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Statement of Steven A. Herman
April 10, 1997




STATEMENT OF
STEVEN A. HERMAN
ASSISTANT ADMINISTRATOR
OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE
AND
TIMOTHY FIELDS, JR
ACTING ASSISTANT ADMINISTRATOR
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE
U.S. ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE
SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
U.S. HOUSE OF REPRESENTATIVES

APRIL 10, 1997

INTRODUCTION

Good morning, Mr. Chairman, and Members of the Committee. We are pleased to have this opportunity to appear before you to describe the progress of the Superfund program and many of its accomplishments in the areas of Brownfields redevelopment and administrative reforms.

We continue to support the written and oral testimony provided by EPA Administrator Carol Browner before this Subcommittee on March 12, 1997. Because the Administrator testified extensively on Administrative Reforms before this Subcommittee just four weeks ago, we will limit our written comments to discussion of Superfund liability, Superfund cleanups, Brownfields redevelopment, and principles for Superfund Legislative Reform related to Superfund liability, cleanups, and Brownfields redevelopment. Our oral statements will specifically cover these three issues.

SUPERFUND LIABILITY - ENHANCING FAIRNESS

Because of the Administrative Reforms and other program improvements, today's Superfund program is faster, fairer, and more efficient. EPA's efforts to reform the program, within the scope of its current authority, and its efforts to address stakeholder interests and concerns at each step of the way, have made this possible. Any proposal to change Superfund liability must be evaluated against the substantial benefits accrued to date under the current liability scheme.

A core principle of the Superfund program is that the parties responsible for the contamination should contribute to the cleanup. This liability principle has proven to be a powerful incentive for parties to improve their waste management practices and prevent numerous future Superfund sites. In addition, as a result of EPA's "Enforcement First" strategy, private parties perform approximately 75 percent of the long-term cleanups, thus preserving EPA's budget for the truly "orphan" sites and enabling EPA to maintain the current pace of cleanup -- more than one site cleaned up per week. For every dollar that Congress invests in the Superfund enforcement budget, EPA produces at least seven dollars in cleanup commitments from PRPs. Finally, Superfund liability gives states leverage to cleanup thousands of sites.

This is not to say that the Superfund program cannot be further improved. EPA has listened to the variety of concerns expressed by stakeholders regarding the fairness of the liability system and the associated transaction costs. Through our Administrative Reforms, EPA has responded to these concerns and made significant changes in the enforcement program.

Protecting Small Volume Contributors

EPA is getting the "little guys" out early. Through our de minimis initiatives, we have protected thousands of small volume waste contributors -- over 14,000 to date -- by using our settlement authority to remove these contributors from Superfund litigation and thus ensuring that their dollars are spent on the actual cleanup and not on extensive legal costs. These settlements protect the settling parties from expensive private contribution suits. In addition, through our revised de micromis guidance, EPA has stepped in to prevent the big polluters from dragging untold numbers of the smallest "de micromis" contributors at waste sites into contribution litigation by publicly offering to any such party $0 (i.e., no-cost) settlements that would prevent lawsuits by other PRPs.

Compensating the Orphan Share

The Agency is now offering orphan share compensation routinely -- a major break from the past and a practice that enhances fairness and reduces contribution litigation among PRPs. Under our 1996 orphan share compensation policy, EPA offers to forgive a portion of its past costs and projected future oversight costs during every settlement negotiation for long-term cleanup or non-time critical removal, to cover some or all of the orphan share at the site. Without a settlement, responsible parties at a site are potentially liable under the Superfund law for the entire cost of the cleanup, including the share that might be attributable to other parties that are insolvent or defunct. EPA's new approach creates a major incentive for responsible parties to agree to perform the cleanup without litigation and the associated transaction costs. In FY96, the Agency offered over $57 million in orphan share compensation to potential settling parties across the United States.

Reducing Oversight Costs

We are recognizing that parties performing cleanup work have developed a considerable body of experience in conducting response activities at sites. Through the reduced oversight reform, EPA Regions have initially identified approximately 100 sites where reductions in oversight of ongoing work for cooperative and capable PRPs have occurred or will occur - significantly reducing PRP costs at some of these sites. EPA can reduce oversight of such parties while continuing to exercise sufficient oversight to ensure that the work is performed properly and in a timely manner.

Issuing UAOs Equitably

The Agency is ensuring greater equity among parties receiving cleanup orders. Under our August 1996 guidance, EPA is addressing stakeholder concerns that EPA routinely issues unilateral administrative orders (or UAOs) under section 106 of the Superfund law only to a subset of the parties identified at a particular site. EPA has established a protocol requiring a detailed explanation of the basis for not including certain parties when issuing a UAO. This new requirement will increase fairness for UAO recipients because these orders will be issued to the largest manageable number of PRPs at each site.

Ensuring Settlement Funds Used at Specific Sites

EPA is ensuring that settlement funds received from parties at a particular site are, in turn, used for cleanup activities at the site. Prior to the Administrative Reforms, any funds recovered in early settlements at a particular site were usually deposited in the Superfund Trust Fund, and could not be spent until appropriated. When appropriated, these funds could be spent at other sites. Through the use of Site Specific Special Accounts, EPA is able to direct settlement funds, as well as interest earned on those dollars, to future response actions at a specific site. As of August 31, 1996, $226 million in principal, and $35 million in interest, had been set aside for exclusive use at specific sites.

FASTER, MORE EFFICIENT CLEANUPS

EPA has set a record pace for completing the construction of cleanup remedies at Superfund sites on the National Priorities List - 427 to date. More sites have been completed in the past four or five years than were completed in the previous 12 years of the Superfund program combined. As President Clinton mentioned in his State of the Union address, we are determined to double our current pace and clean up a total of 900 toxic waste sites by the year 2000 -- so that millions of children will be able to live and play in neighborhoods free of toxic threats.

Average ROD Costs are Declining

The cost of cleaning up Superfund sites is decreasing. The following tools have all contributed to reductions in cleanup costs: future land use determinations in cleanup decisions; phased or multiple approaches to ground water cleanups; and application of EPA's policy of concentrating treatment on only the principal threats at sites, not treatment across the entire site.

EPA has also achieved significant success in creating substantial future cost reductions for parties at complex, high-cost Superfund sites across the country, by creating a national board of technical and policy experts within EPA to review high cost, long term cleanups. This National Remedy Review Board, comprised of both Headquarters and Regional experts is providing targeted review of cleanup plans, prior to final remedy selection, without delaying the overall pace of cleanup. The Board's preliminary analysis indicates it has identified potential reductions in the range of $15-30 million in total estimated future costs for reviews completed during FY96.

In addition to the successes of the National Remedy Review Board, approximately $280 million in future cost reductions are predicted as a result of the Agency's review and updates to previous remedy decisions. These remedies were based on "state-of-the-knowledge-and-practice" and site-specific information available at the time. Where science and technology have advanced and adequate levels of public health and environmental protection are assured, EPA is revising remedies where future cost reductions can be achieved while still preserving appropriate levels of protection, and the current pace of the program.

Cleanups are Taking Less Time

Not only are Superfund costs going down, but the time it takes to cleanup a Superfund site is also decreasing. While we are committed to shortening the lengths of cleanups, we recognize that many of these sites took years to create, and will, as a necessity, take some time to clean up. As a result, our focus is on shortening the process, without adversely impacting the long-term reliability or the degree of the cleanup. Our most recent analysis makes us optimistic that we can achieve our goal of a 20% reduction, or two years, in the total cleanup process time, without sacrificing any of the protections of human health and the environment provided by current law.

The Agency is saving time and money by using standardized or "presumptive" remedies for certain types of sites. Presumptive remedies are based on scientific and engineering analyses performed at similar Superfund sites and are used to eliminate duplication of effort, facilitate site characterization, and simplify analysis of cleanup options. EPA issued presumptive remedy guidances for the following: municipal landfill sites; sites with volatile organic compounds in soil; wood treater sites (with an update two years later); and a ground water presumptive response strategy. Regions are reporting significant reductions in costs and time required to complete remedies. A recent Office of Inspector General report focused on an independent review of the use of a presumptive remedy and concluded that "Use of a Presumptive Remedy increased consistency in decision making by taking advantage of lessons learned at similar sites, and allowed speedup of the Feasibility Study process."

Better Land Use Assumptions in Remedy Selection

EPA has improved its cleanup decisions by consistently using reasonable assumptions about current and future land use. Recognizing that land may be appropriate for uses other than residential use can yield a more realistic risk assessment and less expensive remedy. EPA is working with local land use planning authorities, other government officials and the public as early as possible during site investigation to develop reasonable land use assumptions to use in the decision making process. EPA also is making extra efforts to reach out to communities which may have environmental justice concerns to ensure that they are fully informed and able to participate in these decisions. Currently, about 60% of EPA's Records of Decision (RODs) include a land use scenario other than residential land use, typically where there is no residential land use on-site or adjacent to the site.

"Smart Ground Water Cleanup"

In keeping with this goal of protecting human health and the environment over the long term while shortening the length and lowering the cost of cleanups, EPA has made particular advances in its approach to addressing contaminated ground water.

"Smart ground water cleanup" in the Superfund program now includes phasing response actions, controlling and reducing contamination sources to facilitate more effective cleanup of dissolved contamination, increased use of monitored natural attenuation, better coordination with States on defining beneficial uses, and making proper adjustments during cleanup implementation. These efforts are encouraged by the findings of the National Research Council, who in a recent report stated that "cleaning up a large portion of these [ground water] sites is possible" and that "a wide range of developing technologies has the potential to improve the effectiveness of ground water remediation."

In 1995, 60% of our ground water cleanup decisions reflect extraction and treatment being used in conjunction with other techniques, such as bioremediation, underground treatment walls, or monitored natural attenuation, which is often used to reduce low levels of contaminants. In 1995, about 25% of Superfund ground water remedies included monitored natural attenuation of contamination. It is worth noting that our success in developing ground water cleanup policy is consistent and concurrent with ongoing developments in science and technology and it uses the flexibility afforded under current law.

With 50% of the United States population reliant on ground water as their source of drinking water, it remains imperative that we protect these valuable resources. We continue to believe that our ground water is an important natural resource, and should be returned to beneficial use in a reasonable period of time, including returning current or future potential sources of drinking water to drinking water quality.

Setting Priorities for Cleanups

To ensure that available funds are directed to the highest priority response projects on a national basis, EPA established a National Risk-Based Priority Panel (Panel) in August 1995. Prior to the formation of this Panel, individual Regions established the relative priority of their cleanup projects which were then funded on a first-come, first-served basis. This national priority system funds cleanups based on the principle of "worst problems first." The Panel evaluates proposed cleanup actions, looking at the following factors: risks to humans and the ecology; stability and characteristics of contaminants; and economic, social and program management considerations. With the exception of emergencies and the most critical removal actions, cleanup projects are generally funded in order of priority based on the recommendations of the Panel. By early 1997, the panel had ranked projects approaching $1 billion in cleanup costs.

Encouraging Meaningful Community involvement

Through years of implementation of the program, EPA has determined that early and meaningful community involvement can increase the overall pace of cleanups. Though enhanced community involvement may add steps in the early portions of the cleanup process, this investment generally accelerates later cleanup stages, as all parties are informed and have had time to work through their concerns. EPA has learned the hard way that a decision process that alienates the people our cleanups are supposed to protect results in constant revisiting of decisions, not quicker cleanups.

Developing Partnerships with States and Tribes

In addition to the many changes and accomplishments that have occurred in the Superfund program over the last four years, the context in which the program exists is also dramatically different. We recognize and support the continued growth of the State and Tribal regulated and voluntary programs which have greatly expanded the number of hazardous waste sites cleaned up to protect human health and the environment. Superfund legislation should provide greater opportunities for States and Tribes to address a full range of hazardous waste sites for which they have the necessary response capacity, while providing the financial and technical support needed to further improve existing programs. We must recognize that retention of strong cleanup standards, enforcement authorities, and sufficient resources at the Federal level provides States and Tribes with resources critical to the effectiveness of their own programs. It is particularly vital that the Federal emergency prevention, preparedness, and response capabilities, which are looked to as a model, and for support the world over, remain vital and effective.

Over the last four years, States, Tribes, and EPA have been finding their own ways of dividing up the broad universe of contaminated site work. Under this emerging model of customized partnerships, all regulators work together to determine which sites should proceed under what authorities, and under whose lead, seeking to reduce overlap and duplication in favor of more complementary, mutually supportive arrangements. In general, States and Tribes have the primary role in the process of discovering new sites and making screening decisions about which sites warrant action. In comparison to just a few years ago, States now exert substantial control over not only which sites will be included on the National Priorities List, but also in the CERCLIS inventory. By contrast, States, in many cases by their choice, are in the lead at only roughly 140 of the 1300 NPL sites. However, the more interesting story here is the tremendous variety of arrangements EPA and States and Tribes have worked out to address waste sites.

A COMMITMENT TO ECONOMIC REDEVELOPMENT AND BROWNFIELDS

EPA is promoting redevelopment of abandoned and contaminated properties across the country that were once used for industrial and commercial purposes ("brownfields"). While the full extent of the brownfields problem is unknown, the United States General Accounting Office (GAO\RCED-95-172, June 1995) estimates that approximately 450,000 brownfields sites exist in this country, affecting virtually every community in the nation. EPA believes that environmental cleanup is a building block, not a stumbling block, to economic development, and that cleaning up contaminated property must go hand-in-hand with bringing life and economic vitality back to communities. EPA's Brownfields Economic Redevelopment Initiative places a new focus on brownfields. The Brownfields reforms are directed toward empowering States, local governments, communities, and others to work together to assess, safely clean up, and sustainably reuse these sites. Brownfields Action Agenda

The initial Brownfields Action Agenda announced on January 25, 1995, outlined four key areas of action for returning brownfields to productive reuse: 1) awarding Brownfields Assessment Demonstration Pilots; 2) building partnerships with all Brownfields stakeholders; 3) clarifying liability and cleanup issues; and, 4) fostering local workforce development and job training initiatives.

Brownfields Pilots are Encouraging Redevelopment

The Brownfields Assessment Pilots form a major component of the Brownfields Action Agenda. Chosen through a competitive process, these pilots are helping communities articulate a reuse strategy that demonstrates model opportunities to organize public and private sector support, leverage financing, while actively demonstrating the economic and environmental benefits of reclaiming brownfield contaminated sites. The Brownfield pilots will develop information and strategies that promote a unified approach to site assessment, environmental cleanup, and redevelopment. In addition, these pilots are providing opportunities to stimulate jobs and economic activity. EPA exceeded its early commitment to fund at least 50 pilots by actually funding 76 pilots at up to $200,000 each by the end of 1996. And, in February, the Administrator announced the addition of two more pilots, bringing the total to 78. Many communities are participating, ranging from small towns to large cities.

Brownfields Partnerships Build Future Solutions

The Brownfields Initiative is clearly about partnerships -- with other Federal, State, and local agencies, and a diverse array of stakeholders. The EPA has undertaken partnership efforts with individual States as well as through broad organizational structures like the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), the National Governors Association (NGA), and the National Association of State Development Agencies (NASDA). Federal partnerships have been fostered, in particular, through Memoranda of Understanding (MOUs). EPA has signed MOUs with the Economic Development Administration of the Department of Commerce, the Departments of Labor, Housing and Urban Development, and Interior. EPA is working with the Agency for Toxic Substances and Disease Registry and county health officials to address the health concerns of brownfields communities. EPA also forged working relationships with a vast spectrum of other stakeholders, including the Mortgage Bankers Association of America, the Irvine Foundation's Center for Land Recycling, NASDA, ASTSWMO, International City/County Management Association (ICMA), to mention but a few. Other outreach efforts include coordination of brownfields efforts with the Agency's Common Sense Initiative.

These partnerships and those that we will develop in the future represent new ways of doing business with communities. We are working hard to continue to improve communication and coordination among all stakeholders. In this regard, we are encouraged by the increasing linkage being made between brownfields redevelopment and environmental justice. The National Environmental Justice Advisory Council (NEJAC) released its report, Environmental Justice, Urban Revitalization, and Brownfields: The Search for Authentic Signs of Hope." in July of last year. Recommendations from the NEJAC are the result of a series of public hearings held in five cities (Boston, MA; Philadelphia, PA; Detroit, MI; Oakland, CA; and Atlanta, GA). These recommendations will be used to address not only past mistakes of urban planning but also to benefit brownfields identification and redevelopment.

Redevelopment Barriers - Addressing Liability Concerns

The Agency also committed to addressing the threat of liability and other barriers impeding the cleanup and redevelopment of brownfields. Over the past year, EPA has announced a variety of guidance and initiatives that have had a positive impact among Brownfields stakeholders in terms of removing uncertainties often associated with brownfields properties. In particular, EPA is promoting redevelopment of brownfields properties by protecting prospective purchasers, lenders, and property owners from the threat of Superfund liability.

EPA's "prospective purchaser" policy is stimulating the development of sites of Federal interest where parties otherwise may have been reluctant to take action by clarifying (through agreements known as "prospective purchaser agreements" (PPAs) that bona fide prospective purchasers will not be responsible for cleaning up sites provided they do not further contribute to or worsen contamination. EPA issued new guidance in May 1995, which allowed the Agency greater flexibility in entering into such agreements. The new guidance expanded the universe of sites eligible for such agreements to include instances where there is a substantial benefit to the community in terms of cleanup, creation of jobs, or development of property. Of the 50 agreements to date, more than 50% were reached since issuance of the May 1995 guidance.

EPA has given reassurance to the lending industry and to governmental entities who acquire property involuntarily. EPA outlined in guidance what it considered appropriate actions a lender may undertake without becoming a liable party. In the 104th Congress, EPA worked with the Congress to pass legislation to clarify the liability of lenders and fiduciaries under CERCLA and other toxic waste laws. Enacted in the final days of the Congress as part of the continuing budget resolution, this change in the law will provide significant relief to banks and lending institutions, expand the availability of credit for small businesses, and greatly facilitate the assessment, cleanup, and redevelopment of brownfields sites.

Finally, EPA believes that the removal of sites from the active Federal inventory, the Comprehensive Environmental Response, Compensation and Liability Information System (CERCLIS), is having positive repercussions for the Brownfields Initiative. To date, EPA has removed approximately 30,000 sites from CERCLIS, about 75% of the Federal inventory. EPA expects to remove more than 1,000 additional sites from CERCLIS per year over the next several years.

Brownfields Job Development and Training

Brownfields may be a consequence of industrial downsizing, relocation or bankruptcy. The loss of jobs may also result. Training members of brownfields communities to fill potential jobs created as a result of cleanup and redevelopment efforts is a critical component of the Brownfields Initiative, particularly for groups representing dislocated workers, welfare recipients, or the chronically unemployed. EPA committed as an Agency to environmental workforce training programs in brownfields communities throughout the country. Efforts successfully underway include, among other things, the following:

Working with the Hazardous Materials Training and Research Institute to expand environmental training and curriculum development at community colleges located near brownfields pilots. Since 1995, three workshops for 40 colleges in or near Brownfields communities have been held.

Establishment of an environmental education and training center to provide comprehensive technician-level training with an emphasis on Superfund and Resource Conservation and Recovery Act (RCRA)-related subjects with the Rio Hondo Community College District in Whittier, California.

Working with the Department of Labor to leverage job training opportunities for Brownfields Pilot communities.

Working with the National Institute of Environmental Health Sciences (NIEHS) to ensure that Minority Worker Training grants overlap with Brownfields pilot communities.

The Brownfields Initiative Today

By mid-1996, EPA completed all of its commitments on the initial Action Agenda. It has become clear to us that the brownfields problem requires more interaction among all levels of government, the private sector and non-governmental organizations. The need for continuation and expansion of the national brownfields response was further buttressed by the recommendations of the President's Council on Sustainable Development regarding the redevelopment of brownfields sites. To that end, EPA and more than 20 other Federal agencies established an Interagency Working group on Brownfields in July 1996. Our colleagues at HUD and the Department of Transportation (DOT), for example, play a critical role in brownfields redevelopment. Through our Working Group collaborations, we are planning ways to further identify, strengthen, and improve commitments to brownfields, while continuing efforts toward a comprehensive, community-based approach to cleanup and redevelopment of contaminated property. The new Brownfields Action Agenda for FY 97 and FY 98 is based on protecting human health and the environment, enhancing public participation in local decision-making, building safe and sustainable communities through public/private partnerships; and, recognizing that environmental protection can be the engine that drives economic redevelopment.

EPA's brownfields efforts this year will include the announcement of an additional 25 Brownfields Assessment Demonstration Pilots (up to $200,000 each). For the first time, EPA will be awarding funds for a new type of brownfields pilot. The $10 million Brownfields Revolving Loan Fund (BRLF) pilot program is designed to enable eligible States, cities, towns and counties, U.S. Territories, and Indian Tribes to capitalize revolving loan funds to safely cleanup and sustainably reuse brownfields. Only entities that were awarded National or Regional Brownfields Assessment Demonstration Pilots as of September 30, 1995, will be eligible to apply to EPA's BRLF pilot program. Therefore, up to 29 BRLF pilots may be awarded in FY 97. Fiscal year 1997 BRLF pilots will be funded at up to $350,000. The BRLF pilots will be awarded through a competitive process.

EPA recognizes the important role that State environmental agencies have in encouraging economic redevelopment of brownfields. EPA also plans to provide $10 million, in FY 97, to encourage the development or enhancement of State programs that encourage private parties to voluntarily undertake early protective cleanups of less seriously contaminated sites, thus accelerating their cleanup and redevelopment.

EPA hosted a meeting here in Washington on February 27th to continue our dialogue with stakeholders and to solicit their views on a variety of voluntary cleanup issues. We will use that input to develop principles and national guidance on State voluntary cleanup programs. Finally, EPA is pleased with the progress it has made in signing MOAs with States. Ten States have now signed MOAs with EPA regarding sites to be cleaned up under voluntary cleanup programs. Both Rhode Island and Maryland have signed MOAs with EPA in the last few weeks. We are in the process of negotiating with 8 other States.

Other elements for the FY 97 program include additional support for an expanded site assessment initiative as well as technical assistance to existing pilots and partnerships with other Federal agencies and nongovernmental organizations (NGOs).

PRINCIPLES FOR RESPONSIBLE SUPERFUND LEGISLATIVE REFORM

Legislative reform must build on the administrative improvements to the program and must be targeted to address critical issues in need of a legislative solution. The Administration's goals for Superfund reauthorization continue to be to:

The Administration is in the process of preparing legislative principles on Superfund to help inform the congressional debate in the 105th Congress.

CONCLUSION

We continue to believe that responsible, consensus based Superfund legislative reform is necessary to remedy some inherent problems in the existing statute. However, any such reform must be based upon an understanding of where the program is today. We are encouraged that since the Administrator's testimony, efforts have been made to begin the consensus building process in which a full array of stakeholders participate to share a common vision of what the Superfund program of the future should look like. The Administration is fully committed to participating in such a process and to seeing that responsible, consensus based Superfund legislative reform is enacted in the 105th Congress.

Mr. Chairman, thank you for this opportunity to address the Committee. Now we will be happy to answer any questions you or the other Members may have.

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