Segment 3 Of 6 Previous Hearing Segment(2) Next Hearing Segment(4)
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: ENVIRONMENTAL AND COMMUNITY GROUPS
WEDNESDAY, JUNE 21, 1995
U.S. House of Representatives,
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:03 a.m. in room 2167, Rayburn House Office Building, Hon. Sherwood L. Boehlert (chairman of the subcommittee) presiding.
Mr. BOEHLERT. Good morning. Welcome to the Water Resources and Environment Subcommittee. Today we will be joined by representatives from environmental and community groups, groups who are experiencing many of the same frustrations with Superfund expressed by local government and industry representatives who have testified before this subcommittee during the past week.
Superfund is not adequately serving the interest of the public or the environment. As Karen Florini of EDF notes in her testimony, ''It is imperative to craft legislation that will address the serious flaws in the Superfund program.'' We can and we must reauthorize and reform Superfund this year. The fact that members of the environmental community share this basic objective is a critical factor in making the reauthorization of Superfund this year a reality.
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Joining Karen Florini on our first panel are Ms. Velma Smith, representing Friends of the Earth, and Ms. Patricia Williams, representing the National Wildlife Federation. The environmental community was actively involved in crafting last year's Superfund reform package, and we look forward to their continued input.
Today's second panel is comprised of representatives of community groups, those folks on the front line in the battle to clean up our Nation's 1,300 Superfund sites. As we debate issues such as remedy selection, it is imperative that we not lose sight of the concerns of those persons who have to live and work near Superfund sites everyday. The No. 1 objective of Superfund in 1980 was the protection of the public from hazardous waste. As we seek to make fundamental reforms to Superfund, we must continue to focus on this objective. Protecting public health is still No. 1 in our book.
Representing community interest on our second panel are Mr. Milton Jackson of STOP Toxic Pollution; Ms. Marion Trieste of the Saratoga Springs Hazardous Waste Coalition, Inc., Ms. Linda King of the Environmental Health Network, Craig Tarpoff and Carl Mil-ler of the Superfund Coalition Against Mismanagement. That's a wonderful name.
Citizens from my State from Love Canal were the catalysts for raising the Nation's consciousness about the threats to human health and the environment posed by hazardous waste. As we move to make fundamental reforms to the Superfund program, I expect citizen groups to once again provide valuable insights into how we should address the threats posed by hazardous waste.
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The Superfund program must be reformed. Doing nothing is not an alternative. And if we do it right, we can dramatically reduce litigation and clean-up cost while increasing the number of sites that are actually cleaned up.
I now turn to the ranking member, Mr. Borski.
Mr. BORSKI. Thank you very much, Mr. Chairman, and I want to thank you again today for the outstanding manner in which you have arranged these hearings. We have had an excellent opportunity to hear different points of view. Today's hearing is especially valuable because it gets us out of Washington. We get a chance to hear about the experiences of people who have faced Superfund problems in their own communities. It is important to hear from the people whose lives are affected by the problems of hazardous waste sites, the people who need the cleanups to protect their health and environment.
Yesterday, we heard the problem of those who are required to do the cleanups. Today, we hear from the people on the other end of the process, the people whose major concern is getting the cleanup completed in a manner that will protect their community.
As chairman of the subcommittee on investigation and oversights in the last Congress, I was happy to work with our colleague from Illinois Mr. Costello to help the community of Granite City on the cleanup of their site. It is unfortunate, however, that communities must resort to that kind of special intervention to get the protection they need, and sometimes even our intervention doesn't work.
There is not question that the Superfund program must be sensitive to the needs of the companies that are responsible for the cleanups. But we must also be sensitive to the needs of the impacted communities. That is why I have serious reservations about any plan that proposes to reduce the funding for the Superfund program, leading to a reduced number of cleanups. It will be very difficult to ask people such as the people here today to live with toxic waste sites.
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I agree with your statement yesterday, Mr. Chairman, that we can't approach these issues with a closed mind. We must look at all the options, but failing to protect the health and environment of the American people is not an option. Thank you, Mr. Chairman.
Mr. BOEHLERT. Let the Chair make an observation. It's extremely disappointing to see this very important subject addressed by some significant players and have two Members of Congress on this panel. I'm glad to welcome the vice chairman, Mr. Wamp, so now we have three. Yesterday, industry testified and the place was packed. I'll tell you, you've got us but you've got your work cut out for you. And I'm really deeply concerned about this.
With that, let me go forward. Our first witness, Ms. Patricia Williams, counsel and legislative representative for the National Wildlife Federation. Ms. Williams, glad to have you here.
TESTIMONY OF PATRICIA RANDOLPH WILLIAMS, COUNSEL AND LEGISLATIVE REPRESENTATIVE, NATIONAL WILDLIFE FEDERATION; KAREN FLORINI, SENIOR ATTORNEY, ENVIRONMENTAL DEFENSE FUND; AND VELMA M. SMITH, EXECUTIVE DIRECTOR, FRIENDS OF THE EARTH
Ms. WILLIAMS. Thank you, Chairman Boehlert. Chairman Boehlert, members of the subcommittee, I appreciate the opportunity to testify before you today on the beleaguered Superfund program. I am Pat Williams, legislative representative and counsel at the National Wildlife Federation, the Nation's largest conservation education organization.
The Superfund program is clearly in need of reform. From the environmental perspective, sites that remain contaminated for 10 to 14 years until cleanup is undertaken create lingering detriment to human health and the environment. Superfund reform must occur in 1995.
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Swift reform is particularly imperative to the people that live in communities burdened by the health and environmental impacts of being near hazardous waste sites. We can not afford further delays in site cleanups.
Congressman Boehlert, I ask that my full statement and the article attached to my statement be submitted for the record.
Mr. BOEHLERT. Without objection, your prepared statement will appear in the record.
Ms. WILLIAMS. Thank you, sir. I would like to briefly outline some of the issues that NWF would like Congress to consider to make the Superfund program more efficient and cost-effective.
The over-arching mandate of Superfund is to protect human health and the environment. While the legislative parameters to carry out this mandate are being debated, it should not be forgotten that there are people who suffer from the adverse physical, emotional, and financial effects that often result from living next door to a Superfund site.
Although CERCLA and the National Contingency Plan require that information be provided to communities regarding site deliberations and remedy selection, this has not been translated into meaningful involvement by communities in the remedial process. When we talk about allowing communities to have meaningful participation and involvement, these terms must be more than rhetorical concepts. Affected citizens should be afforded the same input into the remedial process as all other stakeholders, including responsible parties and the Federal and State Governments.
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This factor becomes even more critical if changes to Superfund's remedy system include land use determinations. And Congressman, I know that you do have a panel with community representatives so I will not belabor that point; I will let them speak for themselves.
If I may speak a bit about liability. NWF holds steadfast that responsible parties should pay for the cleanup of sites. However, we believe fairness should be injected into the system. We support an allocation process whereby parties are assigned their fair share of liability for the cleanup of site. We believe such a scheme will reduce litigation transaction cost and give some parties certainty about their levels of obligations at a site.
NWF has also heard the concerns of people who only have tangential ties to a Superfund site. These mom and pop entities, often cited as de micromis parties, deserve relief from the system. The cure should not be more deadly than the disease. These parties with no real connection to a site should not be ensnared in the liability system. Under the allocation scheme, parties that have contributed a small amount of waste to a site should be identified as early as possible, pay their obligation, and gotten out of the system as early as possible.
NWF also recommends that future land use be considered in remedy selection. There should not be an unfair paradox between environmental protection and economic development. We believe that consideration of future land use will be a further catalyst in putting abandoned industrial waste sites back into economic reuse. However, we must add a word of caution about future land use. Clearly, there are instances when variable land use is not appropriate. Moreover, there must be safeguards to ensure that land use designations remain consistent throughout the use of the property. Also, it must be determined who will enforce these land use designations. Congress must clearly lay out these parameters.
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As before stated, land use decisions will require greater and earlier involvement in the remedial decision process by all stakeholders, particularly local affected communities and local governments since land use determination have traditionally been construed as local issues. Industrial and commercial ventures which consider the purchase and redevelopment of previously used sites will foster economic redevelopment and productive reuse of those existing industrial sites, stimulate economic growth of the surrounding areas, and will preclude siting industrial developments on limited green fields. We applaud EPA's ''brown field'' initiative and support Superfund reform that will stimulate ''brown field'' development.
NWF encourages development and implementation of more State voluntary cleanup programs which enhance a State's ability to cleanup low priority sites. NWF also recommends that some form of liability relief is provided to prospective purchasers, lenders, and innocent landowners.
Finally, Congressman, in the last several years many States have developed their own Superfund programs and are capable of site remediation without intervention by EPA. Some qualified States have the infrastructure to support a delegation of specified activities, other States do not. NWF encourages Congress to review the Federal and State relationship and clearly delineate remedial responsibilities to avoid duplication and delay in cleaning up hazardous waste sites.
Congressman Boehlert, I believe my time is up, but NWF looks forward to working with you and the committee in moving forward Superfund legislation in 1995. Thank you very much.
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Mr. BOEHLERT. Thank you very much. I don't want any of you to feel that you have to rush through your testimony. Your full statement will appear in the record in its entirety, but a minute or two either way in your oral presentation doesn't bother me a bit. We'll extend the same courtesy to you that we did to the business community yesterday. And I think the subject is so important that to confine it to 5 minutes is somewhat restraining and I understand that. Thank you very much.
Ms. Florini.
Ms. FLORINI. Mr. Chairman, thank you for this opportunity to testify this morning. Although my written statement focuses on a range of critical issues including cleanup standards, public participation, and State roles, my oral statement will focus primarily on liability.
EDF believes that Superfund's liability system is the cornerstone of the Nation's hazardous waste and pollution prevention policies. Accordingly, any alterations in this system should be undertaken with great care and assurances that we will avoid undermining the important incentives created by the current regime.
Although there are a wide variety of liability issues raised by Superfund, EDF believes that two are particularly critical. Again, maintenance of the incentives that are now created is essential—incentives to reduce the generation of waste through pollution prevention, incentives to go beyond potentially inadequate regulatory requirements in handling whatever wastes are produced, and incentives to cleanup old contaminated properties without awaiting the onset of Superfund litigation.
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The liability rules have accomplished these important objectives without burdensome new regulations, without thousands of new Federal bureaucrats, and without prescriptive and costly technology requirements. No environmental regulatory program can come close to making these claims.
Although hard to measure directly, these incentives are clearly operating in the real world. For example, more than 40 percent of the waste sent to so-called hazardous waste treatment and disposal facilities are not legally classified as hazardous wastes. Some generators are clearly responding to incentives created by Superfund by handling their waste in the most secure fashion now available; namely, by using the treatment and disposal facilities that are required to be used for legally classified as hazardous, even for wastes that are not thus classified.
Similarly, an example of Superfund's effectiveness in prompting cleanup beyond the litigation context emerges from our June 11 story in the ''Cleveland Plain Dealer'' about the Ashtabula River Partnership, a group that is working to avoid a potential Superfund listing by creating a better than Superfund cleanup plan for the river's heavy metal and PCB contamination problems. The paper quoted a member of this committee as remarking that ''the prospect of a Superfund designation has proven to be a more effective tool than the Superfund itself.'' But without Superfund, however, most parties wouldn't even be at the table.
More generally, anecdotal information from large remediation firms illustrates the scope of this phenomenon. In an informal survey, four of the largest companies doing remediation work were asked to estimate the percentage of their cleanup projects that do not involve sites on the National Priorities List. Those companies representatives stated that between 90 and 99 percent of their cleanup contracts were at non-NPL sites, ones at which cleanups are proceeding without Superfund litigation. Parenthetically, I would note that such voluntary programs are desirable only to the extent that they actually achieve protection of health and the environment, of course.
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At the same time, we believe that changes are clearly needed to improve the allocation of liability. Generally, we strongly support efforts to use allocation procedures or other alternative dispute resolution procedures to resolve Superfund cases. In cases where all parties are financially viable, these processes can reduce transaction costs dramatically, speed resolution of liability, and give all parties considerably greater certainty about their obligations under the law. But the statute must explicitly address one issue in particular; namely that of how orphan shares are to be paid for.
Congress must not adopt a mechanism that compromises the Federal Government's ability to finance ongoing or future cleanup activities. In our view, it is simply indefensible for the Federal Government to slow or stop cleanup work in some communities because of a lack of funds solely to defray the orphan share costs of an identified polluter. If it is Congress' judgment that the Federal Government should pay for orphan shares, Congress must find the additional resources to accomplish that goal, and, in particular, should not place the burden on the backs of local communities that have already waited far too long for cleanup. Such an approach would merely trade one type of unfairness for an even more egregious one. Moreover, such a process must be budget neutral. No other approach is feasible in light of the demands on the Federal budget.
In addition, EDF believes that Congress can, and should, provide meaningful assistance to small businesses without changing the structure and incentives of the current liability system through improvements to the allocation process. In particular, expedited determinations should be made for de minimis and de micromis parties. Small businesses should also receive an ability to pay determination and structured settlements to allow firms to spread their payments over time.
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Finally, I want to touch very briefly on one additional issue. While the Environmental Defense Fund does not oppose a role for land use considerations in cleanup decisions, it is essential to structure this in an appropriate way, one that squarely confronts the difficulty of accurately predicting future land use in and around a particular area and one that also backs up whatever predictions are made with legally enforceable ways to ensure that those assumptions are consistent with actual reality.
A couple of statistics illustrate this point. In the 10 years after Superfund became law, the Los Angeles metropolitan area population expanded by 26 percent, 3 million people; the Phoenix metropolitan area grew by 40 percent; and Las Vegas by almost 62 percent. Indeed, the total number of metropolitan areas in the region grew from 60 in 1960 to 101 in 1990, almost one new major city per year. Moreover, while some States have experienced sustained rapid growth, others have seen their growth patterns wax and wane, again during the decade following Superfund's enactment. In the first half of that decade, Alaska led the country in growth at 5 percent per year. In the latter half of the decade, that fell to 0.2 percent. Similarly, Texas dropped from a robust 2.7 percent in the first half of the decade to a far more modest 0.9 percent in the second half. My point is simply that predictions about future land use are difficult to make, and, as I believe Ms. Smith will testify, predictions about future water use that is associated with that land is even more difficult in part because the water, unlike the land, moves.
In short, we're committed to making Superfund work. We strongly agree that reforms are essential. This entails, however, not only streamlining the liability process to provide much needed procedural and fairness improvements, but also standardizing the erratic and inconsistent remedy selection process and enhancing both public participation and the role for qualified States. EDF believes that a balanced approach makes sense for all of these issues, and we look forward to working with you as you move forward on this important legislation.
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Mr. BOEHLERT. Thank you very much.
Ms. Smith.
Ms. SMITH. Thank you. Good morning, Mr. Chairman. I've submitted a longer statement to the subcommittee staff which I would request be entered into the record.
Mr. BOEHLERT. Without objection, your full statement will appear in the record.
Ms. SMITH. But right now, I will attempt to touch on only a few critical points. I would start perhaps with a little repetition by asking the committee members that as you take up reauthorization to keep in mind that despite the disappointments, despite the slowness in checking sites off the list, Superfund has in some respects been a success.
As Ms. Florini explained, Superfund, through the compelling market incentive of its liability standard, has helped to spawn a growth of environmental audits, environmental compliance consulting, pollution prevention initiatives, and improved environmental control technologies. We must not forget that.
Also this morning, I would like to quickly address an erroneous myth that has gained much credence in the past several years, I call it the ''Garden of Eden'' myth, the notion that the Superfund program is requiring pristine cleanups at all sites. This is simply not true. Mr. Chairman, I can't profess to know or even be familiar with all NPL sites, but I have visited a few, I have met with citizens who live near Superfund sites, and I have read a great many records of decision. And from that experience I can attest that the program is not attempting to return sites to pristine natural conditions to prepare the way for daycare centers and playgrounds on old industrial sites across the country.
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On the contrary, the program on a regular basis opts for low levels of cleanup, for writing off groundwater as unusable, for reliance on institutional controls to keep people from accessing sites, from growing crops and gardens, from fishing, from pumping water out of the ground. I would suggest to the committee you might just want to take a gander some night if you can't sleep at EPA's summary record of decisions for each year and you will find many, many instances of restrictions on land use and water use.
In some cases, those may be sound decisions. They're necessary because no cleanup technologies are available. In other cases, those choices, in our view, reflect decisions to shave up front cost in a fashion that ignores future cost and ignores the inequities in who is asked to bear the cost. But regardless of what one believes about the wisdom of those choices, the record shows that less than full cleanups are a matter of course, not an exception. And we believe that the debate on reauthorization must get beyond this false mythology that the program has failed solely because it is seeking perfection.
On the issue of groundwater cleanup, let me underscore the bottom line of the longer discussion in my written testimony. Groundwater cleanup is expensive, it is a long-term project, and at some sites there are real technological constraints on what can be accomplished. But groundwater cleanup is critical for groundwater is a dynamic, moving resource on which this Nation grows more and more reliant everyday. It is also a critical component of the Nation's lakes, rivers, and streams.
From 1950 to 1980, U.S. groundwater consumption tripled and water experts in 1980 were predicting another doubling of its use in the period from 1980 to the year 2000. Nearly 120 million Americans rely on groundwater for drinking and groundwater is the source of about one-third of agriculture's irrigation water and 17 percent of fresh water for self-supplied industries. As many areas of the country know too well, access to sufficient quantities of potable water, be it groundwater or surface water, is a critical factor for the vitality of existing communities and an essential ingredient for future growth and economic development.
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A decision to write off groundwater is clearly a decision to tolerate inequities and to mortgage the future of these communities, imperiling not only environmental health but also economic prosperity. A decision to adopt a preference for the so-called control of groundwater pollution plumes over cleanup is also a decision to interject the Federal Government into the difficult and politically sensitive arena of groundwater quantity. Please be assured that opting against cleanup and for plume management is not a matter of trading expensive for cheap, difficult for easy, technologically impossible for technologically proven. Many, if not all, of the same scientific challenges in groundwater cleanup are also inherent in clean management.
We appeal to you in the strongest possible terms not to weaken groundwater cleanup requirements. But if that is where you're heading, we urge you and the public to face the fact that you are also headed into another difficult realm even beyond pollutant fate and transport modeling; that of predicting and evaluating changing local water demands not just for drinking, but for irrigation, for livestock watering, and for industrial purposes. If you opt for less in groundwater cleanup, you will opt for more in the way of water use prediction, evaluation, and control.
We particularly appeal to all the committee members who sit here with a concern with the health and future of rural communities. To you I offer a caution, lest you foist upon this program a cost-benefit scheme that harshly and coldly discriminates against rural Americans, subjecting those who live in small communities to greater individual health risk and mortgaging the future of those communities. I also caution the committee to consider a very likely side effect of disassembling the Superfund program and its commitment to cleanup.
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I would predict that if this Congress substitutes cost-benefit decisionmaking for health protective standards, you will join the ranks of the most radical environmentalists, ironically. For you will, though you will not mean to, foster the spread of the NIMBY syndrome, the not in my backyard syndrome. I believe strongly that if Congress takes away its Superfund cleanup commitment and sets up a cost-benefit scheme that perversely makes cleanup less likely the bigger the mess and the smaller the community, then you should be assured that more and more communities will begin to say no to new industrial operations, to expansions of existing operations. That, in my view, would not be a positive outcome but I believe it would be inevitable.
I appreciate this opportunity to testify. Thank you.
Mr. BOEHLERT. Thank you all very much. I am pleased to report that we have 6 committed members here, 6 out of 29. So that should send a signal to you.
Now let me address the key issue of the day, of the week, of the month, of the year, and Ms. Williams, I noticed in your testimony you said you would not foreclose any other options, what do we do with retroactive liability? Everyone agrees it's unfair, but is the alternative, repealing retroactive liability, equally unfair? I think the answer probably is yes. Would you all address the question of whether or not retroactive liability should be continued or should be repealed.
Ms. WILLIAMS. Congressman Boehlert, we did say in our testimony that we did not foreclose any options and look forward to debates on all of these. I believe we had a very good debate about the retroactive process during the 103d Congress and we came to the conclusion, and we still concur, you cannot eradicate retroactive liability. No. 1, and I think Ms. Florini made some very good overtures about it, it has been a very good incentive to keep responsible parties in line. It has ensured that they are sensitive to the needs of the environment where it has enhanced voluntary cleanup.
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The other thing about retroactive liability that we tend to add is that just because there was no law on the books in the 1940's or 1950's that made dumping somewhere illegal, it does not mean that there was a level of corporate responsibility that should be eradicated. There is a level of moral and corporate responsibility that must be undertaken and should have been undertaken. We also don't believe that there is a mechanism that you could adequately pay for cleaning up these sites if we do not have the responsible parties there. They are now cleaning up about 70 percent of the sites. So we do believe that retroactive liability should still remain.
Mr. BOEHLERT. Ms. Florini?
Ms. FLORINI. To the best of my knowledge, there is no alternative. There is not an alternative mechanism for supplying the money needed to finance the program at anything like an adequate rate of speed. And I'd like to mention that to the extent that some have argued that it's possible through changes in the remedy selection process to free up money, it is our belief that money ought to go to accelerating the pace of the program. Congress in 1980 established this program expecting it would last 5 years. Everyone hoped that would be the case. It is now 15 years later. If there are efficiencies to be gained through changes to the remedial program, I think that the appropriate first use of those dollars is to go to the 1,300 communities and work faster to clean this up. I also think that in the long-run that actually is a benefit to business; we get finished with this sooner rather than later.
The other point that I would like to make is that the incentives, again about which I spoke, are vital. If you undo retroactive liability, you eviscerate incentives for voluntary cleanup. Superfund is in effect the tip of the iceberg, it's the part that literally sticks up out of the water as the part that we see. But the much larger bulk of the actual cleanup of contaminated sites is occurring without involving Superfund litigation, saving lots of transaction costs and allowing everybody to accomplish what they say they want, including us, which is having the money go to engineers and not lawyers.
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So for those reasons, we see no alternative other than the retention of retroactive liability. Certainly the least fair outcome is to leave the sites to be dirty without cleaning them up.
Mr. BOEHLERT. Ms. Smith.
Ms. SMITH. To reiterate those points, I believe, No. 1, we must keep retroactive liability because it is the only way to pay to get the cleanup. I don't believe many proposals have been put on the table that would raise sufficient funds. And one of the things I would suggest the committee do is take a look at the analysis that Resources for the Future did last year. Kate Probst, and I can give the subcommittee staff the letter, did an analysis looking at what would be the cost if we removed retroactive liability for sites prior to 1980. I think those are some pretty staggering numbers.
Mr. BOEHLERT. She is testifying tomorrow, incidentally.
Ms. SMITH. Oh, OK. Then I need not provide it.
Mr. BOEHLERT. We have a call in the House now, we've got a vote on and there's going to be at least two votes. We have 8 minutes and thirty seconds to get over there. So upon conclusion of this questioning, we're going to recess for about 15 minutes. I hope you all can stay. I apologize for the schedule in the House but this is the way it is and you're all experienced.
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Let me ask you this: would you entertain partial repeal of retroactive liability? For example, municipal landfills, hundreds of cities, small communities around the country have a landfill, hundreds of people contribute a little bit to that landfill. That's part of the problem. If you look at the Ludlow case in my district, one of the reasons why the transaction costs are so high, you've got hundreds of people with hundreds of lawyers all shooting at each other for a pizza box or a hair spray can. Is that something we could consider, a partial repeal?
Ms. FLORINI. Do you want us to answer now or after you come back?
Mr. BOEHLERT. Why don't you think about that, because that's a very serious proposal and it requires a very serious response.
What we will do now, and I hope my colleagues can return, those who are still here, we will recess for about 15 minutes. We'll be back as soon as we can.
[Recess.]
Mr. BOEHLERT. The subcommittee hearing will resume. Other committee members will be returning. In the interim, I want you to know I was doing a little lobbying on the floor to try to convince some of my colleagues to come here. The problem is we are so over-scheduled and I had several of my colleagues say they can't be two places at once and in our other committee we're in a markup session on a bill. So I don't want you to think that because there are so many absent that they're just laying around the office reading the paper. They're doing other things.
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[Laughter.]
Mr. BOEHLERT. As we left, the question pending before the panel was seeking their reaction to the possibility of a partial repeal of retroactive liability. You've had a chance to caucus and I would assume you're prepared now to respond. Who would like to lead off, Ms. Smith?
Ms. SMITH. I'll start. We may have slightly different answers. But I would start by saying it is a useful question because clearly municipal landfills are a very problematic piece of the pie here. There are a considerable number of them. And if you look at the dollar amounts for the cleanup, there's lots of dollars involved in these particular sites. That's one of the reasons that last year people in the environmental community set down with representatives of municipal government for weeks and weeks, probably going to months, trying to hash these things out with that question laid on the table, can we just get out of liability.
I think that what we came up with in terms of a compromise, capping liability, in terms of borrowing, third party suits to cut down on the transaction cost and to keep the small town government from sitting across the table from a Fortune 500 lawyer and the pizza owner out of the room are an important way to go. And they sort of get at retroactive liability but they do it with some important caveats, with this cap, with the borrowing, third party suits.
The other thing, there are not very many but there are some municipal landfill sites that are on NPL that are accepting waste. Now they may have closed cells that are on the NPL and they have adjacent to that new cells where they are accepting waste. But one of the issues you're going to have to deal with is what happens in the future if we say, OK, old stuff, we forgive you; but if you create a future problem, you are liable. It is a little difficult to figure out with groundwater how to separate those two. So one of the caveats we had in there was that there had to be a burden of proof on the locality if in the future there was contamination from a site that was still active.
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So there are lots of nuances to this. I am uncomfortable with saying yes, we support repeal of retroactive liability for municipal landfills because that's too simple. But we are comfortable with having discussions.
Mr. BOEHLERT. Ms. Florini?
Ms. FLORINI. I think it is worth exploring some modification with respect to this particular category in part because you can draw a fundamental distinction between those facilities and facilities that are not municipal landfills, both in terms of what's in there and the general kinds of approaches to them. After all, one rationale for retro liability is that the industry at the time in essence was saving money by not disposing of their waste in what is now clearly the way they should have been. Municipalities were not making money by disposing of garbage; they were providing a service to their residents.
At the same time, I think it is really vital if you're going to explore this to figure out some clean, sharp, careful way to categorize it so you don't have silly arguments and litigation over what's a municipal landfill. In particular, I would like to caution you to avoid the kind of problem that we've seen come up in the context of the hazardous waste statute RCRA where it's been interpreted there is an exemption from the hazardous waste statute for municipal sewage that is going to a publicly owned treatment works. So what happens is that factories connect their human waste system in with their effluent systems and send that all off and it's proclaimed as being exempt from the hazardous waste process. You've got to be very careful to structure this in a way so that somebody says, hey, the municipality brought a truckload of garbage here; therefore, we are entitled to this exemption.
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Mr. BOEHLERT. Ms. Williams?
Ms. WILLIAMS. Mr. Chairman, I concur with my colleagues. I think they brought up some very vital points. As Ms. Smith said, we really worked with the municipalities last year. We heard them. We know that many of our small towns and our cities are having some real financial problems and felt very encumbered by Superfund liability. So, of course, we will not foreclose this discussion. At the forefront, we want to clean these sites up; that's the bottom line. But as Ms. Florini alluded to, No. 1, we don't know how many municipal landfills there really are. What are we talking about? What types of waste are in these landfills? How difficult is it to clean up? We have not seen any concrete numbers. Those are some of the things we really need to see. What is the amount of money that would have to be paid out of the fund if we are talking about eradicating this particular category of sites.
Mr. BOEHLERT. You're all saying essentially the same thing. You're retaining an open mind but you'd like to get down to the specifics.
Ms. WILLIAMS. Exactly. And we need some detail.
Mr. BOEHLERT. Well, I have some other questions but my time has expired. I now turn to the ranking minority member, Mr. Borski.
Ms. SMITH. Thank you very much, Mr. Chairman. I want to stay with the question of retroactive liability. The Congress Daily today is suggesting that may be the way that some people here are trying to go. Why is retroactive liability so important? Why shouldn't it be repealed? Ms. Smith?
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Ms. SMITH. In addition, just to the simple fact that the retroactive liability brings people to the table and it brings the funds in to enable the cleanups. Pat also talked about companies sort of in the past having a moral obligation beyond their legal obligations.
I would just give a little anecdote. I have a friend who has had the job in the past months of interviewing business people about their environmental practices and what they're up to. And he related a conversation with a gentleman who is a business manager and was very excited and enthused about trying to bring his facility to zero discharge. He said to this gentleman, ''What kind of compliance problems do you have, how many violations?'' ''Well, I'm not having any problems. I'm not having violation problems. I'm in compliance.'' ''Well, isn't this going to cost you a lot of money to go to zero discharge?'' ''Well, yes, it is, but just because I'm in compliance today doesn't mean that 10 years from now I won't be liable for a problem that nobody saw coming. So, therefore, I want to get rid of the pollution. I want zero discharge.'' That to me is compelling when it can make a business person see that it's in his business interest to look for the best way to reduce pollution in his facility and to do it on his own. That's the best market incentive we have. It's the most effective environmental program there is and we shouldn't get rid of it.
Mr. BORSKI. Ms. Florini?
Ms. FLORINI. Again, it's the question of incentives. I think in terms of retroactive liability, if you get rid of it for whether it's 1987 or 1981, which are the dates that I hear talked about, you are then seriously undercutting the incentives to go forward on a voluntary basis to cleanup the sites that were created before then, the sites that may not now be on the NPL, that may never get on the NPL, but that warrant some attention. Right now you've got an incentive to do that. If you repeal retro liability, you won't.
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The other point that I think is worth making is I just really cannot understand the argument that 1987 is an appropriate date. For quite a bit of time before then there was clear case law indicating that retroactive liability was being applied under the Superfund act as originally enacted. So people saying, well, this is a surprise and it's not fair to apply a change. The change in the legal standard was a lot earlier than 1987. But if you then look at 1980 or 1981 as the cutoff date, there are something like 540 so-called straddle sites that got wastes partly before and partly after 1980 or 1981. So you're not even going to save all that much money in terms of litigation and transaction costs because what you'll be fighting over instead of relatively simple questions that are created under the Superfund liability scheme, you'll have immense factual disputes over which quanta of waste came in at what time. I don't really think you're solving the problem that way.
Mr. BORSKI. Ms. Williams?
Ms. WILLIAMS. May I add that I agree with my colleague in that we talk about voluntary cleanups, this retroactive liability has been a good incentive toward pollution prevention. It is your people of color and economic communities that are already disenfranchised and burden by a number of our pollution sources and, of course, voluntary cleanups trying to get these sites back into economic reuse is very important to these communities. We don't want these communities further disenfranchised, further overly burden and we think eradication of retroactive liability may readily do that.
Mr. BORSKI. Let me ask about the funding piece of it. As I understand, virtually half the money for the Superfund program comes from retroactive liability—$1.5 billion or so comes from the Superfund fund, and $1.6 billion this year I believe comes from retroactive liability. What happens if we eliminate retroactive liability and that piece goes? What happens in your view, Ms. Florini?
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Ms. FLORINI. The cleanups will slow down, they will be less thorough. I think that's the bottom line.
Mr. BORSKI. Anybody else?
Ms. FLORINI. Which is not an acceptable outcome, obviously, from our perspective.
Ms. WILLIAMS. I think there will be attempts to try to make up that money from someplace else and we have not heard from anyone any definitive answer on where you're going to get that money from.
Mr. BOEHLERT. Let me interject, if I may. The argument on the other side is that while a disproportionate share of the total amount is going for transaction costs. And if we reform the system the way we should reform the system, we won't have these hundreds of millions of dollars we're spending for transaction cost, we'll have them to clean up. So how do you respond to that? I mean, give us the argument from the other side if you will.
Ms. FLORINI. I think the basic answer to that is the way you fix that problem is by coming up with an allocation process, because that's where you're really running into the transactional issues. If you've got some kind of an allocation process that is working far more effectively than the one we have now, which is dysfunctional, then you've solved a substantial majority of that concern, which I admit is a significant concern and one that really does very, very much need to be dealt with.
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Ms. SMITH. In addition, I would say the other piece of the transaction cost, and much of the talked about transaction cost is litigation between the PRPs and their insurers. So taking that issue and working out an approach to deal with the insurance issue, as was proposed last year, is one way to deal with a very big piece of the transaction cost. And then marry that to allocation schemes.
But I don't think we should fool ourselves that all the transaction costs will disappear. Some of the transaction costs will simply be raised on the Government who will have more of the burden of finding all the parties and determining the allocations. And if you marry that to a notion of altering the proportion, depending upon where you put the burden of proof to how to proportion the liability, you could create more transaction costs. So that's why you have to be very careful with a kind of allocation scheme that you come up with.
Ms. WILLIAMS. Mr. Chairman, I was just going to say because you eradicate retroactive liability does not mean you eradicate transaction cost. You will then just move those transaction costs to determination of when the waste was actually put into the site or put into the landfill, was it before 1980, was it before 1987. There will still be transaction costs that will accrue with elimination of retroactive liability.
Mr. BORSKI. I would like to ask it this way: Who would save money by the repeal of retroactive liability?
Ms. FLORINI. The insurance industry.
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Ms. SMITH. And probably the potentially responsible parties. The general public, the taxpayer, would pick up more of the burden is where it would fall.
Mr. BORSKI. Either the taxpayer picks up the burden or there will be much less cleanup?
Ms. SMITH. Right. They'll pick up the burden one way or the other, either in dollars or inheriting toxic legacy at sites that aren't cleaned up.
Mr. BORSKI. The dollar piece of this is very important to me. Can you envision any way in which $3 billion would come from Superfund or the Federal Government?
Ms. FLORINI. I'm sorry, what was the figure?
Mr. BORSKI. We now get about $1.5 billion from Superfund. Assume for a second that we could double that and have enough money to do what we're doing today. I know that's a large assumption, I don't think that can conceivably happen. But if it could happen, would it then be worthwhile to consider repeal or is it still a bad idea?
Ms. FLORINI. Again, I think then you've got to very squarely confront what happens to the incentives for voluntary cleanup at non-NPL sites. It's the four hundred pound gorilla out there that something might be put on the NPL at some point that is having a substantial influence in driving the part of the iceberg that's under the water. So, to me, you're missing half, at least half, of the issue if you're only talking about the money.
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Ms. WILLIAMS. Mr. Borski, in that situation, if I was a responsible party, I would sit on a site, not bring it up, wait until there would be repeal of retroactive and I know my site would go into the umbrella of all sites that would be cleaned up by some sort of a fund or whatever. I would not voluntarily belly up to the table.
Mr. BORSKI. Thank you.
Mr. BOEHLERT. Let's move on if we can. We'll get back for a second round. Mr. Wamp?
Mr. WAMP. Thank you, Mr. Chairman. I just have a short question really. Ms. Smith, you said that you felt like Superfund had been successful or somewhat successful. I just want to ask you basically, we learned the first day that $30 billion has been spent in the last 15 years on Superfund and that $9 billion of that $30 billion was legal fees, about one-third. Last year, same numbers, about a third of the total cost was for legal fees. Is that successful? Can that truly be classified as successful? And isn't it true that until we establish through this reform process the de minimis levels and promote ''brown field'' redevelopment and attach some true reforms to a new Superfund reauthorization, these legal fees are going to continue to climb and that's what everyone is so frustrated with?
Ms. SMITH. I think that if you look at Superfund and say the only objective of Superfund was to clean up a list of sites, from that perspective, if you look that narrowly, then indeed it has been a failure. What I tried to say was that if you look more broadly and if Superfund was a program to establish responsibility for your products that carry with them and for your environmental management for your facility that carries with it on into the future, then in that context Superfund has been an enormous success because it has changed behavior. If you look at just the cleanups, no, indeed. There is much that needs to be fixed and there are many positive solutions that were put out last year.
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In terms of the transaction cost, one thing I would caution you, as you look at those numbers, some of those numbers for some of those sites are high in the beginning but as remedies are implemented, the proportion that the transaction cost is of the total cost is going to come down substantially.
Mr. WAMP. And Ms. Florini, you mentioned that this is the tip of the iceberg. We've had a few Superfund sites come off and some that have been added. Do you really think there are a lot of Superfund sites that are out there?
Ms. FLORINI. That's not at all what I meant, Congressman. What I was intending to say instead is that there are lots of sites out there that may never warrant inclusion on the National Priority List or that may never, given other factors, end up on the National Priority List, but the existence of the Superfund program creates an incentive for people to worry about whether something might end up on the Superfund list and to take action to ensure that it won't by cleaning up the site, by keeping it from getting to be enough of a problem to hit 28.5 which is the magic number under the hazard ranking system for being included as a potential Superfund site.
So I am not at all saying that there are many, many, many thousands of additional sites that would necessarily end up on the NPL; however, that is independent of the fact that the existence of Superfund creates the incentive for cleanup elsewhere.
Mr. WAMP. Point well taken. But on the next panel you are going to hear from a potential NPL site that needs to be added. Thank you, Ms. Florini.
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Mr. BOEHLERT. Mr. Gilchrest.
Mr. GILCHREST. Thank you, Mr. Chairman. I would like to ask the panel—and I apologize for being in and out and not hearing your full testimony, you may have mentioned this—but I would like to ask the panelists their position on the relatively new concept known as ''brown field'' where you use existing industrial sites as opposed to looking for greener fields where you build another industrial site while there is one in existence that's not being used because for one reason or another is still relatively contaminated. And in the light of the concept of ''brown fields,'' is there good science to determine that maybe the soil doesn't have to be cleaned up at an industrial site to the same degree that it would be for a residential community or a daycare center? And given the degree that we can test groundwater and the movement of groundwater, is it possible to pursue the concept of ''brown fields''?
Ms. WILLIAMS. Mr. Gilchrest, why don't I start with ''brown fields'' but I will defer to my colleagues about the science and particularly the science on groundwater. I think we all are very supportive of the ''brown fields'' concept, and I had mentioned that we're very supportive of EPA's ''brown fields'' initiative. We in the environmental community of course want these, particularly your urban sites that have been abandoned, returned to economic reuse. We want them revitalized, we want them to be a fulfilling tax base for the community.
Some of the things that we had cautioned about though, the ''brown field'' initiative is moving very quickly and ofttimes our affected communities within these neighborhoods have not really had any input on what they want to see these abandoned waste sites become; do they want them reindustrialized, do they want a hospital. Also, are we necessarily ensured that just because we go in and we clean up this site that it really is going to be returned to economic reuse. Are there some other social and societal factors that we have to look at, such as lack of transportation, unskilled labor. Are we ensured that just because we're going to go in and clean up this site it will really be returned to economic reuse.
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So, again, we are supportive of the concept in general, but we feel, as we had mentioned to the Chairman, that there are other factors that must be weighed in and that must be delicately looked at. I think we are all trying to do that now.
Now I don't know about the groundwater. I will defer to Velma on that one.
Ms. SMITH. Maybe before I talk briefly about groundwater, the ''brown fields'' issues had a lot of debate within the context of Superfund and within the context of environmental problems. But speaking to you as someone who in another life was an urban and regional planner, the problem has been with us for a very, very long time, which, if you think about it, I'm sure you really know. Suburban growth has been sapping urban core growth for a long time and that there are many, many factors involved. So I don't mean to say we don't think that we shouldn't add environmental factors; we don't want that to add to the problems.
I think it's an area that needs some examination and you want to look at how can you work on revitalizing these old areas. The State of Indiana I know did an analysis of some of their ''brown field'' sites and their determination was regardless of even if you took away the environmental cleanup cost, the economic factors would still drive the growth to the ''green field'' areas. So you need to look at the issue in context.
Mr. GILCHREST. Can't a community just say this is going to be an industrial area, this is going to be a residential area, this is going to be an open space area and then if industry wants to move in, have them move into the existing infrastructure and provide whatever lucrative incentives you can have for that. And with this reauthorization of the Superfund, hopefully we can speed up the process, not taking away from the quality of the groundwater. But it seems to me if we have a concept and we all recognize the problems with the concept of ''brown fields''—and is ''brown's field'' or ''brown fields''?
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Ms. WILLIAMS. Brown fields, I think.
Mr. GILCHREST. Brown fields, OK. I think we ought to sort of get on the same train, debate while we're on the train but keep moving this thing in the right direction so we can get some positive results from it.
Ms. SMITH. I think we have the flexibility to try to promote redevelopment. It may not be a matter of changing standards. There are many, many sites—Avtech's chemical plant on the Shennandoah River, the clean up is planned for that to be an industrial site; but there are many sites where that is happening now, they are choosing cleanup levels for industrial reuse.
Groundwater presents a complicating factor because regardless of what you're using that piece of land for, if the groundwater underneath it moves through and it goes to the stream, goes to the Shennandoah River in that case, or goes to people's drinking water wells, you've got to worry about what happens with the groundwater. And in many instances, if you don't clean up the soil what's at risk most is not somebody standing on the property, not a child who is going to eat the dirt, but it's the groundwater that's going to be at risk. So in many cases, you need to clean the soil up more in order to protect the water.
Mr. GILCHREST. Thank you, Mr. Chairman.
Mr. BOEHLERT. Before I turn to Mr. Oberstar, I just would like to interject one question. What happened to the coalition of last year that worked so effectively to bring forward a bill that big business and small business and the environmental community supported? A couple of theories around here.
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[Laughter.]
Mr. BOEHLERT. One thing I heard is that the environmental community took a walk.
Ms. FLORINI. No. We haven't gone anywhere.
Mr. BOEHLERT. I'd be anxious to hear what your response is to the question, what happened to the coalition?
Ms. FLORINI. I'm not sure that anything has happened. There did not appear to be an interest in——
Mr. BOEHLERT. You're choosing very, very carefully your words.
[Laughter.]
Ms. FLORINI. The initial sense was that the political situation having changed markedly, there would need at least to be a period of discussion before it would be clear what the landscape looked like again and that everyone wanted to keep their channels of communication open, and that's about where we are.
Mr. BOEHLERT. Ms. Smith?
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Ms. SMITH. What I would say, and correct me if I'm wrong here, friends, but we would certainly welcome a revival of the coalition. If there is any rumbling that it is the environmental community that shut this off, let it be forever dismissed.
Ms. WILLIAMS. That's absolutely not the case.
Ms. SMITH. It is not true.
Ms. WILLIAMS. Chairman Boehlert, I would welcome the coalition or some form of the coalition getting back together again. I thought that was environmental workmanship at its best when you have different stakeholders getting together and agreeing to agree and agreeing to disagree. We may see them coming back, they have not totally dissipated. Again, I think Karen said it best, people are looking to see where we're going, looking at the parameters, and while there is still some overlap and overlay, they may be coming back together in some form or fashion.
Mr. BOEHLERT. Well, my concern is that the train is moving and it's beginning to accelerate. There are a couple of very different groups out there and I don't see the environmental community identifying with one or the other. I would hope that you would work to try to bring together some form of coalition like existed last year. It was so good and so productive. When you can have those diverse groups working in common cause, it is very helpful to us. It makes life a lot easier, I'll confess that. So give it your best shot because, let me tell you, the train is moving.
Mr. Oberstar.
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Mr. OBERSTAR. Thank you, Mr. Chairman. Thank you for holding these hearings and for inviting such a wide array of witnesses. I want to thank our environmental panel. Although I arrived late, I took these moments to read through your testimony.
Picking up on the Chairman's inquiry about what happened since last year, not much has changed. The issues are still the same. And the issues that we have to deal with, and you may well have already gone through questions on these, but I want to ask about retroactive liability, joint and several liability, and the de micromis exemption from the cleanup program. What is your collective view on those issues?
Ms. FLORINI. On retroactive liability, speaking for the Environmental Defense Fund, we think that there is no better alternative. Sort of as Winston Churchill once said about democracy, something like democracy is——
Mr. OBERSTAR. He said ''It's the worst form of government except for all the other forms that mankind from time to time has tried.'' Ms. FLORINI. I think it might be possible to say much the same with regard to retroactive liability, as least as we stand here in 1995 considering where things are with the Federal budget deficit, the fact that many, many companies have stepped up to the plate and made very substantial investments in the existing legal structure. And the fact of the matter is that there is not an alternative source of the funding nor is there, as I mentioned in my statement earlier, an alternative way of providing incentives for going forward with voluntary cleanups, to the best of my knowledge. And since those incentives are working and are very effective and do not involve litigation and allow to people to sort of do what everybody says they should do under the Superfund program, which is pay the engineers and not the lawyers, it seems to me that it would be a terrible, terrible mistake to undercut that kind of an approach.
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On joint and several, I also think that has to be maintained. Essentially, joint and several liability is question of burden of proof. When you are looking at an indivisible injury that does not have an obvious way of being divided, what do you do first? We think it is imperative to fix the problem first and then turn to questions of allocating responsibility among the joint participants in creating the problem. The only other alternative is to put the burden on the Government to show who is responsible for what portion of the injury. In a Superfund-like context, if you've got multiple responsible parties at a site, that's simply impossible. So undoing joint and several liability is tantamount to letting the polluters off the hook, which we do not think is appropriate. At the same time, we do think it is, again, absolutely imperative to come up with a much, much, much, much better method of allocating responsibility than the hit or miss structure that now exists under the law.
Mr. OBERSTAR. And each party suing the other.
Ms. FLORINI. Yes, absolutely. It doesn't make a lot of sense.
Mr. OBERSTAR. So do you have a proposal for dealing with that?
Ms. FLORINI. We think that some structured non-litigation-based allocation process through a neutral allocator is probably the best kind of an approach. If somebody's got a better idea, I'm certainly all ears in terms of listening to it.
Mr. OBERSTAR. I don't think that's going to be the log-jam issue. I think the log-jam make or break issue that blows up the whole process is the retroactive liability, and there already is a story in the National Journal for today that two important committee chairs have appealed to the Appropriations Committee to fund as fully as they can or to the greatest extent possible Superfund so that they can destroy retroactive liability. I don't know if there's enough money in a deficit-ridden budget to do that. I don't remember the costs of all the cleanups, but they are billions of dollars.
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But further, it begs the question of responsibility of the parties who dumped the stuff there in the first place. Now one of the ideas of Superfund, and I cosponsored the original bill, it's not the one that became law, but the idea was that we ought to have some kind of a quick response fund so that in emergency situations, like Love Canal and Stringfellow Pits and several of the other named hazardous waste sites, that the Government could go in and deal with an emergency and then go back to the responsible parties and make them pay for the mess. That's not quite the way it's been working out. This thing has wound up, as we hear in testimony last year, $13 billion spent on Superfund, $11 billion on lawyers. That's not right.
Ms. SMITH. I would like to add, since you brought up, Mr. Oberstar, the emergency response, that one of the unheralded successes of the program has been the emergency response that EPA goes out and uses their authorities to address hazardous situations at a great number of sites that are not on the National Priority List, some of them are on the National Priority List. But repeal of retroactive liability I would think would even endanger the emergency response program in terms of what they have the capability to do, what they would be able to go out and do and recover costs from later. So I think repeal of retroactive liability would be disastrous.
I would also like to say that in the discussions we have about it, it's as if we're talking about retribution as opposed to restoration. This is not a matter of going back and saying you did something wrong 15–20 years ago and, by God, you're going to pay a penalty. It's not about that. It's not about paying penalties. It's just a matter of being responsible for the consequences of actions that were taken. It is just about restoring; it is not about penalizing. And it is absolutely necessary.
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Mr. OBERSTAR. I see I'm in the red zone here, so I need to back out.
Mr. BOEHLERT. That's a new position for you, Mr. Oberstar.
Mr. OBERSTAR. It sure is. This is an issue on which we've really got to come to a closure on, retroactive liability, or just head for a train wreck over it.
Ms. SMITH. I agree.
Mr. OBERSTAR. Thank you, Mr. Chairman.
Mr. BOEHLERT. I would like to ask for each of you to give us your favorite apocryphal story. There are more phoney stories going around this town than ever before and it's always suggested, for example, that EPA has standards that in order to exceed the acceptable limit you have to have a youngster eating a ton of dirt a day for the rest of his/her life. Do you have any favorite stories that are as phoney as a three dollar bill that you would like to share with us, because I know I'm going to hear them all.
Incidentally, for the record, Mr. Oberstar, I want you to know that the story you referred to did not reference me signing that letter because I did not sign the letter to the Appropriations Committee. I think the question of retroactive liability and the funding remains open for serious discussion.
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Ms. FLORINI. My favorite of the apocryphal stories is the one, in fact, that EPA assumes that children eat handfuls of dirt. In point of fact, the EPA assumption on how much dirt a child incidentally ingests, not eats, is equivalent to one-fifth of a packet of artificial sweetener on a daily basis. That is because children, as any parent or person whose spent time around small children can tell you, children do get a lot of dust and soil on their hands, on their toys, on the lollypop that they drop on the floor or on the ground and then put back in their mouth. Children really do ingest far more dirt on an average daily basis than adults do. EPA must take that into account and would be grossly negligent if they did not take that into account. But, again, even the amount that they do assume is utilized is equivalent to one-fifth of a packet of artificial sweetener. It just isn't all that much.
Ms. WILLIAMS. Mr. Boehlert, I might also add that in the South they call that eating red clay. So kids actually do eat dirt at times. There are a lot of people who eat the red clay in the South. But what I have often heard are about the mom and pops, and we do empathize with this, usually the pizza parlor owner who got sent the letter and had nothing to do with this, and I should add that EPA sent them the letter—I may add this has worried me so I've stopped eating pizza which was probably good for me anyway. But what we are finding is that it really wasn't EPA who brought these small mom and pops, particularly your pizza parlors, into this. Usually it's a contribution action. Usually there are other parties who have been involved in the liability scheme and then they go after other parties. So ofttimes it is not EPA who has brought that actual action against some of the de micromis or de minimis parties, it is usually another larger party that's involved in the scheme and they have brought a contribution action against these smaller parties.
Mr. BOEHLERT. When you talk about pizza, you're skating on thin ice. You're talking to a New Yorker here now.
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[Laughter.]
Mr. BOEHLERT. But let tell you something, those stories, unfortunately, most of them are true. And the small pizza parlor operator or the beauty parlor operator or the barber shop, a lot of them have been taking it on the chin. They've spent an inordinate amount of their money on litigation costs or to do what happened in my district with the infamous Ludlow case, where a very bright, energetic, innovative lawyer called 800 people into a theater in the Christmas season and said let me tell you some good news and bad news. The bad news is we've identified you as contributors to this landfill and you're going to have to pay because you contributed. I mean, what, some guy put a pizza box into it. He said the good news is because it's the Christmas season and I have the spirit of the holiday, I originally was going to charge you all $3,000—800 people, a lot of them with their lawyers—I was originally going to charge you all $3,000, but in the spirit of the season, only $1,500. And do you know what? When he concluded they couldn't line up fast enough to sign on the dotted line to pay. And many of them had no business assuming any responsibility for it. I was able to work with a number of them to get them relieved of any liability. Well, I don't want to go into the story, but you know it's prevalent.
Ms. WILLIAMS. Mr. Chairman, that's what I was saying though about that contribution action. Definitely something has to be done about contribution actions for these de minimum and de micromis parties.
Mr. BOEHLERT. By all means.
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Ms. WILLIAMS. These actions aren't brought by EPA, however.
Mr. BOEHLERT. But we addressed it last year quite adequately in the bill that the coalition accepted. As a matter of fact, I worked quite closely with the National Federation of Independent Business last year and they were part of the coalition that endorsed the bill. The sadness that I'm experiencing right now is that coalition has sort of gone its separate ways for a whole lot of reasons that you know as well as I do, unfortunately. Now we've got some problems facing us.
Our colleague, Mr. Poshard has a question he'd like to ask.
Mr. POSHARD. Mr. Chairman, I apologize for being late to the committee. And if you folks have spoken to the issue of incinerators, I'll get the transcript; you don't have to do it again. But if you haven't, could you tell me where your organizations stand on the use of incinerators in terms of cleanup at Superfund sites. I'll start with Ms. Smith.
Ms. SMITH. Coming to the table as a person who has worked for 10 years on groundwater issues, I'm not an incinerator expert. However, I presume that in some cases incineration of hazardous waste may be a solution that you want to utilize at particular sites. It's a case-by-case decision. There are cases where it may be a wrong decision. I have spent some time at the Brio site in Texas, I've spent some time on the phone with the citizens down there. That site was planned to have an incinerator, the incinerator may have actually been built onsite, but they had problems actually before it began operating, not with the incineration but with releases and venting of solvent volatiles from the ground, actually they think maybe even heavy equipment just venting materials, so they halted the incineration at that particular site. It may be that incineration in the future is a reasonable thing to do, but right now they had to go back to the drawing board to figure out what in the world they're dealing with because they had a very bad situation.
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So we're not opposed, but we're not promoting it. It is something that we have to look at on a case-by-case basis.
Mr. POSHARD. OK. Ms. Florini?
Ms. FLORINI. Much the same reaction from us. Fundamentally, incineration can be useful because it actually, if properly operated—which is a big if—can destroy the organic compounds of concern. It cannot destroy metals. So if you're looking into metal contaminated soil, there's no particular point in incinerating it. Matter is neither created nor destroyed in an incinerator, you just sort of rearrange its forms which works fine for organics.
However, we do strongly believe that if a community opposes the use of incineration, you shouldn't be ramming it down their throat. That's not an appropriate way to proceed. I think that one of the biggest problems with incineration in general is the lack of rigorous continuous monitoring. Essentially, you have to trust the incinerator operator that they are, in fact, operating it under the appropriate conditions so that it is destroying the organics rather than recombining them in more problematic forms. Citizens are right to be skeptical and concerned about how appropriately these things will be operated. There have been some very problematic situations that have existed over the past, and, unfortunately, the current monitoring practices leave a fair amount of uncertainty as to what's really going on. If I were in that line of work, what I would be trying very, very hard to do is come up with really rigorous continuous monitoring for the full range of contaminants of concern.
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Mr. POSHARD. You would advocate having citizens participate in that monitoring process then?
Ms. FLORINI. Yes, absolutely. I've known proposals in other contexts where the minute-by-minute monitoring parameters are actually posted on a big board that's electronic and so everybody knows what's going on at that thing. Right now, I think there are also mechanisms—well, this is getting into a broader discussion. But I think there are mechanisms that can be used to increase citizens' confidence in incineration and those are worth exploring.
Mr. POSHARD. OK. Thank you.
Ms. WILLIAMS. Mr. Poshard, some of the stories that we have heard, and National Wildlife has not really taken a position on this, but it's not only the incineration, it's getting the hazardous constituents to the incinerator site, particularly, obviously, if the incinerator is not onsite. We have heard stories where waste has been loaded into open air trucks and, of course, as it's moving down the road the particulates are further contaminating the air or the disturbing of the hazardous waste onsite as it's going to the incinerator. So some communities have had that result. So, again, we don't have a real position on incineration, I think my colleagues spoke very well on that, but, again, it's how do you get that waste to the incinerator if it's not onsite.
Mr. POSHARD. That's important. Thank you very much. Thank you, Mr. Chairman.
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Mr. BOEHLERT. A last question quickly from me. You were all part of the coalition last year and last year the coalition recommended a cap on liability for municipalities. I would assume that you would all continue to support that?
Ms. SMITH. Mr. Chairman, Friends of the Earth was not officially part of the coalition but we did support the cap on liability for municipalities.
Mr. BOEHLERT. OK. Ms. Florini?
Ms. FLORINI. We would continue to support that and we're open to other——
Mr. BOEHLERT. For good public policy reasons. OK. I don't need any elaboration, I just want to get it on the record.
Ms. WILLIAMS. The same, Mr. Chairman.
Mr. BOEHLERT. OK. Fine.
Mr. Zeliff has a question.
Mr. ZELIFF. I, too, apologize for coming in late. Ms. Williams, I just heard part of your discussion relative to EPA and the small parties that come to the table and how EPA is not responsible. But EPA is the catalyst that brings everybody to the table and I think that the liability scheme of joint and several is really the culprit; don't you agree?
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Ms. WILLIAMS. Yes and no, Mr. Zeliff. I realize that EPA has obviously sent out a notice to some parties saying that they are responsible for waste at this site. What I was particularly alluding to though was that you have these very small parties, or I believe Ms. Browner says ''truly tiny'' parties, who really were not brought in by the Environmental Protection Agency but were brought in by these other liable parties.
Mr. ZELIFF. How do you propose to solve that piece of the puzzle?
Ms. WILLIAMS. Mr. Zeliff, I thought our proposal on an allocation scheme where you had an independent allocator determine the shares and the costs for the parties, ensuring that these truly tiny parties got out of the scheme as quickly as possible, with some parameters on EPA or on the allocator saying within a certain timeframe these parties have to be out, they will not be liable, and for your de micromis party, that they would only have a very small percentage of their share, I though was a very effective vehicle.
Mr. ZELIFF. What do you think of proportional share versus joint and several?
Ms. WILLIAMS. I don't think—I thought our allocation scheme spoke somewhat to the proportional share and was not that far afield from what was construed as proportional share. To be perfectly honest, Mr. Zeliff, I was not sure what the actual technical differences of the allocation scheme versus proportional share were.
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Mr. ZELIFF. It sounds like you support proportional share liability.
Ms. WILLIAMS. Well, more so, I support fair share.
Mr. ZELIFF. Rather than joint and several.
Ms. WILLIAMS. Well, no, I think the allocation scheme of last year retained a joint and several element, and that's why we felt it was a very effective tool. For those parties who did not ante up to the table, there still was the joint and several hammer over their heads and we felt that would get them more to the table.
Mr. ZELIFF. So you are supporting proportional share but you want to keep——
Ms. WILLIAMS. Supporting a fair share allocation with joint and several.
Mr. ZELIFF. Is fair share allocation the same as proportional share?
Ms. WILLIAMS. Yes, I think it is.
Mr. ZELIFF. OK. Thank you very much. Thank you, Mr. Chairman.
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Mr. BOEHLERT. Thank you all very much. I do appreciate your expert testimony. We may have some questions we would feel comfortable in submitting to you in writing, knowing full well that we would get a timely and thoughtful response. Thank you very much.
Our final panel today consists of Mr. Milton Jackson, who is president of STOP Toxic Pollution, from Chattanooga, Tennessee; from the Saratoga Springs Hazardous Waste Coalition, Inc., from beautiful scenic upstate New York, Ms. Marion Trieste; the executive director of the Environmental Health Network, Chesapeake, Virginia, Ms. Linda King; Mr. Craig Tarpoff is an alderman from the city of Granite City, Illinois, and representing the Superfund Coalition Against Mismanagement; and Mr. Carl Miller, the former county commissioner from Lake County, Colorado, from the Superfund Coalition Against Mismanagement. So the Superfund Coalition Against Mismanagement has two representatives on this panel.
Mr. Jackson, I do know that Mr. Wamp wanted to be here so badly to personally introduce you. He's told us some very nice things about you. But he's detained. He and I both serve on the science committee and we're in the process of marking up key legislation over there while we're trying to preside a hearing here and we're playing a game of musical chairs. When he does come in, I am going to interrupt everyone and recognize the distinguished vice chairman of this subcommittee, Mr. Wamp, for the purpose of the introduction. But you'll have to accept my introduction for the moment, Mr. Jackson.
Let's go in the order of which I introduced the speakers. First, Mr. Jackson.
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TESTIMONY OF MILTON JACKSON, PRESIDENT, STOP TOXIC POLLUTION, CHATTANOOGA, TN; MARION TRIESTE, PRESIDENT, SARATOGA SPRINGS HAZARDOUS WASTE COALITION, INC., SARATOGA SPRINGS, NY; LINDA PRICE KING, EXECUTIVE DIRECTOR, ENVIRONMENTAL HEALTH NETWORK, CHESAPEAKE, VA; CRAIG A. TARPOFF, ALDERMAN, GRANITE CITY, IL, AND CO-CHAIRMAN, SUPERFUND COALITION AGAINST MISMANAGEMENT; AND CARL MILLER, FORMER COUNTY COMMISSIONER, LAKE COUNTY, COLORADO, AND MEMBER, SUPERFUND COALITION AGAINST MISMANAGEMENT
Mr. JACKSON. Thank you, Mr. Chairman. Mr. Chairman and members of the subcommittee, we appreciate the opportunity to appear before the House subcommittee today to discuss the reauthorization of Superfund. I am a community activist and chairman of a grassroots organization STOP Toxic Pollution in Chattanooga, Tennessee. The community consists of low to moderate income families that reside in the Piney Woods and Alton Park neighborhood. This neighborhood is 98 percent African-American and 2 percent white; 36 percent of the population is under the age of 18 and 87 percent of the residents are under the age of 65. I present this testimony today on behalf of my community, our regional organization and other affiliates throughout the United States, and the international grassroots communities.
My testimony is a description and history of Chattanooga Creek. Chattanooga Creek originates from the eastern slope of Lookout Mountain and the northwest slope of Missionary Ridge in the extreme northeastern Georgia. The Chattanooga Creeks travels 16 miles through Georgia and Tennessee before emptying into the Tennessee river. The entire creek is 23.5 miles long and drains 75 square miles.
The Chattanooga Creek site is the 7.5 miles segment between the Tennessee border and the Tennessee River. This segment of the creek is relatively shallow, usually not over 4 feet deep. In many places, the creek is only 3.4 inches deep. The average depth appears to be 2 to 4 feet except where artificially deepened. Periodically flooding occurs as evidenced by trash entangled in the trees and bushes 3 to 4 feet above normal stream level.
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Public health agents and the community recognize that the Chattanooga Creek site was grossly polluted for many years. A large number of industries—including those engaged in the manufacturer of coke, organic chemicals, wood-preserving, metallurgical and foundry operations, tanning, leather production, textile, brickmaking, pharmaceutical—discharged untreated industrial waste into the creek on a daily basis. In addition, the flood plain of the creek was used by the city of Chattanooga, the industrial, and private citizen as a dumping ground for municipal and industrial refuse and waste.
Currently, a total of 42 known or suspected hazardous waste sites are in the vicinity of Chattanooga Creek. Of those, 12 are State Superfund sites, 37 are listed as potential Superfund sites by the EPA Waste Management Division, EPA 1992–A. There are 15 known discharge points into the creek, including 4 combined overflow sewage or sanitary sewage and 6 permitted industrial. Tar waste deposits are located around creek mile 4.5. Metal drums, wrecked and abandoned vehicles, solid waste, liter, hospital garbage are observed around the creek.
In conclusion, our coalition of communities of color and others endangered by toxic waste, national environmental organizations, and organized labor call upon Congress to save—I emphasize that—to save Superfund now. Our agenda for reform will enable Superfund to return to its mission of protecting public health, give communities a strong voice in cleanup decisions, accelerate cleanup dramatically, and get the lawyers out of the driver's seat while at the same time ensure that Superfund remains a polluter's pay program.
The people's agenda for Superfund reform advocates the following amendment to current law. The community hardest hit by contaminant sites are communities of color in rural white communities, hard hit not only because they live next to contaminate sites, but because of their treatment throughout the Superfund process. There is a need to build into Superfund law demand for equity of cleanup and assurance that needs will be met—equity of cleanup, access to resources, access to information and decisionmaking bodies, ensure that Superfund wastes aren't sent to the Third World and dumped there. Thank you very much.
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Mr. BOEHLERT. Well, you've already achieved one of your goals because you have access to a decisionmaking body. We would like to think that we represent that. Thank you very much, Mr. Jackson.
Ms. Trieste?
Ms. TRIESTE. Mr. Chairman and members of the committee, thank you for allowing me the opportunity to speak before this subcommittee on Superfund reform. My name is Marion Trieste and I am president of the Saratoga Springs Hazardous Waste Coalition, a municipal citizen's organization formed in 1990 to oversee the cleanup of a Superfund site. The Coalition received a Technical Assistance Grant or TAG from the EPA in May 1990.
I should note that at the time I was a single mom. My main concern was the welfare of my child. I felt my child was threatened by the poisons of a toxic waste product. I had to act on her behalf.
I am here today to illustrate the importance of Superfund law and how this unique legislation has generated a remedy to address a very serious problem for the inhabitants of Saratoga Springs, New York. I want to address this national issue by sharing what we've experienced locally.
As a volunteer, I have worked with the program for the past 5 years. Superfund in its current form can provide protection to our Nation's communities. Problems lie with the implementation of the Superfund, not the statute.
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The Superfund site in Saratoga Springs was purchased by Niagara Mohawk Power Corporation in 1950. They are responsible for cleanup, and living proof of a responsible party that has acted and we hope will continue to act responsibly. With the guidance of our Region II EPA project managers, the New York State's strict enforceable media standards for hazardous contamination and, most importantly, the active involvement of our community, we have been successful at forming a joint partnership.
The primary stakeholders are the community of residents living near the hazardous waste. These are the victims the Superfund law set out to protect. Reauthorization of this law must not fall short of that original intent by Congress.
Our seven acre Superfund site was used from 1968 to 1950 as a gas production operation and, consequently, contains numerous coal tar beds. The site was officially placed on the National Priority List for cleanup in February 1990. Since the time of the listing, the Superfund process took control of a potential hazard to my community.
The EPA began by ordering a remedial investigation. The study provided a gross estimate of 170,000 cubic yards of contaminated material on the site. Unfortunately, several concerns of the contamination were not addressed. Using the scientific expertise of consultants provided by our TAG, or our Technical Assistance Grant, our Coalition made recommendations to the EPA and the Niagara Mohawk Power Corporation. As a result, a more detailed investigation was sought and better remedy recommendations were made.
People of color and low income communities have not only born the brunt of contamination, but they have been isolated from these programs set up to serve them. During Superfund reauthorization, Congress must improve the current TAG program; make it a user friendly and attainable program to all communities. Congress must provide for increased community involvement and the use of the expertise of community members to create the improved program that will allow for implementation by all those living near hazardous waste.
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I'm proud to say that the 5 plus years of volunteer work and dedication put forth by a small group of people in Saratoga Springs is truly a success story. I won't let anyone take that away from our community without a fight. We should have a record of decision by the end of July. In fact, ironically enough, tomorrow evening EPA is holding a public meeting in Saratoga Springs to review the alternatives being decided on for cleanup of our site. This is quite an accomplishment.
Unfortunately, Saratoga Springs' success story may be short-lived. I've only time to give you one example of this, so let me get into retroactive liability or the polluter pays principle. It is really a critically important component of this law. Without it, my site would be at a standstill. Retroactive liability is under extreme attack in both houses of this Congress. I am preparing for a public meeting to discuss cleanup alternatives and the costs of those alternatives.
It is a great disservice to my community to pretend that these costs are definitely going to be incurred by companies such as the Niagara Mohawk Power Corporation. In fact, all this will change if retroactive liability is eliminated from the program. Our comparatively affluent community could not pay the $15 to $40 million it will take to clean this site. Yet, if retroactive liability were eliminated from the program, the cost to clean up the site would be left to the community of Saratoga Springs.
This creates an explosive time bomb. This scenario will be devastating to communities nationwide. Where will the money come from to pay for site cleanups? And what about all the millions of dollars already invested in cleanups. Are we going to reimburse those responsible parties currently paying for cleanups? And is this reimbursement going to be retroactive? I would love an answer so I could assure the people of my community tomorrow night that the Saratoga Springs site will be cleaned if retroactive liability is eliminated.
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In summary, the Superfund law is currently ensuring communities like mine the most thorough cleanup possible. This law attempts to prevent permanent damage to personal health and environmental degradation. It stops polluters from walking away from a site simply because it will cost more to clean it effectively than they independently would choose to pay. Implementation of the Superfund program for the Saratoga Springs site is proof that the program can succeed. It has taken less than 6 years to investigate and decide on the remedies for cleaning up contamination with our current technology. Considering the complexity of the issues involved, I'd say that this law can work and should continue to be improved, not rolled back.
As a community activist, I work with many community watchdog groups located on our Nation's most hazardous waste sites. We supported Superfund reform of 1994 produced during the 103d Congress. The Superfund Reform Act of 1994 was a carefully crafted compromise that corrected many of the Superfund's current problems. Title I of the bill specifically improved grant assistance with a user friendly community participation program. This Congress must produce a Superfund bill with the interest of the public in mind, your constituents, and not satisfy the wish list of the polluting industries. I pray to God you find the strength to overcome the pressure of the powerful industry lobby and create a Superfund bill of and for the people of this Nation. After all, we, the people, are the ones the Congress and the administration was elected to serve. And please, let's not forget our children. Thank you.
Mr. BOEHLERT. Thank you very much.
Ms. King.
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Ms. KING. Ladies and gentlemen of the committee, my name is Linda Price King. I am the executive director of the Environmental Health Network, a national grassroots non-profit organization. EHN works with the most highly impacted communities across the Nation. EHN's main concern is to get proactive health services and citizen participation at hundreds of Superfund, DOE, and DOD sites. Also, my family's health was permanently damaged by toxins 14 years ago which is the reason I started my activism.
My remarks will focus on health and how pending legislation, in particular risk assessment, will put at greater risk the millions of Americans who live in toxic-damaged communities. Risk assessment, as it is in H.R. 9 and S. 343, will supersede any provisions in the current law and virtually stop cleanup processes while trying to use an inadequate science to measure a community's pollution and disease patterns.
Last year, Superfund stakeholders worked hard at a compromise Superfund bill that refocused Superfund back to public health and gave greater citizen participation to the people who live in the communities. Now we find that new legislation will not only take away current protective laws, but affected people have not been given an equal voice in the crafting of this legislation and, therefore, their needs are not represented.
EHN has been working with the people of Kellogg, Idaho, Bunker Hill Superfund site for over 5 years. I would like to discuss the problems at the Bunker Hill site as a failure not for EPA or the Superfund law, but because of the manipulation by the PRPs and the failure of risk assessment. Kellogg has 21 square miles of lead contamination, the highest ever recorded levels of lead in children in the United States, highest amount of learning disabilities in the State of Idaho, and a proven link between disease and contamination. People are without health care and on the average make about $8,000 a year. The mining companies have dragged EPA through long and difficult negotiations, gone bankrupt, and attempted to keep citizens from equal participation in the process. And because of past and present risk assessment science, three generations of Kellogg residents have been kept from getting the health services they need to prevent disease and understand the true extent of damage to their community.
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Risk assessment as a science has failed to reveal health problems at Kellogg and other Superfund sites across the Nation. During the 1970's, lead standards were three to six times higher than they are today, and children in Kellogg had lead levels as high as 70 decimeters per gram. Our knowledge of potential long-term lead damage in children was very limited. It contributed to allowing several generations of Idaho children to be left with permanent irreversible brain and nervous system damage. It has only been in the last 10 years that we have developed better diagnostic methods such as florescent bone testing and completed long-term clinical studies on lead and now we are truly seeing the potential for severe damage in children.
Since risk assessment has never been based on prevention, susceptible populations, synergism, multi-sources of exposure, or long-term chronic exposure, but on current available science, computer modelling, and assumptions. We must accept that under the present risk assessment system we are unable to correctly assess the past, present, and future health impacts at Kellogg or any other Superfund site. Thus, risk assessment methodology is now, and always has been, inadequate in assessing community contamination.
Because of continuing clinical data, we are now considering again lowering the standards for lead in children because even at the present standards of 10 deciliters per gram children can have permanent brain damage. From this example, we can see that as we develop more sensitive methods of detecting disease and clinical damage to the body, coupled with the use of clinical data, the true risk to communities can be understood. However, we know that the present method of risk assessment under the pending legislation would continue to under-estimate community risk, bias cleanups, and stop short of promoting pollution and disease prevention. It is unfair to base any environmental protection on this science. This is only one example from the hundreds of communities that my organization assists.
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Today, independent clinical data and field studies are painting a clear picture of how chemicals are affecting children and other susceptible populations. The new chemical of concern is dioxin. At a Superfund site in Pensacola, Florida, residents have dioxin in their yards 1,000 times above EPA standards. And like Kellogg, Pensacola residents are having to endure the exact same risk assessment process. They must watch as the same inadequate science methods try to guess as to how much dioxin is too much dioxin, or how much disease is too much disease.
EPA must endure the political pressure against declaring this area a public health emergency and permanently removing the citizens and getting health services for them. Even though the medical science is showing that dioxin is one of the most potent immune hormone and reproductive disrupters in history, the people at Pensacola continue to wait for health services and relocation assistance.
I think a lesson is to be learned from Kellogg and Pensacola. We cannot afford as a Nation to put poor science, economics, or special interests before people's health. The hidden costs to society now and into the future are enormous. Simply legislating our people's rights to participate or to have proper cleanups will not make the problems go away. Disease and it's cost to families and society will continue to grow and our Nation will end up paying a high price for a short-sighted vision. We hope that this body of lawmakers will err on the side of public health and pass a Superfund law that cannot be superseded or distorted by special interests and will give the most affected stakeholders, the communities, fair and equal representation and protection.
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I would like to remind this committee of the original intent of Superfund, and I quote, ''From the outset of its efforts to address the problem of toxic chemicals, the Congress has been concerned by the likelihood that releases of hazardous substance, pollutants, and contaminants into the environment pose a significant threat to public health. In general, protection of human health is the highest and ultimate goal of the Nation's environmental laws.'' That is from SARA, 1986. Thank you.
Mr. BOEHLERT. Thank you very much. You notice the Chair has been generous with the 5 minute rule. Don't get nervous if the red light goes on. I just feel very strongly that people who are actively involved in trying to make their communities a better place to live should perhaps get a little extra time to tell their story.
Mr. Tarpoff.
Mr. TARPOFF. I hope you're not going to enforce the 5 minute rule at this point.
Mr. BOEHLERT. No, but I would ask you to be reasonably close.
Mr. TARPOFF. Mr. Chairman and members of the committee, I am here before you today as a representative of both the city of Granite City, Illinois, and as co-chairman of the Superfund Coalition Against Mismanagement. We have found that the remedies which EPA selects often harms the community which EPA is supposed to protect. One of the most commonly selected remedies is soil lead removal. Almost every recognized study conducted over the past several years has cast considerable doubt on the benefits of low level soil lead removal. But most alarming is the rate of recontamination of newly remediated soils that occurs in open settings.
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Considering the large number of homes having exterior leaded paint in the Granite City site, we in Granite City are likely to experience a recontamination similar to what EPA has seen in Baltimore. The Baltimore study, part of the EPA's $15 million three city study, indicates that in 10 years many of the yards to be remediated in Granite City will have soil lead concentrations over 500 parts per million.
As a member of the National Coalition of Superfund Communities, I know that EPA's incompetence, misdirected cleanup policies, and weird science are found across the country. Mr. Chairman, 400 parts per million or more can become a Superfund site. Ambient soil lead concentrations of 1,000 parts per million or more are commonplace in inner-cities. If EPA's soil lead policy is not stopped, hundreds of communities will be redlined under Superfund.
There should be no question as to why we have no confidence in EPA's ability to develop and implement sound environmental policy under Superfund. It appears that EPA's Superfund program is not subject to the kinds of checks and balances needed to ensure sound environmental policy. EPA circumvents constitutional law by avoiding the rulemaking process and issues directives or guidance to implement policy. The very structure of EPA, ten regional kingdoms with no accountability, has lead to inconsistency, incompetence, and the waste of hundreds of millions of dollars. There is no question that Superfund reform is needed.
I feel the issue of justified spending can be resolved by requiring cost-benefit health-benefit analysis. By requiring Superfund to deal with real risk rather than the hypothetical risk, more environmental cleanups will be done in less time, with less litigation, with less money, achieving a safer environment. A good example of the results of cost-benefit analysis is the Title 10 guidelines developed for lead abatement in HUD housing. The creation of these health-based standards for exposure in leaded paint, dust, and soil were required for the Residential Lead-Based Paint hazardous Reduction Act of 1992. Rather than misdirect remediation funds, bare soil removals at HUD housing is not required until lead levels exceed 4,000 parts per million. This assures that lead-based paint and associated dusts are remediated, resulting in a real reduction in health risk and a safe environment.
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HUD soil lead standards are health-based while Superfund soil lead policies are invented by a computer model which has never been validated, never been subject to scientific peer review and public comment, and never accurately predicted a population's blood lead levels based on soil lead concentrations.
We recommend that Congress reform the policy generating methods employed by Superfund. When a policy puts in jeopardy the value of property or assets of the innocent victims of Superfund, that policy must be subject to public review and comment. We also strongly recommend the establishment of elective de-listing. Under this concept, if EPA fails to complete a cleanup or agree to a cleanup plan within 10 years of listing a particular site, the State or local Government affected by the site's listing could unilaterally call upon a Federal agency other than EPA to review either the current condition of the site or review an alternative cleanup plan advocated by the local Government entity. If the Federal agency determined either that the current condition of the site posed no substantial health risk or determined that the alternative cleanup plan would effectively reduce real health risks at the site, then EPA would be required to either de-list the site or agree to adopt the cleanup plan and de-list a site within a specific time period. With this alternative, local communities would have the authority and incentive to work with potentially responsible parties to quickly find solutions to environmental problems.
Elective de-listing creates a new balance of power under Superfund. Under this arrangement, EPA would no longer be able to hold local communities hostage and community involvement would become a real part of Superfund. Oversight would be automatic, EPA would no longer be afforded the opportunity to drag unnecessary remedial activities on for decades, and communities like Granite City would have an alternative to litigation. Common sense, cooperation, and compromise must become part of Superfund or the objectives of the program will not be met. It is essential for Congress to realize that no matter what Superfund reforms are eventually instituted that such reforms include elective de-listing must apply to communities like mine which are already Superfund sites.
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Mr. Chairman and members of the committee, thank you for your time and consideration of my testimony. I would be happy to answer any questions you might have.
Mr. ZELIFF [assuming Chair]. Thank you, Mr. Tarpoff.
Mr. Miller.
Mr. MILLER. Mr. Chairman and members of the committee, my name is Carl Miller and I wish to thank you for the opportunity to address the committee today. I have information that I welcome this opportunity to share with you. I feel, along with many others, that the Superfund law as it is currently being administered is hurting the environment, is doing more harm than good, and in those cases that I've experienced, the cure is much worse than the disease. I come before you as a resident of Lake County, a Superfund site, as a former chairman of the Lake County Board of Commissioners, and as a founding and current member of the Superfund Coalition Against Mismanagement. I believe I have firsthand knowledge and experience on the mismanagement of EPA and some of their activities that, in my opinion, border on being criminal.
I am sure that you have heard many horror stories from hundreds of communities and thousands of individuals. And I have more than my fair share of horror stories to tell you. I think first and foremost is in my community there has been over $50 million spent in the last 10 years. Out of that $50 million, there has been a $13 million water treatment plant. The remaining $37 million has absolutely nothing to show for it. Maybe I shouldn't say there's nothing to show for it, there is. It went to the attorneys, it went to administration, it went to pseudo-science studies, it went to force feeding lead contaminated soils to pigs so they could draw some kind of correlation to children in our community. But I can guarantee that out of that $37 million not one penny went for environmental cleanup.
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The water treatment plant that I mentioned for $13 million, that is doing its job. That was the original reason the EPA invaded our community. That remedy is in place. But the EPA is still there. When the EPA first came to my community it was a small acreage of a historic mine drainage tunnel. They had expanded that unilaterally without public input to 20 square miles including every square inch of this historic mining town.
We are not alone, ladies and gentlemen. We are not unique. There are other communities in this Nation—Palmerton, Pennsylvania, Granite City, Illinois, Triumph, Idaho, Midvale, Utah, and many, many other communities that are experiencing this same problem—EPA mismanagement. I have found that EPA acts as judge, jury, and executioner, and I mean that literally because they are literally killing our community. I'm not here before you today to ask you to feel sorry for us. I am here to tell you don't feel safe yourself in your communities. Because what's happening in my community can, and will, happen in your community. In fact, if you live in a community that has major highways, old homes, old buildings and structures that may have had lead paint, I can guarantee you you will experience problems if EPA is successful in implementing their trigger level of 400 parts per million. I believe that the cities in the East are the most vulnerable.
But I do want to say that if this trigger level is allowed to be implemented in Lake County, Colorado, in Granite City, Illinois, that should become the law of the land and then every one of your communities near major highways, with historic structures and old homes, you will be under the same cloud that my community is under.
I'm here before you today to tell you that we believe there are solutions out there. In Lake County the board of commissioners have just very recently submitted a streamlined proposal. This proposal places the decisionmaking and implementation in the PRPs and the local Government's hands to the extent possible. It follows the guidelines that were set out by the Justice Department in the consent decree for Leadville in Lake County, which includes the criteria in CERCLA and other agencies that had some input in this.
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We believe that if we're allowed to we could solve our own problems. It is not a cheap remedy. The board of commissioners have not come up with a nickel and dime remedy. It's an expensive remedy, a very costly remedy. But they have the PRPs on their side. And I can guarantee you that if this is implemented that the environment will be cleaned up, that the money will be spent on the environment, not on pig studies, not on pseudo-science, not on attorneys.
Another option, and Craig just mentioned it, is elective de-listing. It puts the burden on EPA. If they are truly interested in environmental cleanup, let's get it done. If cleanup action is not completed by a certain deadline, then the community could ask for elective de-listing and remove the stigma from their community. Elective de-listing, like the county commissioner's plan, will direct the dollars toward environmental cleanup.
In summary, I would like to say that it has been my experience that EPA answers to no one, no one including the U.S. Congress. They act as if they are above the law. That's not going to solve the problems in my community, it's not going to solve the problems in my State, and it's not going to solve the problems of this Nation. In closing, I think one of the most important things I've heard today is the opening remarks by the Chairman when he said Superfund must be reformed. Doing nothing is not an alternative. We agree with that. We want to work with you to find workable solutions so this Nation can have a clean environment. We're pro health, we're pro environment, but the last 10 years with EPA has not worked. If there are not changes made, I could sit before this committee in 5 years and I think the only thing my testimony would say is that we've now spent $100 million and we got a $13 million water treatment plant. So we ask for your help and your guidance. Thank you.
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Mr. ZELIFF. Thank you, Mr. Miller. I would like to thank all the panelists for their excellent testimony. I think, as the Chairman said, testimony of those folks who work so hard for their communities, at the grassroots level, where the action is, is very valuable.
I would just like to say that I represent a district that has the fourth highest density of Superfund sites of any congressional district in the country. So I've been fairly busy. We set up a well-balanced force, task force open to anybody that would like to serve, from environmental groups to PRPs to attorneys to anybody that would be willing to put the effort and time into it. We ended up actually meeting with the highest levels of EPA. We spent 3 years on this issue.
Superfund is probably the best example of a law that's really gone wrong. We can think of a lot of laws that aren't right, but Superfund is a law that's really gone wrong. We've looked into the liability scheme, we've looked into retroactivity, the New Hampshire citizens task force on Superfund has worked hard to get as close to the local level as possible. By delegating the cleanup responsibilities to the States, the States and local communities can work to reduce the remedial process down to 18 months. I heard someone mention that a 6-year remedial process is okay. It seems to me that we could do a lot better than 6 years. We have to try to get the lawyer's feeding frenzy out of the Superfund process.
I would just like to ask you, Mr. Miller, what do you feel about retroactivity and joint and several relative to the cost of cleanup and the money going into the mismanagement process?
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Mr. MILLER. The retroactive liability is a tough question to answer, but I'll do my best by example of what's happening in Leadville and Lake County. We have an individual, I emphasize individual, that his grandfather had a mining claim in the 1870's and this man inherited this claim. It wasn't even a full mining claim. It hadn't been mined since the 1980's but he had something like three-sixteenths of an acre. He's the only guy they could trace to it and so they named him as a PRP. It cost him $50,000 to get clear of that for a claim that hadn't been mined in over 100 years. Also the mining companies that we have there, in my community we're talking about mining that took place 120, 130 years ago for the most part.
Mr. ZELIFF. And the law was passed in 1980, correct?
Mr. MILLER. Right.
Mr. ZELIFF. So they're responsible for things——
Mr. MILLER. That they don't even own the property. The most recent mining was like 50 years ago and the PRP happens to be the Federal Government in that case. But we're talking about the Guggenheims that made their fortune in Leadville, about Mr. Dow from Dow-Jones that made his fortune in Leadville in the 1860's and 1870's, about Marshall Field, all of these people that made their money and left and now the present mining companies are held responsible even though they haven't mined that property. Most of that property has been purchased by the mining companies just so they could have access to other properties. So it is a tough question because the other thing is there are innocent parties there, innocent parties that haven't touched any of that. There's a double standard. There's a double standard that some of that is the Federal Government and they don't want to admit to any liability.
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Mr. ZELIFF. Anyone else care to comment on retroactivity other than what they've said already?
Mr. JACKSON. I would like to add to that. As far as the PRP, in my Chattanooga, the city where I live, we have a very good PRP which is the Federal Government. They played a major part in the coke plant that I was discussing earlier during the war time in which they permitted their employees to daub coal-tar on the side of the creek which trickled down into the creek. Then there was a ditch along side the plant that they permitted to let the tar and water, sludge run to the creek. That's what caused the problem there on our creek.
I feel that they are responsible and we should hold them accountable for that. So you all are in the driver's seat even though this happened way before your time. It's like I buy an old house, I have to repair the house. So we leave that up to you all to decide and to work with the community because you're our fathers now, you're our keepers now and we need action from you all now. We've been put on the back burner for too long.
Mr. ZELIFF. Thank you, Mr. Jackson. Anybody else? My time is running out, so if you could make your contributions as short as you can.
Ms. KING. I would just like to say that it is our understanding as grassroots people that if retroactive liability is taken away that not only will the PRPs who have voluntarily decided to clean up and be good neighbors, they will be able to walk away, but that 80 percent of all the sites will be reopened for reinvestigation or could be petitioned. And on top of that, where's the money going to come from to reimburse the ones that have already bellied up to the table and decided to do the right thing? We aren't getting any straight answers to where all that money is going to come from and how there's going to be a balanced budget.
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Mr. ZELIFF. I'll try to answer that. Mr. Tarpoff?
Mr. TARPOFF. At the Granite City site there was one operator from 1928 to 1979; yet, there are 365 PRPs, most of them are among the biggest corporations in the country—AT&T, General Motors, Ford, et cetera. Anybody who brought lead to be recycled has been named as a PRP. While I question the rationale by naming them PRPs, I'm grateful that they were because the ability to negotiate with the PRPs is much better when there are 365, actually, there are only about 10 or 15 who work as a committee representing the PRPs, but the operator, N.L. Industries, is not a very easy corporation to negotiate with. In Granite City, the PRPs have been willing to set aside multimillions of dollars to establish a lead safe program in Granite City. Unfortunately, the EPA hasn't been willing to participate. But we have seen, because these PRPs were on the hook, a willingness to negotiate.
Mr. ZELIFF. Fear works. Let me just try to answer your question as quick as I can and then I'll turn it over to my good friend from Pennsylvania, Mr. Borski. There are people who feel that retroactivity is a very un-American activity. They think that it is unfair that they did something legally and then all of a sudden a new law is passed and they are held retroactively responsible for those previously legal activities. If we're going to correct this, obviously, we're not going to be able to assist all those people who have already settled, and that's unfortunate. However, we would be able to assist those people who haven't settled yet who are being unfairly held liable. To do this, we would have to settle on a date, probably 1986, and then go back and pay claims out of the trust fund. Correcting retroactive liability is a difficult process, and nopt everyone will benefit. However, those who believe in retroactive liability reform would have to support unfortunate inequality in order that the numbers all add up.
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However, when you delegate back to the States the responsibility for retroactive liability, the mismanagement of the fund is taken out of the process. The remedial system can be brought down to 18 months and money can actually go towards site cleanup instead of 80–90 percent of the money going towards attorney's fees and consultants. This would be a far more efficient system and we would end up cleaning up more sites. I think most PRPs I know don't have any problem spending the money on cleanup, the problem that they really have is the mismanagement of funds that some of you alluded to.
What we're really trying to do here, and I think we all have the same goal, is clean up the sites as quick as possible. Let's get on with it, and let's make sure there is no threat to the safety of individuals that live near those sites.
I'm not going to take any more time. Mr. Borski.
Mr. BORSKI. Thank you very much, Mr. Chairman. Ms. King, let me just give you a little bit of the other side.
Mr. ZELIFF. Somehow I knew that was coming.
Mr. BORSKI. Perhaps you're aware, he's an advocate of repealing retroactive liability. I think you asked the key question, and that is where does the money come from to clean up the sites that are out there in our communities.
We spend somewhere in the neighborhood of $3 billion on cleanup of the Superfund program; half of that comes from the Superfund trust funds, the other half comes from retroactive lability. If you eliminate that, you leave a gaping hole of $1.5 billion. That's one of the big questions. There are others that I think need to be discussed in the flow of the legislation as well. As to polluter pays, should we maintain that process or not? What are the incentives, as we heard from the earlier panel, to the businesses to not pollute for the future knowing that retroactive liability is been eliminated. So it an enormous question for all of us here.
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Alderman Tarpoff, let me start with you if I may. Congressman Costello, unfortunately, is unable to be with us but, as happens around here too often, there are too many things for us to do. He is disappointed and did want me to mention to you his disappointment that he couldn't be here. Let me just tell you what a strong advocate you have here in the Congress for your community. There are a couple questions he asked me to ask you on his behalf and I would like to do that now.
In your testimony, you mentioned the possible recontamination of the yards after cleanup is concluded. Could you comment further on that possibility, and is there a legislative change that could be enacted in Superfund that would effectively deal with your situation?
Mr. TARPOFF. The recontamination of remediated soils is something that we are just finding out about. The city of Baltimore continued testing after their portion of the Three City Study was done and, as I mentioned, the mean increase in less than 2 years for these yards that had been remediated was 132 parts per million which is quite alarming for a mean. That would mean some of the yards were probably less than 10, some may have been already over 500 in less than 2 years.
I think by requiring a health-based formula—see, now there's absolutely nothing to protect the remedy. You go into an area like Granite City where the housing stock is 80 to 100 years old, over 75 percent of the housing stock has lead paint on the outside, and you dig up the yards, what have you really accomplished? The contamination will reoccur, you've done nothing to protect the health of the children. In Granite City, they're not even doing remedial dusting inside the house or paint stabilization.
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What I would encourage is, as I mentioned in the testimony, a health-based risk assessment, cost-benefit health-based risk assessment. It is much cheaper to remediate home interiors, lead paint and dust, re-sod where necessary where there's bare soil than to dig up a foot from a yard. In Granite City, all of the material and the material that they are intending to dig up would cover eight football fields 35 feet tall. That's going to a landfill. Now if you tried to do this with all soils in the country that were over 500 parts per million, we would very quickly be out of landfill space.
If we knew that removing the soils was going to result in a benefit, a clinical reduction in blood levels, we'd be all for it. But in Granite City there are only 265 homes out of the 1,600 where the soils are over 1,000; 1,350 homes, the soils are under 1,000. We know from the Three City Study and from other studies and from our own comprehensive health study that soils have little impact on the blood levels in Granite City. I think we have a right to demand that after $50 to $100 million is spent in Granite City there better be a clinical reduction in blood lead levels, and removing the soils will not accomplish that.
Mr. BORSKI. Let me ask you, if I may, you mentioned you're the co-chair of the Superfund Coalition Against Mismanagement. Could you provide to the subcommittee a list of the members of your organization? We don't need it now, but if you could.
Mr. TARPOFF. I will check with the executive committee, because we haven't established a policy for releasing members' names. But I will check with the executive committee.
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Mr. BORSKI. If you can, I'd appreciate it. We want to see who is in your group, that's the idea of it.
Mr. TARPOFF. That would be fine.
Mr. BORSKI. Congressman Zeliff asked and I want to ask again to try to get an answer from it if I can, are you advocating the repeal of retroactive liability, Alderman Tarpoff?
Mr. TARPOFF. Mr. Borski, to be honest with you, it is a situation that we in Granite City haven't concerned ourselves with. And the Coalition has not concerned itself with that either. Our first main concern has been health. I think if you approach a cost-based health-based analysis, you're going to find a great reduction in the costs of cleanups.
Mr. BORSKI. Mr. Jackson, if I may, sir, I just want to make sure we underscore one point in your testimony. Your group believes in the premise of polluter pays; is that correct?
Mr. JACKSON. Yes. I believe polluters should pay because today if we don't impose that—for instance, there was an incinerator they wanted to build in our community and they were going to continue to pollute the area. So if we stop this, then everything will move into communities all over. If they have a responsibility to keep the community or area clean, they won't be so eager to move into various communities. So, yes, I believe they should be responsible.
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Mr. BORSKI. Thank you, sir.
Mr. WAMP. Will the gentleman yield?
Mr. BORSKI. I'd be happy to yield.
Mr. WAMP. Mr. Borski, just to make a clarification there with respect to Mr. Jackson. One of the PRPs on the site in question here is the Federal Government itself. That's one of our biggest problems there and the Department of Justice is kind of stonewalling the entire progress here. So on his polluter pay, that includes, doesn't it, Mr. Jackson, the Federal Government if they're a PRP?
Mr. JACKSON. Yes.
Mr. BOEHLERT [resuming chair]. I'm into that one, which is a nice segue because, Mr. Wamp, the time is now yours.
Mr. JACKSON. If I may, I would like to add that we had a company to volunteer and do demolition there on one property. They did a magnificent job and we're looking at that property possibly for a brown field site. That's one thing that we're looking at.
Mr. WAMP. That's exactly what I was fixing to ask you. We have a vote on the House floor and I just had a recorded vote at a markup, so I'm sorry about this back and forth, particularly to you, Mr. Jackson, from my district, for coming here late. But I want to point out that Mr. Jackson is an outstanding community servant there. His testimony has been offered and I'm thoroughly familiar with it and read it more than once. Also, 9 days ago we had a community meeting there at his site. This site is not even on the Superfund list yet. It should be but it's not. In the third district of Tennessee there are three sites—the Oak Ridge reservation where we made nuclear weapons and it's an obvious NPL site; and then another site which we heard about yesterday from a Chattanooga business person that shouldn't be on the NPL site, should be removed; then another site in Chattanooga that's on it. But this site, because the Federal Government is a PRP, is not even yet added to the list and it should be.
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But we hear from the residents there that they're not only interested in the health risk, and there's a study by the State of Tennessee underway right now to determine the health risk of this very contaminated area, but also in the redevelopment. As Mr. Jackson's testimony reflected, this is an area that is impoverished now as a result of the flight of the industry and the environmental legacy that the industry has left in this part of our city. But it is a model opportunity for brown field redevelopment. And that's exactly, Mr. Jackson, what I was going to ask you to comment on.
Representing the citizens that you're here to represent in this community of Chattanooga, Tennessee, don't you believe that dollars from the Superfund, instead of going to legal fees and studies, could be injected into brown field redevelopment, giving these people who have been adversely affected some hope that the economy and job opportunities and education levels for their children may improve because we're pumping money into the redevelopment of these sites? If we establish a de minimis level that this brown field redevelopment is OK health and safety-wise, we're not going to drink the groundwater from underneath this site of the Anchor Glass site or whatever the industry is, but we're going to put it back into productive use, isn't that a good alternative since we can't adequately compensate everyone that has probably been injured?
Mr. JACKSON. Yes, we can. I have been involved in this 3 years and from my work in the field and looking at all the sites and looking at the residents of the community, I feel myself, along with the community which is 5,131 people living in the area, I've discussed this with numerous people in the community, we can take that site out there, both sites and use that for economic sustainability. This is one place on Anchor Glass Company, I proposed to the city and to the State that we will take this property and turn this to a productive area. I'm talking about a minority operated-owned business in that community. We would be a model for the United States, this community would be. And the other area, Chattanooga Coke Plant, I proposed to use that as a model also for a small machine-making plant there on some of the brown field site, some of the site that's on the contaminated land. The groundwater there runs westward and the other water that was contaminated runs eastward. I feel that we can use this land.
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Mr. WAMP. Mr. Jackson, quickly, does your citizen group advocate experimental environmental technology opportunities that are out there to try to clean up this area where we can get in there and use this as a pilot demonstrationsite so that we can use the experimental technologies, biological technologies of waste remediation with respect to waterways?
Mr. JACKSON. Yes, they did. They moved in and began that. A lot of this was done, like I said, before I moved to the community. But from what I gather, they did do some testing there and found that this property can be used for development.
Mr. WAMP. Thank you, Mr. Chairman.
Mr. BOEHLERT. Mr. Oberstar, here's the choice we have. You can proceed with questioning now, if you'd like, we have a vote on the floor and it's a series of two votes. So why don't you just go as long as you are comfortable with going.
Mr. OBERSTAR. Thank you, Mr. Chairman. I can be very brief because the issued joined here is central to this debate.
Mr. BOEHLERT. What I am going to do, if you don't mind, you are now running this subcommittee because I'm going to dash over to vote so we won't be too long. So Mr. Oberstar will complete his questioning and then we will vote and we'll be back in probably around 15 minutes or as soon as we can do it.
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Mr. OBERSTAR [assuming chair]. Thank you, Mr. Chairman. The central issue is who pays. And the question there is should all the people in the United States be responsible to come up with the money to cleanup a site that was polluted. Even if the operator of a mine no longer is in existence, the mine hasn't been operated but it's polluting the soil, it's endangering people's health, somebody has to be responsible for this. Someone bought that property later, maybe they aren't operating as a mine but they're operating it for some other purpose, it's endangering people's health for one thing and endangering wildlife as well. And it is complicated to sort that out, that is a legal process and I understand that. But do you want us to abandon, Mr. Tarpoff, Mr. Miller, do you want us to abandon the polluter pay doctrine?
Mr. TARPOFF. No, I certainly never said that.
Mr. OBERSTAR. But that's the thrust of what you're saying, the thrust of what Mr. Miller is saying. All this is too complicated, throw it overboard, let's do something else.
Mr. MILLER. No, I don't think we're saying that, Congressman. You said, who pays? I say, who's guilty? One of the guilty parties in our community is the Federal Government and we have fought for 10 years——
Mr. OBERSTAR. They should pay, too. Whoever has contributed to the pollution should pay whether it is the Federal Government or whether it is a private sector interest, right?
Mr. MILLER. That's correct.
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Mr. OBERSTAR. All right. Why, I want to know, and Mr. Tarpoff, was that lead pile not covered? Why was that slag pile not covered? Why could EPA not come in and say cover this up, prevent the pollution, prevent this stuff from getting into the groundwater. Why didn't they do that?
Mr. TARPOFF. Good question. I would have to say incompetence. I would have to say that their concern over the soils in the adjacent residential property has clouded their decisionmaking ability.
Mr. OBERSTAR. Well, you've got two problems. You've got the slag pile which is filtering pollutants into the groundwater.
Mr. TARPOFF. Yes, sir.
Mr. OBERSTAR. That could have been dealt with in some fashion. Why didn't EPA deal with that?
Mr. TARPOFF. I have no idea.
Mr. OBERSTAR. And the second problem, you've got lead in the soils all around. And you've got a third problem actually from your testimony, subsequently you have lead in those old houses where lead paint was used. There are remedial technologies for that.
Mr. TARPOFF. Absolutely. Now the home interiors and the higher level soils, those over 1,000, the PRPs have been willing to address all of that, establish a multimillion dollar fund to remediate home interiors. EPA has not been willing to flex off of their 500 parts per million soil standard.
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Mr. OBERSTAR. We're not going to settle the environmental question and the health question here in this committee on what is the proper level and whether, as Mr. Miller I think said, we should move off a lead-free environment standard to a lead-safe environment standard. We're not going to debate that in here; we don't have the specialists to go into that issue. But we do need to understand how we're going to protect the environment from further pollution and clean up that which is in it already. I think there ought to be a ready response mechanism that allows the Federal, State, and local Governments to go in and isolate the pollution, clean up what needs to be cleaned up, and then, second, go after the people who caused the pollution and make them pay.
Mr. MILLER. We concur with that. The PRPs in our particular area are very good corporate citizens. The stumbling block is the EPA.
Mr. OBERSTAR. Well, I think the stumbling block is not so much EPA as the law we have to deal with. What we're trying to do is make it more workable.
Mr. TARPOFF. Congressman, I am not opposed to the polluter pay concept, but the reality of the situation is they don't absorb those costs, they pass them on to us. We're paying for it anyway, and I'm not opposed to that.
Mr. OBERSTAR. That's true. In the macro economic sense, that's right. But they ought to pay something. But I think we have the process reversed here. I think we're spending all our time trying to find out who is liable and assess the liability and then go and clean up. I think we ought to do the cleanup first and then go back and whack the people who caused the pollution in the first place.
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Mr. TARPOFF. Congressman, I am willing to pay my share of any cleanup whether it's in California or Florida or Granite City. But I am not willing to pay for something that's unnecessary and wasteful. That's the problem.
Mr. OBERSTAR. That latter part is something separate. What you're talking about wasteful as the lead in the soils and the homes and the lead in the paint in the homes and all, those are different issues. The real question is you have a site that's polluted, it's getting into groundwater, groundwater moves into people's drinking water—and this hearing is moving into my time to get on the floor to vote. So I recess the hearing.
[Recess.]
Mr. HORN [assuming chair]. The committee will come to order.
I would like to ask the five witnesses we had, and I thought each one of you in your own way gave excellent testimony, but I've got a series of questions I would just like to know where you stand them. The first is, would you support allowing States to be authorized or delegated to run the Superfund program? I would just like to know how you feel about that. Let's start with Mr. Miller.
Mr. MILLER. What was that?
Mr. HORN. Would you support allowing the States to be authorized or delegated to run the Superfund program? Right now it is pretty much a Federal program.
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Mr. MILLER. I would support that.
Mr. HORN. You would support it?
Mr. MILLER. Yes.
Mr. HORN. Mr. Jackson?
Mr. JACKSON. I would have to think very carefully before I would do that, depending on the various States whether I would support that or not.
Mr. MILLER. And I would like to add to that, with a lot of local participation from local government.
Mr. HORN. Right, as part of that. It was clear from your testimony and others this year and last year that you don't think much of the level of citizen participation in some of these particular rulings.
Mr. MILLER. That's exactly true. The EPA makes the decisions and notifies the community after the fact.
Mr. HORN. Right. Ms. Trieste?
Ms. TRIESTE. Certain States are able to maintain a program responsibly and only if they can prove that they can implement strict criteria that is standards now and/or even better than the standards that the EPA has established. For example, New York State has stricter standards for groundwater cleanup of certain contaminants. The ARARs are particularly helpful in determining the best remediation possible for Superfund sites in the State of New York. But if you compare that to the State of Louisiana, for example, they're way below the mark as far as their ability to maintain strict standards. So the criteria has to be developed by the Federal Government in a way that all States can take on the responsibility. And if they can't meet that criteria by proven implementation of it, they should not be given that responsibility.
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Mr. HORN. What do you feel are the essential criteria we ought to have before we permit the States to undertake that responsibility?
Ms. TRIESTE. Essential criteria, I would say the funding to implement program. For example, with their departments in their States, the Department of Environmental Conservation or whatever is in charge of Superfund sites, they have to have the proper funding to enforce implementation of the program. Also, they have to have the media—for example, like groundwater which is extremely affected by site contamination, they have to be able to test for groundwater and set their standards at a level that has been acceptable to the Federal Government.
Mr. HORN. Ms. King, how do you feel about it?
Ms. KING. I feel like my colleague. In the case of a very few States like New York, perhaps that might be a good idea. But in cases where I've lived in Louisiana and other very poor rural States and worked in Mississippi, we're talking about a history of civil rights violations, we're talking about a history of not being able to staff their State agencies properly, not having the money on the State level to be able to do the right thing, and also they don't have the political will. In Louisiana and Texas, these industries have infiltrated the political process to the point that on the State level they are right now passing laws that are initially annihilating State environmental agencies. That's happening in Michigan, Virginia, Louisiana, and Texas.
Mr. HORN. Michigan interests me because there's a State much like New York and California and they ought to have a fairly good civil service. What do you think is wrong there?
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Ms. KING. I just had a phone call from some citizens in Michigan who are dealing with a site in Pontiac. This site is not on the Superfund list. One of the things that they talked seriously about with me is that politically the car companies in Michigan are very, very powerful. So this site by the State agency continues to be ignored, overlooked, even the results of what's happening right now on the site are being manipulated. And so the political pressure from the car companies right now is making the State agency almost frozen in their ability to do anything at this site. And on top of that, they talked about new legislation that has been passed by the State of Michigan to basically cripple the State agency.
Mr. HORN. By the way, when did you live in Louisiana and/or Mississippi?
Ms. KING. I worked in Mississippi and I lived in Louisiana for 7 years. I moved 3 years ago.
Mr. HORN. I see. So you've got fairly recent experience there.
Ms. KING. Yes.
Mr. HORN. Mr. Tarpoff?
Mr. TARPOFF. Yes, sir. I have the feeling that the scenario you're laying out would still allow Federal EPA oversight. With that understanding, I feel that the States should be able to take the lead on Superfund cleanups without reserve, absolutely.
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Mr. HORN. As you know, using another analogy, some States have OSHA organizations of their own, the Federal Government also has it. So nothing prevents States from either duplicating Federal responsibility or assuming some activity in a particular area by their own laws.
Another comment I'd like, since you're all on the same panel and there's slightly different perspectives here, I would just like to know what Mr. Jackson, Ms. Trieste, and Ms. King think of Mr. Tarpoff and Mr. Miller's proposal to allow the local Governments to electively de-list their sites to develop their own cleanup plans after 10 years if EPA has not been able to develop an adequate cleanup plan. Do you have any feelings on that? It is really directed to Ms. Trieste and Ms. King.
Ms. KING. Is this like a written proposal that they've come——
Mr. HORN. I'll let them explain it. I think they——
Ms. KING. I'm not clear about what they were talking about.
Mr. HORN. OK. Why don't you sum it up.
Mr. TARPOFF. All right. Again, elective de-listing has come from our experiences with Superfund. You are now a point where we were 5 or 6 years ago. You seem to be pretty gung ho about where you are with regards to Superfund. If things continue as they are, I'm afraid that in 5 or 6 years you're going to be right where you are still.
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Our thoughts regarding elective de-listing is an attempt to get remediation done, to get the right remediation done. Under elective de-listing, if after 10 years—and it's elective because local Government has the option—if they feel that the cleanup plan that EPA has chosen is not protective enough, too protective, they can activate this elective de-listing to where they can put forth a plan or a plan from another Federal agency who would be the review of the site and EPA would have to accept what was brought in.
Mr. HORN. And the funding would remain from the Superfund, I take it?
Mr. TARPOFF. Absolutely.
Mr. HORN. So you would have the Federal funding but because of the delay, the procrastination, either not targeting the right portions of the pollution that are obvious to everybody else living there——
Mr. TARPOFF. You've got to understand that our coalition, we're all past where you are now. We all have records of decision or have had them. Some of them have been changed back and forth. Ours was issued in 1990.
Ms. TRIESTE. OK. I can only speak on my experience. Thus far and up until the record of decision process, I think we have, and I'll maintain for the record, a success story. Unfortunately, as you've just discussed, I'm not looking forward to rolling back our work here and actually not having an implementation of the record of decision occur. If that does occur, we have to really consider then the alternatives that may be provided for people.
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I would like to just give my example of my local Government. Our mayor of the city Saratoga Springs has come out in public opposing the remedial alternatives so far presented to our town, opposing risk assessment in general and EPA's over-reacting to cleanup although the mayor has not attended one of our meetings, maybe she sent a representative to a meeting a few years ago. So I would caution just to consider who is a part of the local decisionmaking process. Local Government is not necessarily the body that you want representing the local residents.
So, yes, if my site does not have the plan intact and ready to go and it takes 10 years to implement or is not implemented, I would like to see some action taken by the people of the community, a representative of the people of the community though, not necessarily the Government.
Mr. HORN. How many people are involved in the Saratoga Springs site?
Ms. TRIESTE. Oh, gee, there's about 1,200 individual residents living within a 3 mile radius of this site. The site is smack in the middle of town. I'm not quite sure of the population of Saratoga Springs, but I'd say probably around 60,000 give or take.
Mr. HORN. So in this case, does the mayor have to worry at all about re-election if the mayor is not supportive of your situation?
Ms. TRIESTE. No. Prior to me even establishing our coalition, I went to see the mayor and told her that we were going to be applying for a technical assistant grant. And she said I have every confidence in Government; we don't need organizations such as yours to oversee Government. So I don't really think it's an election issue. I think it is just her stand and her position. I don't think it is a political position. But I am just saying that we have to be very careful about who is representing the community at the time.
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Mr. HORN. OK. Ms. King, do you have any comments?
Ms. KING. Yes. I think I would just like to say that I think that one size doesn't always fit all. I think we need to continually keep that in mind when we're talking about EPA; there are different regions who do a better job, others not so good a job. But I think we also need to talk about who has slowed down the process. It's not always in the EPA's best interest to slow the process down, nor do they want to in many respects, but outside parties, PRPs, insurance companies, or whatever, even local governments tend to slow that process down and it does cripple EPA and the Superfund process.
I think that if we add on to it, and I want to make this really clear, new pending legislation which says risk and cost-benefit will be a part of whatever process goes on in Superfund, we're going to find a lot of slow down during the process. And then if you add on judicial review which is also part of regulation reform, then that means everything is going to wind up in the courts. And it won't be because of EPA, it will be because that's what the law says has to happen before anything can go on to clean up the site.
And I think the last thing we need to look at is that in some cases we do have local governments that are very concerned about their people and their health and they are looking at the future of their community. But we also have local governments that are not, and again I'll cite Texas, Louisiana, Mississippi, and a lot of other States where the politics are to defend the polluters and not to defend the communities. And so it wouldn't be good just to make a blanket statement that elective whatever needs to be put in on every single case. But I do think that somehow the people need to have a checkpoint at some point, and I don't have the solution for that.
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Mr. HORN. OK. Mr. Jackson, how do you feel on this?
Mr. JACKSON. Well I would just give you a brief on what we're doing in Chattanooga. What I established with the city government, I proposed this to the mayor and to our city council, that we, the people of the community, will work closely with our city government, with our State Government, and with the Federal Government on all issues. And since I mentioned that to them a year and a half ago, we have been working together I feel on all issues that arise before the city and the city brings those issues back to the community, and I feel that the State should do likewise and the Federal Government should do likewise. As I came up here today and to this meeting here, I'm willing to continue to travel on my own expenses to see that the law is carried out because I feel that we, the people, we can work with our Federal Government and we can work with all our governments to see that issues be taken as they come. And a 10-year program, no. I would love to see people working with the Government to help strengthen the Government because we're out there in the field and we know what's going on. I'm retired and that gave me more time to be out there and to look among all peers out there. And so I have firsthand knowledge in these 2 1/2 years that I've been with this organization and know what's going on and I know where we stand, I know what we can do, I know our limitations. And, yes, I will support the Government 100 percent on issues that come before them and let them feed us the information that we need to know.
Mr. HORN. I thank you. Do either Mr. Tarpoff or Mr. Miller have any reaction now that you've heard their reaction?
Mr. MILLER. No, I think my testimony was quite clear. I think that it puts the burden on the EPA. We support the elective de-listing and if the EPA is truly interested in cleaning the environment, this is going to put their feet to the fire. They're going to have to produce or take the alternative.
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Mr. HORN. Mr. Tarpoff?
Mr. TARPOFF. Yes, Mr. Horn. It all gets back to where these policies come from. We fought for 2 years when we found out that the EPA was going to revise their soil lead directives. We fought for 2 years just for the right of public comment. We sent petitions to Browner, numerous letters; sometimes they wouldn't even respond, other times denying there's a need for public comment on this. And when you don't allow public comment, you deny the communities the opportunity to participate. In something so encompassing as the soil lead directive, which as I testified earlier will now include virtually every urban area in the country potentially, there is no oversight. You have EPA generating these things from within without any oversight. Unfortunately, Congress doesn't have immediate oversight; you have the purse strings and that isn't effective at keeping things in line.
I think that's why our Superfund has gotten so far out of line. To hold EPA responsible to local participation, in my opinion, forces the program to be more receptive to communities whether they're on the over-protective side or the under-protective side. The biggest problem is no allowed participation by EPA. If you agree with EPA, they will let you go on and on and pat you on the back and everything. But when you disagree or challenge their policies or activities, that's it.
Mr. HORN. One of the questions that some of you have brought up, and we've heard it for several years when we have various bills before us for authorization such as Clean Water, Safe Water, so forth, is the fear of what risk assessment with a public health standard might mean. I'm just curious, since you are all on the firing line in various ways and you've had to grapple with these situations, what do you advise Congress to do when we might have established a standard years ago that says X number of parts per million would be a danger to the public health in terms of possibility of cancer and so forth, and in those days we did not have as fine and analytical tools as are available to us today where you go from maybe what you would have done years ago of 1 part per million to now 1 part per 100 million, 1 part per billion, whatever it is, but how do you think we should approach that? That's one of the thoughts here that's going around is to say if there isn't a substantial danger to public health, why do we require communities to meet X standard, and fill in your number, different people have different numbers based on their particular interest. But do you think that risk assessment standard is a good one to use before EPA or any Federal agency takes a particular action? Let's start with Mr. Miller. Does that make any sense to you, sir?
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Mr. MILLER. How far does science go? As we advance in science, if I understand what you're saying, is every year that we'll be changing the standards.
Mr. HORN. I think every year conceivably we will be able to do a more in-depth and smaller particle analysis of what something might mean. And then, of course, the only way you can prove that one way or the other in the case of health is by long-term longitudinal studies. None of us particularly like taking something that will create or encourage cancer, although every single day of the week most of us eat something that does exactly that. And we could get into all those things that everybody knows about, that an over tendency to eat a particular diet, and we see it with people that come to this country that haven't had the diet, they are starting to get, say, cancer rates just as we have in our population. So it isn't necessarily the water; it might be more solid things that we're eating in some case. So these are things that you have to grapple in the long-run and can't always have a simple answer for.
Mr. MILLER. Well, I think you get back to the how clean is clean.
Mr. HORN. Right.
Mr. MILLER. And I think you get back to, at least in my community, there is no human health hazard. EPA, with all the scientific data they have, has still been unable to document a human health hazard. They came in first with what they had claimed to be a real human health hazard. When good science backed by CDC disproved that, they came in and said it is a potential human health hazard. When good science disproved their claim there, we're into now a hypothetical health risk. It is just going to go on. They are not going to give up. But we have a healthy community and we are below the national average. If we do have some hot spots or isolated problems, we'll correct those problems.
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Mr. HORN. Mr. Jackson, any thoughts on this?
Mr. JACKSON. I want to add just somewhat to that. High tech equipment today is more sufficient to determine the cause of a lot of things. I believe if we rely on that and support that 100 percent, then we can find out what's causing various illnesses by using high tech equipment. So benzene we say is an agent, but who knows what benzene is, who knows what benzene will cause? Our community residents don't know what effect benzene has on them. We can tell them all day but they never listen to us about it. But if EPA would simply set up a program to show them what affect benzene has on them, they will have more realization of what's happening.
Mr. HORN. That's a helpful point. Ms. Trieste, what do you think about the whole risk assessment argument? I heard some uncertainties about it in some of the testimony.
Ms. TRIESTE. In my testimony I wrote that it's a wacky science to begin with. The problem with risk is we don't have the technology obviously and we're coming up with, as we grow and learn and develop the technology, we're coming up with a more realizable risk for various contaminants such as lead which we are now realizing that when EPA had a suspicion about lead and started regulating lead they didn't really know the particulars about how it affects children, for example, our most vulnerable people in our society. So now we know and it's way above. The actual amount of lead that affects a child's brain development, for example, the risk assessment needs to be much more stringent than it was originally thought.
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And this is the case for locally at my site. We have PAHs and these are a group of contaminants that form coal tar and they are cancer-causing agents. They've been found in the outlying areas of the wetlands. And the risk assessment studied the children and their likelihood of having contact with this coal tar in the wetlands, eating it—and we talked about dirt a little bit earlier—well their standard that they used, and I can't get into the particular numbers, but they calculated that it's not really a risk to the children to be exposed to the level that they have come up with of coal tar in our wetlands. But I read a study from the University of Massachusetts in Amherst that has actually reviewed the amount of dirt that EPA is using that the average child intakes and, according to the study, EPA should be doing studies with seven times the amount of dirt that they actually do consider that a child eats; that is to say a child, in fact, will eat seven times more dirt than what EPA is currently using in their estimates.
So what I'm saying is we've got to be so careful and be very conservative about our estimates to protect the most vulnerable people in our society and our communities. Because with children, when you detect the risk to a grown person compared to a developing person, everything changes. So we have to be very careful about that. And the risk assessment cost-benefit bills that have been passed in the House are extremely alarming to someone living in a community where a potential risk could happen due to contamination if it's not cleaned properly. The risk assessment bill kicks in at a $5 million cost cleanup and that really affects most sites nationwide. So we have to be very cautious about what we're doing here with risk.
Mr. HORN. Thank you. Ms. King, what do you feel about the risk assessment?
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Ms. KING. Since most of my testimony was about risk, I just want to say a couple of things. I think we need to look at the tool that's being used. It has been developed by industry basically and so, therefore, if it has been developed by industry, then we are looking at their standards, not necessarily susceptible population standards. It is the wrong tool to use in the way it's being used. We continue to use this tool because nothing better has been developed. We are in the process of looking at other countries and how they have developed looking at risk. I was recently in the Ukraine and we are looking at the clinical data that's been collected over the many years on the Russian people. Their government never thought these statistics would ever be revealed, but they have been and we do see definite links between symptomology and the chemicals people are being exposed to. So there are better ways of looking at risk using health and caution as the best methods, not the risk assessment that is being used now. And I would like to see the tool changed and based on clinical data and more susceptible populations.
Mr. HORN. Thank you. Mr. Tarpoff, we're going to give you the last word.
Mr. TARPOFF. I have to agree with her. Clinical information should be utilized for risk assessment. Unfortunately, EPA doesn't. Lead exposure is probably one of the areas where the available data is abundant and abundantly clear in what the risks and the exposures are. Yet, EPA ignores it. Risk assessment is a critical part of establishing cleanups. The sooner EPA recognizes how to do risk assessments, the better off the program will be.
Mr. HORN. Well, I thank you. And I thank each of you again for your testimony. I think what you have had to contribute both in your formal testimony as well as the questions and interchange with the members has made a major addition to this hearing record. So thank you for coming.
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With that, we will adjourn this hearing.
[Whereupon, at 1:55 p.m., the subcommittee was adjourned, to reconvene at the call of the Chair.]
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