean up their
sites without enforcement action, often to increase the site's
economic value; (2) brownfields programs that encourage the voluntary
cleanup of sites in urban industrial areas to reuse the sites and
avoid the expansion of industry into "greenfields," that is,
undeveloped land; and (3) enforcement programs that oversee the
cleanup of the most serious sites and force uncooperative responsible
parties to clean up their sites.\8 States generally use their
voluntary and brownfields programs to clean up less complex sites by
offering various incentives to responsible parties, such as reduced
state oversight. Some states maintain cleanup funds to pay all or a
portion of the costs of cleanups at sites for which responsible
parties able to pay for full cleanups cannot be found.
--------------------
\3 This report will refer to this concept as the "preference for
permanent remedies."
\4 Superfund: Times to Complete the Assessment and Cleanup of
Hazardous Waste Sites (GAO/RCED-97-20, Mar. 31, 1997).
\5 Superfund: Trends in Spending for Site Cleanups (GAO/RCED-97-211,
Sept. 4, 1997).
\6 Our report entitled Superfund: Duration of the Cleanup Process at
Hazardous Waste Sites on the National Priorities List
(GAO/RCED-97-238R, Sept. 24, 1997) presents our assessment of the
projected 8-year completion time for sites that began the cleanup
process in fiscal years 1986 through 1994.
\7 An Analysis of State Superfund Programs: 50-State Study, 1998
Update, Environmental Law Institute.
\8 EPA has provided seed money for the development of voluntary state
cleanup programs and provided support for the development of
brownfields programs.
STATE PRACTICES THAT OFFICIALS
BELIEVE MAY FACILITATE FASTER,
LESS COSTLY HAZARDOUS WASTE
CLEANUPS
------------------------------------------------------------ Letter :3
Hazardous waste officials in each of the seven states we contacted
identified practices used at sites sufficiently contaminated to be
included in the Superfund program that they believe achieve faster
and less costly cleanups than would occur under the Superfund
program. Some of these practices are designed to facilitate faster
remedy selection, thereby saving time or money before site cleanup
begins. Other practices allow the implementation of less expensive
cleanup remedies that officials believe are nonetheless protective of
human health and the environment. Two states have adopted practices
that reduce the liability of parties who might be responsible for
cleanup costs under Superfund's liability rules. State officials
said that these practices have been applied to some state program
sites that are sufficiently contaminated to qualify for the NPL.
Although the officials described instances in which these practices
have yielded benefits, none could formally document the time and cost
savings of the practices.
STATES CONTEND APPROACHES TO
SITE ASSESSMENT AND REMEDY
SELECTION CAN SAVE TIME
---------------------------------------------------------- Letter :3.1
State officials from all seven states described practices that they
believe facilitate faster remedy selection at contaminated sites,
including sites contaminated enough to qualify for Superfund
cleanups. These officials said that the use of preestablished
cleanup standards or of presumptive remedies, that is, remedies
proven to be effective for certain cleanup problems, without
extensive consideration of alternate remedies, can expedite remedy
selection. Officials of five states said that more flexible public
involvement requirements can save time when cleanups are not
controversial.
FIXED STANDARDS FOR SOIL
AND GROUNDWATER
-------------------------------------------------------- Letter :3.1.1
Officials representing six state programs said that selecting cleanup
remedies for sites on the basis of preestablished standards that
specify the maximum concentrations of contaminants in soil and water
after cleanup, without conducting time-consuming, site-specific risk
assessments, speeds up the remedy-selection process. Illinois, for
example, allows the use of "look-up tables" that specify maximum
concentration levels for about 150 specific soil and groundwater
contaminants.\9 These look-up tables, according to the state
officials, quickly and clearly defined the end goal of the site
cleanup without a risk assessment, allowing the state and the
responsible parties to determine how best to achieve this standard.
According to the state officials, the use of the statewide standards
offers a time savings when compared to the approach that the sites in
EPA's Superfund program follow. EPA has developed a few soil cleanup
standards and may in certain circumstances apply standards from its
water programs and state standards at Superfund sites; however, the
Superfund regulations require that each site receive a baseline risk
assessment showing the need for action. These risk assessments
characterize the current and potential threats to human health and
the environment posed by contaminants at the site. Officials in both
Illinois and Pennsylvania said that eliminating risk assessments can
save considerable time. According to an Illinois official, while the
duration of risk assessments varies by site, a risk assessment can
add as much as 2 years to the remedy-selection process, while a
Pennsylvania official said that many months can be saved.
--------------------
\9 In the states that we contacted, this reliance on preestablished
standards was typically one of several approaches the state and
responsible parties could take to develop a site remedy. For
example, under Pennsylvania law, the standards are one of three
overall approaches to site cleanup. Other options included cleaning
up the site to background standards, i.e., restoring the site to
conditions that existed before the contamination occurred, and
site-specific standards, which require detailed risk assessment.
MORE LIMITED PUBLIC
INVOLVEMENT EFFORTS
-------------------------------------------------------- Letter :3.1.2
Officials in five states said that, in comparison to EPA, they have
less rigorous requirements for extensive public involvement in remedy
selection. According to New Jersey program officials, state law
requires that program officials notify local officials--such as the
mayor's office or the municipal health department--about an impending
site cleanup. The state then generally defers the decision about
public meetings or other more extensive forms of public outreach to
local officials. State officials explained that more extensive
public involvement measures are not required--although the state may
pursue them if it sees the need--because public meetings are often
sparsely attended, and the results of such efforts do not justify the
time and resources required.
New Jersey's approach contrasts with EPA's more extensive public
involvement requirements. The Superfund program's regulations
require that at each NPL site, EPA develop a community relations plan
describing a community's information needs and outlining ways that
the agency will meet these needs. Furthermore, EPA must notify
groups affected by the site of the availability of technical
assistance grants that can be used to hire experts to explain
technical information about the site. EPA must also allow adequate
opportunity for public comment, such as at a public meeting. A
transcript of the public meeting must be made available to the public
as well. The final cleanup plan must include a response to each
significant comment and question received. EPA headquarters
officials said that they could tailor community involvement
procedures at sites, depending on the circumstances, but according to
the officials, the minimum EPA requirements exceeded the simple
notice procedures New Jersey used.
GREATER USE OF
PRESUMPTIVE REMEDIES
-------------------------------------------------------- Letter :3.1.3
Texas officials said that their program's greater use of standard
cleanup approaches--known as presumptive remedies--has significantly
reduced the time and expense involved in the remedy-selection
process. Presumptive remedies are remedies that have proven
effective in cleaning up a particular kind of hazardous waste site
and would presumably work at similar sites in the future. Such
remedies can be viewed as off-the-shelf solutions that can be
selected with less study of alternative remedies in the absence of
site-specific conditions requiring such consideration. Because
presumptive remedies allow the state to focus quickly on one or a
limited range of remedies, they can save considerable time and
expense in the remedy-selection process. On the basis of a
comparison of a limited number of state sites, Texas officials
estimated that the studies at presumptive remedy sites were less than
half as costly as the full feasibility studies that were conducted at
other sites. Officials of three other states said that they also had
a greater number of presumptive remedies than did EPA.
EPA has also developed presumptive cleanup remedies for some types of
NPL sites. However, as table 1 indicates, Texas has developed
presumptive remedies for four contaminants--metals, semivolatile
organic compounds, pesticides, and polychlorinated biphenyls
(PCB)--for which EPA has not.\10 These contaminants are frequently
found at Superfund sites.
Table 1
Comparison of EPA's and Texas's
Presumptive Remedies
Has agency established a presumptive
remedy for corresponding contaminant
or type of site?
--------------------------------------
Type of sites EPA Texas
------------------------------ ------------------ ------------------
Metals No Yes
Volatile organic compounds Yes Yes
Semivolatile organic compounds No Yes
Pesticides No Yes
PCBs No\a Yes
Municipal landfills Yes No\b
Wood treater sites Yes No\b
----------------------------------------------------------------------
Note: Both Texas and EPA have established a presumptive remedy for
groundwater as well.
\a EPA officials said that the regulations promulgated under the
Toxic Substances Control Act provide EPA with guidance similar to a
presumptive remedy for PCBs.
\b Texas officials said that the state's contaminant-specific
presumptive remedies generally cover municipal landfills and wood
treater sites.
Source: Prepared by GAO from EPA's and Texas Natural Resource
Conservation Commission's data.
--------------------
\10 EPA officials said that they expect to issue a presumptive remedy
for metals in soil in early 1999.
POTENTIAL FOR CLEANING UP
SITES AT LOWER COSTS
---------------------------------------------------------- Letter :3.2
Some states have adopted two practices that state officials believe
result in less expensive remedies than those used in the Superfund
program and that could be useful even at highly contaminated sites.
These practices are (1) greater acceptance of remedies that contain
waste on site rather than removing or destroying it and (2) more
willingness to assume that sites will be used for industrial or
commercial rather than residential purposes.
ACCEPTANCE OF CONTAINMENT
REMEDIES
-------------------------------------------------------- Letter :3.2.1
State officials in Illinois, Pennsylvania, and Texas told us that
their states' authorizing statutes do not contain a preference for
permanent cleanup remedies.\11 Permanent cleanup remedies are those
that remove or treat the principal waste threats, permanently
eliminating hazardous waste from the site or reducing the volume,
toxicity, or mobility of the waste, through techniques such as
incineration or bioremediation.\12 Because the state programs lack
such preferences, more nonpermanent containment cleanup remedies may
be used. Nonpermanent remedies typically prevent human contact with
contaminants by containing the waste in place--by, for example,
placing a clay cap or a parking lot over contaminated soil,
restricting the land's use, or placing barriers around the
contamination. These remedies tend to be less expensive to implement
than permanent ones.
Although the states had no studies documenting cost reductions from
containment remedies, some officials did cite cases in which cost
savings resulted. Pennsylvania officials described how a change in
the state cleanup statute that eliminated a preference for permanence
had reduced cleanup costs for a site. The remedy proposed by the
state for the site under the old statute--a $30 million- to $40
million-permanent remedy consisting of the excavation and treatment
of contaminants--was changed with the passage of the new statute to
an excavation and containment remedy with a cost of $2 million to $3
million. According to state officials, containment remedies remain
protective of human health and the environment if properly controlled
and maintained. We reported in April 1997 that cleanup managers for
Illinois, Minnesota, and New Jersey estimated that containment
methods were used for at least half of the cleanups of contaminated
soil in their voluntary cleanup programs.\13
In contrast, the Superfund program operates under the requirements of
CERCLA, which establishes a preference for permanent remedies. EPA's
remedy-selection criteria require the selection of a permanent remedy
to the maximum extent practicable, though other factors, such as cost
and implementation concerns must also be taken into account. EPA
officials said that they attempt to adhere to the preference whenever
possible. EPA officials also noted that in recent years the agency
has moved away from a "treatment for treatment's sake" approach to
one of applying treatment to principal threats. Principal threats
include liquids, areas contaminated with high concentrations of toxic
compounds, and highly mobile materials. According to a September
1997 EPA analysis, between 1988 and 1993, 70 percent of all remedies
dealing with the source of contamination involved treatment, while in
1995, this number dropped to 53 percent. Where contaminants are left
on site, EPA requires periodic site reviews to monitor and analyze
the implementation and effectiveness of the containment remedies.
--------------------
\11 Officials in Michigan, Minnesota, and New Jersey told us that
although their state laws contain preferences for permanence in
cleanup remedies, other considerations, such as costs, risk, and
future land use, limit the applicability of the preference.
Officials in Massachusetts said that their authorizing statute also
contains a preference for permanence but not treatment and that
containment remedies could be considered permanent if properly
monitored and maintained.
\12 Incineration destroys waste by controlled burning at high
temperatures, and bioremediation uses living organisms to remove
pollutants from the soil, water, or wastewater.
\13 Superfund: State Voluntary Programs Provide Incentives to
Encourage Cleanups (GAO/RCED-97-66, Apr. 9, 1997).
CONSIDERATION OF FUTURE
LAND USE
-------------------------------------------------------- Letter :3.2.2
Some of the states believed that, in setting cleanup standards and
selecting remedies, their cleanup programs were more likely than
Superfund to determine that sites would be used for future industrial
or commercial purposes rather than for residential purposes. The
determination of how sites will be used in the future is important
because a site whose expected use is industrial or commercial may be
cleaned to less strict standards, resulting in less costly cleanups.
The states that believe they base site cleanups on assumptions of
industrial or commercial uses more readily than EPA have established
specific cleanup standards for industrial sites.
Until several years ago, EPA generally assumed that a residential use
of land was possible in the future, unless there was substantial
evidence to the contrary. Because EPA cannot control local zoning or
other institutional controls that restrict the land's use, its
guidance suggested that those assessing the sites' risk assume that
in the future the land would be residential even though no one was
living there at the time. Critics contended that EPA was assuming
residential uses for sites that would be used solely for industrial
purposes in the foreseeable future. In 1995, however, EPA issued new
guidance for considering future land use in making remedy selection
decisions at NPL sites. The guidance encouraged parties cleaning up
sites to collect as much information as possible about the site's
future use and to obtain the local community's consensus regarding
its future. Furthermore, EPA officials believe that as a result of
this policy, EPA has evolved toward a new balancing of the various
mandates contained in CERCLA and that now EPA is as likely as the
states to opt for nonresidential future land-use scenarios. An EPA
analysis found that only 38 percent of remedies selected in 1995
included residential land-use scenarios.
States did not have data to confirm their beliefs that they base
cleanup decisions on future industrial or commercial uses of sites
more often than does EPA. However, our April 1997 report noted that
voluntary cleanup programs in four of the states we covered in our
current review used industrial standards most frequently for their
cleanups.\14 Some states believed that EPA's requirement for
obtaining a local community's consensus on the future uses of sites
could make it more difficult to consider a land use other than
residential. EPA officials, however, believe that early community
involvement, with a particular focus on the community's desired
future use of the property associated with an NPL site, can result in
a more democratic decision-making process; greater community support
for remedies selected as a result of this process; and more
expedited, cost-effective cleanups. In addition, EPA officials said
that communities were willing to accept cleanups based on continued
nonresidential uses of sites.
--------------------
\14 Superfund: State Voluntary Programs Provide Incentives to
Encourage Cleanups (GAO/RCED-97-66, Apr. 9, 1997).
STATE LIABILITY POLICIES ARE
INTENDED TO REDUCE
LITIGATION AND SPEED UP
CLEANUPS
---------------------------------------------------------- Letter :3.3
Two of the states we surveyed had adopted policies on the cleanup
liability of parties associated with sites that they believed reduce
litigation costs and encouraged faster cleanups. These policies
involved reducing the liability of site owners and operators for
cleanups and making the cleanup of municipal landfills a state
responsibility.
MICHIGAN LIMITS LIABILITY
FOR OWNERS AND OPERATORS
-------------------------------------------------------- Letter :3.3.1
A Michigan law adopted in 1995 provides that the owners and operators
of contaminated sites are liable only if they are responsible for an
activity causing a release of hazardous substances into the
environment. By contrast, under CERCLA, responsible
parties--including owners and operators--are liable regardless of
whether they actually caused the release. Thus, anyone seeking to
recover cleanup costs under Michigan law from owners and operators
must prove causation, while parties seeking to recover cleanup costs
under CERCLA generally need not address the issue.
The causation standard, according to a state official, results in
more expeditious cleanups of facilities because it reduces litigation
and transaction costs and disruptions or delays. In addition, a
Michigan survey of 33 municipalities indicated that the causation
standard has facilitated the redevelopment of sites. A state
official also noted, however, that some fraction of the contaminated
sites that would have been cleaned up by owners and operators under a
strict liability standard may need to be addressed at public expense.
MINNESOTA ASSUMES COST OF
CLOSED MUNICIPAL
LANDFILLS
-------------------------------------------------------- Letter :3.3.2
Minnesota state officials cited the state's Closed Landfill Program
as a better way to clean up and care for landfills and protect
innocent parties. Under this program, the state performs cleanup
actions, takes over the long-term operation and maintenance of the
cleanup remedy, and reimburses eligible parties for past cleanup
costs. Although this approach is costly to the state, which assumes
the cost of remediating the site, it reduces litigation costs and
protects parties that may have made a very small contribution to site
contamination but that could be caught up in litigation if all
contributors were liable. According to state officials, it is
difficult to assign responsibility to the many parties that
contribute to the contamination of municipal landfills, and very
small contributors often face potentially bankrupting lawsuits.
State officials said that it is preferable that the cost of
addressing the problems of closed landfills be viewed as a societal
cost. The officials said that Minnesota is the only state that has
adopted this program, and it has signed an agreement with EPA to end
federal involvement in 10 closed landfills on the NPL within the
state.
In contrast, EPA's "polluter pays" approach, according to Minnesota
officials, does not work well for most landfills, where a large
portion of the waste comes from many small businesses and households.
However, EPA is currently mitigating the impact of Superfund
liability on the smallest contributors by offering expedited or
low-cost settlements to parties that contribute small amounts of
hazardous substances. These settlements protect the parties from
further litigation.
EPA AND OTHER STAKEHOLDERS
IDENTIFIED POTENTIAL
DISADVANTAGES OF APPLYING STATE
PRACTICES TO THE SUPERFUND
PROGRAM
------------------------------------------------------------ Letter :4
Environmental policy stakeholders that we interviewed, including EPA,
state and national environmental organizations, and representatives
of state and local government associations, generally did not dispute
that the state practices had the efficiency benefits described by
state officials. Some of the environmental organizations and a local
government organization, however, identified potentials risks of
applying these practices to the Superfund program. Since the state
practices can reduce cleanup costs, they are generally advantageous
for businesses and others responsible for cleaning up sites. (See
app. III for the list of stakeholders that we contacted.)
STAKEHOLDERS' VIEWS ON STATE
PRACTICES THAT COULD
FACILITATE FASTER REMEDY
SELECTION
---------------------------------------------------------- Letter :4.1
The stakeholders that we contacted generally supported the broader
use of presumptive remedies in the Superfund program. A
representative of Resources for the Future (RFF), an independent
environmental research organization, said that the use of presumptive
remedies where particular contaminants predominate--as Texas does for
pesticides, PCBs and semivolatile organic compounds--is a sound
approach because there are only a limited number of ways to deal with
certain contaminants. A representative of citizens groups and
environmental organizations in Texas noted that presumptive remedies
can make sense, as long as the remedies that have been designed are
truly protective. Similarly, the representatives of an environmental
organization cautioned that the value of presumptive remedies depends
on the level of protection they provide. EPA officials cited another
advantage of presumptive remedies: consistency in remedy selection
from site to site.
The stakeholders were more cautious about the use of preestablished
standards to specify the goal of the remediation process without a
site-specific risk assessment and with reduced public involvement.
EPA regional officials believed that the use of the automatically
applied standards without a risk assessment is more appropriate for
sites that have fairly simple contamination problems, but would not
be appropriate for the very large and complex sites that come under
the Superfund program. Superfund sites can be over 100 acres, with
30 contaminant sources and 100 different contaminants, and according
to EPA officials, using a look-up table would be too simplistic an
approach to remedy selection at such sites. These tables are based
on assumptions about exposure to contaminants that they said needed
to be verified at more complex sites through a risk assessment. An
Illinois official said, however, that the preestablished standards
could be appropriate for portions of complex sites, even if they
could not be used throughout the site.
Other stakeholders were not familiar with the details of the state
cleanup standards. However, a representative of RFF said that while
the standards may reduce debate about appropriate cleanup levels,
there is a tradeoff involved if the standard is not sufficiently
protective of public health. Representatives of the Sierra Club said
that use of look-up tables to define the end goal can be overly
simplistic, and it was important that parties responsible for the
original contamination remain liable if events prove that the cleanup
to specified standards was not adequate.
Regarding reduced requirements for public involvement based on a
presumed lack of public interest, an EPA regional official said that
low attendance at meetings arranged for public input may be less a
reflection of public indifference than a sign that the public has not
been sufficiently informed of issues surrounding a contaminated site.
This official said that it is necessary to be very proactive in
public outreach efforts. For example, he said that it may be
necessary to contact churches in order to reach some ethnic
communities. A representative of an environmental organization noted
that while limiting public involvement may conserve resources in the
short term, it may lead to greater costs in the long run if members
of the public believe that they have been excluded from the process
and decide to litigate. The representative emphasized that the
Superfund cleanup process should produce no surprises, and an
effective public involvement effort is critical.
STAKEHOLDER'S VIEWS ON
PRACTICES THAT COULD LEAD TO
LOWER-COST REMEDIES
---------------------------------------------------------- Letter :4.2
The representatives of the environmental groups and others that we
contacted, such as the Sierra Club, John Snow Institute, RFF, and EPA
regions, generally believed that the states' lack of preference for
permanent cleanup remedies and their greater readiness to consider
that sites will not be used for residential purposes in the future
tend to weaken the long-term effectiveness of site remediation
programs. These groups were concerned that nonpermanent remedies,
like clay caps designed to isolate contaminants, would not be
maintained over time, and that institutional controls, like zoning or
deed restrictions needed to prevent the residential or other
higher-risk use of sites, would be changed or not enforced.
Representatives of the International City/County Management
Association (ICMA) said that the land-use and other institutional
controls required by nonpermanent remedies require better cooperation
and communication between state and local governments than often
currently exists. Furthermore, according to an ICMA representative,
a recent ICMA focus group indicated that many state and local
officials do not fully appreciate the long-term demands--including
oversight and enforcement--that institutional controls may place upon
local governments. According to an EPA official, some contaminants
cannot be contained over the long term (50 to 100 years) and that
Superfund's preference for permanent cleanup remedies is necessary
for such long-term protection. In addition, EPA officials said that
the costs of long-term operations and maintenance of nonpermanent
remedies may partially offset initial cost savings.
A report by RFF conducted under a grant from EPA,\15 discussed the
implications of basing remedy selection on land-use assumptions. The
report stated that land-use categories (such as residential,
industrial, and commercial) are used to estimate the future exposure
of people to contaminants; yet the relation between land use and
exposure is often not known and may vary widely. Anticipating the
likely future use of a site is no easy task, according to the report,
given the competing interests that want different land uses. The
report noted that EPA does not have the authority to ensure that
local land-use controls are maintained and enforced over time at
sites where residual contamination precludes unrestricted use. Local
land-use restrictions are typically the province of local government
and private property law. The report observed that land-use controls
are subject to various pressures, such as demands for property
development, that may limit their effectiveness. Two major
challenges result from a cleanup policy linking land use to remedy
selection, according to the report: first, how to involve the public
more effectively in cleanup and reuse decisions, and second, how to
ensure the effectiveness of property-use restrictions when the legal
authority for such controls is the private property laws of each
state.
--------------------
\15 Resources for the Future, Linking Land Use And Superfund
Cleanups: Unchartered Territory (1997).
STAKEHOLDERS' VIEWS ON STATE
LIABILITY PRACTICES
---------------------------------------------------------- Letter :4.3
Some stakeholders were not supportive of the changes Michigan made in
its liability provision. A representative of the Michigan
Environmental Council said that causation would increase public
expense for cleanup and that because there would be fewer responsible
parties available for cleanup, fewer contaminated sites would be
remediated. According to an EPA official, CERCLA establishes a
defense to liability for innocent landowners who obtain property
without knowing that it was contaminated, despite taking due care to
discover potential contaminants. However, an EPA official
acknowledged that owners are generally unable to qualify for this
defense because it is rare that an in-depth investigation of a
contaminated site would not detect the contamination.
While not disagreeing with Minnesota's policy of assuming the cost of
closed municipal landfills, representatives of the Sierra Club said
that it is important that the policy not be extended to privately
owned landfills because this would burden the taxpayers with costs
that are the responsibility of a private party. EPA officials said
that Minnesota's approach is a potentially very costly program from
the government's standpoint, and EPA could probably not afford to
adopt such a policy without significant additional funding.
VIEWS ON THE IMPORTANCE OF
THE SUPERFUND PROGRAM'S
CONTINUED ROLE
---------------------------------------------------------- Letter :4.4
Several state officials told us that, although they believe the
practices of their state programs facilitate faster and less costly
cleanup, they also wanted to stress the importance of an ongoing
Superfund program. For example, officials in Massachusetts said that
the existence of the federal program, with what they characterized as
more daunting requirements and procedures than exist in state
programs, was an important element in obtaining the cooperation of
responsible parties in the state program. If these parties are not
cooperative and the site is sufficiently dangerous, responsible
parties risk being brought into the Superfund program.
AGENCY COMMENTS
------------------------------------------------------------ Letter :5
We provided a draft of this report to EPA for its review and comment.
We spoke with EPA officials, including the Director of the State,
Tribal, and Site Identification Center, in EPA's Office of Solid
Waste and Emergency Response, to obtain the agency's comments. EPA
generally agreed with the description of the Superfund practices
presented in the report but made technical comments and corrections,
which we incorporated as appropriate. In addition, EPA officials
said that the agency's recent administrative reforms had reduced the
cost and duration of Superfund cleanups. The officials provided us
with data on the cost and time savings achieved by certain of these
reforms,which we included in our report. EPA also believed that the
report should highlight the fact that containment remedies require
long-term management and monitoring and may fail without such
attention. We pointed out that this issue was addressed in the
report's section summarizing stakeholders' views.
We also provided selected portions of this report to officials
responsible for the state programs we discussed. We incorporated
state comments and corrections as necessary.
SCOPE AND METHODOLOGY
------------------------------------------------------------ Letter :6
To identify practices that may facilitate cleanups of hazardous waste
sites that are faster or less costly in comparison with the federal
Superfund program, we selected seven states--Illinois, Massachusetts,
Michigan, Minnesota, New Jersey, Pennsylvania, and Texas--with
cleanup programs that are among the largest in the nation and that
were recommended by various stakeholders--including EPA, industry
organizations, and environmental groups--as states that had
implemented time- and cost-saving practices. We then conducted
interviews with these states' program officials, who identified and
described program practices that, in comparison with the practices of
the federal Superfund program, they believe facilitated faster or
less costly cleanup of hazardous waste sites. We also reviewed
pertinent laws, regulations, and other available documentation
describing these practices. We did not independently verify the
officials' statements regarding time and cost savings.
To identify issues that should be considered before these practices
would be adopted by the Superfund program, we talked with officials
from environmental and local governmental organizations, and EPA
regional and headquarters offices. Where possible, we obtained
references to these organizations from states and EPA. We
interviewed officials in each of EPA's regional offices whose
jurisdiction includes the selected states, environmental groups in
the selected states, and national environmental groups.
We conducted out work from July through December 1998 in accordance
with generally accepted government auditing standards.
---------------------------------------------------------- Letter :6.1
As arranged with your office, unless you publicly announce its
contents earlier, we plan no further distribution of this report
until 10 days from its date. At that time, we will send copies of
this report to appropriate congressional committees; interested
Members of Congress; the Administrator of EPA; state program
managers; and other interested parties. We will also make copies
available to others upon request.
Please call me at (202) 512-6111 if you or your staff have any
questions. Major contributors to this report are listed in appendix
IV.
Sincerely yours,
David G. Wood
Associate Director, Environmental
Protection Issues
STATE PROGRAM PROFILES AS OF
FISCAL YEAR 1997
=========================================================== Appendix I
Responsible Staff
Date program program employed/
State established Principal statutes State agency office authorized\a
------------ ------------ ------------------- ------------ ------------ ------------
Illinois 1970 Environmental Environmenta Bureau of 105/105
Protection Act l Protection Land,
Agency Division of
Responsible Remedial
Property Transfer Management
Act
Massachusett 1983 Massachusetts Oil Department Bureau of 203/230
s and Hazardous of Waste Site
Material Release Environmenta Cleanup
Prevention and l Protection
Response Act
Michigan 1982 Michigan Natural Department Environmenta 240/249
Resources and of l Response
Environmental Environmenta Division
Protection Act l Quality
Minnesota 1993 Environmental Pollution Hazardous 80/80\
Response and Control Waste
Liability Act Agency Division
New Jersey 1976 Spill Compensation Department Division of 512/512
and Control Act of Publicly
Environmenta Funded Site
Industrial Site/ l Protection Remediation,
Recovery Act Site
Remediation
Brownfield and Program
Contaminated Site
Remediation Act
Water Pollution
Control Act
Solid Waste
Management Act
Underground Storage
Tank Act
Pennsylvania 1988 Hazardous Sites Department Bureau of 120/120
Cleanup Act of Land
Environmenta Recycling
Land Recycling and l Protection and Waste
Environmental Management,
Remediation Division of
Standards Act Land
Recycling
and Cleanup
Programs
Texas 1985 Solid Waste Natural Office of 106/107
Disposal Act Resource Waste
Conservation Management,
Hazardous Commission Pollution
Substances Spill Remediation
Prevention and Division
Control Act
-----------------------------------------------------------------------------------------
\a Expressed as full-time equivalents.
Source: GAO summary of information compiled by the Environmental Law
Institute.
STATE PRACTICES THAT STATE
OFFICIALS BELIEVE FACILITATE
FASTER OR LESS COSTLY HAZARDOUS
WASTE SITE CLEANUP
========================================================== Appendix II
Massachuse Minnesot New Pennsylv
Practice Illinois tts Michigan a Jersey ania Texas
------------------- -------- ---------- -------- -------- -------- -------- ------
Faster remedy
selection
Use of state X X X X X X
standards
documented in
look-up tables as
alternative to
risk assessment
Less rigorous X X X X X
requirements for
public involvement
Greater number of X X X X
presumptive
remedies
Use of faster or
less costly
remedies
No preference for X X X
permanence
Greater likelihood X X X X X X
to determine that
future site land
use will be
nonresidential
Liability practices
Causation liability X
State assumes full X
cost of landfill
cleanups
-----------------------------------------------------------------------------------------
Source: GAO summary of information provided by state officials.
LIST OF ORGANIZATIONS GAO
CONTACTED
========================================================= Appendix III
FEDERAL AGENCIES
------------------------------------------------------- Appendix III:1
Environmental Protection Agency -- Headquarters
Environmental Protection Agency offices in regions I, II, III, V, and
VI
STATE AGENCIES
------------------------------------------------------- Appendix III:2
Illinois Environmental Protection Agency
Massachusetts Department of Environmental Protection
Michigan Department of Environmental Quality
Minnesota Pollution Control Agency
New Jersey Department of Environmental Protection
Pennsylvania Department of Environmental Protection
Texas Natural Resources Conservation Commission
ENVIRONMENTAL ORGANIZATIONS
------------------------------------------------------- Appendix III:3
The John Snow Institute, Center for Environmental Health
Michigan Environmental Council
Sierra Club, Headquarters
Sierra Club, State Chapters in Minnesota and Pennsylvania
INDUSTRY ORGANIZATIONS
------------------------------------------------------- Appendix III:4
Chemical Manufacturers Association\1
DuPont\1
U.S. Chamber of Commerce\1
--------------------
\1 We contacted this organization in a preliminary phase of our work
in order to obtain its views on the best states to survey.
STATE AND LOCAL GOVERNMENT AND
OTHER ORGANIZATIONS
------------------------------------------------------- Appendix III:5
Association of State and Territorial Solid Waste Management
Officials\1
Environmental Council of the States\1
Environmental Law Institute\1
International City/County Management Association
Environmental Technology Council
Henry, Lowerre, Johnson, Hess and Frederick (Law firm
representing environmental and community groups in Texas)
International City and County Managers Association
Resources for the Future
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================== Appendix IV
RESOURCES, COMMUNITY, AND ECONOMIC
DEVELOPMENT DIVISION
Washington, D.C.
James Donaghy
Chicago
Harriet Drummings
Michael Hartnett
Jim Musial
Raleigh
Mary Crenshaw
OFFICE OF THE GENERAL COUNSEL
Richard Johnson
*** End of document. ***