Segment 5 Of 6 Previous Hearing Segment(4) Next Hearing Segment(6)
SPEAKERS CONTENTS INSERTS
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91–722CC
1996
SUPERFUND REAUTHORIZATION
PLEASE NOTE: The following transcript is a portion of the official hearing record of the Committee on Transportation and Infrastructure. Additional material pertinent to this transcript may be found on the web site of the Committee at [http://www.house.gov/transportation]. Complete hearing records are available for review at the Committee offices and also may be purchased at the U.S. Government Printing Office.
(104–22)
HEARINGS
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
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TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTH CONGRESS
FIRST SESSION
JUNE 13, 1995 (STATE AND LOCAL PERSPECTIVES)
JUNE 20, 1995 (BUSINESS, INSURANCE, CONTRACTOR PERSPECTIVES)
JUNE 21, 1995 (ENVIRONMENTAL AND COMMUNITY GROUPS)
JUNE 22, 1995 (CBO, GAO, AND SUPERFUND ''THINK TANKS'')
JUNE 27, 1995 (FEDERAL AGENCY PERSPECTIVES)
JULY 11, 1995 (NATURAL RESOURCE DAMAGES UNDER SUPERFUND AND THE OIL POLLUTION ACT OF 1990) [Joint Hearing with Subcommittee on Coast Guard and Maritime Transportation]
Printed for the use of the
Committee on Transportation and Infrastructure
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
BUD SHUSTER, Pennsylvania, Chairman
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DON YOUNG, Alaska
WILLIAM F. CLINGER, Jr., Pennsylvania
THOMAS E. PETRI, Wisconsin
SHERWOOD L. BOEHLERT, New York
HERBERT H. BATEMAN, Virginia
BILL EMERSON, Missouri
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
SUSAN MOLINARI, New York
WILLIAM H. ZELIFF, Jr., New Hampshire
THOMAS W. EWING, Illinois
WAYNE T. GILCHREST, Maryland
Y. TIM HUTCHINSON, Arkansas
BILL BAKER, California
JAY KIM, California
STEPHEN HORN, California
BOB FRANKS, New Jersey
PETER I. BLUTE, Massachusetts
JOHN L. MICA, Florida
JACK QUINN, New York
TILLIE K. FOWLER, Florida
VERNON J. EHLERS, Michigan
SPENCER T. BACHUS, Alabama
JERRY WELLER, Illinois
ZACH WAMP, Tennessee
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TOM LATHAM, Iowa
STEVEN C. LaTOURETTE, Ohio
ANDREA SEASTRAND, California
RANDY TATE, Washington
SUE KELLY, New York
RAY LaHOOD, Illinois
BILL MARTINI, New Jersey
DAN FRISA, New York
TODD TIAHRT, Kansas
RICHARD H. BAKER, Louisiana
JAMES L. OBERSTAR, Minnesota
NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
WILLIAM O. LIPINSKI, Illinois
ROBERT E. WISE, Jr., West Virginia
JAMES A. TRAFICANT, Jr., Ohio
PETER A. DeFAZIO, Oregon
BOB CLEMENT, Tennessee
JERRY F. COSTELLO, Illinois
PETE GEREN, Texas
GLENN POSHARD, Illinois
BUD CRAMER, Alabama
BARBARA-ROSE COLLINS, Michigan
ELEANOR HOLMES NORTON, District of Columbia
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JERROLD NADLER, New York
PAT DANNER, Missouri
ROBERT MENENDEZ, New Jersey
JAMES E. CLYBURN, South Carolina
CORRINE BROWN, Florida
JAMES A. BARCIA, Michigan
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
BILL K. BREWSTER, Oklahoma
KAREN McCARTHY, Missouri
FRANK MASCARA, Pennsylvania
THOMAS C. SAWYER, Ohio
GENE TAYLOR, Mississippi
JUANITA MILLENDER-McDONALD, California
ELIJAH E. CUMMINGS, Maryland
Subcommittee on Water Resources and Environment
SHERWOOD L. BOEHLERT, New York, Chairman
ZACH WAMP, Tennessee, Vice-Chairman
DON YOUNG, Alaska
THOMAS E. PETRI, Wisconsin
HERBERT H. BATEMAN, Virginia
BILL EMERSON, Missouri
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WILLIAM H. ZELIFF, Jr., New Hampshire
THOMAS W. EWING, Illinois
WAYNE T. GILCHREST, Maryland
STEPHEN HORN, California
BOB FRANKS, New Jersey
JACK QUINN, New York
TOM LATHAM, Iowa
STEVEN C. LaTOURETTE, Ohio
BILL MARTINI, New Jersey
BUD SHUSTER, Pennsylvania
(Ex Officio)
ROBERT A. BORSKI, Pennsylvania
ROBERT MENENDEZ, New Jersey
ROBERT E. WISE, Jr., West Virginia
JERRY F. COSTELLO, Illinois
GLENN POSHARD, Illinois
ELEANOR HOLMES NORTON, District of Columbia
JAMES A. BARCIA, Michigan
BOB FILNER, California
BILL K. BREWSTER, Oklahoma
KAREN McCARTHY, Missouri
GENE TAYLOR, Mississippi
ELIJAH E. CUMMINGS, Maryland
JAMES L. OBERSTAR, Minnesota
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(Ex Officio)
Subcommittee on Coast Guard and Maritime Transportation
HOWARD COBLE, North Carolina, Chairman
TILLIE K. FOWLER, Florida
DON YOUNG, Alaska
SUSAN MOLINARI, New York
BILL BAKER, California
VERNON J. EHLERS, Michigan
BUD SHUSTER, Pennsylvania
(Ex Officio)
BOB CLEMENT, Tennessee
ROBERT A. BORSKI, Pennsylvania
PETE GEREN, Texas
ELIJAH E. CUMMINGS, Maryland
JAMES L. OBERSTAR, Minnesota
(Ex Officio)
(ii)
CONTENTS
Proceedings of:
June 13, 1995
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June 20, 1995
June 21, 1995
June 22, 1995
June 27, 1995
July 11, 1995
TESTIMONY
JUNE 13, 1995
Colman, James C., Assistant Commissioner, Massachusetts Bureau of Waste Site Cleanup, on behalf of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO)
Gimello, Richard J., Assistant Commissioner, New Jersey Department of Environmental Protection, Site Remediation Program, on behalf of the National Governors' Association
Harding, Russell J., Deputy Director, Michigan Department of Natural Resources, on behalf of the State of Michigan
Levin, Bennett, P.E., Commissioner, Department of Licenses and Inspections, City of Philadelphia
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Strock, James M., Secretary, California Environmental Protection Agency, on behalf of the State of California
Thornton, Susan, Former Mayor and Mayor Pro Tem, Littleton, CO, on behalf of American Communities for Cleanup Equity The International City/County Management Association, the Municipal Waste Management Association, National Association of Counties, National Association of Towns and Townships, National League of Cities, National School Boards Association, and the United States Conference of Mayors
Weichsel, John, Town Manager, City of Southington, CT, and Vice Chairman, Local Governments for Superfund Reform
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Costello, Hon. Jerry F, of Illinois
Laughlin, Hon. Greg, of Texas
Martini, Hon. William J., of New Jersey
Poshard, Hon. Glenn of Illinois
Zeliff, Hon. William H., Jr., of New Hampshire
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PREPARED STATEMENTS SUBMITTED BY WITNESSES
Colman, James C
Gimello, Richard J.
Harding, Russell J.
Levin, Bennett
Strock, James M.
Thornton, Susan
Weichsel, John
SUBMISSIONS FOR THE RECORD
Colman, James C., Assistant Commissioner, Massachusetts Bureau of Waste Site Cleanup, on behalf of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO):
Report, ''Superfund Reauthorization: An Overarching Clean Up Goal-Clean Up Standards-Remedy Selection Resulting in a Streamlined Superfund Program, ''How Clean is Clean Enough''
Report, ''Superfund Cleanup Program-State Authorization/Delegation''
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Report, ''Who Pays for a Superfund Cleanup Program?''
JUNE 20, 1995
Barth, Richard A., Chairman, President and CEO, Ciba-Geigy Corporation, Ardsley, NY
Kaplan, Dale, President and Owner, Kaplan Cleaners, Camp Hill, PA, on behalf of the Pennsylvania Chamber of Commerce
Klingenberg, Arnold, Manager, Solid Waste Legislative and Regulatory Issues, Mobil Corporation, Princeton, NJ, on behalf of the American Petroleum Institute
Mallen, Michael, General Counsel, Southern Foundry Supply Company, Inc., Chattanooga, TN
McIntire, Lee, Senior Vice President, Bechtel National, Inc., San Francisco, CA, and Member, Hazardous Waste Action Coalition
Morningstar, Mary P., Assistant General Counsel, Environmental Law, Lockheed Martin Corporation, Bedford, MA, on behalf of the Electronic Industries Association
Reilly, Bernie, Corporate Counsel, Wilmington, DE, on behalf of the Chemical Manufacturers Association
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Spisak, John F., President and CEO, Industrial Compliance, Inc., Lakewood, CO, on behalf of Superfund Reform 1995
PREPARED STATEMENT SUBMITTED A MEMBER OF CONGRESS
Poshard, Hon. Glenn, of Illinois
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Barth, Richard A.
Kaplan, Dale
Klingenberg, Arnold
Mallen, Michael
McIntire, Lee
Morningstar, Mary P
Reilly, Bernie
Spisak, John F
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SUBMISSIONS FOR THE RECORD
Barth, Richard A., Chairman, President and CEO, Ciba-Geigy Corporation, Ardsley, NY:
Supplemental Statement, July 26, 1995
Responses to questions from Rep. Boehlert
Klingenberg, Arnold, Manager, Solid Waste Legislative and Regulatory Issues, Mobil Corporation, Princeton, NJ, on behalf of the American Petroleum Institute, responses to questions, August 2, 1995
Reilly, Bernie, Corporate Counsel, Wilmington, DE, on behalf of the Chemical Manufacturers Association, responses to questions, August 10, 1995
Spisak, John F., President and CEO, Industrial Compliance, Inc., Lakewood, CO, on behalf of Superfund Reform 1995:
Report, ''Superfund Reform 1995, Principles for a New Superfund Program''
Chart, Cost/Return of Site-Specific NPL Financing
Chart, Annual Costs of the Superfund NPL Program: Direct, Indirect and Hidden Taxes Imposed by Superfund (Non-Federal Facilities)
Chart, Annual Costs of the Superfund Program: Federal and Non-Federal NPL Sites
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News article, ''Superfund Success Unwanted'', The Denver Post, February 26, 1995
JUNE 21, 1995
Florini, Karen, Senior Attorney, Environmental Defense Fund
Jackson, Milton, President, Stop Toxic Pollution, Chattanooga, TN
King, Linda Price, Director, Environmental Health Network, Chesapeake, VA
Miller, Carl, Former County Commissioner, Lake County, Colorado, and Superfund Coalition Against Mismanagement
Smith, Velma M., Executive Director, Friends of the Earth
Tarpoff, Craig, , Alderman, Granite City, IL, and Co-Chairman, Superfund Coalition Against Mismanagement
Trieste, Marion, President, Saratoga Springs Hazardous Waste Coalition, Inc., Saratoga Springs, NY
Williams, Patricia Randolph, Counsel and Legislative Representative, National Wildlife Federation
PREPARED STATEMENTS SUBMITTED BY WITNESSES
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Florini, Karen
Jackson, Milton
King, Linda Price
Miller, Carl
Smith, Velma M.
Tarpoff, Craig,
Trieste, Marion
Williams, Patricia Randolph
SUBMISSIONS FOR THE RECORD
Florini, Karen, Senior Attorney, Environmental Defense Fund, submitted letter from Institute of Chemical Waste Management
King, Linda Price, Director, Environmental Health Network, Chesapeake, VA, Environmental Health Network, reports and articles*
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Trieste, Marion, President, Saratoga Springs Hazardous Waste Coalition, Inc., Saratoga Springs, NY:
Chart, ARARs Used in Formulating Remedial Action Objectives
Proposed Plan, Niagara Mohawk Power Corporation Site, Saratoga Springs, NY, U.S. Environmental Protection Agency Region 2, June 1995
Newsletter, The Saratoga Springs Hazardous Waste Coalition, Spring 1995
Williams, Patricia Randolph, Counsel and Legislative Representative, National Wildlife Federation, ''The Playground that Became a Battleground'', excerpt from February-March 1993 issue of National Wildlife Magazine
JUNE 22, 1995
Acton, Jan Paul, Assistant Director, Natural Resources and Commerce Division, Congressional Budget Office, accompanied by Dr. Perry Beider
Clay, Don R., President, Don Clay Associates, Inc., and Former Assistant Administrator, U.S. Environmental Protection Agency Office of Solid Waste and Emergency Response
Dyckman, Lawrence J., Associate Director, Environmental Protection Issues, Resources, Community, and Economic Development Division, U.S. General Accounting Office, accompanied by Sharon Butler, Evaluator
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Frost, Edmund B., Esq., Senior Vice President and General Counsel, Clean Sites, Inc
Johnson, Hon. Nancy L., a Representative in Congress from Connecticut
Magee, Dr. Richard, Director, Northeast Hazardous Substance Research Center
Probst, Katherine N., Senior Fellow, Center for Risk Management, Resources for the Future
Taylor, Jerry, Director, Natural Resource Studies, Cato Institute
Zeliff, Hon. William H., Jr., of New Hampshire
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Boehlert, Hon. Sherwood L., of New York
Johnson, Hon. Nancy L., of Connecticut
Quinn, Hon. Jack, of New York
Zeliff, Hon. William H., Jr., of New Hampshire
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PREPARED STATEMENTS SUBMITTED BY WITNESSES
Acton, Jan Paul
Clay, Don R
Dyckman, Lawrence J
Frost, Edmund B
Magee, Dr. Richard
Probst, Katherine N
Taylor, Jerry, Director
SUBMISSIONS FOR THE RECORD
Clay, Don R., President, Don Clay Associates, Inc., and Former Assistant Administrator, U.S. Environmental Protection Agency Office of Solid Waste and Emergency Response, responses to questions, August 2, 1995
Probst, Katherine N., Senior Fellow, Center for Risk Management, Resources for the Future, responses to questions from Rep. Boehlert, August 2, 1995
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JUNE 27, 1995
Browner, Hon. Carol M., Administrator, U.S. Environmental Protection Agency, accompanied by Elliot Laws, Assistant Administrator, Office of Solid Waste and Emergency Response
Davison, Hon. Robert, Deputy Assistant Secretary for Fish and Wildlife and Parks, U.S. Department
Goodman, Hon. Sherri W., Deputy Under Secretary of Defense, Environmental Security, U.S. Department of Defense
Grumbly, Hon. Thomas P., Assistant Secretary for Environmental Management, U.S. Department of Energy
Johnson, Hon. Barry L., Ph.D., Assistant Surgeon General, Assistant Administrator, Agency for Toxic Substances and Disease Registry, Public Health Service, U.S. Department of Health and Human Services
Schiffer, Hon. Lois J., Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Browner, Hon. Carol M
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Davison, Robert
Goodman, Sherri W
Grumbly, Thomas P
Johnson, Barry L., Ph.D
Schiffer, Lois J
SUBMISSIONS FOR THE RECORD
Borski, Hon. Robert A., of Pennsylvania, submitted a letter from the State of New Jersey, Office of the Attorney General, dated April 27, 1995
Browner, Carol M., Administrator, U.S. Environmental Protection Agency, charts:
Reducing the Superfund Inventory
Superfund Trust Fund: 70% Goes Toward Cleanup
The Impact of Funding on Project Starts
Johnson, Barry L., Ph.D., Assistant Surgeon General, Assistant Administrator, Agency for Toxic Substances and Disease Registry, Public Health Service, U.S. Department of Health and Human Services, responses to post hearing questions
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Schiffer, Lois J., Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice, charts:
Superfund Cleanup Process
Private Parties Pay for Most of Today's Cleanups
JULY 11, 1995
Chasis, Sarah, Senior Attorney, Natural Resources Defense Council
Davison, Robert P., Deputy Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of the Interior
de Saillan, Charles, Assistant Attorney General for Natural Resources, State of New Mexico, on behalf of Attorney General Tom Udall, and the National Association of Attorneys General
Greenwood, George E., Senior Partner, Managers of Steamship Mutual Underwriting Association Limited, on behalf of the International Group of P&I Clubs, and Chairman, Pollution Subcommittee, accompanied by Lloyd Watkins, Secretary and Executive Officer, International Group, and Luke Readman, Partner of Thos. R. Miller & Son (Bermuda), Managers, United Kingdom P&I Club
Hall, Douglas K., Assistant Secretary for Oceans and Atmosphere, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, accompanied by Craig O'Connor, Special Counsel for Natural Resources
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Hausman, Jerry A., MacDonald Professor of Economics, Massachusetts Institute of Technology
Hobbie, Richard H., III, President, Water Quality Insurance Syndicate, on behalf of the American Institute of Marine Underwriters
Kopp, Raymond J., Senior Fellow and Director, Quality of the Environment Division, Resource for the Future
McHugh, Martin J., Director, Office of Natural Resources Damages, New Jersey Department of Environmental Protection, on behalf of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO)
McKnight, Kevin L., Manager, Environmental Remediation Projects, Aluminium Company of America (ALCOA), on behalf of the Coalition for Legislative NRD Reform
Schiffer, Lois J., Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice, accompanied by John Cruden, Acting Assistant Attorney General
Stewart, Richard B., Professor, New York University School of Law
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Ewing, Hon. Thomas W., of Illinois
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Mineta, Hon. Norman Y., of California
Traficant, Hon. James A., Jr., of Ohio
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Chasis, Sarah
Davison, Robert P
Greenwood,George E
Hall, Douglas K
Hausman, Jerry A
Hobbie, Richard H., III
Kopp, Raymond J
McHugh, Martin J
McKnight, Kevin L
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Schiffer, Lois J
Stewart, Richard B
Udall, Tom, delivered by Charles de Saillan
SUBMISSIONS FOR THE RECORD
Hall, Douglas K., Assistant Secretary for Oceans and Atmosphere, National Oceanic and Atmospheric Administration, U.S. Department of Commerce:
Response to question from Rep. Boehlert
Chart, Estimated Expenditures: Natural Resource Damage Assessment Regulations, Oil Pollution Act of 1990
Responses to questions from Rep. Traficant
Hausman, Jerry A., MacDonald Professor of Economics, Massachusetts Institute of Technology, article, ''Contingent Valuation: Is Some Number Better than No Number?'', Journal of Economic Perspectives, by Peter A. Diamond and Jerry A. Hausman, Vol. 8, Number 4. Fall 1994
Hobbie, Richard H., III, President, Water Quality Insurance Syndicate, on behalf of the American Institute of Marine Underwriters, Executive Summary, Comments on Proposed Regulations for Natural Resource Damage Assessments Under OPA, Economic Analysis, Inc
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McHugh, Martin J., Director, Office of Natural Resources Damages, New Jersey Department of Environmental Protection, on behalf of the Coalition for Legislative NRD Reform, response to question from Rep. Mineta
Schiffer, Lois J., Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice, charts, Compendium of Federal Natural Resource Damages Cases Under CERCLA-Pending Natural Resource Damage Assessment Matters, responses to post hearing questions from Rep. Baker
Stewart, Richard B., Professor, New York University School of Law:
Report, ''Evaluating the Present Natural Resource Damages Regime:The Lawyers' Perspective''
Memorandum, CVM and the Extent to which Applicable Law Mandates its Use in Assessing Natural Resource Damages
ADDITIONS TO THE RECORD
American Institute of Chemical Engineers, statement
American Institute of Merchant Shipping (AIMS), Ernest J. Corrado, President, statement
Associated Builders and Contractors, statement
Associated General Contractors of America, Stephen E. Sandherr, Executive Director, Congressional Relations, statement
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Bunn, Richard L., President and CEO, UGI Utilities, Inc., statement
Citizens Against Toxic Exposure, statement
Food Industry Environmental Council, statement
Huddleson, Edwin E., III, Counsel, Volpe, Bosky, and Lyons, statement on behalf of the Equipment Leasing Association of America (ELA)
International Association of Fish and Wildlife Agencies, Gary J. Taylor, Legislative Counsel:
Statement
Report, ''The Economic Benefits of Hunting in the United States in 1991'', September 1994*
Report, ''The Economic Contributions of Bird and Waterfowl Recreation in the United States During 1991'', March 1995*
Report, ''The 1991 Economic Impact of Sport Fishing in the United States''*
International Association of Independent Tanker Owners (INTERTANKO), statement
Norwegian Shipowners' Association and the Swedish Shipowners' Association, Austin P. Olney, Attorney, LeBoeuf, Lamb, Greene and MacRae, letter, July 24, 1995
State of New York, Department of Health, letter, August 14, 1995
U.S. General Accounting Division, Peter F. Guerrero, Director, Environmental Protection Issues, Resources, Community, and Economic Development Division, statement
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*May be found in subcommittee file.
SUPERFUND REAUTHORIZATION: FEDERAL AGENCY PERSPECTIVES
TUESDAY, JUNE 27, 1995
House of Representatives,
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 10:05 a.m., in Room 2167, Rayburn House Office Building, Hon. Sherwood L. Boehlert (chairman of the subcommittee) presiding.
Mr. BOEHLERT. The hearing will come to order. Good morning and welcome to the Water Resources and Environment Subcommittee. During the past two weeks, this subcommittee has heard testimony from representatives of the major private and public stakeholders in Superfund reform.
State governments, citizen groups, small businesses, environmentalists, insurance companies, and industry representatives have all expressed a commitment to significantly reforming the existing Superfund program. Though consensus appears to exist on the need to reform and reauthorize Superfund, there is still widespread disagreement on the benefits and costs of repealing Superfund's retroactive liability provisions, and let's face it, that is the key issue.
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During recent testimony before this subcommittee, several representatives of Fortune 500 companies have noted that a full repeal of retroactive liability would create greater inequities than current law, while other industry and business interests have argued that repealing retroactive liability is the single most effective step to reducing the enormous transaction costs that now plague the program.
Representatives of State and local governments have made it clear that from their perspective a full repeal of retroactive liability would remove the single most effective tool they have in financing the cleanup of Superfund sites.
In considering the repeal of retroactive liability, we must not lose sight of Superfund's number one objective—the protection of the public from exposure to hazardous waste. The question we must ask is if we fully repeal retroactive liability can we effectively finance future Superfund cleanups without assessing new taxes or placing excessive burdens on State and local governments. That is more than a question, it is a question and a half.
A partial repeal of retroactive liability at large municipal landfills and codisposal sites may provide significant reductions in transaction costs without requiring new taxes or compromising public safety. Fairly attractive. Landfills often involve hundreds of responsible parties, a situation inevitably leading to endless litigation for both large and small businesses.
As a Congressman for one of our Nation's most notorious Superfund sites, the Ludlow site, I am committed to providing small businesses with relief from the uncertainty and burdens of Superfund. The presence of a pizza box from your restaurant in a local landfill should not cost you thousands of dollars. I look forward to hearing from today's witnesses on the savings and impacts of a partial repeal of retroactive liability.
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On today's first panel is the distinguished Administrator of the Environmental Protection Agency, Ms. Browner. Last year, EPA was actively involved in producing a very credible Superfund reform package, a Superfund reform package that came that close to passing. As the Transportation and Commerce Committee set out to craft a Superfund reform package for the 104th Congress, it is my hope that EPA will once again be involved in providing us with ideas and insights and leadership on how to reform Superfund.
On our second panel are the Honorable Lois Schiffer, representing the Department of Justice, the Honorable Sherry Goodman, representing the Department of Defense, the Honorable Tom Grumbly, representing the Department of Energy, and the Honorable Robert Davison representing the Department of Interior and Dr. Barry Johnson, representing the Department of Health and Human Services. In other words, this is Uncle Sam's day before this subcommittee.
The Federal Government is the single largest contributor of hazardous waste to our environment, and the Federal Government should lead the way in aggressively implementing needed Superfund reforms. What a bunch of hypocrites we are, don't do as we do, do as we say. It is about time we changed that.
The Superfund program must be reauthorized this year, and I am encouraged that the administration shares the subcommittee's commitment to having a Superfund bill on the President's desk this year. We can dramatically reduce Superfund litigation and cleanup costs while increasing the number of sites that are actually being cleaned up. Superfund must be fundamentally reformed. I would now like to recognize my good friend from Philadelphia, the Ranking Member of the Water Resources and Environment Subcommittee, Mr. Borski.
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Mr. BORSKI. Thank you very much, Mr. Chairman.
Mr. Chairman, for the past 15 years, there have been enormous problems with the Superfund program. During most of the time cleanups have lagged well behind the pace they should have reached. Too much time and money have been given to lawyers instead of to cleanup, investment in downtown redevelopment has been stalled, and land purchasers have been scared away by the threat of liability.
Meanwhile, communities throughout the country have remained confused and angry about their role in cleanups, the remedy selection process, and the lack of progress. Nobody is more aware of Superfund's record than the people at the Federal agencies with the responsibility for the program.
EPA Administrator, Carol Browner, has confronted the Superfund program head on. As the former chief environmental official in Florida, she has recognized that the inside-the-beltway command and control one-size-fits-all cookie-cutter approach simply doesn't work.
Last year, Ms. Browner led the effort to create a broad-based coalition that produced a strong and workable compromise that would have solved many of Superfund's problems. In the absence of legislation she has implemented many of the needed reforms administratively and she deserves to be commended for the way the program has been improved.
To be fair, Mr. Chairman, the improvements started under Administrator Reilly during the Bush administration, and even more progress has been seen in the last 2 years.
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Mr. Chairman, the two key questions that we face are how do we speed up the cleanups and who will pay for them. Last year's compromise would have resolved virtually all the questions concerning remedy selection. It would have eliminated the provisions that have prevented industrial redevelopment and it would have protected prospective purchasers. There were limits on liability for small generators and expedited procedures to get them out of the process. There were limits on the liability of municipal generators and transporters. There was also an allocation scheme to help cut through the web of litigation and transaction costs that have slowed the cleanup effort.
Through our series of hearings, Mr. Chairman, I have not heard any proposals that would provide a better solution for the problems in the Superfund program. Nobody, Mr. Chairman, has argued with the remedy selection proposals from last year, and nobody, nobody has offered a credible, practical and fair alternative for funding the program. Too many of these proposals have failed to offer an alternative source of funds or have relied on cutting back on the cleanup program.
Cutting back the cleanup program will not protect the health and environment of the American people and is simply not acceptable. The issue before us is how to improve the program and protect the health and the environment of the American people. The coalition that Administrator Browner put together last year shows the way to do that. We should continue in that direction. Thank you, Mr. Chairman.
Mr. BOEHLERT. I want to thank Mr. Borski.
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Mr. Bateman.
Mr. BATEMAN. No statement, Mr. Chairman.
Mr. BOEHLERT. It is a great pleasure for me to welcome the Administrator as our first witness. We apologize to you for the sparse attendance. This is get-back day from our districts, and after the Contract With America when most of us spent very little time in our districts or with our family, we take every opportunity possible to do it, so you are going to see other Members sort of come in. There is one less on that side of the aisle. They are moving over to this side of the aisle, you know about that one. There may be a few more less after this hearing.
Madam Administrator, it is a pleasure to welcome you.
TESTIMONY OF HON. CAROL M. BROWNER, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY
Ms. BROWNER. Thank you, Mr. Chairman, it is indeed an honor to be with you today. Joining me is Mr. Elliott Laws, the Assistant Administrator for our Office of Solid Waste and Emergency Response. I want to thank you, Mr. Chairman, and Ranking Member Borski, for your leadership in supporting responsible reform of the Superfund program.
The Clinton administration has long recognized that the Superfund program needs significant reform. We are committed to making the Superfund program work faster, fairer, and more efficiently to protect public health, to protect the environment, and to clean up contaminated property and return it to productive economic use for local communities.
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Fifteen years ago Congress passed the Superfund law in response to widespread public concern over the public health and environmental dangers posed by hazardous waste sites. But cleaning up Superfund sites turned out to be a much bigger task than anyone could have imagined. In 1980, it was thought that perhaps several hundred sites would need cleanup. We now have over 1,300 sites in the Superfund program. We have found that cleaning up Superfund sites requires more than removing drums and securing abandoned facilities. Cleanup actually requires complex engineering and technology that has taken years to develop.
Over the past 15 years, Superfund has achieved successes. Hazardous waste has been removed from more than 2,700 sites. The polluters that are responsible for the hazardous waste at Superfund sites have committed more than $10 billion for these cleanup activities. And perhaps most importantly, Superfund has had a powerful deterrent effect. Thousands of businesses have reduced the amount of waste they generate and improved their disposal practices to avoid potential Superfund liability.
Mr. Chairman, I don't think there is any disagreement that the Superfund program needs to be reformed. The liability system must be reformed to reduce the burden on small business, municipalities, and lenders, and ensure that more money actually goes to cleanup and not to the lawyers.
Superfund cleanups need to be more consistent from one site to another. State and Federal roles too often overlap, community residents are not as involved as they should be in making decisions about how a site should be cleaned up and what that site should be in the future.
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Unfortunately, Mr. Chairman, much of the debate to date has involved misstatements, half truths, and quite frankly, some outright fabrications made by witnesses appearing at this year's hearings. You have been told that billions of dollars have been spent on Superfund cleanups and yet nothing has been cleaned up. This is simply not true.
At 65 percent of the non-Federal facility Superfund sites, long-term cleanup is under way, not studies, cleanup is actually under way. EPA has performed over 3,300 emergency removal actions at sites across the country, swift action to protect the public and our environmental resources.
You have been told that Superfund sites pose no health or environmental risk. Again, Mr. Chairman, this is not true. Approximately 73 million people live within four miles of a Superfund site. The agency for toxic substances and disease registry has fully documented human exposure to hazardous substances at Superfund sites.
A growing body of evidence shows that people living near Superfund sites have increased health problems, including an increased risk of birth defects, leukemia, cardiovascular abnormalities, respiratory illnesses, and immune disorders.
You have been told that EPA cleanups are based on the assumption that kids will eat a bucket full of dirt every day for the rest of their lives. This, Mr. Chairman, is a total fabrication. EPA does not now, nor has it ever, based Superfund cleanups on an assumption that kids will eat buckets of dirt. EPA's risk assessments addresses the incidental ingestion that occurs when a child plays outside, puts their hand in the dirt, their toy in the dirt and then puts their hand or their toy in their mouth, which every young child does.
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We have assumed that unless the evidence suggests otherwise, that a child may ingest one one-hundredth of an ounce of dirt per day over a 5 or 6-year period, not their entire life, over the period of their childhood when they play outside and put their hands in the dirt. It is nothing more than the ability to play outside during a child's early years that we are seeking to protect.
You have been told that we can repeal retroactive liability without delaying the pace of cleanup because current trust fund spending can replace the funding now contributed by the private parties, the $10 billion that has been contributed by the private parties. This is not true.
The Congressional Budget Office calculates that repealing retroactive liability for pre-1987 disposal would require Congress to raise an additional $1.6 billion per year, $1.6 billion of tax revenue to replace the private party funding. The polluters' money. Resources for the Future, an independent, nonprofit research organization, has testified that repealing retroactive liability without significantly increasing the current trust fund spending would double the time it takes to clean up Superfund sites.
We have communities that have waited more than a decade. We cannot tell them to wait another 10, 15, 20 years.
You have been told that every Superfund cleanup is based on the assumption that the site must be clean enough for residential land use; therefore if more realistic cleanup standards were used, cost savings of 50 to 60 percent could be achieved. That is wrong. In fact, no more than 50 percent of Superfund remedies are based on future residential land use. I know of no way to achieve the savings that have been claimed by some of the witnesses that have appeared before this subcommittee, unless we abandon cleanup entirely and rely solely on containment and limiting public access.
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In other words, unless we are prepared to fence off the sites, to deny access to the residents, to deny productive use of those areas for communities across this country.
Since coming to EPA, I have used my administrative powers to improve the program. We have improved our settlement process to get thousands of small parties out of the Superfund liability net. We have removed 25,000 sites from the Superfund inventory. Our brownfield actions agenda is returning formerly contaminated properties to commercial use and creating jobs throughout our Nation's communities. But there is a limit to what we can do administratively.
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If we are to meet our shared goal of protecting the public's health, the environment, and revitalizing our communities, Congress must change the Superfund law. Last year, we worked closely with this committee, with other committees to reform Superfund. Together we forged a consensus proposal that gained the support of a broad range of interested parties and Members of Congress from both sides of the aisle. That reform proposal, as you said, Mr. Chairman, came awfully close to passing before the congressional session ended. We must continue the progress we achieved last year and pass Superfund reform legislation this year.
But let me be very clear, Mr. Chairman, we support reform, we do not support repeal. We continue to believe that the party responsible for the pollution should be responsible for cleaning it up, that the polluter, not the American taxpayer should pay.
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No one disagrees that the Superfund liability net has been cast too broadly. No one disagrees that that needs to be corrected. The Clinton administration firmly believes that the problems experienced by small business, municipalities, lenders, and other parties can and must be addressed in this year's legislative process. However, we must preserve the fundamental principle that those responsible for the pollution must be responsible for cleaning it up.
Outright elimination of retroactive liability would deal an enormous blow to both the Federal Superfund program and to the State cleanup activities. More than 30 States have now adopted the same liability scheme as the Federal Government, and they are overseeing literally thousands of waste site cleanups being performed by private parties.
Abandoning the polluter pays principle would remove the incentive driving tens of thousands of voluntary cleanups that are going on today. States and local communities rely on private-party funding to restore contaminated brownfields to productive commercial use. This is why the National Governors' Association, the National Association of Attorneys General, the National Conference of State Legislatures, the National League of Cities, and the United States Conference of Mayors all support retaining the current Superfund liability system.
Mr. Chairman and members of this committee, I look forward to working with you to reform Superfund, to protect the public's health and this country's environment now and in the future and to encourage economic redevelopment in our Nation's communities. Thank you very much for the opportunity to be with you.
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Mr. BOEHLERT. Well, thank you very much for your testimony. We really appreciate that, and I think I am on solid ground when I am saying on behalf of all the committee on both sides of the podium that we are committed to reform rather than repeal of Superfund because the business that addresses is far too serious to turn our backs on it.
I am particularly pleased that you focus so much on the debate about whether or not we repeal retroactive liability. It is no secret that the Chair is leaning toward retaining retroactive liability because I don't like the alternative, but I am open-minded about it.
Would you please address the possibility of a partial repeal of retroactive liability so that maybe municipal landfills could be exempted or codisposal sites. Talk to that, if you will.
Ms. BROWNER. The two proposals that we have seen that focus on what might be referred to as a partial repeal of retroactive, first, is drawing a line, the idea that activities before a certain date there would no longer be a responsibility for the polluter to pay.
The concern we would have with that approach is that you are merely changing the nature of litigation. There will be tremendous argument about whether or not a particular activity occurred before or after a particular date, and I think we all agree the goal of reform should be to get the lawyers out of the program and let's not simply create another lawyer's windfall.
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The other idea which I believe you make reference to is that there are some types of sites that perhaps should be treated differently. We absolutely think there are some people that should be taken out of the Superfund liability net, that they have been caught up in something that was probably never intended, the law was vague, through litigation they have been brought in, small businesses, the tiny, tiny parties, the homeowners that suddenly get a letter from some large corporation saying well, your waste, your garbage was going to the same site that our hazardous waste was going to, and now you have a liability.
They absolutely should be taken out, the law should be very clear about providing protection to those tiny parties, to those homeowners. The idea that at some of these multiparty sites, the municipal landfills are the most common example, that perhaps they should be treated differently, I think, is an idea worthy of serious consideration. Those are some of the most difficult sites we deal with. There are more parties involved in those sites than almost any other kind of site, an awful lot of litigation involved in those sites, and I think that it is certainly worthy of consideration.
Obviously, there are financial funding issues involved, but to create a category of sites that would be treated differently than others, I think, is something that perhaps would go a long way toward addressing a lot of the complaints we hear about the Superfund liability scheme, and we would be very interested in working with the subcommittee to pursue that idea.
Mr. BOEHLERT. That is good news, and we will follow up on that. I can tell you where you are getting clobbered. You are getting clobbered out there by people with great uncertainty about what we might do and how it will impact on them. I bemoan the fact that we lost the coalition of last year and sort of scattered to the winds.
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I will tell you, if you take big business, it is a house divided. I mean, every other visitor to my office from a Fortune 500 company has a different version. One wants to maintain retroactive liability for good and sufficient reason, one wants to eliminate it for good and sufficient reason, and so it is a house divided. But the small business community out there, boy, are they uncertain.
I don't blame them one bit. So give us some comfort for small business across America. What do you think we can responsibly do without turning our back on the objective of the program and at the same time recognize that small business, their special concerns have to be addressed?
Ms. BROWNER. Mr. Chairman, I couldn't agree more with the need to address the particular concerns of small business. I don't think in 1980 Congress intended to see the large number of small businesses now caught in the Superfund program brought in. That has occurred for a variety of reasons, and we need to correct it.
I think there are two things that we should do for the small businesses. The first is to draw a bright line, to say who is in and who is out. If you had a small business owner, a pizza parlor, their garbage was being taken nightly to the local landfill, they shouldn't be included in the program. There should be a bright line in the statute saying those sorts of parties are not part of the Superfund liability structure. They were never intended to be part, let's draw a bright line.
Mr. BOEHLERT. Would they be de minimis or de micromis?
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Ms. BROWNER. They would be out, take them totally out. They would not be part of it. They would be given legal protection.
Right now what I am doing administratively is providing them as much protection as I can, but because of the litigation that has ensued over the last 15 years, it is a complicated process. It is not a streamlined bright line. Congress can fix that. You can draw that line. For those small businesses that may have generated some small waste, some toxic or hazardous waste, we need to have an expedited settlement process, a mediation, a way for them to come in very quickly, to be dealt with fairly, efficiently, to have an agreement reached, and then to protect them from any other litigation, to make sure that they pay their share, but it be done in a very different way than it is done today.
Mr. BOEHLERT. My time has expired. I am going to honor the time limit except the privilege of the Chair.
Are you consciously reaching out to the small business community?
Ms. BROWNER. Yes. We have been working with the small business community both in terms of our administrative changes, a large number of them were designed to provide relief to the small businesses of this country, and we did work with the small business interests in crafting the legislation last year. They were part of the effort.
Mr. BOEHLERT. How about this year in crafting the legislation for this year?
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Ms. BROWNER. Well, at this point in time, Mr. Chairman, we are hoping to get some leadership perhaps from the Congress in terms of which direction you all hope to move in, and then we would be more than happy to, again, work with all of the parties. We continue to believe that the legislation that we presented to Congress last year is a strong, a very good piece of legislation that solves the problems.
Mr. BOEHLERT. Yes, I think it is a pretty good piece of legislation. It needs some fine tuning. But I would urge you to continue to work constructively whether you have a crisis or not with the small business community.
Mr. Borski.
Mr. BORSKI. Thank you, Mr. Chairman. Administrator Browner, I want to ask you a couple questions about retroactive liability. It is not unreasonable to assume that we may be facing a bill that would repeal retroactive liability. That is why I wanted to ask you a few questions about it.
Would it be possible, in your view, to operate a publicly acceptable Superfund program if the only funding source for the program were the $1.5 billion in existing revenues? Assuming, again, if retroactive were to be repealed?
Ms. BROWNER. I think there are two problems. The first is the amount of money that would be available. As I said in my opening statement, almost $10 billion has been committed by private parties to clean up polluted sites. That is money that does not come through the Federal Treasury. It goes directly to the contractors who perform the work at sites.
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It is that money that is resulting in the high number, and part of it is that money is resulting in the high number of cleanup activities going on. If you no longer have a requirement that the polluter pays, all of those activities will cease to occur, and there will be a dramatic decrease in the amount of sites cleaned up and the amount of time in which sites are cleaned up.
CBO says if you want to maintain the current pace of cleanups, if you lose that $10 billion, you have to almost double the tax. You have to add another $1.6 billion annually to the current tax of 1.6 to maintain the current pace of cleanups. So the first problem is just a financial problem, where do you get the money from.
The second problem, and I think this is equally important, there are some things, and we all recognize this, that the Federal Government does quite well. There are other things, quite frankly, that the private sector can sometimes do better.
The idea that all of these sites that are currently being managed by the private sector in a very cost-effective way would now become the responsibility of the Federal Government in the form, I guess, of a public works type endeavor does not strike me as wise government.
There are requirements in terms of how government spends its money that are time-consuming, they are appropriate because it is the taxpayers' money, but right now we are seeing the private sector accept greater and greater responsibility and doing it more and more efficiently than the Federal Government. I don't know why we would create a new public works effort in this country, why we would take over all of these activities being handled so well by the private sector at this point in time.
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Mr. BORSKI. Let me ask a follow-up to that. Assume for a second—I know this is a big assumption—that we could double the Superfund fee, if you will, and come up with roughly the same amount of money that we are spending on the program today. Is that a good idea?
Ms. BROWNER. I continue to think that the private sector is more efficient in many ways in handling site-specific cleanup activities. They need to do it in conjunction with Federal oversight. They need to do it in conjunction with Federal and State standards, but I don't think you want to see all of these activities managed by the Federal Government.
Mr. BORSKI. If changes to the remedy selection process were to be made which would result in significant savings in the program, should those savings be used to fund a repeal of retroactive or should those savings be used to increase the pace of cleanup?
Ms. BROWNER. Congressman Borski, in last year's proposal there was a creation of an orphan share, a pot of money, if you will, that would be used to bring people to a mediation process, some money that the Federal Government could put on the table to come to closure about who owes what so we can get on to the important work of actually cleaning up the site.
It is important, I think, to maintain such a fund. That ability of the government to leverage is very important, so I presume in your question you are preserving some sort of fund. That being said, any savings which can be achieved should absolutely go to quicken the pace of cleanups.
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Mr. BORSKI. Thank you, Mr. Chairman. I have several more questions, Mr. Chairman, but I would wait for a second round if that would be appropriate.
Mr. BATEMAN [presiding]. I have a couple of questions, and I might be able to yield back some of my time to you.
Madam Administrator, welcome to the committee. We are very happy to have your testimony this morning on this very important subject. One of the things that I am learning, being new to the committee and to any committee having Superfund jurisdiction, are frequent complaints that the level of cleanup tends to become more excessive and higher than is reasonably necessary when the person or entities having authority to decide what the level of cleanup should be and do not bear any portion of the cost or a lesser portion of the cost.
Is there a real problem out there of, for instance, States having control over level of cleanup and wanting it cleaned up to an unrealistic degree relative to the cost benefit analysis, and the fact that they do not have to pay a significant portion of those additional costs?
Ms. BROWNER. Mr. Chairman, as I understand your question, you may be asking about the role of the States, but also the role of communities, of organizations with an interest in the site and whether or not their participation contributes to an increase in the cost of cleanup. I strongly believe that involving the people, the citizens who must live with the ultimate decisions early in the process results in savings in the long run. It does take more time, it does mean people have to listen. There are dialogues that have to take place, but the end result in every instance where I have seen this occur is a far better result than what happens when government makes a decision behind closed doors and then presents it to the citizens who live around the site.
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In terms of the kind of cleanup scenarios that are occurring out there in terms of the levels of cleanup, I think it is important to understand that 34 percent of cleanups today are based on an industrial use scenario. In other words, that the future land use will be of an industrial nature. Twenty-four are based on commercial use, an office building, for example. Sixteen percent are based on recreation, agricultural, education or some other kind of land use, and 26 are based on residential. So what you see is a fairly even split among the different types of land use in terms of the cleanup activities that are occurring.
I think the statistics are fairly enlightening in terms of responding to your question, are we getting increasing levels of—I think the way you put it is higher levels of cleanup than perhaps are appropriate.
Mr. BATEMAN. Well, the thing that is concerning is if you take specifically Federal facilities, which in the nature of things are located by and large within States, States have the authority to require the level of cleanup when a Superfund site is identified on the Federal facilities. Where that occurs, and say a State is insisting upon a level of cleanup that is more excessive than Federal authorities think is warranted, do the States have the right to control what that level of cleanup will be and if so, to what extent do they share in any excess cost of cleaning it to that level?
Ms. BROWNER. In the proposal that the administration brought forward to Congress last year, we did recommend changes in what is referred to as the ARARs. We suggested that in the case of States and the standards that they adopt they would have to be specifically adopted as Superfund cleanup standards to be applied in a cleanup proposal, in a cleanup plan.
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Under the current law, there is a different requirement, and there was an agreement that States should take the time to reflect on standards they may have adopted for other purposes and determine whether or not those are appropriately applied in a cleanup scenario, so we had recommended changes to that section of the existing law.
Mr. BATEMAN. Well, my time is going to be much more limited this morning in fairness to everyone else than I would like, but it would be very helpful if you would communicate with me and share with other members of the committee an overview of where the problems lie based upon empirical data in terms of State authority to control the decision-making on level of cleanup and the cost and how the excess cost, one level versus something that others think is adequate, is shared or distributed.
Ms. BROWNER. Just very quickly, Mr. Chairman, under last year's proposal, the States would have to pay the additional cost. That was part of the proposal in terms of the standards adopted, and then the cost would fall to the States.
Mr. BATEMAN. Last year's proposal, but not current law?
Ms. BROWNER. Not current law, correct.
Mr. BATEMAN. Thank you very much. My time has expired. At this point I would call upon Mr. Menendez for his questions.
Mr. MENENDEZ. Thank you, Mr. Chairman. Good morning, Administrator. Let me just make sure I understand. We talked a lot about retroactive liability, but is it fair to say that the position of the administration is that the basic construct of the joint and several, strict, and retroactive liability is what you seek to maintain?
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Ms. BROWNER. We believe that the polluter should pay, and we believe that that principle embodied in the Superfund law should be retained. How you allocate liability at a particular site, the mechanisms by which you do that, should be changed in terms of mediation, in terms of moving the lawyers out of the process, but at the end of the day, the polluter, not the taxpayers should pay.
Mr. MENENDEZ. What I hear you saying in that answer is there is some deviation that you are willing to accept?
Ms. BROWNER. We are not willing to accept any deviation from the polluter pay concept. I think what you hear me saying, I will be a little more specific, is that in terms of the liability scheme, and I think some people use the phrase you just used to refer to a variety of things.
The liability scheme, the allocation of who pays what, that system we do believe should be changed, and we came forward with a proposal last year that made dramatic changes in how that would work. It would get it out of the courtroom, it would get it away from the lawyers, we would go into a nonadversarial mediation process that would be much more cost-effective, much more timely in making wise decisions, and so that is what you hear me saying, which is that distinction between the polluter pays and corrections, significant changes in the liability scheme.
Mr. MENENDEZ. Well, let me pursue with you a little bit further, then, the possible modification of the effects then of the liability scheme. There have been proposals referring to de minimis, de micromis settlements, lending liability protections, prospective purchaser protections and the like.
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How does the administration stand on those issues? I am particularly headed towards issues in my own congressional district in New Jersey which is a very urban district and questions of using lands for which in many cases is the only rateable bases, sources of income for some of these communities that cannot presently be used or are difficult to use under the present scheme because of both lender liability issues and, of course, brownfield issues, which I would ask you to include in your answer.
Ms. BROWNER. We agree that all of those should be corrected in the law. The proposal we made last year did that. Specifically, we think that banks should be protected. We took a case all the way to the Supreme Court over that issue and we lost. The Congress said we didn't have the authority.
The court said that Congress had not given us the authority to protect banks. We think they should be protected in part for the very reason of brownfields. It is clear that there are lenders out there interested in lending on these properties so they can be cleaned up, so they can be redeveloped. We have developed a program with the banks where the banks now feel comfortable in many instances lending on those properties. That is part of our brownfields action agenda.
We think prospective purchasers should be protected from liability. If someone wants to come in and clean up a site and put it back to productive use, let's do everything we can to encourage that activity. We think the teeny, tiny parties should be taken out. We think the tiny parties should be treated very differently. We couldn't agree with you more with the need to make significant changes in the law for all of those, the categories of parties that you raised.
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The brownfields issue, if I might just spend 1 minute on that—and we have a visual that I think might be helpful. When I came to the agency, it became clear to me that there were a number of reasons why these sites couldn't be redeveloped. What we are talking about is the site that we are all familiar with. It is in a downtown urbanized, perhaps industrialized area. It has been fenced off for the last 10, 15 years, the community can't make use of it, and so development leaves the downtown area, goes out into a greenfield, and the city is literally robbed of the economic investment.
In talking to the mayors of this country it became clear to me that we would have to act on several fronts. So the first thing we did was to go through the master list of sites, the master list had 39,000 sites on it. Many of these are sites we never intended to do anything with at the Federal level. They just weren't of a magnitude that we would be focusing on, yet they were maintained on a master list and a stigma was associated with being on that list so developers, banks wouldn't get involved.
Earlier this year I took 25,000 such sites off the list. I removed the stigma. I said to the banks, to the buyers, to the developers, to the mayors, it is clear that the Federal Government is no longer interested in these sites. That was the first thing we did.
The second thing we did was work with the banks to develop a mechanism whereby they would be comfortable lending on these sites, and the third thing we did was launch a series of pilot projects to determine how best to see these sites redeveloped.
I just want to tell you about one site that I visited, actually in the State of Virginia. I went to a site that had been an industrial facility, had a low level, but nevertheless not insignificant amount of contamination. It was a warehouse. With these protections, a gentleman came in, he bought the site, he removed the contamination, and today there are 60 people employed at that site.
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Across the street, the housing has been refurbished, a block over another site is now being cleaned up, and hope has been restored to that community. That is what we are doing for the brownfield sites in this country.
Mr. MENENDEZ. I see my time is up. Let me just ask you one last question as a follow-up to what you already said because I don't know if I will be here for the second round. Recognizing that you advocate several of the changes that you have told the committee, is it still my understanding, also recognizing that procedures are necessary to expedite settlements, are important as well, should the strict joint and several and retroactive theme be the general rule then?
Ms. BROWNER. I would agree that it is the general rule. It is the backbone. It is the hammer that sits out there when all of the other efforts don't work, but, again, I think that the proposal we made last year was about bringing fairness to the process, and so lender liability, prospective purchaser, de micromis, de minimis, ability to pay, taking into account the party's ability to pay, the Barham litigation after the allocation system, the allocation system itself was all about structuring a program that people would come into outside of the traditional joint and several and we would be able to move forward in a fair and efficient manner.
Mr. MENENDEZ. Thank you, Mr. Chairman.
Mr. BOEHLERT [presiding]. The Chair will note that it is going to be somewhat lenient with Members in terms of the time for legitimate reason. You are interested, you are here, and you are dealing with a very important subject matter. We have got 29 members of this subcommittee and we don't have 29 members here, so I will be extra generous in allocating time. If some of your brethren and sistren aren't here, you will get the time.
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I would note, Madam Administrator, that the Banking Committee or whatever it is called these days—I don't have the new lineup—is dealing with H.R. 1362, which specifically addresses the liability question. We have more than a passing interest in that, as does the Commerce Committee, as does EPA, and we will be following that very carefully because we have got to do something about that, and when you mentioned the prospective purchasers, and you mentioned it, coincidentally, just as the Department of Defense team walked in, I am very much interested in something called base closings around America, and these communities all over America want to rebuild, pull themselves up after they have been knocked down by the Federal Government, but in many instances prospective purchasers of property on those bases say, hell, no, I don't want to wait five, 10 years down the pike and somebody send me a big bill for liability for something that I had nothing to do with, so Ms. Goodman knows that when we hear her testimony this will be a subject that I would address with her. But you know and I know that the U.S. Government is among the biggest polluters in America, and we have got to do a better job.
Mr. Gilchrest.
Mr. GILCHREST. Thank you, Mr. Chairman. On that note, I have been a pretty steady participant in the cleanup of a former Navy base in my district, Bainbridge, and it has created a lot of rocky roads, controversy over the last 4 years, but the most important part of that to bring that to a conclusion and a success is that all the parties have stayed engaged and they have sat around the table numerous times on the site to talk about their disagreements, and Ms. Browner, when you talk about a nonadversarial situation that you could—that was not a non—that was a very adversarial situation, but I think it created an environment in which the adversaries, who were very adversarial with each other in the beginning, could eventually work through this long process and come up with a scheme that would be acceptable to everybody. So I would agree with your proposal last year and I hope you can do something with that this year.
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I had another question, but I am interested. I guess this chart represents Superfund sites.
Ms. BROWNER. It represents the CERCLA's list. It is the master list, the NPL. The national priority list is 1,300 of these sites, but this was the master list, and it was creating a stigma for these communities.
Mr. GILCHREST. So these are sites that fall within this broad concept of brownfields?
Ms. BROWNER. These are all of the sites that have been presented to EPA by a variety of parties because there is a concern with respect to the level of contamination. The vast majority of them we will never, after some preliminary investigation, we will do nothing else, yet they were maintained on the list.
The 25,000 sites that have been now removed from the list, a large number of them are what we would refer to as brownfield sites. Some of them do occur in agricultural areas and unurbanized areas, but the vast majority of them are in heavily industrial or urbanized areas.
Mr. GILCHREST. So do any of those—so none of those, then, that you have removed, partially as a result of the brownfields concept, would probably not have been on the national priorities list as a result of the type of contamination?
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Ms. BROWNER. Right.
Mr. GILCHREST. Is there a difference as far as the cleanup is concerned if the site is going to be industrial, commercial, residential, do you then look at that site and say that the particles of contamination in the ground can be a little bit different as a result of its use and who determines the use, the State?
Ms. BROWNER. In this case, as these sites are taken off of the list, and even before when they were on the list, since we had no future interest in them, the State would largely be responsible in terms of overseeing the cleanup activities. It is quite appropriate and common to take into account the future land use, as I explained earlier the sort of breakout in terms of where the sites are falling. The goal has to be equal protection.
You want to make sure that your cleanup plan provides the public health and environmental protection that is envisioned in the law. You may be able to achieve that through different cleanup plans, but it is not a question of one site continuing to be more dangerous than another once the cleanup has been completed.
Mr. GILCHREST. But there is a difference about the background levels of, let's say, asbestos or would there be on a brownfield site that would be used again for an industrial site as opposed to the amount of asbestos that would be acceptable in the soil if the State decided to use it as a residential area?
Ms. BROWNER. If you don't mind if I could change your example because I think there is a little bit easier example to use, and that is lead-contaminated soils.
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Mr. GILCHREST. Okay, but I would like you to talk about asbestos because Bainbridge had 435 buildings that had asbestos in it, and I don't want to slow the progress down, and the State is going to do something with that property, but could we use asbestos as an example?
Ms. BROWNER. The reason I was hesitating is there is a technical issue that I am not well informed on, and that is the question of asbestos-contaminated soils, and so I don't want to mislead anybody with my answer.
Mr. GILCHREST. We can talk about that later.
Ms. BROWNER. We could specifically respond on the asbestos. The more general issue of if you have different levels, let's say you have lead-contaminated soil, and what is going to be built there is a parking lot, then you may very well, given the level of contamination, be able to merely put down an asphalt parking pad and be done with your cleanup activity.
Mr. GILCHREST. Can you do that now or is that proposed to be done?
Ms. BROWNER. You can do that now. If it is going to be a residential community, if it is going to be a nursery school, if it is going to be a place where children may be putting their hands in the dirt because they play outside and putting their hands in the mouth, then the cleanup plan is different.
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Mr. GILCHREST. Even if it would be a parking lot?
Ms. BROWNER. You have achieved the same level of protection, but you have had two different plans, one because of the potential for human health effects in the future, you remove the soils, you take them off the site, and the other by putting down your six inches of asphalt.
Mr. GILCHREST. So is this worked out between EPA and the State?
Ms. BROWNER. It is a combination of EPA, the State, and depending upon who is responsible for the site.
Mr. GILCHREST. Well, thank you very much.
Thank you, Mr. Chairman.
Mr. BOEHLERT. Mr. Latham.
Mr. LATHAM. Thank you, Mr. Chairman, and I want to compliment you on trying to get some flexibility and help for especially small business people. I am just curious, and maybe it is because I haven't had a chance to read all the testimony here, but how many lawyers are involved in the EPA as far as the Superfund is concerned? What portion of the budget, how many——
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Ms. BROWNER. Let me——
Mr. BOEHLERT. They are anticipating your question.
Ms. BROWNER. We get this question a lot. There is this impression, and I think it is important to set the record straight, that we have all of these lawyers running around engaged in all of this litigation. We do have lawyers. The Department of Justice have lawyers who work with us, but the lion's share of the lawyers involved in Superfund are not government lawyers.
It is the private sector, it is Company A suing Company B over how much pollution each of them caused at a site, and once that is resolved, it is Company A suing their insurance company, and Company B suing their insurance company.
Mr. LATHAM. Well, what proportion, then, of all the litigation costs between Company A and Company B and between EPA, I mean how many dollars are spent on that type of whole litigation which could be put toward cleaning up sites?
Ms. BROWNER. Company A and Company B, the litigation between the two companies is not government money. The government money, I will show you, this takes all of the monies appropriated, which is approximately $1.5, $1.6 billion a year, and it shows you that 11 percent goes to what we call enforcement. That is where most of the government lawyers are. That is the lawyers that we use to find Company A, to find Company B and bring them in to make a determination about how much they owe.
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That 11 percent, that enforcement figure, has resulted in $10 billion in private funds going towards cleanups. This is a very cost-effective use of the taxpayers' money. For every dollar spent, we are collecting $9 for cleanup activities.
As you come around, you see the allocation of the remainder of the resources, and I think most significantly it is that 71 percent of the dollars spent in the Federal Superfund program actually go to what we call response work, cleanup activities, emergency removals, activity on the ground.
[The chart follows:]
[Insert here.]
Mr. LATHAM. You maybe missed my point. You know, there are a tremendous number of dollars spent that go towards litigation that could be put towards cleanup, and——
Ms. BROWNER. Oh, we agree.
Mr. LATHAM. And you are well aware that those dollars spent out there by Company A and Company B, which both might be very small companies who cannot afford to fight or one is a small company, one is a large company, the small company is dead meat. He is out of business because of the 11 percent there, and whether it is direct costs, you know, to the Treasury, there are still dollars being expended out there, a tremendous number of dollars, and which is a great cost to the economy and the dollars could be much better spent, used to clean up sites.
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Ms. BROWNER. We couldn't agree with you more. We would like nothing more than to see—and I am a lawyer. We would like to see all the lawyers out of this program, whether it be the private lawyers or the government lawyers, and I think the proposal we made last year made tremendous strides.
If the question you are asking, which is in the total universe of Superfund, private dollars and government dollars, what percentage is transaction costs, in other words, lawyers, in the total universe. It is 11 percent of just the government's money, but in the total universe there was a study done by the Rand Corporation that estimated 29 to 32 percent was going to transaction costs, and we think that is ridiculous, and that is why we came forward with a proposal last year that would dramatically reduce the litigation between A and B and then A to its insurance company, B to its insurance company.
Mr. LATHAM. Okay. Well, I hope I have a chance to revisit again, but——
Mr. BOEHLERT. If you would like to proceed a little more in this line of questioning.
Mr. LATHAM. You know, I am deeply concerned, especially for a small business person, and you said that you have tried to give some relief, saying the pizza guy is going to be exempted, but the other small business guy that maybe had a little bit of pollution, maybe he will not be exempted.
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I want to know who is going to make that determination, at what level, are you going to have somebody from your agency in every place and town? What says that—what guarantee does a pizza guy have 10 years from now that someone very well meaning in your position doesn't change the regulations. There is a different Congress that changes the law and comes back again if we don't do something about retroactive liability and says even though you use your best practices at the time that you are not a polluter today, but 10 years from now you are a polluter. What protection is there for that pizza guy? I don't think there is any.
Ms. BROWNER. We think you should change the law.
Mr. LATHAM. To do away with retroactive liability?
Ms. BROWNER. No, we think the polluter should pay. We think for the pizza owner, you should change the law. You should draw a very bright line in the statute saying these people are out; these people are in. You have to do that.
I am doing everything I can to help those people, but at the end of the day the current law brings them in, and I am here asking you to pass a law that says these people are out because they have been treated unfairly under the current law. I can't say what Congress will do 10 years from now.
Mr. LATHAM. That is my problem. I mean, 10 years ago when those people did do away with their waste, they did it under current law, they did it legally.
Ms. BROWNER. Right.
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Mr. LATHAM. And now you are saying that they are polluters.
Ms. BROWNER. No, I don't say that.
Mr. LATHAM. Well, you are saying polluter pays.
Ms. BROWNER. There are three categories of parties involved in Superfund. This is a very general summary. There are the pizza owner, the tiny, tiny guy, there is the tiny guy who was—let's say your neighborhood garage, and then there is the large industrial company, okay?
I think Congress should draw a very bright line that the tiny guy is out, that no one can touch the tiny guy, and I would encourage you to do it as expeditiously as possible because, unfortunately, until you do it, my ability to protect those people is legally limited. I want to protect them, I have gone to every extreme I can to protect them, but someone is going to sue me at some point and I am going to lose, and they are not going to be protected until you change the law.
For the middle category of people who had hazardous waste, we suggested last year an expeditious streamlined process for dealing with them, a threshold in the statute that says you are in, if you are in that category, then you are dealt with in a very different way than the large parties.
For the large parties, a mediation process, get everyone in the same room, and in exchange for coming into that room, a portion of the cleanup costs would be covered through an orphan share. You retain retroactive liability as the hammer to bring people to the table so that if they don't come to the table, they may still—I am sorry, joint and strict, they would still have liability under joint and strict, but if they come to the table, they are protected. I couldn't agree more with you for the need to fix the statute on this case of the small parties.
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Mr. LATHAM. And I appreciate your efforts. I thank the Chairman for his indulgence.
Mr. BOEHLERT. Well, I think it was very important to allow you to continue because that is a very important question that you pose. It is one that legitimately concerns every member of this panel. I think we have got the potential here for a Latham-Browner compromise.
Ms. BROWNER. We would welcome that.
Mr. BOEHLERT. Here is what I will welcome from you, Madam Administrator, I will challenge you. Would you give us some suggested language that you think might accommodate the concerns, legitimate concerns expressed by Mr. Latham, because those are concerns shared by everyone. I have talked with the Ranking Member, and Democrats are just as concerned about small business as Republicans. Is that right?
Mr. BORSKI. Yes, sir.
Ms. BROWNER. We would welcome that opportunity, Mr. Chairman.
Mr. BOEHLERT. Thank you very much. So, Mr. Latham, we have asked the Administrator to give us some suggested language, and I would be glad to work with you on that language because it is a concern we share.
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Mr. Poshard.
Mr. POSHARD. Thank you, Mr. Chairman. As someone who sits on the Small Business Committee, we deal with these issues. I know, Madam Administrator, by the nature of the work that you do and the agency that you head, you are always going to be in sort of the center of the storm because of the complex issues that are involved surrounding Superfund and other EPA concerns, but, you know, I want to congratulate you.
I think you have done a wonderful job looking at the issues that confront small business, and particularly I just read your comments, although I couldn't attend the White House Conference on Small Business, I just read your comments there, a draft of your speech. I appreciate that, and you are reaching out to small businesses, especially with respect to regulatory reform, which is a huge issue, not just in Superfund but in a number of ways, and I think the brownfields initiative is one of the smartest, most common sense things we have done with respect to the environment in this country, and so on those two things I want to make sure you understand that your efforts and the efforts of the agency are greatly appreciated.
Ms. BROWNER. Thank you.
Mr. POSHARD. We had a gentleman on one of the panels last week who I think brought up an important point but may have overstated somewhat this idea that we are $4.8 trillion in debt. We have limited resources to deal with all of the needs of this country today, trying to prioritize those needs in terms of their ultimate effect or potential effect on human health and welfare in this country, that concern expressed about our ability or inability to prioritize juxtaposed against the perception out there that many of the Superfund sites throughout this country actually have no real ill effects or potential ill effects on human health, and therefore should be taken off the list, not in the way the brownfields operated, but literally if we are judging those sites on the basis of whether people would build a home on them 25 years down the road, which is a common perception, you know, can you talk a little bit about that?
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I mean, that bothers me a little bit because we are being asked here to prioritize a lot of needs in this country against very limited resources, and I want to make sure that the money that we are going to appropriate for Superfund is going to those areas that really do have the potential for ill effect on human health and welfare.
Ms. BROWNER. We are required under the current law to look specifically at the issue of human health and environmental effects, and the allocation of our resources are in part based on those factors. I am troubled by the attitude that some have put forward that we in this generation don't have a responsibility to pass on to our children a clean healthy environment.
We created these problems. I think we have a responsibility to do our best in a cost-effective, common sense manner to clean up these problems and to give to our children a healthy future. The idea that we can merely put up fences, that we could walk away from these sites is incredibly irresponsible, and I believe in the long term it will simply cost our children, our grandchildren more than it would have cost us to act responsibly now.
Pushing these problems away, pushing them to a future date is not the right answer. We have begun a process, and we should complete it. We should change the law so we can complete it in a more common sense, cost-effective manner, but we should stay the course.
Mr. POSHARD. So you can give us assurance, then, that for those sites that are currently on the list, I am talking about Superfund sites now, they have been evaluated with respect to the issue. They really do have a detrimental effect on human health, and we are not evaluating them to make sure that they are cleaned up to some higher standard necessarily than they were before the pollution took place?
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Ms. BROWNER. On the NPL, which is the—oh, we went to the other chart—the worst sites, the 1,300 plus worst sites, on that list. Evaluation has taken place in terms of current or potential human health environmental effects. That is why they are on the list. That is why our focus of attention is on those sites.
Mr. POSHARD. Okay. Now, if I may just ask you another question that involves a specific method of cleanup, the incinerator, which has become a huge issue in parts of the country, and in my district, where are we with respect to your agency's position on incineration as a method of cleanup? What have we found with respect to their safety, their potential for breakdown or causing human health hazard in their use?
Ms. BROWNER. There are sites, there are times when with community involvement and appropriate state-of-the-art safeguards that may be the wisest form of cleanup, but it is, I believe, very important that the community be a part of that decision-making. There are a lot of questions that people have about this technology. There are a lot of issues that can be confusing to people, and it is important that they be part of the decision-making process for any cleanup plan.
Mr. POSHARD. Does that include part of the monitoring process as that methodology is utilized?
Ms. BROWNER. I believe that as cleanup activities move forward, as a plan is implemented, that the citizens who will ultimately live with the effect of that plan should have access to, full access to information regarding implementation of that plan, and if there is monitoring information, they should absolutely have access to that monitoring information.
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You know, when people become involved and informed about an environmental issue in their community, whether it be a Superfund site, a water issue, an air issue, they will always make a better decision than the government is capable of making. We have to bring them into the process. We have to give them access to the information. We have to keep them a part of the process, and they will make the best decision.
Mr. POSHARD. Thank you, Madam Administrator.
Thank you, Mr. Chairman.
Mr. BOEHLERT. Thank you very much. Now, we will go to a second round for all of us who are in attendance. We get an A on our report card.
Madam Administrator, what do you think about the potential for having the States take over the cleanup of Superfund sites?
Ms. BROWNER. I think that the States should play a greater day-to-day role in implementation of the Federal Superfund program. I think the proposals that I have seen that would merely remove the Federal Government and turn it over lock, stock, and barrel to the State government are not appropriate, and I don't know of any State who is out there saying that is what they want to see happen.
They want a Federal back stop. They want a Federal infrastructure under which they can work. In some instances we have States who believe they can deal with all of the sites in their State. In other instances we have States who believe they could deal with one or two sites, and in some instances we have States who feel like they don't have the technical capability, they don't have the financial backing in their State legislature to do anything, and we have to construct a Federal law that recognizes that no two States are identical.
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Mr. BOEHLERT. I agree with that because if the Feds walked away you would have 50 different proposals, but doesn't it make some sense to think in terms of giving more responsibility to the State with sort of the very specific guidelines, but let them administer the program instead of having the source of all wisdom being identified as your office in Washington, D.C., although I like your office in Washington, D.C.?
Ms. BROWNER. Thank you. There are many these days who——
Mr. BOEHLERT. I want to make you a Cabinet member, you know that.
Ms. BROWNER. Thank you. We agree that the States, there should be opportunity for greater day-to-day responsibility on the part of the States. We think that there is a need to clarify at individual sites sort of who is in charge on a day-to-day basis. Is it the Federal Government or the State, and so we should design in the statute a mechanism for allowing States to take greater responsibility and for the Feds to back out, retain an oversight function, but in terms of day-to-day activities the Federal Government could back out, and I think quite frankly the proposal of last year really sought to strike a balance between the role of the Federal Government and the varying skills of the States, and perhaps it is one we can continue to discuss, but we agree with the fundamental thrust of your question, that the States should do more.
Mr. BOEHLERT. Counsel just provided me with a copy of the Superfund State empowerment proposal implementation plan dated April 6th and which the agency is quoted as believing that 15 States could assume significant program responsibilities in the first year with an additional 20 States within the next 3 years. I think that is—there are a lot of messages from the election of November 8, 1994, but one of the messages I have loud and clear is that people want downsizing of the Federal Government and more responsibility dispersed out to the individual States without us walking away from it, so this would seem to be an ideal way to do it, so that is something that you are enthused about?
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Ms. BROWNER. Yes, we agree. That analysis that you have, I want to clarify one point, that was done as a part of a beginning effort on our part to look at our 1997 budget, so those numbers were not, they were from 1997 in terms of when we thought States would be able to do something. It is assumed a reauthorized bill, and then essentially a year to work with the States, and then we could begin to see them assume the responsibility.
Mr. BOEHLERT. I just want to make sure we are on the same wave length. You generally agree we should give more responsibilities to the States?
Ms. BROWNER. Yes.
Mr. BOEHLERT. You think many of the States are now in a position to handle that responsibility in a responsible manner?
Ms. BROWNER. Right.
Mr. BOEHLERT. Others need to get up to speed, but you would work with them?
Ms. BROWNER. Right.
Mr. BOEHLERT. But we can't just have the Federal Government walking away or we would have a crazy quilt patch of 50 separate programs. Some would be no more than names on a paper. Others would be very ambitious and very vigorous.
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Ms. BROWNER. You are exactly right. We agree.
Mr. BOEHLERT. All right. Thank you very much. Mr. Borski.
Mr. BORSKI. Thank you, Mr. Chairman. Madam Administrator, I want to return to one final question on retroactive liability, if I may, and follow up on what Mr. Menendez and Congressman Poshard also spoke about, brownfields.
At an earlier hearing, from my City of Philadelphia, the Commissioner of License and Inspection was here, and he was an excellent witness. I had to leave to go to a base closure hearing that day, and he was asked about the repeal of retroactive liability, and he answered that he was strongly for it because he was of the opinion that it would return urban properties to productive use faster. Would you care to comment on that?
Ms. BROWNER. I think that—I don't agree with his analysis. I am, quite frankly, a little surprised by it.
Mr. BORSKI. I was, too.
Ms. BROWNER. The reason that all of these voluntary actions are taking place is in part because you have this hammer out there, and if you take it away, they are going to stop their voluntary activities, and these sites are not going to be cleaned up.
I would suggest that perhaps he was frustrated by how long it has taken to get to this place, but with what we have done now on the brownfields action agenda, I have yet to find a mayor who is just not enthusiastic about the ability to see these—his ability or her ability to now see these sites cleaned up, so I am surprised that a city official would have that position.
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Mr. BORSKI. What would be the impact if Superfund is not reauthorized this year and as a result there is no appropriation for the program?
Ms. BROWNER. I appreciate the question because I think this is an important issue, and I think it is one that we all—Democrats, Republicans, the administration—have to work together. If there is no appropriation in this year for fiscal year 1996, we would, as we understand the law, be required to totally shut down activities.
Federal employees, contractors would have legal claims, there would be some monies which we would have to spend to get ourselves out of our current requirements, but I think most importantly is the fact that in community after community, activity would come to a halt.
People who have been waiting for a decade, finally something is happening, would see shut down occur. There would be no emergency removal activities, that is also part of this appropriation. Over 3,800 Federal employees and contractors on over 100 contracts would be out of work.
This chart demonstrates what happened in 1986, where we didn't have a shutdown of the program, but we had a lot of uncertainty because of the congressional debate over reauthorization, and what you see here is the dramatic decline in the start of new cleanup activities, and it took over a year and a half to recover from that, and that is without a shutdown that is what occurred. We all need to work to avoid even that. More importantly, to avoid an absolute shutdown of the program.
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[The chart follows:]
[Insert here.]
Ms. BROWNER. I do need to say, Mr. Borski and Mr. Chairman, that if it is the intention of Congress to not appropriate without a reauthorization, for us to manage wisely we will need some notice to inform contractors. They are entitled to a 90-day notification that their contract is about to be cancelled. This is not a simple activity of turning on and off a switch. It is a tremendous amount of work for all involved, and there will be very significant consequences.
Mr. BORSKI. I wanted to ask about the coalition. The Chairman already asked in a previous hearing about it. Has there been any effort to revive that coalition?
Is there any hope or expectation that a compromise may be reached on terms similar to last year's bill?
Ms. BROWNER. We are in contact with many members in the coalition, and I personally have been meeting with some, Mr. Laws has met with a number of them, and I will be very honest with you, until there is a resolution of this issue on retroactive liability, I think people are going to watch from afar.
I think once that issue is resolved, we will all be back in the same room, and whatever fine-tuning adjustments need to be made can be done expeditiously, and we can see a bill with broad support in the same way we did last year, but as long as there is this uncertainty over who is going to pay, what the liability scheme is going to be, people are hanging back.
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Mr. BORSKI. One final question, if I may, Mr. Chairman. Can you tell us how your discussions with the response action contractor community are proceeding?
Ms. BROWNER. We have been in dialogue with them now for several months, three or four months, and Mr. Laws, who has been personally involved in that, reports that it is going very well, and I think we are hopeful we will have a resolution in the not-too-distant future.
Mr. BORSKI. Appreciate you keeping me posted on that.
Ms. BROWNER. We will do that.
Mr. BOEHLERT. Thank you very much, Mr. Borski.
Mr. Poshard, anything more?
Mr. POSHARD. Only one quick question, Mr. Chairman. Madam Administrator, the idea of specifying a standard level of cleanup nationwide, how would that be accomplished, and are you folks working on that?
Do you have some idea in mind? In your testimony you talk about the inconsistency and costly cleanups, and part of that is because there is no specification of a standard level of cleanup. What does that mean really?
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Ms. BROWNER. As I said earlier, we believe what is essential is that equal protection be provided, and what that may mean in terms of a cleanup plan for a specific site can vary site to site, but that the law should be designed so that the human health effects, the environmental effects, that the protections are the same across all sites.
In some instances it is possible—and we are already doing this—to develop what we call generic cleanup remedies, sites are similar. It is sort of like a recipe, if you have this kind of site, take this and go do that, and we believe that that can be very cost-effective, but even for those sites you should retain the flexibility for a site-specific plan, and so there is sort of two paths that could be followed to get you to the same point, and thereby guaranteeing equal protection, thereby guaranteeing consistency across the country.
Mr. POSHARD. So we are not saying do away with site-specific planning?
Ms. BROWNER. No. You really want to have, where appropriate, two tracks for people to follow or to choose from.
Mr. POSHARD. Okay, thank you.
Mr. BOEHLERT. Thank you. One last assignment for you as I thank you for your outstanding testimony, Madam Administrator, in addition to the specific language, and I hope we can get it in a timely manner in response to Mr. Latham's concerns which we share, in your opening statement you said, as we deal with this subject there are a lot of misstatements, half truths and outright fabrication. You know it; I know it.
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It would be very helpful to us if you could have your crack staff assemble some of those half truths, misstatements and outright fabrications, much like you did in your testimony. You have come up with three very good ones in the testimony about eating the dirt and you can repeal retroactive liability and still get the program done, that is very good, along that line, that would be very helpful for all of us, and if you could get that to us in a timely manner, too, because we want to move with this thing. I don't want to just delay forever. Commerce is moving along.
We are going to have some differences of opinion, that won't surprise you to hear that, but we are going to lean on you for all the help we can get, and I would like to thank you very much for your testimony.
Mr. Laws, I understand we are going to have the benefit of your continued presence as we go to the next panel.
Ms. BROWNER. Thank you, Mr. Chairman.
Mr. BOEHLERT. Thank you, Madam Administrator.
Our second and final panel of the day consists of the Honorable Lois Schiffer of the Department of Justice, Assistant Attorney General; Sherry Goodman, Deputy Under Secretary for Environmental Security, Department of Defense; Tom Grumbly, Assistant Secretary for Environmental Management, Department of Energy; Robert Davison, Assistant Secretary, Fish, Wildlife, and Parks, U.S. Fish and Wildlife Service; and Dr. Barry L. Johnson, Assistant Surgeon General, Assistant Administrator, Agency for Toxic Substances and Disease Registry, the Department of Health and Human Services. And since he enjoys being with the committee so much, Mr. Laws is going to remain also and be of counsel for this panel.
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Mr. LAWS. I will be way over here, Mr. Chairman.
Mr. BOEHLERT. Are we all settled? We will go in the order that I introduced you and, Ms. Schiffer, I think you are prepared to come first for the Department of Justice.
TESTIMONY OF LOIS J. SCHIFFER, ASSISTANT ATTORNEY GENERAL, ENIVORNMENT AND NATURAL RESOURCES DIVISION, U.S. DEPARTMENT OF JUSTICE; SHERRI W. GOODMAN, DEPUTY UNDER SECRETARY OF DEFENSE, ENVIRONMENTAL SECURITY, U.S. DEPARTMENT OF DEFENSE; THOMAS P. GRUMBLY, ASSISTANT SECRETARY FOR ENVIRONMENTAL MANAGEMENT, U.S. DEPARTMENT OF ENERGY; ROBERT P. DAVISON, DEPUTY ASSISTANT SECRETARY FOR FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR; AND BARRY L. JOHNSON, PH.D., ASSISTANT SURGEON GENERAL, ASSISTANT ADMINISTRATOR, AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, PUBLIC HEALTH SERVICE, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Ms. SCHIFFER. Good morning, Mr. Chairman and members of the committee. I am here today to testify that the heart of the Superfund program, its core three-part liability system, works and should be retained in the important efforts towards Superfund reform.
We all share a common goal, getting hazardous waste sites cleaned up quickly and efficiently to protect public health and the environment. I was struck as I listened to the testimony earlier how each of you has a site in your district that you are particularly concerned to see cleaned up. Or some of you. That is what the American public wants and deserves. Administrator Browner has outlined how we are now succeeding at that task. That progress is amply demonstrated by the chart to my right, which you have copies of. As the chart shows, progress was slow in the first 6 years of Superfund, but since 1986 we are moving along, with steps toward cleanup taken at more than 95 percent of the sites on the national priority list.
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The core liability system of Superfund is a key ingredient of our site cleanup success. As Administrator Browner said in her testimony, it is the backbone of the program. It has worked, effectively, as a powerful incentive for responsible parties to clean up hazardous waste sites they created. More than 70 percent of Superfund cleanups are now being conducted by the responsible parties.
[The charts follow:]
[Insert here.]
Ms. SCHIFFER. It helps to keep transaction costs down by inducing parties to settle rather than litigate with the Federal Government. Most Superfund cleanups are accomplished through cooperative compliance with administrative orders or through consent agreements. Finally, the core liability system provides incentives to private parties to handle and dispose of hazardous wastes properly, to prevent new sites from being created.
The three parts of the core liability system are the principles of strict, joint and several, and so-called retroactive liability. These principles operate together as parts of an effective whole. Without them it would be difficult to have a program based on prompt voluntary compliance and settlements.
How and why does this core system work? First, strict liability is the basis for all of our environmental laws. If a company or person is defined by the statute as responsible, then they have to help clean up the site regardless of fault, negligence, or blame. The company knows whether it is responsible. This approach saves litigation, saves transaction costs, and encourages responsible parties to step up promptly.
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Second, joint and several liability also works. The rule of joint and several liability was established by courts long ago to assure that innocent victims recover when they are harmed by two or more persons in situations where the harm is indivisible. This rule was not invented for Superfund. It applies in many Superfund cases where hazardous wastes are mixed together into a toxic soup that causes the harm of contamination to the innocent public, making it virtually impossible to prove who caused which share of the harm.
If the government had to prove each contribution to the harm at these sites, it would be a long time, and maybe never, before the public got the cleanup to which it is entitled. To prevent this result, the joint and several liability rule requires the defendants first to make the public whole by doing the cleanup, and then permits them to seek an equitable allocation of the costs among themselves. That rule has worked to encourage responsible parties to undertake cleanups and to settle cases.
Third, retroactive liability. The whole purpose of enacting the Superfund law in 1980 was to provide for the cleanup of existing hazardous waste sites, like Love Canal and Valley of the Drums. We didn't even think of it as retroactive liability, but that is what it is now referred to. And the principle has worked. It assures that those who contribute to messes have to clean them up, and deters future messes as well; that as between the waste contributor and the public, the waste contributor should pay; and that having the polluter pay stretches Superfund dollars farther and thus accomplishes cleanups faster and more efficiently, and does not create a public works project.
So the core liability system works. What about the reform proposals for repeal? Based on extensive experience in implementing this statute and its predecessors, the Department of Justice can tell you that repeal of any of the three core liability system components will not work. Repeal would reduce the amount of cleanup done by private parties—cleanups that everyone agrees are done more quickly and efficiently than government-run cleanups. Repeal would reduce the number and speed of settlements, and thus increase litigation and transaction costs—the costs we are all working hard to reduce.
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Repeal of strict liability would require endless litigation over fault and blame and causation. Companies would wait to see how they fared in that process rather than settling or conducting a cleanup because responsibility is certain.
Repeal of joint and several liability would reduce settlements, increase litigation, and delay cleanups because parties facing only proportional liability would have an incentive to litigate with the government to establish their share before undertaking cleanup or paying for it.
Finally, repeal of retroactive liability now, 15 years after it became law, would cause unfairness and would not work. It would reward those who have failed to clean up and penalize those good corporate citizens who have complied with the law and cleaned up their sites. From a law enforcement perspective, this is the worst message of all to send—that recalcitrance pays.
Repealing retroactive liability as of 1980, as some propose, would cause a surge in transaction costs because more than half of Superfund sites have wastes disposed of before and after the cutoff date, so who is liable would not be certain until established by fact-intensive litigation. I am a lawyer, but even I think fact-intensive litigation is time consuming. Repealing liability as of 1987, as others have proposed, has no basis in fairness, since everyone has been on notice of Superfund since 1980 and on notice of predecessor statutes before that. Because the vast majority of waste at Superfund sites were disposed of before 1987, repeal as of 1987 would virtually end responsible party cleanups, turning Superfund into a public works program. Repeal would also have a negative impact on the States' ability to get cleanups done.
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I see my time has run, but I have one more point. Some of the proponents of repeal of retroactive liability acknowledge that it won't work to penalize those who have stepped up and conducted or paid for cleanups over the past 15 years, so they propose a so-called simple solution—pay back. The Congressional Budget Office estimates that such pay back would cost $9.9 billion if 1980 is picked and over $13 billion if 1987 is picked, as well as over a billion dollars extra for each future year that the government, instead of polluters, would have to pay for cleanups. This enormous expenditure of money would buy the public not one penny of greater environmental protection. This pay-back system would also entail enormous transaction costs to determine who was entitled to what pay back. In short, eliminating the core liability system won't work.
What will work are the sensible proposals that have been made to reduce transaction costs, take small parties out of the system, and increase fairness. For example, the Upton and Boucher proposal, H.R. 1616, is something that we generally support.
We would be pleased to work with you on Superfund reform that is responsible and that works. Repeal of any part of the core liability system is not a responsible solution. That concludes my oral statement, Mr. Chairman.
Mr. BOEHLERT. Thank you very much. You will notice that the Chair is being lenient with the 5-minute rule simply because this is a very important subject and you are very important players in the whole drama, but I would ask that you consider that your entire statement will be included in the record, and if you would try to keep it fairly close.
Ms. SCHIFFER. I appreciate it.
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Mr. BOEHLERT. You tried.
Ms. SCHIFFER. I tried. A for effort.
Mr. BOEHLERT. Thank you very much.
Ms. Goodman.
Ms. GOODMAN. Thank you, Mr. Chairman, and members of the subcommittee. It is a pleasure to appear before you today. The Department of Defense has one of the most diverse environmental programs in the United States.
It is the Nation's largest industrial organization with over 400 industrial plants across the country. DOD is also one of the Nation's largest land managers, as steward for 25 million acres of land, including a broad diversity of ecosystems.
We also have more than 14,000 contaminated sites in all 50 States, and 107 military bases listed on the Superfund national priorities list. The Department is committed to protecting the health and safety of its people and the vulnerable communities around our military bases.
We believe that environmental security is a critical component of the national defense mission. As an integral part of the defense mission, this includes compliance with environmental laws and regulations. Although the number of these laws has grown over recent years to a stack now several feet high, our installation commanders have embraced this task and I believe have done a very good job.
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For them, the most sweeping of these laws is the Comprehensive Environmental Response Compensation and Liability Act, also known as Superfund. Mr. Chairman, I am here today asking that you reform this law so that the department can complete its task of restoring DOD lands and making them available for reuse.
The department will benefit considerably from responsible reform of Superfund. In the last 3 years, Congress has consistently reduced the funds available to the Department to complete its environmental cleanup tasks. In fiscal year 1995, cutting the Department's request by more than 30 percent.
In essence, Congress has forced upon the Department an unfunded mandate by requiring us to comply with Superfund without providing the Department with the funds to do so. Last year, DOD participated fully in developing the administration's bill for Superfund reform, and we continue to support these efforts.
We believe the current law requires remedies that vary from jurisdiction to jurisdiction, foster adversarial relationships between Federal and State regulators, and contain obstacles to economic redevelopment. We have the opportunity to build on the progress made last year.
I would like to outline now some of the elements that the Department believes should be included in the legislation. I will summarize them briefly for you.
First, we believe that using standardized risk analysis is important, using realistic assumptions and incorporating future land use into exposure assessment. We currently use a variety of methodologies and different exposure scenarios that do not necessarily reflect the future use of a site.
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Second, we need national cleanup goals in order to establish consistency and remedy selection while recognizing that cleanup levels for some contaminants will need to be established through a rulemaking.
Third, and quite important to us in the Department, we need to include reasonably foreseeable future land use in the decision process to yield cleanups and reuse plans that are better coordinated in a greatly reduced time frame. This is extremely important at our closing military bases. Including future land use will help ensure remedies that are both protective for the likely use of the property after cleanup and ensure we are providing appropriate levels of cleanup in consultation with the affected communities.
Fourth, we need to eliminate the mandatory preference for permanent remedies and treat waste except for the hot spots.
Fifth, we should eliminate the relevant and appropriate State and Federal laws, regulations, and guidance and apply only those laws designed specifically for cleanup. This will help us considerably if we move to a system where the States have a greater role in Superfund. We should also elevate the role of cost when considering other factors in remedy selection.
Currently, cost-effectiveness, as you know, is one of nine considerations regulations used in making a cleanup decision, but by elevating the importance of cost we can provide a more prudent use of our resources. We should also encourage the use of generic remedies.
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In the Department of Defense we are already using them to a considerable extent, but these generic remedies, as Miss Browner said, or cookie-cutter solutions where we have common problems, will allow us to shorten the length of the study time. We have learned how to clean up many different categories of sites and can apply this knowledge early in the cleanup process and avoid lengthy studies.
Finally, we need to encourage the use of innovative technologies as a way of decreasing costs.
Let me turn, Mr. Chairman, now to the specific changes that the Department seeks with respect to closing bases, as this is quite important, and let me just briefly summarize those, those are three.
First, we need to confirm that the Department can continue to lease its property while cleanup is under way. That ability, which is in current law under Section 120, was challenged in a case last year concerning Pease Air Force base, and we need to confirm that the Department continues to have that authority.
Second, we would like the Department to be able to transfer property prior to completion of the remedy so long as the environmental regulator at the site is assured the property is suitable for transfer and the cleanup will be conducted. This would treat Federal property the same as private property today, which allows contaminated property to be sold prior to cleanup. This would accelerate the ability to reuse property at our closing bases, while providing appropriate environmental protection.
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Third , we need to revise the definition of what is a clean parcel of property, a definition created in law several years ago in order to accelerate the transfer of clean parcels from closing bases rapidly.
The current definition excludes parcels where hazardous substances were only stored, even where there is not evidence of a release. We need to change this definition so that residential areas with home heating oil tanks, for example, can be identified as clean parcels when those tanks have not leaked.
These three modifications will greatly facilitate the transfer of property at closing bases. In addition to these base closure provisions, we will continue working with EPA in order to develop proposals regarding the listing of Federal facilities on the national priorities list.
We believe the success of DOD's cleanup program so far is due to improved relationships with State and Federal regulators over the last several years. We are convinced that working closely with affected communities and with regulators provides for better cleanups.
I would like to use as an example now of one area where we have worked closely with regulators and one I think that, Mr. Chairman, you will be familiar with, which is Griffiss Air Force base in New York, and there is a map there of the proposed reuse of the site.
Let me say we have created a restoration advisory board there, which is the Department of Defense community working group. It was formed over a year ago and it works closely with the installation and the Griffiss Redevelopment Planning Council.
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We have already identified 93 percent of the property at Griffiss that is not being retained as environmentally suitable for transfer, and of that 93 percent, 58 percent can be identified as clean pending the regulator concurrence. Realignment of the base activities, as you know, will bring in the Defense Finance and Accounting Service Center.
To date, we have made modifications to a landfill cap, we have removed contaminated soil in underground storage tanks from the tank farm and disposal pits. We have also installed an $8 million alternate water distribution system for off-base residents, and innovative technology was used to convert fireable asbestos from building demolition and debris removal efforts into a usable nonhazardous sand-like product.
This chart depicts the proposed reuse plan at Griffiss and the cleanup program site. This depicts the importance of integrating future land use into the cleanup process and the inclusion of the local community in the cleanup process. Griffiss is a Superfund site. It was realigned in 1993.
Although cleanup is progressing, the ability to complete cleanup activities and transfer the property is critical to the success of the reuse efforts at this base and at other closing bases. You can see that large portions of the base are not contaminated. That is the green area you see there, as well as much of the air field, which is the gold hatched airfield and will be available for reuse.
What you can also see is that contamination occurs throughout the base. Those are the yellow circles that occur in the commercial area which is in the red, and in the commercial area which is in the red, the yellow circles there, as well as in the industrial area which is gray and has also a number of yellow circles in it. So we will continue that cleanup as we work to make that property rapidly available for reuse.
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This work occurs under the President's five-part plan for revitalizing communities affected by base closure. I believe you are familiar with it, and I will not take the time now to summarize the elements of it, but let me say that I am often asked has this program made any difference, and I believe the answer is, yes, we are cleaning up sites faster and focusing our efforts where the reuse is planned.
We are accelerating cleanup in a number of ways. First, we have reduced bureaucratic red tape associated with the document reviews by forming cleanup teams at every site consisting of DOD, EPA, and State regulators. Through these partnering efforts of the cleanup teams, agency reviews are being conducted concurrently, reducing overall time.
We have also accelerated schedules through the use of interim remedial actions and removals to address contamination as quickly as possible without taking years to study the problem. I believe actions like these would be slowed down if we were to lose our removal authority as was considered during last year's Superfund debate.
In conclusion, Mr. Chairman, environmental security supports the Department's priorities of readiness, quality of life, and facility and equipment modernization. We will continue our environmental leadership in support of the military mission by protecting people and their families from environmental, safety and health hazards through pollution prevention and a long-term view of solving our environmental problems.
This approach will strengthen the public's trust of the Department and lead to high environmental quality, improved performance, and lower costs. However, our progress is threatened by the cumulative effects of a law that continues to be a daily struggle. We need your help so that this law can be responsibly reformed.
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I believe all our military departments, Army, Navy, Air Force and Marines, are committed to environmental stewardship. Their tradition of getting things done and the quality of the final product has made the Department's environmental program, I believe, a good one.
Mr. BOEHLERT. Thank you very much, Ms. Goodman. Now Assistant Secretary for Environmental Management, Department of Energy, Tom Grumbly.
Mr. GRUMBLY. Thank you very much, Mr. Chairman. My colleagues, Miss Schiffer and Ms. Goodman, have ably, I think, represented the administration's position on a lot of the issues, so I am simply going to try to emphasize places that they haven't talked about. I want to make sure that you understand that Superfund really is a big part of the DOE's environmental management program, which is, of course, fundamentally a nuclear weapons cleanup program after 50 years of nuclear weapons production.
The Superfund law is one of the main sources of some 71 compliance agreements that we have to deal with in terms of cleaning up these sites, and likewise our program is a very big part of Superfund. Together with the Department of Defense's efforts, our programs are comparable to Monsanto, DuPont, GE, Ford, GM, and Dow all rolled into one.
In fact, if measured against the private sector, the DOE program alone would rank in the top 25 of Fortune 500 firms, although we would obviously be bankrupt. Our liability under Superfund is approximately $65 billion, which is to say it is larger than the combined liability of all the 1,300 NPL sites at the moment, and thus implementing needed changes to correct the problems of the Superfund law can potentially save the taxpayers billions of dollars, particularly in the remedy selection and innovative technology areas.
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What I would like to do is just quickly outline four areas of particular concern to our department where Superfund can be reformed to enhance its performance. First, I would like to reemphasize what both Ms. Schiffer and Secretary Goodman indicated that the Superfund needs to consider future land use in its remedy selection process.
In many cases, no clear decisions have been made about future land use, and the lack of decision about future land use sometimes leads to a default choice of remediating sites to levels suitable for immediate unrestricted use. We need to explicitly deal with this problem and particularly we need to eliminate the current law's preference for permanence remedy selection should be narrowed and replaced with the concept of long term reliability and a preference for treatment of hot spots.
Second, we need to set clear universal cleanup standards, but with respect to one particular area we need to ask you to emphasize some difference of approach. Radionuclides are of particular concern to the Department of Energy because our sites are contaminated with radioactive substances and due to their unique properties, it may not be possible or feasible to detect or distinguish them from natural background radiation. Also, huge costs are associated with cleaning up radioactivity because we can't deal with it in the traditional kinds of ways.
We can't, pardon the pun, blow it apart in the same kind of way we can with some other waste. So what we are going to have to do—and this is an option that the administration supports is to potentially establish separate residual risk levels for specific radionuclides if we go to a point estimate, which we recommend for residual risk in chemicals. Superfund reform should also clarify that cleanups should not have to achieve risk levels that are below that background level of radioactive contaminants.
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Third, better provisions for community involvement are needed. Again, both Ms. Goodman and the Administrator indicated the great progress that can be made in this area. I would like to just detail briefly one specific area that proves that citizens working together can really bring down the costs of cleanup.
At the Fernald site in Ohio, the citizens task force examined and analyzed conditions at the site. This is one of our smaller sites. It is comparable in scale to the biggest automobile production site in the world, the River Ford Rouge plant. It is one of our smaller places, and they concluded that different parts of the site would be suitable for different future uses. As a result of the collaborative process they brought down the estimated costs of cleanup by nearly $2 billion and have enabled us to accelerate that cleanup. I think that would not have been possible if we had simply been relying upon the kind of consultants that we traditionally have relied upon.
And fourth, providing for alternative remedies using innovative technology can help reduce costs and improve results. Currently, the remedy selection process favors using existing technologies over promising, but not fully proven ones. New technologies could increase cleanup effectiveness and greatly reduce costs.
Our own estimates show that cost savings from new technologies could be literally in the billions of dollars over the next 40 years. The statute should be amended to allow the deferral of remedy selection if a promising technology is on the horizon, say within 5 years, that may do the job better and cost less. This was part of our reform proposal last year.
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In conclusion, changes to Superfund can greatly increase our program's effectiveness and save the taxpayer lots and lots of money, and I am hopeful that you will consider the problems I have discussed and the remedies I have outlined. We have to have these changes this year, not only to deal with the problems that Mrs. Browner was talking about, but because the budget pressures that are imposed on both the Department of Defense and ourselves are going to demand that we get more for each dollar that we expend, and in order to do that we have got to have a reformed Superfund program. Thank you very much, Mr. Chairman.
Mr. BOEHLERT. Thank you, Mr. Grumbly.
Assistant Secretary of Fish, Wildlife, and Parks for the U.S. Fish and Wildlife Service, Robert P. Davison for the Department of Interior. Mr. Davison.
Mr. DAVISON. Thank you, Mr. Chairman. As the manager of over 440 million acres of Federal lands, the Department of the Interior has a significant interest in how Federal and general Superfund liability issues are dealt with. At the same time as a land manager and manager of numerous widely distributed fish and wildlife resources, Interior is a major natural resource trustee under Superfund, and yet a third role, the Department has been delegated the responsibility to promulgate the Superfund natural resource damage assessment regulations, and finally Interior has a significant role in the Federal Government's trust responsibility with Native Americans.
We are the trustee of over 50 million acres of Indian lands, and we have provided assistance to tribes regarding damage assessment activities and also assisted in cleanup and liability issues.
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My remarks today will focus on the Department's responsibilities for cleanup of hazardous waste sites. These sites, for which the Department may be liable, can be grouped into three categories. The first category consists of sites on the EPA Federal agency hazardous waste compliance docket. These are Federal facilities for which the Department is required to meet statutory deadlines under Superfund.
The Department has 432 sites and facilities on the docket. These sites constitute 21 percent of all docket facilities. Our numbers and percentages of sites are high because of the way EPA defines sites for the BLM and BLM sites constitute 75 percent of all Interior Department listings. The Department site studies indicate that 85 percent of its docket sites appear to need no further work. The remaining 15 percent are required to both do the full set of requirements of the national contingency plan. The department has only two docket sites on the national priorities list, the Lee Acres Landfill near Farmington, New Mexico, and Crab Orchard National Wildlife Refuge near Marion, Illinois.
The second category consists of sites which are not Federal facilities, but are related to departmental activities of land management, and the third general group of sites for which Interior may be liable involves those located on Indian tribal or allotted lands.
Funding for oversight, investigation, and cleanup of hazardous wastes on departmental lands start to be tracked in fiscal year 1989. It has risen from approximately $35 million at that time to approximately $69 million in this fiscal year. For fiscal year 1995 Congress authorized the creation of the Interior Central Hazardous Materials Fund to provide a central no-year source of funding for the cleanup of departmental sites that are at or beyond the remedial investigation feasibility studies stage of the NCP process.
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Amounts in the central fund are used only for remediation and are not used to fund judgments against Interior or to settle claims. It is anticipated that the first recovered dollars will be credited to the central fund in mid July of this year.
There are a number of issues relative to Superfund reauthorization in which Interior has a significant interest. I will mention two just briefly here. I understand the subcommittee plans a more detailed discussion of the natural resource damage program in another hearing. Therefore, I will defer to that hearing the discussion of a number of issues very important to Interior and other trustees regarding natural resource damage assessment.
The first area that I will mention concerns remining, reprocessing of mine wastes. Interior believes that Superfund should be amended to encourage the remining, reprocessing of mine wastes at a site. If a provision to encourage such remining were enacted to take reminers and reprocessers out of the strict joint and several liability scheme for the entire cost of cleanup rather than their incremental portion, the government would benefit in a number of ways, we believe, and those are outlined in my testimony.
A remining exemption should not be available to companies responsible for creating the contaminated sites. Such provision must also include safeguards such as those in last year's proposal to ensure that remining will facilitate cleanup and not worsen contamination. Mining plans should be reviewed and approved by an Interior bureau to ensure that cleanup costs are maximized to the greatest extent possible, practicable. Compliance with all other applicable laws, including environmental laws, should still be required.
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The second issue of concern to Interior is liability reform, and here I will just add briefly to what Administrator Browner and others on this panel have said, and that is that the proposed changes to retroactive liability would impede and slow the cleanup of sites in view of Interior's limited funds for cleanup on Interior managed lands.
For example, at the Crab Orchard site, Crab Orchard National Wildlife Refuge, the total cost of the PCB operable unit cleanup is estimated to be $70 million. Currently, one private PRP is contributing an estimated $30 million, and if retroactive liability is removed, Interior could be faced with paying that $30 million.
Additionally, there remains another private PRP at this operable unit who has not contributed to the cleanup. The removal of retroactive liability would, in effect, reward the noncontributing private party for not participating. The retroactive liability issue is also significant for natural resource damage which will be discussed at a later hearing. That concludes my testimony. I will be happy to try to answer any questions. Thank you.
Mr. BOEHLERT. Thank you very much.
Our final witness, Dr. Barry L. Johnson, Assistant Surgeon General, Assistant Administrator for the Agency for Toxic Substances and Disease Registry, Department of Health and Human Services.
Dr. Johnson.
Mr. JOHNSON. Good afternoon, Mr. Chairman, and members of the subcommittee. I welcome this opportunity to brief you on ATSDR's public health actions and findings under CERCLA as amended. As you know, our agency was created by CERCLA. The statute mandates of us a broad national program of Superfund site health assessments, health investigations, surveillance and registries, applied research, emergency response, health education, and toxicological database development.
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Our work is conducted in close collaboration with EPA, other Federal departments like DOD and DOE, State health departments and local health departments. As preface, our experience since 1986 indicates the current public health provisions of Superfund generally work satisfactorily in ways intended by Congress to protect the health of communities around Superfund sites. The administration's bill in the 103rd Congress refined somewhat the public health section of Superfund and made improvements in it.
Mr. Chairman, the American public remains quite concerned about the potential impacts of Superfund sites on public health. Our agency has had direct contact since 1991 with more than 300,000 citizens concerned about Superfund and hazardous substances and other issues throughout public meetings and other site-specific activities.
In servicing our CERCLA mandates, ATSDR has developed a considerable amount of data on the public health implications of Superfund sites. The following statements capsulize our key findings to date: One, although epidemiological findings are still unfolding, when evaluated in aggregate, proximity to hazardous waste sites seems to be associated with a small to moderate increased risk of some kinds of birth defects and, less well documented some specific cancers.
Second, health investigations of communities around some individual hazardous waste sites have found increases in the risk of birth defects, neurotoxic disorders, dermatitis, leukemia, cardiovascular abnormalities, respiratory dysfunction and immune disorders. We know that each site is different and should therefore be individually assessed for public health impact.
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Third, site remediation doesn't necessarily resolve all public health concerns. An increasing body of scientific evidence indicates that past exposures to hazardous substances can cause latent adverse health effects. These findings highlight, we believe, the need for continuing surveillance of at-risk populations exposed to hazardous substances.
Fourth, from what we have learned from over 1,300 sites assessed by ATSDR from 1987 through December 1994, completed exposure pathways were identified at about 40 percent of all sites. Conservatively, about 60 percent of EPA's NPL sites assessed by ATSDR in fiscal years 1993 and 1994 were found to have completed exposure pathways. Interdiction of exposure pathways is a first step toward preventing any adverse health impacts of sites.
Fifth, of the 136 sites for which health assessments were conducted and advisories were issued in fiscal years 1993 and 1994, ATSDR classified 54 percent as presenting health hazards. Historically, about 23 percent of our health assessments for more than 1,300 Superfund sites represented a health hazard at the time the sites were assessed. I caution you that both percentages should be cited with caution, owing to limitations in our databases.
Sixth, from our health assessments, ATSDR has evaluated demographics of populations around 93 percent of the current NPL sites. Our data indicate that about 11 million people reside within 1 mile of these sites' borders.
Seventh, under the national contingency plan, ATSDR responds to emergency releases of hazardous substances. From data reported by 11 State health departments from 1993—in the year 1993, from almost 4,000 emergency events where hazardous substances were released, there were 16 deaths, 4,063 separate injuries sustained by 2,269 victims, and almost 500 evacuations of people. The most frequent victims were responders to the event and employees working at a facility.
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Eighth, serious gaps exist in scientific knowledge about the toxicity, bioavailability, exposure and human health effects of individual hazardous substances. There is a particular need for data on levels of exposure to hazardous substances in community populations. The current mandate in CERCLA to identify key gaps in scientific knowledge for priority substances is important if we are to reduce uncertainties in site-specific risk assessments and site-specific health assessments.
And ninth, physicians and other health care providers in communities around Superfund sites continue to express a significant need for training and technical assistance in matters of hazardous substances. We support the retention of CERCLA's current language on physician training and education because local health care providers have a key role in responding to communities' health concerns about hazardous substances.
Mr. Chairman, our agency has worked very closely with State health departments since 1986 in helping them develop the capacity to respond to communities' health concerns as impacted by Superfund sites. About 18 percent of our budget has gone to State health departments, and we think that represents a significant accomplishment.
In closing, our data show that a substantial percentage of Superfund sites currently being placed on the NPL present exposure pathways to human populations. Other data indicate that long-term exposure to hazardous substances released from sites seems associated with specific health problems, as I have enumerated. ATSDR considers the current public health provisions of CERCLA as improved by the administration's bill in the last Congress to be effective in assessing and responding to the health impact of Superfund sites. I look forward to the questions you may have.
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Mr. BOEHLERT. Thank you very much, doctor.
Mr. Borski.
Mr. BORSKI. Thank you, Mr. Chairman.
Ms. Schiffer, let me start with you, if I may. We hear a lot about the high transaction costs under the current Superfund program. I think we all agree that reforms are needed, but I am very concerned that some of the proposals being advocated could enormously complicate litigation and increase transaction costs.
Would you illustrate how transaction costs could actually build up under a Superfund law without joint and several or retroactive liability?
Ms. SCHIFFER. I certainly agree, Congressman Borski, that it would build up without those provisions, and I would be pleased to outline why I think that it would. Let me start with the proposal to repeal so-called retroactive liability.
As I indicated in my testimony, what that means is that some date would be picked and wastes that were disposed of at a site before that date would no longer cause the waste disposer to be responsible for paying or settling in the system.
The dates that have been suggested are 1980 or 1987. If 1980 is picked, then a substantial number of the sites are what are called ''straddle sites''. That is, they are sites where waste would have been disposed of partly before and partly after so we would be in a situation where we would have to have a fact finding about when those wastes have been disposed of, and that by definition, because it is so fact-intensive would be likely to lead to litigation, and it means that companies who wouldn't know that they were liable would have much less incentive to settle.
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If 1987 were picked, then virtually most of the sites, wastes would have been disposed of before that date so you wouldn't have that variety of litigation. On the other hand, you would have a public works project.
As I also indicated, a lot of people, most of us, think that if you pick those dates as dates to say we are not going to have liability before those dates, it is unfair to the companies that over the past 15 years have stepped up to the plate and said I am going to bear my share of responsibility.
The answer to that is the so-called pay-back system. Pay back is infinitely filled with transaction costs. I think of it as the Lawyers Relief Act of the next century because basically what would happen is there would have to be litigation open, did people keep cost records and what are those cost records and how much did they pay and did they pay enough and did they actually bring waste to the site. So you would be off into an infinite supply of litigation under any pay-back system. So that would be, the elimination of retroactive liability under any system would bring you more transaction costs, not less.
Elimination of joint and several liability has a similar problem. What joint and several liability does is it encourages people—first of all, it is fair because what it says is we have here a toxic soup. We have what the law would call an indivisible injury and it is causing harm to the public.
What we ought to do is make the public whole first and then the people who contributed to the toxic soup can divide up responsibility among themselves. If you believe that you are only going to be responsible for a fixed share, let's just say 10 percent, you have every incentive in the world to keep litigating with the government over that 10 percent.
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If you believe that however much you litigate you could be responsible for the whole, you have a lot more incentive to come in and settle so that the joint and several liability system has led to settlements. It has also enabled the government to give out orders to people saying for these major contributors to the site, you clean up the wastes, and then later we can divide up the responsibility.
If you did away with joint and several liability, you wouldn't have that, either, so the core liability scheme, in fact, is crucial to driving down transaction costs in this system, and elimination of it would do exactly what all of us are trying to avoid, which is increasing transaction costs.
Mr. BORSKI. I have a letter with me here dated April 27, 1995, signed by the highest law enforcement officials, the Attorneys General of the 40 States, urging Congress not to repeal retroactive liability under Superfund.
Mr. Chairman, I would ask unanimous consent that this letter be entered into the record.
Mr. BOEHLERT. Without objection.
[The information received follows:]
[Insert here.]
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Mr. BORSKI. I am particularly interested, Ms. Schiffer, however, in how repeal of retroactive liability would impact cleanups and course recoveries by States that do not have retroactive liability under their State laws.
Ms. SCHIFFER. Well, let me start by saying virtually every State that has a cleanup scheme does have retroactive liability, so you are asking me for an assumption which is contrary to fact.
In those States that do have retroactive liability schemes, several things would happen. Let me start with the States that don't have any Superfund Act at all, which is a number of States. In those States, in fact, in all States what happens is if the government pays for the cleanup, if it is a fund-paid cleanup, the State has to contribute a share, 10 percent or more, depending on a set of circumstances, so that if you eliminate retroactive liability, then the fund-led sites, the States' share would go up because the whole government share would go up and 10 percent of a higher number is a higher number. That is the first thing that would happen, regardless of what law the State has.
If a State has—some States have their own Superfund laws, but in fact adopt and rely on the Federal law, so if you change the Federal law, these are States like California and Colorado, California being a big State with a lot of hazardous waste sites, then what would happen in those sites is you change the Federal law and again that would mean that you would have a public works project in the State. The State's share would go way up.
In those States which have their own Superfund laws, which currently provide for retroactive liability, which is most of the remaining States, if the government statute changed, the government, the Federal Government statute has generally been seen as a model, and so those States might again look to what had happened in the Federal law, and it would likely mean they would consider their own repeal of retroactive liability which, again, would be much—would mean that the State would have to pay much more to clean up, and, finally, there was a law recently passed in Michigan which I think some people say repeals retroactive liability, but that is one of those myths that Congressman Boehlert was asking to be told about. It doesn't do that.
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It quite clearly retains retroactive liability in the statute, so to my knowledge the States, that is sort of the range of what States have, and there are not, to my knowledge, States that have yet repealed retroactive liability.
Mr. BORSKI. Secretary Goodman, may I ask, the House-passed risk assessment bill includes a provision which requires that all remedial activities expected to cost in excess of $5 million be subject to the risk assessment provisions contained in that bill. I am concerned that such a requirement could slow down cleanups and delay returning Federal property to productive use, especially at military facilities which are being closed or realigned. Could you comment on that?
Ms. GOODMAN. I am also very concerned about that provision, Congressman. I am opposed to more study and less cleanup. We are trying very hard in the Department of Defense to conduct as much real cleanup as possible, indeed in fiscal year 1996 with the President's proposed budget we would intend to devote almost 70 percent of our funds to actual cleanup, remedial action and remedial design activities. I would hate to see that trend which we have been increasing over the last couple of years reversed, and I fear that this proposed bill would, in fact, do just that, so we are opposed to that.
Mr. BORSKI. Thank you very much.
Thank you, Mr. Chairman.
Mr. BOEHLERT. Mr. Horn.
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Mr. HORN. Thank you, Mr. Chairman. Secretary Goodman and all of you, I enjoyed your testimony. Let me ask you some questions that relate to base closure also.
Mr. BOEHLERT. Mr. Horn, would you speak closer to the microphone, please?
Mr. HORN. These mikes leave something to be desired, the age of technology.
You say 107 military bases are on the Superfund national priorities list. Do we know how many of those 107 have been ordered closed by either the Pentagon or the Base Closure Commission and are available for reuse?
Ms. GOODMAN. Congressman, of those 107, 33 are closing military bases. That does not include bases that may be proposed in the current 1995 round of closures.
Mr. HORN. In other words, 33 are from 1989, 1991 and 1993?
Ms. GOODMAN. Correct.
Mr. HORN. Do we know how many bases that have been closed in those first three rounds have environmental problems maybe not worthy enough to be on the national priorities list but substantial enough so that no private business wants that land without a cleanup? Do we have any assessment of that?
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Ms. GOODMAN. Well, virtually all of our military bases require some type of environmental work. What is important to note is that from the first three rounds of closing bases, 60 percent of the acreage on those bases is now environmentally available for reuse.
Mr. HORN. Sixty percent.
Ms. GOODMAN. Sixty percent of that acreage, of the bases in the first three rounds, and I can give you, for the record, that total acreage. I don't have the figure in my head.
Mr. HORN. What I would like is by round. In 1989, 1991, and 1993, and now 1995 we know the decisions essentially, how many bases have been ordered closed, how many of those have an environmental clearance so they could be used for reuse, private industry could come in, and how many have environmental problems and nothing has been done about them?
Then I would like to know simply for that period what has the Department of Defense asked for in environmental cleanup money, what has OMB and the President done, and what has Congress done? I would just like that laid out in a sequence so we could see the problem and where we need to go.
Ms. GOODMAN. What is important to know, Congressman, is that we look at all of our military bases in terms of parcels, so that we will have on virtually every base some parcels that are clean and are available for reuse today. We will have others that have some contamination, but can be reused even in their contaminated state because of the nature of the contamination, the extent of the work done. That is the second category.
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Then we will have a third category of parcels that really cannot be reused until more environmental work has been conducted. So you have to look at the parcels on the base and not the whole base itself, but as I said what is important to note is that 60 percent of the property at the bases from the first three rounds is now environmentally suitable for reuse. And we will——
Mr. HORN. That figure sounds good, and I can think of Fort Ord taking up a lot of those acreages, but what worries me is some of the smaller bases in an urban setting where we haven't had the cleanup and we have had great delays on transfer for reuse within the Department of Defense, and, frankly, I don't understand what is taking so long, and I really think we need to work out some system, and this would apply to the Assistant Attorney General on broad national policy as to how clean is clean, and if we are going to continue to use some of these for industrial sites, is that one standard that should be met. If we are obviously using them for home, play, school, that is another standard to be met.
Ms. GOODMAN. I agree with you very much, Congressman, and as you know, Navy bases, which tend to be in urban areas, have very often a considerable portion of their acreage which has been used industrially and therefore does require some environmental work. We believe it is very important that future land use be considered, and we are actively working towards that goal at all of our bases.
We are not the decision-maker in defense, so it requires the cooperation of the regulators to enable us to use future land use, and I would also add that the reforms that I mentioned in my testimony, specifically the one that would allow property to be transferred prior to completion of the remedy would enable prospective users to come in early and make productive economic reuse of that property, just like they could if it were private property.
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Mr. HORN. I noted your proposals, I thought those were excellent suggestions. Let me just ask, if I might, Mr. Chairman, I won't wait for the answer, just with the Assistant Attorney General. I am really concerned about this question of classification, how clean is clean in terms of the type of intended use, do we assume every property is ultimately going to be for residential use? It seems to me that is one standard, and we might be thinking about a little more industrial zone in some of these and therefore get the project moving, get it back to drawing income and providing jobs.
The other question, and just file it for the record because I am out of time here, is how retroactive is retroactivity? Do we put a date line other than the 1987, 1981, whatever it is, and how far back do we go? Does this depend on the complexity of ownership?
I listened to a case the other day, it was Leadville, Colorado, where some grandson that has three-eighths of an acre or something is being tabbed for the evils of 100 years ago. This sounds to me as being fairly silly, and it undercuts the very serious problems we have in cleaning up the environment, and it just seems to me we ought to get on with it. I think that is the frustration of every Member of Congress, and not simply have these unbelievable fights, litigation instead of using the money to clean up the land.
Ms. SCHIFFER. Let me address several of the questions that you raise, Congressman. First, as to uses, we support the administration, what was the coalition proposal last time that the differences of possible land use be taken into account, and I think Administrator Browner testified very effectively about that earlier today.
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In terms of, quote, ''how retroactive is retroactive,'' the Superfund statute was passed, was enacted to clean up past hazardous waste sites, and we think that whoever contributed to those hazardous waste sites should be held responsible to contribute to the cleanup. We think that has a variety of good effects, including the fact that it deters people from creating new hazardous waste sites, and it is essentially the polluter pays principle.
In the example you have given, it is hard for me to talk about specific cases, but let's say hypothetically the facts that you have given about Leadville, if what you had is somebody who is a grandson who is responsible for a very small amount of wastes, what is likely the most effective way to address that person's concerns is to treat that person as a de minimis contributor of waste to the site, and if they contributed a very small amount of waste to the site, then under the present statute they can be gotten out of the system early and certainly under some of the proposals for reform, including the Upton and Boucher kind of proposal or the coalition proposal that Upton-Boucher relates to it would be—there would be a way to get these small contributors of waste out of the system early.
We don't think the remedy is to do away with retroactive liability because we think that that is really hitting, swatting a fly with a baseball bat. In other words, that it would be trying to get at the problem of these small waste contributors that you are describing by also eliminating the liability that keeps the major waste contributors in the process, but we certainly would be pleased to work with you to get the small waste contributors out of the system and we are doing it now and so far as we can under the present laws we think that the reform proposals that look to that are very helpful.
Mr. HORN. Thank you.
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Mr. BOEHLERT. Mr. Gilchrest.
Mr. GILCHREST. Thank you, Mr. Chairman.
Mr. Grumbly and Ms. Goodman, I guess the Department of Defense and the Department of Energy, do they work well together to establish remedial procedures for military bases? I am just curious.
Mr. GRUMBLY. Well, Mr. Gilchrest, we tend to have totally separate responsibilities in that we are responsible for the former nuclear weapons production system which is, you know, a series of major facilities around the country, while Ms. Goodman is responsible for the work that happens at military bases, so the responsibilities are really quite separate.
Mr. GILCHREST. So your basic responsibility deals with nuclear contamination?
Mr. GRUMBLY. My basic responsibility is with the major places that produce nuclear weapons from 1943 through 1989, the Hanford site, the Savannah River, South Carolina site, Rocky Flats in Colorado.
Mr. GILCHREST. Does the Department of Energy ever get into remediating the military facilities that still store mustard agent and nerve gas and things like that? The DOE has nothing to do with that?
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Mr. GRUMBLY. No, we don't have anything to do with that. That falls under Ms. Goodman's responsibility.
Ms. GOODMAN. The chemical weapons demilitarization program is a Department of Defense program.
Mr. GILCHREST. Is there as of this moment an established procedure for the remediation of chemical agents other than incineration? On those areas where, let's say, a mustard agent is not contained in any ordnance.
Ms. GOODMAN. The current chemical weapons demilitarization program envisions incineration being used at most of the sites, but as you probably know, Congressman, the current law does require the department to investigate technology, alternative technologies that could be available to demilitarize the chemical stockpiles at some of the sites that are destined to be done later in the program, which would include Aberdeen in Maryland, which has the bulk agent stored.
There are several different types of chemical weapons that are being demilitarized and so the availability of alternative technologies depends in part on what type of weapon is being considered, and for the later sites, such as Aberdeen and a few others, the Department is now studying whether such alternative technologies are indeed viable.
Mr. GILCHREST. So what would be the criteria for an alternative technology to be viable? The cost, the time? There is an international treaty date that we have to meet.
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Ms. GOODMAN. And that is one of the major issues. We are endeavoring to comply with the chemical weapons convention which would have us demilitarize the stockpile by a certain date, and there is a real question as to whether any of these technologies that are alternatives to incineration would be available by then. The law very clearly spells out the criteria by which the Department should evaluate those alternative technologies, and I would be happy to provide that to you for the record.
Mr. GILCHREST. And I would like to see that. For the past 4 years I was involved fairly intimately with the cleanup of Bainbridge, former Navy base, 430 some buildings, most of it was asbestos siding and asbestos around the pipes and so on. It was a fairly, considering this place now, not very arduous, but it was a fairly arduous task to get all the parties involved talking on a continued basis. That is not a criticism, that is just a fact of limited resources and misunderstanding about what the ground soil sampling scheme should be and a whole host of other things and whether or not the contractor was going to be held liable 10 years from now if someone found a little excess amount of contamination in the soil. But it is moving forward, and I think relatively successfully, given the circumstances and the magnitude of the project.
Would you say, if you are familiar with the Bainbridge cleanup, that other military bases have the same remedial procedures and the same problems that Bainbridge had? Is Bainbridge fairly typical of how military facilities are cleaned up?
Ms. GOODMAN. Congressman, I don't have specific knowledge of Bainbridge, but what I do know is that it is an older property. It was closed well before the current round of closing bases, and so the work began there well before the President's program articulated in 1993 to revitalize communities affected by base closure and has not been part of what we call the fast track cleanup program where we created formal cleanup teams, including the regulators, EPA and the State and the military at all of the closing bases from the 1988, 1991, 1993 and we will include the 1995 round as well, so there is a new set of procedures we are using to accelerate and improve the environmental work at our closing bases, at the formal closing bases.
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I am pleased to hear from your standpoint that the work at Bainbridge is now proceeding well. We have attempted where we can to apply those procedures to some of these older properties that were closed well before we had a formal closing base program.
Mr. GILCHREST. If I may, Mr. Chairman, just one other quick question. The teams, the cleanup teams that are being pulled together to expedite the cleanups of base closings, can you pull together a team such as that to clean up areas that aren't being closed, but are obviously contaminated?
Ms. GOODMAN. Well, we would like to, but partly it is a question of money being available because we have to, under this program, we actually provide funds to EPA and we provide additional funds to States in order that they can participate more actively with the Defense Department than they would under normal circumstances, and so it is partly a question of resources.
We are attempting to apply those principles. As you know, the funds for environmental work in the Department continue to be cut. I would just note, and this answers in part your colleague Congressman Horn's last question. The Department has requested for the fiscal year 1995 $457 million for environmental work at closing bases, and when the House appropriations bill, which was recently considered by this body passed, it said that that amount would be a ceiling on the amount of environmental work that could be conducted within the base closure account, which is the first year this has ever happened.
In the past, the environmental funds were always treated as a floor. In other words, the Department had to spend at least that amount and it could spend more if available. This year for the first time Congress is saying you can spend no more than this amount, so that may limit us in our ability to, you know, to fast track the cleanup at our closing bases.
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Mr. GILCHREST. Is Aberdeen a priority as far as some of the past practices and present conditions of ordnance that lie out there in the fields, in the ground contamination?
Ms. GOODMAN. Aberdeen is certainly a priority. It is one of the Army's largest environmental programs. As you know, it is not a closing base, but it has a whole range of environmental conditions, both a range, chemical demilitarization program, and other hazardous waste sites which are being addressed, and in addition the Army's environmental center is located at Aberdeen, so is the Center for Preventative, the Army Center for Preventative Medicine, so there is quite a lot of good talent that is located there.
There is also very active community working groups, there are several restoration advisory boards, and the commander there, two-star Army general, is personally involved in those community working groups.
Mr. GILCHREST. Thank you very much.
Thank you, Mr. Chairman.
Mr. BOEHLERT. Ms. Goodman, it won't surprise you that I have a question for you. As we go through these rounds of base closings and the communities try to recover from the adverse impact of the decision to close, they are aggressively trying to market the property, but I am told there are a number of instances where the takers are reluctant to come in because they are afraid they are going to assume a liability.
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What assurance can you give to local redevelopment entities that when the property is marketed the acquirer will only be liable for action from this point forward and will not assume any liability for any past action of the military? Is that clear?
Ms. GOODMAN. Yes. The assurance is a provision of law enacted in 1993 which allows the Department to provide an indemnification to future transferees, to transferees of property at closing bases so that they will not be responsible for contamination that was caused by the Department of Defense, and that indemnification authority has been available since 1993, and it is being used by the military departments today.
Mr. BOEHLERT. That is good news. Good news for you, Mr. Gilchrest?
Mr. GILCHREST. Everything is good news if we are optimistic enough, Mr. Chairman.
Mr. BOEHLERT. This is an easy deal for you guys, and Mr. Laws is sitting over there smiling. He hasn't had to do anything. But I would just—Mr. Grumbly and Ms. Goodman, do you support some sort of review of EPA's cleanup decisions? I mean, it is all within the family.
Mr. GRUMBLY. Well, I think we support EPA becoming as consistent as they possibly can in the implementation of Federal law, and there are a whole bunch of ways to do that, and, frankly, I am not sure we know which one is the best way at the moment, but I think we all know that consistency in the application of the law, particularly Federal law, is extremely important.
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Mr. BOEHLERT. Ms. Goodman.
Ms. GOODMAN. Yes, I agree with that, Mr. Chairman.
As I have said, we have over 14,000 contaminated sites around the country, so we have a very massive cleanup program, and the more consistency we have, the better off our military is because this is being implemented at a local level, and additionally we really need the ability to look at future land use across the board as a way to design cleanup remedies.
Mr. BOEHLERT. You are being extra polite. I can understand your answers, but I have to believe there are times when EPA says, look, DOD, you have to do this, and you say, are you guys crazy? That doesn't make sense. You are arguing back and forth. Where is the arbitrator in a situation like that, particularly this hits your budget very hard, well, both departments. Who arbitrates when EPA says you have got to do something and you don't think it is realistic or reasonable? Who makes the determination?
Ms. GOODMAN. Well, our agreement, our legal agreements with EPA and with States provide for a dispute resolution process so that if there is a disagreement, it is brought up various levels starting at the remedial project manager level and elevating in many agreements all the way up to Administrator Browner, who would ultimately at an installation where EPA is the lead regulator have the ability to make that final decision.
Mr. BOEHLERT. Mr. Grumbly, is that the same for DOE?
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Mr. GRUMBLY. Essentially, yes, sir.
Mr. BOEHLERT. How often is that used? Is it rarely or frequently or on occasion or none of the above?
Mr. GRUMBLY. Well, I would say it is something—certainly the full dispute resolution process, all the way up to the EPA Administrator is something that we have never pursued that far, and I think the reason for that is that we attempt to try to solve these situations at the lowest level that is possible in the system, and I just think that, we all think that it is largely a failure of the system if the dispute resolution has to reach all the way up to the administrator, but it is there.
Having said that, I think we feel pretty strongly that it is important to bring more consistency among not only the EPA regions, but really among the States in dealing with this problem. Some of that can be done administratively, but some of that will have to be done, I think, through reformation of the remedy selection process.
I mean, the clearer the direction that the Congress can give to both the agencies and the States about what the decision criteria ought to be, I believe the more consistency we will get in the system, so it starts from you all. You need to issue clear guidance about what you want the EPA to consider as it makes these decisions, and if you do that right, it will minimize the amount of consistency problems that we have around the country.
Mr. BOEHLERT. Fine, thank you.
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Ms. Goodman, do you have any comment?
Ms. GOODMAN. Two points. I agree with Mr. Grumbly. There is also an Executive Order, it is 12580, which does provide opportunities for the Federal agencies to take their disputes in addition to OMB. You asked about instances where we have raised disputes up to the Administrator. I can recall a case several years ago, it actually involved the State of California, which wanted to impose certain California standards for trichloroethylene at several Air Force bases, and it was raised by the Air Force in dispute that the Administrator was asked to address, and essentially the Air Force was challenging the need to remediate trichloroethylene to very few parts per billion, which was not a health-based standard, but essentially an ecological standard, and also one that current technology could not clearly meet, and so these are cases where EPA has to get involved, but again this, to me, points up the need responsibly to consider future land use and to have consistent—ability to apply consistent standards because, again, we are looking at 50 different standards for hundreds of contaminants in each State, and so we need that consistency responsibly to proceed with our program.
Mr. BOEHLERT. It is down to us. I want to thank all of you, Mr. Davison, Doctor, you got off easy, and Elliott is still smiling. Several Members have expressed an interest in having specific questions forwarded to you in writing with the promise that we will get specific responses in a timely fashion.
Mr. Wamp, the Vice Chairman specifically had asked for that permission, and I would alert you to the fact that you may be getting some communications from us, and we would appreciate a timely response.
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Having said that, I want to thank all of you for your expert testimony. We really appreciate it. This hearing is adjourned.
[Whereupon, at 12:45 p.m., the committee was adjourned.]
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