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[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:83719.wais]
S. Hrg. 107-1007
SUPERFUND PROGRAM: REVIEW OF THE EPA INSPECTOR GENERAL'S REPORT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK, AND WASTE MANAGEMENT
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
__________
JULY 31, 2002
__________
Printed for the use of the Committee on Environment and Public Works
_________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred seventh congress
second session
JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana BOB SMITH, New Hampshire
HARRY REID, Nevada JOHN W. WARNER, Virginia
BOB GRAHAM, Florida JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware LINCOLN CHAFEE, Rhode Island
HILLARY RODHAM CLINTON, New York ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey PETE V. DOMENICI, New Mexico
Ken Connolly, Majority Staff Director
Dave Conover, Minority Staff Director
------
Subcommittee on Superfund, Toxics, Risk, and Waste Management
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana LINCOLN CHAFEE, Rhode Island
RON WYDEN, Oregon JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware JAMES M. INHOFE, Oklahoma
HILLARY RODHAM CLINTON, New York MICHAEL D. CRAPO, Idaho
JON S. CORZINE, New Jersey ARLEN SPECTER, Pennsylvania
(ii)
C O N T E N T S
----------
Page
JULY 31, 2002
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 32
Letter, Helena site cleanup.................................. 33
Boxer, Hon. Barbara, U.S. Senator from the State of California... 1
Article, Florida Superfund Site, New York Times.............. 119
Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New
York........................................................... 34
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 12
Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey.. 19
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 13
Inhofe, Hon. James M. Inhofe, U.S. Senator from the State of
Oklahoma....................................................... 4
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 29
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 6
Chronology................................................... 6
Letter, Superfund cleanups................................... 8
WITNESSES
Horinko, Marianne Lamont, Assistant Administrator, Office of
Solid Waste and Emergency Response, U.S. Environmental
Protection Agency.............................................. 23
Charts....................................................... 40
Prepared statement........................................... 36
Responses to additional questions from Senator Jeffords...... 42
Nelson, Hon. Bill, U.S. Senator from the State of Florida........ 14
Tinsley, Nikki, Inspector General, Office of the Inspector
General, U.S. Environmental Protection Agency.................. 22
Prepared statement........................................... 35
Torricelli, Hon. Robert, U.S. Senator from the State of New
Jersey......................................................... 16
ADDITIONAL MATERIAL
Letters:
To Rep. John Dingell......................................... 44
To Superfund Program Managers................................81-119
Statements:
Durbin, Hon. Richard J., U.S. Senator from the State of
Illinois................................................... 9
Kennedy, Hon. Edward M., U.S. Senator from the Commonwealth
of Massachusetts........................................... 29
Kerry, Hon. John, U.S. Senator from the Commonwealth of
Massachusetts.............................................. 30
Tables, Superfund Cleanup Program................................ 47-80
(iii)
SUPERFUND PROGRAM: REVIEW OF THE EPA INSPECTOR GENERAL'S REPORT
----------
WEDNESDAY, JULY 31, 2002
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund, Toxics, Risk and Waste
Management,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 o'clock
a.m. in room 406, Dirksen Senate Office Building, Hon. Barbara
Boxer (chairman of the subcommittee) presiding.
Present: Senators Boxer, Inhofe, Crapo, Carper, Corzine,
and Jeffords (ex officio).
OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Boxer. The subcommittee will come to order.
Welcome, Senator Inhofe.
We will be having colleagues who are very interested in the
Administration's proposal on Superfund coming here this
morning. Their names are up--Senators Kerry, Schumer, Nelson,
and Torricelli. Because this is the last week we're here,
everybody is being pulled in many different directions, so I
thought I would hold a hearing today that would accommodate
colleagues as best as possible, so what I'll do is--Senator
Inhofe, are your time constraints major at this point?
Senator Inhofe. No.
Senator Boxer. OK. Then I'll give my brief statement, then
I'll call on you to give yours, and then what we'll do is we
will, as colleagues come in, we will permit people who are
speaking to complete and we'll go to the colleagues. It is
going to be a little bit flexible this morning.
Today the Superfund Toxics, Risk and Waste Management
Subcommittee will conduct its second oversight hearing into the
Superfund program at the Environmental Protection Agency. The
focus of this hearing, from my perspective, will be on the
continued threats to the Superfund program recently documented
in a report by the Inspector General's Office of the Inspector
General of the EPA.
Why does the health of the Superfund program matter so
much? The Superfund program is critically important because
these toxic sites threaten the health and well-being of every
community where they are located. The number of people affected
by Superfund sites is surprisingly high. There are over 1,200
national priority Superfund sites. You can see them. One in
four Americans, including ten million children, live within
four miles of a Superfund site.
Why is it important to note that 10 million children live
there? We know that children are much more vulnerable to these
kinds of toxics. The proof is in on that.
California has about 100 sites and ranks No. 2, second only
to New Jersey in the number of toxic sites. Over 40 percent of
Californians live within four miles of a Superfund site.
The health effects of these sites are very real. Superfund
sites contain hazardous materials like arsenic, lead, mercury,
even agent orange. The Agency for Toxic Substances and Disease
Registry reports that living near a Superfund site is
associated with increased birth defects, low birth weight,
changes in pulmonary function, neurological damage, and
leukemia.
For months, we have been seeking information on the state
of the Superfund program. I convened the first oversight
hearing on Superfund in this subcommittee because it has
quickly become clear that the very foundation of this program
is being undermined. The raw numbers of sites being cleaned up
and projected for cleanup looks bleak.
To try and get some answers, the chair and ranking members
of the full committee and this subcommittee sent an information
request to EPA on March 8th. Unfortunately, we have yet to
receive a complete response to our request. Senator Jeffords
and I sent a second request. Senator Chafee and I sent a third
request. This has been necessary due to enormous gaps in the
information provided to us by the Environmental Protection
Agency.
EPA's responsibility to provide requested information to
this committee is clearly not a partisan issue. There has been
a great reluctance on EPA's part to share information with this
oversight committee and with the public. In fact, nearly every
document shared with this subcommittee has been marked
``privileged.'' We even have received blank pieces of paper
marked ``privileged.'' The emphasis on secrecy where the public
right to know is so clear is extremely disturbing. We even had
documentation at the last hearing that the home office here
sent a note out to the regional offices not to answer any
questions at all on Superfund, but rather to get them to the PR
people to handle. Well, this isn't a PR issue; this is a public
health and safety issue. It's a children's health issue. And
it's just not going to wear well with this subcommittee and
this full committee if we can't get the information, regardless
of what side of the fence we are on on Superfund.
After months of negotiation, EPA has agreed to more fully
respond to our information request. If they mean it this time,
they should provide those documents to me next week. We have
made every effort to obtain cooperation from EPA without
issuing a subpoena, but time is running out.
I reviewed the Inspector General's report with great
interest because it provided some of the answers we have been
looking for on how the slow-down of the Superfund program is
affecting local communities. These communities surely have a
right to know and to weigh in if cleanups of their site are in
jeopardy.
The Inspector General surveyed the regions and came up with
evidence of a growing backlog in this program. I want to
commend the Inspector General for her efforts.
EPA has recently moved money from other sites to partially
fund a few of the sites in the Inspector General's report, but
let me stress the majority of the sites that were going to be
cleaned remain unfunded. Millions of dollars worth of work that
the regional offices requested may still go undone this year,
alone.
A question I will ask today is: what States will suffer
because funds are not available for their sites? And remember,
when you take money from other sites in the country, those
sites are going to be short money. So now we are in a situation
where they are robbing Peter to pay Paul to take a little heat
off of them, and what's going to happen when those other sites
need the funding? We're going to be back in a circular problem.
So many of the sites have waited so long that even the
remedy may no longer fit, and so when you delay you're going to
wind up costing more time and more money. In fact, I just
learned that the chemical insecticide site in New Jersey, which
was the subject of our last oversight hearing, not only hasn't
received any funds, but seems to be leaking into the back yards
in a residential neighborhood once again. This site has severe
contamination, including agent orange, arsenic, and dioxin.
There is apparently--and this is new information--a strong
chemical odor in the stream that runs from the site--this is
new--because of these delays.
The temporary cap that was placed on may have reached the
end of its life. Public health may well be threatened again.
The Superfund program must address this site and others like
it.
A key to restoring the program is to put it on solid
financial ground. We need the support of this Administration.
Senator Chafee and I have a bill for our renewal of the
polluter fee, the polluter tax. This is another example of
corporate responsibility run amuck.
The bottom line, as my mother used to say to me, is:
``Gotta cleanup your room. You made the mess, you've got to
clean it up.'' The same thing must apply to these companies.
And we give them a break. Some of them are terrifically
innocent of any problem. They get a fee, a fund. It's very
small, if you look at the numbers--a percentage of their annual
budget--and they get certain liability waivers because of it.
It is a good, solid program. My understanding is this is the
first Administration never to support this fund. That goes for
the Republican Administrations, that goes for Democratic
Administrations. We don't hear any encouraging word. As a
matter of fact, in the budget it is specifically stated that
they do not support the tax.
So bottom line is we have a way to solve the problem. Let's
do it together. We have a bipartisan bill, Senator Chafee and
I, to get this polluter fee back in play. We need the help of
the Administration. Certainly the Environmental Protection
Agency shouldn't turn into the Environmental Pollution Agency.
That isn't what their job is.
We've got heartache out there in the countryside, and some
of those people are here today, because, A, they're not sure if
they're going to be cleaned; B, they think they're not; C, the
Inspector General has issued this report that's pretty
detailed; D, the EPA's response to the newspaper articles is to
shove a few dollars from other projects into some of these
projects, but they still leave most of them unattended.
So I say that this Administration needs to step up to the
plate. They will find tremendous cooperation from this
committee, and I think the people in our country deserve no
less.
What I'm going to do is call first on Senator Inhofe,
Senator Carper, then Senator Nelson.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Madam Chairman.
I think that the record needs to be set straight on a
number of fronts, including funding. It is industry, not the
EPA, that has been funding the vast majority of the cleanups.
Over 70 percent of the site cleanups have been conducted and
paid for by private parties. Now, I think your mother would be
pleased to know that they're cleaning up their own rooms.
The law puts the burden of paying for cleanup squarely on
the responsible parties. The trust fund only bears the cost of
cleanup when no responsible party can be found or where
Congress has exempted the responsible party, such as they
exempted a responsible party in South Dakota.
In the 7 years since Superfund tax has expired, responsible
parties continue to pay for all cleanup costs at their sites
and reimburse the EPA for its oversight of the cleanup. Last
year the EPA collected a record $1.7 billion in cleanup funds
from responsible parties, more than EPA spends for Superfund
each year.
Of the remaining 30 percent of the sites, the Bush
Administration has not cut funding for Superfund cleanups. All
sites with ongoing cleanups will receive funding in the fiscal
year 2002 to allow work to continue, and no work is being
suspended. This is contrary to some of the articles, including
the ``New York Times'' that made people believe something that
is not true.
In my State of Oklahoma, one site, the Hudson Refinery,
will be allowed to begin cleanup. I do not think that the EPA
funding this site at $3 million to begin cleanup is a step in
the wrong direction. The other site, Tar Creek--Tar Creek
happens to be the Nation's worst Superfund site, and we'll
continue ongoing efforts to clean up that site.
Now, let me say something about the IG report. The IG
report is not an accurate depiction of what is really
happening. The Superfund cleanup construction program is
constantly evolving, and funding decisions are made over the
course of the entire year, not simply at the beginning of the
fiscal year. As a result, the Inspector General's report
represents a snapshot in time 2 months ago and does not reflect
accurately current funding decisions nor all final funding
decisions. When phases of the Superfund cleanup process are
completed, some funding may remain in related contrast. This
left-over money may be applied to fund construction at other
sites. This funding is often secured toward the end of the
fiscal year. Moreover, final funding decisions may occur late
in the fiscal year.
Far from cutting or eliminating sources of funding, the EPA
plans to use all of its fiscal year 2002 funding for cleanup
construction--that's $224 million--and is also working
diligently to secure additional funding from completed
Superfund contracts that have dollars left over after they've
completed the process.
Now, Senator Boxer and I do not see eye-to-eye on a lot of
things, but we worked very well together on the brownfields
legislation; however, when moving the brownfields legislation I
made it crystal clear that the Superfund taxes should not be
reinstated until comprehensive reform is enacted. I'm talking
about comprehensive liability reform, comprehensive used oil
recycling reform. While important, the brownfields legislation
is not comprehensive reform; therefore, I'd strongly oppose any
efforts to reinstate taxes until true reforms are enacted.
Despite what will be implied today, Superfund will continue
to take action to address imminent threats to human health and
the environment through the Superfund energy removal program.
Furthermore, the Bush Administration has been and will continue
to ensure that our Nation's most contaminated sites are cleaned
up.
Thank you, Madam Chairman.
Senator Boxer. Thank you so much.
[The prepared statement of Senator Inhofe follows:]
Statement by Hon. James M. Inhofe, U.S. Senator from the State of
Oklahoma
I think that the record needs to be set straight on a number of
fronts. Industry--not EPA--has been funding a vast majority of
cleanups. More than 70 percent of site cleanups have been conducted and
paid for by private parties. The law puts the burden of paying for
cleanup squarely on responsible parties. The Trust fund only bears the
costs of cleanup when no responsible party can be found, or where
Congress has exempted the responsible parties. In the 7 years since
Superfund taxes expired, responsible parties continued to pay for all
cleanup costs at their sites and reimbursed EPA for its costs to
oversee cleanup. Last year, EPA collected a record $1.7 billion in
cleanup funds from responsible parties--more than EPA spends for
Superfund each year.
Of the remaining 30 percent of sites, the Bush Administration has
not cut funding for Superfund cleanups. All sites with on-going
cleanups will receive funding in fiscal year 2002 to allow work to
continue, and no work is being suspended.
In my home State of Oklahoma, one site will be allowed to begin
cleanup. I do not think that EPA funding this site at $3 million to
begin cleanup is a step in the wrong direction. The other site, Tar
Creek--the Nation's worst Superfund site, will continue ongoing efforts
to clean up the site.
The IG report is not an accurate depiction of what is really
happening. The Superfund cleanup construction program is constantly
evolving, and funding decisions are made over the course of the entire
year--not simply at the beginning of the fiscal year. As a result, the
Inspector's General report represents a snap shot in time, 2 months
ago, and does not accurately reflect current funding decisions nor all
final funding decisions. When phases of the Superfund cleanup process
are completed, some funding may remain in related contracts. This left-
over money may be applied to fund construction at other sites. This
funding is often secured toward the end of a fiscal year. Moreover,
final funding decisions may occur late in the fiscal year.
Far from cutting or eliminating sources of funding, EPA plans to
use all of its Fiscal Year 2002 funding for cleanup construction ($224
million) and is also working diligently to secure additional funding
from completed Superfund contracts that have dollars left over after
the bills are paid.
Senator Boxer and I do not see eye-to-eye on a lot, but we worked
very well together on the brownfields legislation. However, when moving
the brownfields legislation, I made it crystal clear that the Superfund
taxes should not be reinstated until comprehensive reform is enacted.
While important, brownfields legislation is NOT comprehensive reform.
Therefore, I will strongly oppose any efforts to reinstate the taxes
until true reforms are enacted.
Despite what will be implied today, Superfund will continue to take
action to address imminent threats to human health and the environment
through the Superfund emergency removal program. Furthermore, the Bush
Administration has been and will continue to ensure that our nation's
most contaminated sites are cleaned up.
Senator Inhofe. One more thing?
Senator Boxer. Yes.
Senator Inhofe. I was supposed to ask unanimous consent to
insert Senator Smith's opening statement in the record at this
point.
Senator Boxer. Without objection, so ordered. I will also
insert into the record Senator Durbin's statement, which I hope
the EPA will read. He has numerous concerns.
[The prepared statements of Senators Smith and Durbin
follow:]
Statement of Hon. Bob Smith, U.S. Senator from the State of New
Hampshire
Today's hearing focuses on a recent EPA IG report--or more, to the
point, this hearing is responding to how the media has characterized
this report. Unfortunately, some are taking the media characterization
as fact. It is my hope that the facts will finally get their chance.
When the IG report was issued, it was a snapshot in time--that is all.
In fact, had the IG done similar reports 5 or 10 years ago, we would
have seen basically the same picture. The Superfund funding
decisionmaking process has not changed with this Administration.
Needless to say, when I read the New York Times article and saw a New
Hampshire site on the list I was particularly disturbed because it was
my understanding that the cleanup of the Merrimack site was on
schedule. Of course when I spoke with EPA after reading the article,
they assured me that the cleanup was, in fact, on schedule and its
inclusion was being grossly mischaracterized. We all know this hearing
is about the elections in November, plain and simple. You take a report
from the Inspector General office, leak it to the New York Times with a
misleading spin, and all of the sudden you have good story.
There has also been an on-going dialog between EPA and this
committee regarding information on Superfund. Many have been claiming
that EPA has been non-responsive and uncooperative in providing
documents to the committee on this matter. The correspondence that
I have received however indicates otherwise. For the record, I
would like to submit the letter from EPA to the Superfund Subcommittee
chair and ranking member, in addition to a chronology of the steps
taken to provide the committee with documentation.
Playing politics with the environment is nothing new, and it is
always unproductive. Every single major environmental law passed the
Congress with strong bipartisan support. Every time political
grandstanding entered into the debate progress stopped--but of course
political points were scored. It's a shame when you put environmental
politics above environmental progress. I hope that we can put this
partisanship behind us and move forward on protecting the environment.
chronology of sepw information request
March 8, 2002
Senators Jeffords, Smith, Chafee, and Boxer mailed letters (dated
``March 8, 2001'') to each of EPA's ten regional offices. The letters
requested detailed information regarding the Superfund program.
Although some regions did not receive the request, headquarters made
sure that all the regions were aware of the request so that they could
begin to prepare responses.
March 15, 2002
Ed Krenik of OCIR sent a letter to Senator Jeffords, et al.,
requesting a meeting to discuss the scope of the letter and to request
that in the interest of accuracy, timing and resources, that the scope
be defined to exclude redundant and non-responsive materials.
March 26, 2002
EPA Headquarters Office of congressional and Intergovernmental
Affairs (OCIR) and Office of Solid Waste and Emergency Response (OSWER)
participated in a conference call with SEPW committee staff (including
Boxer staff) in order to clarify the request so that the information
can be provided prior to the April 10, 2002, hearing.
April 4, 2002
Information discussed at meeting is delivered to Senators Jeffords,
Smith, Chafee and Boxer. Information provided included the regional
responses to questions 1, 2, 3, 4, 5, 6, and 7 including headquarters
attachments referred to by the regional offices (new start list,
January 3 funding distribution memo for 1St and 2d quarters of fiscal
year 2002, and 3 construction completion status updates). At this time,
it was OCIR's understanding that all information requested by the March
8, 2002, letter had been provided.
April 10, 2002
SEPW subcommittee hearing was held at which Marianne Horinko
testified.
Week of April 15, 2002
Senator Boxer's staff called to request information in addition to
that provided for the April 10' hearing.
Week of April 22, 2002
OCIR and OSWER staff requested another meeting to determine exactly
what information is being requested.
May 13, 2002
Meeting and a briefing on Superfund performance is held in SEPW
hearing room. Meeting is widely attended by representatives from SEPW
committee and the Democratic Party Communications Staff. During the
meeting, Senator Boxer's staff again requests a list of ``unf inded''
sites. Again, OCIR staff explain how program is managed and why there
is no Agency listing of ``unfunded'' sites.
May 23, 2002
Governor Whitman met with several Senators regarding Clean Air
issues. The Governor and Senator Boxer also discussed Superfund issues.
May 31, 2002
OCIR (Ed Krenik and Don McKinnon) met with the staff of Senators
Jeffords and Boxer and provided copies of fiscal year 2001
ConstructionCompletion Candidate Site Status updates, copies of fiscal
year 2002Construction Completion Candidate Site Status updates, the
fiscal year 2002Construction Completion Candidate Sites update--May
2002, the list of fiscal year 2001 sites that reached construction
completion, and a list of the reasons sites identified in first fiscal
year 2001 Construction Completion Candidate Site Status update did not
reach construction completion.These documents are later officially
provided in the letter dated June 4, 2002.
May 31, 2002
Letter from Senators Jeffords and Boxer asking for the additional
information by June 20.
June 4, 2002
Letter to Senator Boxer from Ed Krenik including e-mails from OCIR
staff asking for the regions to submit additional information.
June 20, 2002
Letter to Senators Jeffords and Boxer with approximately a 3-foot
stack of documents delivered to SEPW staff. Documents provided include
a privileged June 6, 2002, funding memo distributing the 3d and 4th
quarter fiscal year 2002 funding for the Superfund Program, a list of
Federal facilities that are megasites, and a compilation of the updated
regional responses to questions 1, 4, 5., 6, and 7.
June 27, 2002
Responses to questions from the April 10, 2002 hearing were
provided to the committee. EPA has requested, and is waiting for, the
hearing transcript.
July 23, 2002
Letter dated July 23, 2003 sent by the SEPW committee received by
EPA. The letter was effectively an outline of concerns on the part of
the committee regarding EPA's response to the March Stn information
request.
July 24, 2002
Response to aforementioned letter sent to the committee from Ed
Krenik. The response consisted of assurances that the Agency made every
attempt to comply with the original request and an outline of EPA's
commitment to obtaining the additional information identified and
requested by the committee in its July 23d letter.
______
united states environmental protection agency
Office of Congressional and Intergovernmental Relations,
Washington DC 20480, July 24, 2002.
The Honorable Barbara Boxer, Chair,
Subcommittee on Superfund, Toxics, Risk, and Waste Management,
Committee on the Environment and Public Works,
U.S. Senate,
Washington, DC 20510
Dear Madam Chair: Thank you for your letter of July 23, 2002 to
Administrator Whitman requesting documents related to EPA's management
of Superfund site funding. Administrator Whitman and I appreciate the
importance of congressional oversight, and we will continue to make our
best effort to meet the oversight needs of the subcommittee.
I would like to take this opportunity to explain how we responded
to the committee's previous request, and the steps we will use for this
request. First, I want to assure you the Agency has made every attempt
to comply with the original request of March 8, 2002. As you know, the
committee's original letter was sent to all 10 EPA Regions. After
several Regional offices began asking Headquarters how to respond to
the broad scope of the letter, we requested a meeting with your staff
and committee staff to discuss ways to better target the request toward
information that would be useful to the committee, and to provide
information prior to the April 10, 2002 subcommittee hearing. After
meeting with your staff, we followed up with several emails to our
Regional offices--including an email to each Regional Administrator--
referencing your letter and requesting that they search for responsive
documents. We provided clarifications and attempted to give examples of
what would be responsive and what would not be necessary to collect,
based on our understanding of your needs. For example, based on our
understanding that your staff was interested in gaining an
understanding of the budget and management decisions made by EPA with
regard to Superfund sites, we directed Regional staff to exclude
construction and design plans, copies of contracts, invoices and
related communications, personnel related papers, etc. We had numerous
conversations with several Regions to explain the scope of the request,
answer questions, and to request further document searches for
materials that fell within the request, as it was written, particularly
when we saw significant variability in the Regional responses. All of
the Regional documents, about a three foot stack, were provided to the
committee.
While it is true that we did not provide your staff with a copy of
Headquarter's communications with the Regions until after we had begun
providing documents to you, the process of negotiating your request was
entered into in good faith. Our actions following those conversations
likewise were good faith efforts to meet your needs. As we move forward
we will redouble our effort to keep your staff informed of our internal
process for document collection. While this level of transparency is
unprecedented in our experience with Congress, we are pleased to make
every effort to give you the assurances you need that all appropriate
documents are collected and forwarded to the subcommittee.
Please let me assure you that information gaps (email attachments,
etc.) in the documents that we provided you on June 20, 2002, were
unintentional. Any such problems can be resolved with a phone call to
me or my designated staff. Nonetheless, at the July 17, 2002 meeting of
your staff and Marianne Horinko, Assistant Administrator for lid Waste
and Emergency Response, the Agency committed to providing copies of all
such information that was mistakenly not printed out, and will
specifically request that Regions print such documents in our next
instructions to Headquarters and Regional offices.
We will again send your letter to each Regional Office,--as well as
Headquarters offices that may have responsive documents. If there are
any instructions included with the transmittal of your letter to EPA
offices, I will provide your staff an opportunity to review the
transmittal, as discussed at the July 17 meeting. My staff has made
recommendations on how your request could be targeted to more
efficiently meet your oversight needs without requiring EPA staff to
collect extraneous documents. However, if you prefer, we will transmit
your request without any modification with respect to the type of
documents requested. In any event, we will provide instructions for
assembling and reviewing the documents (identifying privileged
documents, etc.).
Enclosed, in response to your July 23d letter, is the enforcement
sensitive Remedial Action Priority List. Although we had not received a
written request for this list prior to your July 23, 2002 letter, we
did make several offers to your staff to review the document at EPA.
You should be aware that, on the advice of EPA's General Counsel,
Office of Enforcement and Compliance Assurance, Office of Solid Waste
and Emergency Response, and the Department of Justice, access to this
document must be carefully controlled. I remain very concerned that the
release of this document, or any information from the document, could
seriously undermine ongoing enforcement activity and the effectiveness
of the Federal Superfund program. The Remedial Action Priority List
contains information that is subject to the deliberative process
privilege and is enforcement sensitive, and is marked as privileged.
EPA's disclosure of this document to you does not constitute a waiver
of any applicable exemptions under the Freedom of Information Act
(FOIA) that EPA may claim in response to FOIA requests for this
document. In addition, EPA's disclosure of this document to you does
not constitute a waiver of any applicable legal privileges that EPA may
claim in litigation or other proceedings. I therefore request that you
preserve the confidentiality of this document and all documents marked
privileged or sensitive by refraining from making or providing copies,
or otherwise communicating the contents of these documents, to persons
other than those with a need to know as part of this congressional
oversight review.
I have also enclosed a fact sheet and status report on 33 Superfund
sites that have been the subject of media attention. While not
requested in your letter, these documents were requested by your staff
at the July 17, 2002 meeting.
To date, in addition to this letter and enclosures described above,
the Agency has provided to you a privileged June 6, 2002, funding memo
distributing the 3d and 4th quarter fiscal year 2002 funding for the
Superfund Program, a list of Federal facilities that are megasites, and
a compilation of the 10 regional responses to questions 1, 4, 5, 6, and
7 of your March 8, 2002 letter. You have also received: the January 3,
2002 funding distribution memo for the 1st and 2d quarters of fiscal
year 2002; the fiscal year 2001 Construction Completion Candidate Site
Status updates; the fiscal year 2002 Construction Completion Candidate
Site Status updates; the fiscal year 2002 Construction Completion
Candidate Sites update (dated May 2002); the list of fiscal year 2001
sites that reached construction completion; and a list of the reasons
that sites identified in first fiscal year 2001 Construction Completion
Candidate Site Status update did not reach construction completion.
These documents were officially provided in the letter to the committee
dated June 4, 2002.
If I can be of further assistance, please don't hesitate to contact
me, or your staff may call John Reeder on 202/564-5200.
Sincerely,
Edward Krenik, Associate Administrator.
__________
Statement of Hon. Richard J. Durbin, U.S. Senator from the State of
Illinois
Thank you, Senator Boxer, for inviting me to testify before the
Subcommittee on Superfund, Toxics, Risk and Waste Management of the
Senate Environment and Public Works Committee on the important topic of
the Superfund program. I also want to thank Senator Jeffords, and the
members of this subcommittee, for your leadership on the many critical
environmental protection issues we face. Finally, I want to applaud
Senators Boxer and Chafee for introducing legislation to reinstate the
Superfund ``polluter pays'' taxes. I am proud to be a cosponsor.
The Inspector General of the Environmental Protection Agency (EPA)
reported on June 24 that the agency has slowed or stopped funding at 33
Superfund sites in 18 States. One of them, the Jennison Wright
Corporation in Granite City, Illinois, is not receiving the funding
needed to bring the site to the construction complete phase. For years
we have seen the Superfund Trust Fund dwindle, as some in Congress, and
now in the Administration, has resisted reauthorizing the ``polluter
pays'' taxes. Today's testimony will demonstrate the high costs of this
abdication of responsibility.
Superfund sites are cleaned up in one of three ways: 1) the
potentially responsible parties (PRPs) enter into a Consent Decree with
EPA to execute and pay for the cleanup, or remedial action; 2) the EPA
cleans up the site and recoups the cost from PRPs through legal action;
or 3) the EPA pays for and cleans up the site when PRPs are bankrupt,
unidentifiable, or cannot be forced to pay for the site, despite
enforcement or legal actions EPA has taken. The Superfund Trust Fund
pays for the cleanups in the third category, making these sites the
most threatened when this program is underfunded.
Three dedicated taxes historically provided the majority of the
Trust Fund's income, but expired in 1995. By the end of fiscal year
2003, the Fund's balance will have dwindled to $28 million. Every year
after 1995, the Clinton Administration requested that Congress
reauthorize Superfund taxes as part of its budget, and Congress
declined. The Bush Administration has not included such a request in
its fiscal year 2003 budget submission or its fiscal year 2002
submission. As time passes, taxpayers are paying a larger portion of
the cleanup than corporations. From 1.991-1995, the portion of
Superfund spending coming from general revenues averaged 17 percent; in
fiscal years 20002002, it was 50 percent.
The Boxer-Chafee would reinstate the Superfund ``polluter pays''
taxes. However, the Administration does not support reinstating these
taxes. The Administration prefers that all taxpayers have the burden of
paying for cleanup. In a recent editorial, EPA Administrator Christine
Todd Whitman asserts, ``Financing the cleanup of these orphan sites, as
they are called, comes from the Superfund trust fund and from
Congress's general revenues.'' The reality is that general revenues do
not belong to Congress. These revenues are taxpayers' money. Also,
while it is true that some funds from general revenues have
historically contributed to orphan site cleanup, taxpayers are paying a
significantly larger portion of the cleanup than corporations than they
have in the past.
In response to a letter I sent to Administrator Whitman, she has
told me that we should not worry that the Superfund taxes have expired,
and that polluters no longer have to pay their fair share of the
cleanup. In a letter she sent to me on June 28, she noted ``Congress
has supplemented the Superfund appropriation by appropriating dollars
from general revenues. I am confident that Congress and the
Administration will continue to work together to provide adequate
funding for the Superfund program.'' She also told me that they do not
yet have a clear understanding ``as to whether project schedules in
future years will be impacted by competing funding needs.'' There seem
to be some major management issues in this program that need to be
examined.
Illinois
In Illinois there are 39 Superfund sites. Only 19 have reached the
milestone of ``construction completion,'' where all the final remedies
for the sites are fully in place, with operation and maintenance
remaining, and, in some cases, an ongoing pump and treat system to
restore the aquifer underlying the site to drinking water quality.
Recently I visited one of these sites, the Outboard Marine
Corporation (OMC) in Waukegan, Illinois. I saw firsthand the
environmental damage of that site, and how it is impacting the local
community, especially its efforts to restore the beach of Lake Michigan
and proceed with important economic development.
Hazardous wastes at the OMC site include PCBs and Volatile Organic
Compounds (VOCs). From approximately 1948 to 1971, OMC purchased an
estimated 8 million gallons of hydraulic fluid which contained PCBs for
die casting of outboard marine/recreational engines. PCBs were
discharged through floor drains into a tributary of Lake Michigan and
were ultimately discharged to Waukegan Harbor. As a result, 700,000
pounds of PCBs were estimated to be present on OMC property soils and
300,000 pounds of PCBs in the soils and sediments of Waukegan Harbor.
In the early 1900's a wood-treating plant operated on the site,
followed by a manufactured gas plant in the 1920's and a coke oven gas
plant in the 1940's. Soil and grounwater contaminants include coal tar,
which contains many polynuclear aromatic hydrocarbons (PNAs), phenols
and volatile organic compounds (VOCs), and ammonia (byproducts of the
manufactured gas and coke operations). Other contaminants, primarily in
groundwater, include arsenic, cyanide and heavy metals.
The plant was purchased and disassembled by OMC in approximately
1972. Between 1973 and 1989, OMC used the site for fire training. Other
more current uses include waste oil storage, parking, stockpiling of
sand from a dredging operation,and testing of snowmobiles. OMC declared
bankruptcy in December 2000, complicating site cleanup actions.
PCBs have contaminated onsite soil and sediments in Lake Michigan.
The Waukegan Harbor is identified as an Area of Concern by the Great
Lakes Water Quality Agreement between the United States and Canada due
to its persistent, harmful sediment problem. Although the PCB problem
has begun to be dealt with, groundwater and soils are still
contaminated with PNAs, ammonia, phenol and arsenic as a result of
activities that occurred at the former Gas and Coke Plant.
The residents of Waukegan, Illinois, and I want to know: what is
taking so long? Why isn't EPA cleaning up this site?
Unfortunately, cleanups in Illinois overall are slowing down. In my
correspondence with the EPA, Administrator Whitman delivered a
saddening piece of news. Whereas the USEPA had earlier projected that
the Byron Salvage Yard, a Superfund site in Illinois, would reach the
construction complete phase in fiscal year 2002, they are now
projecting that it will not be until fiscal year 2003. That means only
two sites will have reached the construction complete phase this fiscal
year in Illinois, and one of those sites was carried over from last
year. In addition, only one site, A & F Materials Reclaiming, is
projected to be deleted from the list this year-meaning it is the only
site in Illinois that will be totally cleaned up.
The EPA's Inspector General also reveals that the Jennison Wright
Corporationsite in Granite City, Illinois is not being cleaned up, even
though it is not one of the ``megasites'' that EPA claims take longer
to complete. Although the officials at the EPA requested $12.5 million
for clean-up of the Jennison Wright Corporationsite in Granite City,
Illinois, this year, only $570,000 has been allocated, meaning that the
work has been put off'. This Fund-lead Superfund site has groundwater,
surface soil, and subsurface soil contamination, including arsenic,
benzene, manganese, naphthalene, beryllium, chromium, and other
contaminants. Surface waters are contaminated with creosote,
pentachlorophenol, and other related compounds.
The Jennison-Wright Corporationsite is a 20-acre, bankrupt
railroad. tie-treating facility in Granite City, which has a population
of 33,000. The site is located in a low income, mixed industrial/
residential neighborhood. Operations as a railroad tie treatment
facility began prior to 1921 and continued until 1989. After operations
ceased, wastes were left at the site in a railroad tank car, a buried
railroad tank car, two above-ground storage tanks, and two lagoons.
Neighboring residents may be affected through direct contact or
ingestion of contaminants emanating from the site. Although the
Illinois Environmental Protection Agency performed work on this site as
early as 1992, it was not proposed to the list until October 1995, and
it became final in June 1996. Despite being listed for 6 years and
being known as a contaminated site for 10 years, it has not reached the
construction complete phase. It seems that work is ready to proceed
there, except for lack of funding. The appropriate clean-tip for this
site should include soil excavation, offsite disposal, and a
groundwater pump and treat system.
Is the Jennison Wright Corporationsite not being funded due to lack
of money in the Superfund Trust Fund? If so, why are we encountering so
much resistance to reviving this important fund? Senators Boxer and
Chafee, and members of this subcommittee, I hope you are able to get to
the bottom of some of the pressing questions raised by my testimony and
that of my colleagues in the Senate. We need answers before any further
damage to our communities and to the public health is done.
Senator Boxer. I just wanted to respond to my friend and
just say quickly that it is true that polluters are paying.
They have in the history of the program, and that's good. But
remember, it takes a lot of work to figure out who the
responsible parties are, and as the money diminishes in the
fund we can't really do that work and that enforcement, and it
is--the problem we are facing--this chart shows the percentage
of Superfund cleanups that have been paid historically by the
polluters, 82 percent; taxpayers, 18 percent. This
Administration is changing that equation. If they stay on the
course they are on now, which appears to be the case, 54
percent will now be picked up by the taxpayers, 46 percent by
the responsible parties. I mean, this is an accurate depiction.
It is a snapshot of now. That's where we are.
Senator Inhofe. Well, I would disagree with you. I don't
think you could come up with an accurate figure in the circle
under 2003 because I don't think you have the information to do
that. But I would also repeat that not only has industry paid
for the cleanup, but also the administration cost to oversee
that, which is some of the cost that you are talking about.
Senator Boxer. Senator, we took this from the
Administration's figures on the sites they are going to clean,
the number of sites, and where they are getting the funding
from. This was drawn from their documents. But we will
certainly go back and review it with the Administration.
Senator Inhofe. Yes, and I will do the same.
Senator Boxer. Of course. And let me also state that I'm
going to put in the record a specific list of regions that have
expressed concern about cutbacks--Region Four, Region Six,
Region Seven, Region Eight. I'm going to put that in.
Senator Inhofe. And you put at the top of that Tar Creek,
for example, which is the worst in the United States of
America. However, they were mislead to believe that funding was
going to be cut in areas that I don't believe it is going to be
cut.
Senator Boxer. OK. We will certainly know that by the end
of the year, which is September 30th, just a month away. You
know, when you say ``a snapshot in time,'' of course that's
true of everything in life. A report is a snapshot in time.
This particular report was 3 months before the end of the year
when the money has to be spent.
So, Senator, I have great respect for you, and we will see,
once the end of the year comes, what cleanups took place and
what didn't. Even the most optimistic figures of the
Administration--could you put up the chart that shows the 80
sites cleaned up by the Clinton Administration--this is the
Administration's own estimates of what they're going to clean
up. The revised estimates are down to 40 sites, compared to the
87 we did under Bill Clinton, so we are really talking about a
major cut. That's their plan that they admit to, without
getting to the specifics of what sites, so you're looking at a
cut in half. That's just the facts.
You could argue that maybe they're cleaning up the harder
sites, and we can get into that debate.
Senator Inhofe. Yes.
Senator Boxer. But the raw numbers I believe speak for
themselves.
Senator Inhofe. But I think it is important to add, Madam
Chairman, that any work that is ongoing at the present time is
not going to be cutoff, it's going to continue. The public was
not led to believe that that's the case, so a lot of terror was
inflicted to a lot of people unnecessarily.
Senator Boxer. Senator, we have people out there who have
been told their sites have been stopped and stalled, so let's
just--instead of debating this now, I'm going to call on
Senator Carper, if I might, followed by Senator Jeffords.
Senator Carper. I'd like you to continue debating.
Senator Boxer. Well, we'll debate this until November, I'm
sure. Go ahead.
OPENING STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR FROM
THE STATE OF DELAWARE
Senator Carper. I watched Senator Nelson and Senator
Torricelli come into the hearing room. Looking at the four of
us up here, I am reminded that, I think in 1986, when Superfund
was modified and some major changes were made to it, I think we
were all serving together in the House of Representatives. One
of the reasons why we made those changes is because they needed
to be changed. Along the way we've made some changes, not so
much legislative but certainly administratively.
While there is plenty of work still to be done, I think it
is probably worthwhile to say today, roughly two decades after
the first legislation was adopted, a great deal has been
accomplished. Roughly half the sites that were identified have
been cleaned up, and we're well on the way to cleaning up a
number of others.
Like some of you, I share a concern that we don't sort of
sit back and rest on our laurels. There's obviously more that
ought to be done. And I hope, as we hear from our colleagues
and others who follow, that we will be able to figure out what
we're doing well and where we need to make some further
modifications.
I look forward to hearing from our first two lead-off
witnesses especially. Thank you.
Senator Boxer. Thank you, Senator.
Senator Jeffords?
Senator Jeffords. I don't have an opening statement.
Senator Boxer. OK. Senator Crapo? Welcome.
OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM
THE STATE OF IDAHO
Senator Crapo. Thank you very much, Madam Chairman. I
appreciate the fact that we're holding this hearing and I look
forward to the testimony that will be brought before us today,
both from members of the Senate, as well as Assistant
Administrator Horinko and our IG. We appreciate your coming.
I just wanted to say I had to step out during some of the
conversation that took place, but I, too, hope that one way or
the other we will not lose sight on our focus of comprehensive
reform of the Superfund statute. We have been working on this
now for at least a decade or more. My political involvement
here has been over the last decade almost on this issue, and I
believe that there is a crying need for major reform that will
help us to be much more effective in putting resources where
the need is and making sure that we get the cleanup
accomplished in ways that need to be done.
In that context, I look forward to working with all of my
colleagues on the committee to try to find a path forward. We
have been battling over one thing or another for too long, and
hopefully we will be able to find a path that will give us a
route out of the political and the partisan bickering that
takes place and toward some type of a compromise plan that can
maybe not give every one of us everything we want in the reform
process, but at least help us find those areas of common ground
where we can work forward.
I also look forward to the testimony today, and if I am
able to be here through the entire hearing and have a chance to
ask questions, I'd like to discuss with our friends from the
EPA some of the issues we have going in north Idaho right now.
Again, I look forward to this opportunity. Thank you, Madam
Chairman, for holding the hearing.
Senator Boxer. Thank you, Senator Crapo.
Let me just say I hate partisan bickering. I do welcome
debate. You know, when we have different philosophies, I think
that's good for us. And I don't view this as partisan, since we
have Senator Chafee and I together on this and Senator
Jeffords--Democrat, Republican, Independent. So I really don't
see this committee as being particularly partisan and I welcome
the debate and I respect differences, for sure.
Senator Crapo. Well, Madam Chairman, I agree with that. In
fact, I think one of the things that makes America strong is
the clash of ideas. You know, the fact that in America we can
have differences of opinion and engage in solid, strong, open
debate on that is healthy, and so I don't have a problem with
that at all, Madam Chairman.
Senator Boxer. Wonderful. Senator Nelson, you came first.
Do you mind, Senator Torricelli, if I call on your colleague
first? Senator Nelson of Florida.
STATEMENT OF HON. BILL NELSON, A UNITED STATES SENATOR FROM THE
STATE OF FLORIDA
Senator Nelson. Madam Chairman, you and I have discussed
this issue at length, and I just wanted to come and offer some
support to the inquiry of this committee about the importance
of funding the Superfund trust fund. Senator Carper, it was
1980 when I was in the House that we voted on setting up the
Superfund, and one of the deals struck when we passed it was,
in order to get the oil companies and the chemical companies to
come together so that we could--you know, we had to do some
bargaining. One of the things was that the oil companies had a
great deal of liability hanging over their heads, and so, in
exchange for them being willing to contribute under the theory
that the polluter pays, the oil companies' liability was
removed, and that the trust fund, under the theory that the
polluter, not the taxpayer, would pay, would fill up this trust
fund so that, as we found these sites all over America, that
there was a pot of money that we could go to when we couldn't
hold the polluting party responsible because they had gone
bankrupt or they had flown the coop or they were in jail, or
whatever it was. Then there was a pot of money that we could go
to.
Now, we've got five of these Superfund sites in Florida,
and I just want to briefly sketch some of those for you so that
you can see how this is affecting us. But this is the year
2002, not the year 1980, when we enacted the law. Of course,
what has happened, with it being denied in the mid-1990's to
continue with the funding into the fund--the fund is dwindling
so that you're going to have just a few million dollars next
year in the fund, and what is the result is what is happening,
and we'll give you a case example in Florida.
Take, for example, these five sites. There are three of
them in the Pensacola area. No less than the Chamber of
Commerce has come to me and come to Senator Graham and to their
Congressmen--so this is bipartisan in nature. They are scared
to death that the future quality of life of their community,
their ability as a Chamber of Commerce to attract business,
their ability as a Chamber of Commerce to expand business that
is already there, this cloud of potential pollution is hanging
over Escambia County and the Pensacola area. There's no wonder,
because the health statistics for Escambia County and the next
county to it, Santa Rosa County, are very troubling, because
the rate of cancer deaths per 100,000 people exceeds the rest
of Florida's rate in every category, so is there any reason
that the Chamber of Commerce is concerned.
By the way, Pensacola is the cradle of Naval aviation, and
that, of course, is the main engine that drives that economy,
but they have diversified over time, so they just can't have
the kind of community they want unless these sites can be
cleaned up.
Now, we're not only talking about the forms of cancer in
Escambia and Santa Rosa counties have far exceeded the national
rates, but the childhood cancer rates have been among the
highest in the Nation over the past decade, and Escambia
County--that's Pensacola--is in the top 40 in childhood cancer
rates. So, needless to say, not only the environmental
community but the business community has come and asked us to
plead their case in front of you.
But I want to take another case. Let's go down to a
different part of Florida and there is something known as
``Solitron Microwave'' in Port Salerno. If you pick up the
``New York Times,'' this is to day's article. What happened
down there is you had this Port Salerno microwave, old plant,
that started leaching all of this stuff into the ground. We
have a high water table there. You get your water from shallow
wells. The place became so contaminated that the water supply,
they couldn't do it. So EPA promised, ``We're going to send you
to 150 homes. We're going to send you public water through a
public water system,'' and that has now been delayed because
there's no money in the kitty.
So what they did in Florida and what the substance of the
``New York Times'' article today is they're trying to figure a
way around it. The Florida Department of Environmental
Protection had some extra money, so they went and borrowed
that. Now, they're not quite sure this is legal, what they did,
and that's another question, but there are 150 homes that have
got to have a clean water supply. Their theory is they're going
to give them a credit on whatever the future EPA projects would
be for the State of Florida. That's what they're trying to do.
It is band-aiding and chewing gum, patching together something
that ought to be a reservoir of money.
Then I'll give you another one. Trans-circuit is in a
community down in Palm Beach County called Riviera Beach, and
it is a middle class, minority community that has been fighting
contaminated drinking water problems for 20 years. The money is
not there.
Last year EPA signed a record decision with Trans-circuit,
a former electronics facility site, which noted the need to
continue to operate a certain kind of machinery to
decontaminate the water until the EPA cleanup could be
performed, and that region requested a pitiful, paltry $200,000
for this machinery, but that money has not come through yet.
It's just another example.
And I want to tell you about one that I went to personally.
It's 12 miles west of Orlando. It's right near a big lake
called Apopka. Apopka used to have 4,000 alligators. Today,
Apopka has 400 alligators, and some of them have mutated
bodies. Now, there are a lot of sources of pollution into Lake
Apopka, but let me tell you one of the sources. This old Tower
Chemical plant where, honest indian, they brewed DDT--they
boiled DDT to get a derivative, and all of this stuff spilled
over into a natural crevice, a kind of little pond area. The
problem was that natural crevice was a sink hole. It went right
down to the Floridian aquifer, which is this big sponge of
water all over central Florida that supplies central Florida
with its water supply. Some of it even spilled over the edge of
this sink hole into a creek that flowed directly into Lake
Apopka.
I went out there, and this thing has been abandoned now
since the late 1980's or early 1990's. There are houses all
around it, and what they want to do is to get special water
filters on the wells for these houses. I did everything. I want
to commend the EPA project manager. I mean, he understands the
importance of this. He's out of Atlanta assigned to this
particular project. It's just gut-wrenching to him that all
these folks around him don't have these water filters.
And so, I think because we kicked up such a fuss, now the
residents are going to finally receive the water filters that
they need to safeguard for the time being until that whole site
can ultimately be cleaned up.
Now, my question to you--and I conclude with this--is: why
do these communities need to continue to suffer? Why have some
of the 33 communities listed in the Inspector General's report
as lacking money now received funding and others have not?
We need to take these communities that are at great risk
and be sure that we get the funding to them, and there's no
better way to do that than to go back to the principle of the
polluter pays and replenish that trust fund.
Thank you, Madam Chairman.
Senator Boxer. Thank you so much, Senator. You have brought
home to us why we're here, what we're supposed to be doing, and
I can't tell you how helpful you have been to me as we fight
this issue. Thank you.
Senator Nelson. May I be excused?
Senator Boxer. You may be excused.
Senator Nelson. I'm going to Iraq.
Senator Boxer. You are not.
Senator Nelson. It's in the Foreign Relations Committee.
Senator Boxer. Good. I'm supposed to be there, too, but
I'll stay here for the moment.
Senator Torricelli, I am so glad you are here. No one, I
just want to say for the record, has talked to me more about
this Superfund program and the need to reinvigorate it with the
Superfund fee and to move forward, and no one has more sites in
his State than Senator Torricelli. Senator Corzine the same way
has been just--the two of them have been constantly talking to
me about it.
Senator Torricelli. Thank you.
Senator Boxer. We have the second number of sites, so we
are giving you that title for the moment. But I want to make
sure that we all reduce--and there is, on cue, your partner,
Senator Corzine. Senator Torricelli, I hope you are just going
to lay it out here for us like you laid out to me on the floor
of the Senate very often when you grabbed my ear. Please let us
know why it is important to get this program up and running.
STATEMENT OF HON. ROBERT TORRICELLI, A UNITED STATES SENATOR
FROM THE STATE OF NEW JERSEY
Senator Torricelli. Thank you, Madam Chairwoman and members
of the committee. Thank you for this opportunity.
It is actually difficult to understand why we have to be
here. Senator Carper noted that this is a conversation that was
held almost 20 years ago in the U.S. Congress. Democrats and
Republicans came together in a Republican Administration and
made a promise to the American people. There were industrial
sites around America where ownership was still clear, and there
the responsibility was with those companies. They would be
forced to pay. Where there were orphan sites, we could not find
those responsible, in fairness to the American people we would
not do the double damage of forcing them to live with these
polluted sites and force them to use their personal income
taxes to pay for them, and so a fee was placed on the
petrochemical industry, those that had the source materials
that in some way would bear some responsibility, and the sites
would be cleaned.
John Corzine and I probably represent as much of that
chemical industry and petrochemical industry as anybody in the
Nation. I've never had a single company complain to me that
they are paying this fee, not one. This isn't coming from the
corporations. This isn't the practical part of doing business.
This is an ideology.
Members of the committee, you're right, this shouldn't be a
partisan fight. It never was a partisan fight. Ronald Reagan
supported this fee. Former President Bush supported this fee.
Republicans in the Congress supported this fee. The country
hasn't changed. The philosophy of some of those that were part
of this arrangement has changed.
I thought Senator Nelson made a good point that I've heard
Senator Corzine make many times--this is also part of a
comprehensive settlement. We would list liabilities from those
in the industry that faced potentially billions of dollars
worth of exposure in exchange for them paying this fee. Now
they don't have the liability, but now they're not paying the
fee.
This hearing never should have been necessary. This should
have been reauthorized years ago without a beat, but here we
are back. What can you say of the Superfund? Here's my analysis
of the Superfund: it's no longer super and it isn't much of a
fund. If this is only being paid by the American taxpayers, it
isn't super; and a fund that has dwindled from over $3 billion
to $28 million isn't a fund. The more honest thing would be to
cancel the program and just do this through the EPA and the
American taxpayers' money, because that's what we're doing.
You're maintaining a false facade telling the American people--
giving them the impression that someone who is responsible is
paying to clean up these sites when, in fact, it is being paid
out of money that should be going to educate their children,
pay down the national debt, reduce their taxes, pay for
prescription drugs. Instead, we're paying the obligations of
corporations that have escaped their responsibilities.
Well, as the chairlady noted, Senator Corzine and I have
the distinction of representing a State with 111 of these sites
in the most densely populated region of the Nation. There is no
one who could sit here today and tell you that there's a
connection between the fact that we have the highest cancer
rates and the most Superfund sites. I can't give you the
science, but, like Senator Nelson, is there anyone here who
really doubts it? Do you really think there's not some
connection?
Chemical sites, dangerous substances sitting atop well
water, leaching into the ground, getting into dust particles,
blown into the air, ingested by people. What are we thinking?
Whatever could somebody have in mind who is opposed to
restoring this fund and getting these sites cleaned? It's not
as if we were participating in a failure. We have stopped a
success. It's almost as if we said, ``It's going too well.
We're doing too much. Stop us before we solve the problem.''
The Clinton Administration, as the chairlady noted, got to
the point we were cleaning 80 sites. That will reduce this year
by more than half. Four of those are in New Jersey of enormous
importance to the people of my State: Chemical Insecticide in
Edison of New Jersey, Burnt Fly Bog in Marlboro, Montgomery
Township Housing Development in Rocky Hill, and Somerset
County. Another five have had their funding severely reduced.
The most important of these to me was the Chemical
Insecticide site in Edison. Cleanup was to begin this November.
I'm not going to prolong my testimony before the committee, but
I want you to understand what this means. This is among the
most densely populated communities in among the most densely
populated county in the most densely populated State in the
Nation. Here's what Chemical Insecticide means to people who
live there. Agent orange was manufactured there during the
Vietnam War. It is so contaminated that rabbits living on the
site have turned green through a mutation called ``dinoset''
from a pesticide found there in large quantities. For years
children played there. The truth was never told to the
community about agent orange or the impacts. A generation of
children have now grown up in America, without doubt that some
of these elements are in their bodies.
It will cost $40 million dollars to clean the site.
Wildlife is still throughout the region. As I noted, cleanup
was to begin in November of this year. The EPA has now
announced there's not enough money to begin, perhaps for
several years to come.
Among all the brave colleagues we have who will stand there
in defense of the industry who would pay this fee, is there
anyone so brave that you will come to Edison, New Jersey, and
speak to the mothers and the fathers whose children played on
this site? Anybody so convinced of your position that you'll
explain to these people that the Federal Government does not
have the resources or the will to continue the Superfund, to
protect their children? I doubt it. That's what you should do.
Isn't an explanation owed?
As I told you that story, I can tell you another ten,
another twenty. Behind all of them is a family that wonders why
their infant child had a birth defect, why somebody is ill, why
they lost somebody in the family. I can't give you the science,
but I can give you the reasoning.
This fee will be authorized. We will fight this battle as
long as it takes. I have already filed amendments in the
Legislation and Finance Committee. I will return until it is
done. It is not right and it is not fair that we don't restore
this.
Yes, Madam Chairlady, it should be bipartisan. As I noted,
it always was. Without Ronald Reagan's signature we wouldn't
have had a Superfund. A lot of this engineering for sites that
Bill Clinton cleaned up, the engineering was done under former
President Bush. It always was. But for a few brave souls, it
isn't now.
If I could, I'd like to submit my full testimony for the
record and spare you the rest of my comments.
Senator Boxer. Thank you so much, Senator. You've added
enormously to this debate.
Senator Corzine?
Senator Corzine. Do you think I want to follow Senator
Torricelli with my remarks?
[Laughter.]
OPENING STATEMENT OF HON. JON S. CORZINE, U.S. SENATOR FROM THE
STATE OF NEW JERSEY
Senator Corzine. You know, the concept that we are turning
our back on the 77,000 people that live and work around this
chemical insecticide plant that's got a tarp that lays over the
top of this that's punctured with holes is our response to
clean up of a Superfund site, and realizing that there are
people where the concentration of cancer contraction is higher
than in normal population rates is just unfathomable to anyone.
You don't have to be a Democrat. You don't have to be a
Republican. You just have to be a human being to understand
that something ought to be done about these kinds of risks to
our population.
I can't say it as well as Senator Torricelli has, but I'd
like to see the people come to Edison and say that this is
responsible behavior on the part of our Nation, given the
commitment we have to try to protect the health and safety of
our population.
This is terrorism, in itself, and I believe that we made a
bargain in 1980 about how we were going to put together these
situations. The idea that we waive liability and that stays in
place and we pull away the revenue-raising element to fund the
Superfund site is unconscionable, in my view. The idea that we
are not taking those steps to make sure that the Superfund is
exactly what it is supposed to be--a bipartisan-created vehicle
to protect the health and safety of our families and our
communities--is, without question, a meritable objective of
what I think we should be doing here, and I hope we can go
visit every one of those four sites in New Jersey that Senator
Torricelli talked about to demonstrate that the need is real,
that the risk is real, and that we need to have the resources
to deal with this and ask others to come and do it.
I have a statement that I'd put in the record if the
chairlady would allow.
Senator Boxer. Without objection.
[The prepared statement of Senator Corzine follows:]
Statement of Hon. Jon S. Corzine, U.S. Senator from the State of New
Jersey
introduction
Thank you, Madame Chairman. I want to thank you for your commitment
and leadership on Superfund. I also want to welcome our colleagues to
the committee, particularly Senator Torricelli. Senator Torricelli has
been fighting to clean up New Jersey's Superfund sites his whole career
in Congress. It's been an honor for me to join him in that effort.
Madame Chairman, it's an unfortunate fact that you're never far
from a Superfund site in New Jersey. We have more sites than any other
State, and I have visited many of these sites already in my first term.
When you talk to the people who live around these sites, you hear
about cancer clusters. You hear about contaminated streams, and rabbits
that have turned green from exposure to chemicals. And you hear the
frustration of people who can't get a straight answer from EPA about
when a site is going to be cleaned up.
Madame Chairman, I share my constituents' frustration, because I
can't seem to get a straight answer out of EPA either. It's been almost
4 months since our last hearing on this issue. At that time, I asked
EPA about whether cleanup of the Chemical Insecticide Corporationsite
in Edison, New Jersey would be funded this year. The answer I got was
``we don't know and we can't tell you.''
the chemical insecticide corporation site
Madame Chairman, you have alluded to the Chemical Insecticide
Corporationsite in your testimony already, but I think it's worth
talking about in a bit more detail. From 1954 to 1972, pesticides,
herbicides, and fungicides, including Agent Orange, were manufactured
there. After the owner went bankrupt, the residents of Edison were left
with a vacant lot with heavily polluted soil and groundwater.
Contaminants at the site include arsenic, heavy metals, pesticides, and
dioxins. Many of these are known carcinogens. The Agency for Toxic
Substance and Disease Registry examined the site and declared it a
``Public Health Hazard.''
This site was added to the Superfund list in 1990--12years ago. But
not much happened at the site until local residents got actively
involved. In April, one of these people, Bob Spiegel, testified before
the Environment and Public Works committee about the site. I won't read
the full testimony, but I want to quote his description of his first
encounter with the site. Mr. Spiegel said, quote:
``In the spring of 1991, a friend asked if I wanted to see
``green'' rabbits. Armed with a video camera, we took a short ride to
the Chemical Insecticide Superfund Site. The first thing that struck me
was the smell--the smell of death and decay. Nothing grew on the
property except a strange florescent green moss. Small animal carcasses
littered the area, and there were, indeed, ``green'' rabbits living
there. The rabbits had developed an abnormal greenish yellow undercoat
that I would later discover was the result of Dinoseb, a pesticide
disposed of in large quantities throughout the site.
We followed a trail of yellow liquid draining from the back of the
site downstream past a neighboring industrial bakery and into the
Edison Glen and Edison Woods residential developments. There we video
taped a child playing in the poisoned stream who told us
it was a good place to hang out and look for frogs and turtles. I
subsequently found out that the vacant CIC lot was a playground for
local children, the chemical lagoons were their wading pools, and
adults routinely scavenged materials from the site.''
Madame Chairman, this site has taken a toll on the community.
Several people who live near the site or worked near the site have died
of cancer that they believed was linked to the pollution. One of the
families affected was that of a local police officer, who developed a
rare blood disease, and whose wife developed reproductive problems.
Property values have been hit hard as well.
With the prodding of local residents like Mr. Spiegel, some
progress has been made at the site through the Superfund program. EPA
has cleaned up some areas in nearby residential developments. In
addition, EPA has put a liner on top of the site to keep contaminants
from continuing to wash off of the site. And they have decided what
they need to do to clean up the site. In January of this year, the end
appeared to be in sight, when an EPA employee told residents at a
public meeting that cleanup would begin in November. But EPA has since
said that they don't think cleanup may not go forward due to lack of
funding.
epa has not been forthcoming with information
As I mentioned earlier, I asked EPA at our last hearing about
whether the CIC site would be cleaned up. EPA told me that they didn't
know and couldn't say. Several weeks later, the EPA Inspector General
released a report showing that cleanup at 33 sites in 19 States are not
going forward because of funding shortfalls. Five New Jersey sites were
on this list, including the CIC site.
According to the IG report, the EPA Region 2 office requested $28.5
million for this fiscal year to begin final cleanup at CIC, but no
funds have yet been provided. And according to information on EPA's
website today, EPA has still not committed any fiscal year 1902 funds
to cleaning up this site.
Madame Chairman, this is unacceptable. We have EPA information to
suggest that among Superfund sites where cleanup is not going forward,
the CIC site is one of the most hazardous to human health. We also know
from people who live near the site that the temporary remedy--a tarp
placed over the site--is failing, and that toxins are once again
washing off of the site when it rains. How can EPA possibly continue to
justify not cleaning up this site, Madame Chairman?
Madame Chairman, I expect answers today about that site, and about
how the funding process works at EPA. Because the story of the Chemical
Insecticide site is the story of just one Superfund site. I have
focused on it because it is one of the most dangerous sites in the
country, and it is not being dealt with. But similar stories could be
told about many other sites in New Jersey and in States across the
country. It is our duty to ensure that these sites get cleaned up, and
we need much better cooperation from EPA so that we can understand what
is going on in the program.
We also need to address the macro issue of funding. We know from
the Inspector General report that there is a funding shortfall of more
than $200 million in fiscal year 1902 alone. We also know that the
Superfund is nearly bankrupt.
When the Superfund tax expired in 1995, the Superfund had a balance
of $3.6 billion dollars. Since that time, the balance of the fund has
steadily dropped. According to the president's FY'03 budget, the fund
will have only $28 million left at the end of the next fiscal year.
That's not even enough to fully cleanup the one site that I have been
talking about in New Jersey.
So when the Superfund runs dry at the end of the next fiscal year,
the entire Superfund budget--which has been $1.3 billion per year in
recent years--will be paid out of general revenues. As we all know,
we're in deficits now, so that money will be coming out of the Social
Security Trust Fund.
That's just not fair. It's not fair to ask the people of Edison, NJ
to pay to clean up the Chemical Insecticide Corporationsite. And it 's
not fair anywhere else in this country. The polluters ought to pay.
That's why we need to reinstate the tax. And we need better cooperation
and more transparency out of EPA.
Thank you, Madame Chairman.
Senator Boxer. Before Senator Torricelli leaves, let me say
in public now I make a commitment to both of you: if we do not
resolve these issues by the end of the fiscal year, come
October I will be at Edison and wherever else you want me to go
to demonstrate this subcommittee chair's interest in this. And
if Senator Jeffords is available, I have a hunch he might be
interested in coming, as well, but I speak for myself as chair
of this subcommittee.
Senator Jeffords. I certainly would. I'd like to just make
a comment.
Senator Boxer. Please do.
Senator Jeffords. It seems strange to me that the
Administration will be willing to spend billions of dollars to
reorganize in hopes of stopping an act of terrorism, but won't
spend the millions necessary for the things that are already
done, which are incredibly dangerous to our society, whether it
is air pollution or whether it's the cleanup of these sites.
This is just wrong that it's not being taken care of.
Senator Boxer. Senator, thank you. Thank you very much.
I think what we're going to do is ask our next witnesses to
come up--that's EPA and the Inspector General. Should Senators
Kerry and Schumer show up, we're going to accommodate them, but
we're going to move to the witnesses, and when there is a vote
we're going to break and come back.
I'm going to call on Ms. Tinsley, who is the Inspector
General for the U.S. Environmental Protection Agency. Welcome.
We're going to hope you keep your remarks to 5 minutes, if you
can. Please proceed.
STATEMENT OF NIKKI TINSLEY, INSPECTOR GENERAL, OFFICE OF THE
INSPECTOR GENERAL, U.S. ENVIRONMENTAL PROTECTION AGENCY,
WASHINGTON, D.C.
Ms. Tinsley. Chairman Boxer, members of the subcommittee,
I'm pleased to be here to speak about the Office of Inspector
General report on funding the cleanup non-Federal National
Priority List Superfund sites and about how my office went
about doing our work.
On April 17th of this year we received a letter from
Congressmen John Dingell and Frank Pallone, Jr., of the House
Committee on Energy and Commerce requesting our assistance in
identifying the funding needs of each non-Federal Superfund NPL
site. In the letter, the Congressmen expressed concerns that
EPA was falling short of its cleanup goals in fiscal year 2002
and, accordingly, they asked us for two things: first, to
identify and summarize the funding needed for each non-Federal
Superfund NPL site; and, second, to provide the remedial action
prioritization list for each region and any similar nationwide
document. They wanted us to provide the information fairly
quickly, so we could not do the type of detailed analysis that
we would normally do if we were doing an audit or an
evaluation.
As I describe the information that we provided the
Congressmen, I'd like for you to keep in mind that these
figures were accurate as of the date we completed our field
work. If the same information were requested today, some of the
figures could be different because EPA headquarters provides
funds to the regions on a quarterly basis. And, in addition,
EPA sometimes de-obligates funds from some sites and moves them
to other sites for cleanup activities. So, in essence, as we
heard earlier, the report represents a snapshot in time.
To gather the site-specific funding information for the
report, we obtained information on remedial actions and long-
term response actions from officials in EPA headquarters and
regions. We asked questions about the processes for requesting
and allocating funds, about the officials' perspectives and
their concerns regarding the processes, and about the impact of
not receiving funds. I've attached our complete report to the
testimony, so I'm not going to go into a great deal of detail
on the details and specifics, but, in summary, we found that
for fiscal year 2002 EPA regions had requested $450 million for
remedial actions, and headquarters had budgeted $224 million.
Enclosure three to the letter shows that the regions had
received just over $159 million at the time we did our field
work.
As the report indicates, some regional officials expressed
concerns about funding. For example, a Region Four official
told us about two partially funded sites that would require an
additional $6 million this fiscal year to maintain cleanup
progress. That official, as well as officials in Regions Six
and Eight, spoke of sites ready to start remedial activities
that lacked funding. A Region Seven official told us that the
remediation phase for several mega-sites may be lengthened
because sufficient funds are not available. For example, the
region may need to stretch a 5-year, $100 million cleanup to 10
years, given the current funding levels. Above all the
operational concerns, however, is the concern that, when
sufficient funds are not provided, the risk presented by a site
may not be fully addressed.
With regard to the remedial action prioritization list, the
regions did not have such lists. Instead, regions provide a
listing of sites to EPA headquarters and the EPA National Risk-
Based Priority Panel develops a national prioritized list. EPA
considers this list to be enforcement confidential and
maintains that it should be withheld under Justice Department
guidance. In accordance and in compliance with that guidance,
we did not release the----
Senator Boxer. Would you repeat that one more time, the EPA
has a priority list? Just repeat that.
Ms. Tinsley. The EPA considers the list to be enforcement
confidential.
Senator Boxer. OK.
Ms. Tinsley. And under Justice Department guidance that has
to do with FOIA--and actually I've got this. This is all laid
out in the report, and I can be more specific----
Senator Boxer. But there is a list at the headquarters?
Ms. Tinsley. There is a list.
Senator Boxer. Of priorities?
Ms. Tinsley. Yes.
Senator Boxer. OK. Because I was told there wasn't such a
list. But that's OK. I'll wait to ask Ms. Horinko later. Go
ahead.
Ms. Tinsley. And actually that concludes my remarks.
Senator Boxer. Thank you.
Ms. Horinko?
STATEMENT OF MARIANNE LAMONT HORINKO, ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S.
ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C.
Ms. Horinko. Good morning, Madam Chairman and members of
the subcommittee. I am Marianne Horinko, EPA's Assistant
Administrator for the Office of Solid Waste and Emergency
Response, and I am pleased to appear once again before the
subcommittee to discuss the Superfund program and the important
challenges we face as the program enters its third decade. It
is also a pleasure to appear here today with Nikki Tinsley, our
Inspector General at the EPA.
I appreciate this opportunity to set the record straight
and clear up some of the myths that have been reported in the
media recently about the Superfund program. I'm afraid the
recent headlines have shed more heat than light on the program
and the hard work that goes on day in and day out in our ten
EPA regions and in the States cleaning up toxic waste sites to
protect public health and the environment.
Here are the facts: the overall cleanup funding has
increased in the President's fiscal year 2003 budget--$1.3
billion for Superfund over the last several years, and $200
million for brownfields. That is a doubling of the brownfields
budget. Thirty-three Superfund sites did not get their funding
cut. That myth is fast becoming an urban legend. It is time to
put that myth to rest. All Superfund sites with ongoing cleanup
work have been funded, and we are hard at work funding the new
construction starts.
The response released by the Inspector General did not
contain any list of sites that have purportedly had their
funding cut. The IG response, indeed, was a snapshot in time
that reflected EPA's funding decisions as of May of this year;
therefore, it did not capture the Superfund site funding
decisions that have historically occurred in the third and
fourth quarter. Our process for funding Superfund sites has
been in place for many years, and I'm pleased to say the
process has produced more funding decisions. EPA has funded 11
of the 33 sites that appeared in the press for construction
work.
Further, as expected, some sites identified early in the
year for potential candidates for construction funding do not
actually need construction funding this year. Every year site-
specific conditions change. Engineering designs may take more
time, potentially responsible parties may be identified, or
other new issues developed that may prevent the site from
reaching the construction stage. EPA will make further funding
decisions as moneys become available from our annual effort to
de-obligate moneys from expired Superfund contracts, inter-
agency agreements, and grants. We expect those efforts to yield
an additional $40 million in cleanup funding.
In addition, I want to thank the Senate for providing EPA
the $12.5 million in reimbursement for our Capitol Hill cleanup
activities. Upon receipt from the Capitol Police Board we will
be able to restore those funds to the Superfund program and put
the diverted funding back to work in communities.
It is certainly fair to say the program is facing new
challenges; however, it is not fair to say that the EPA and the
dedicated men and women in the program are walking away from
Superfund sites. We are vigorously managing a mature program
that has more cleanup construction underway now than ever
before. We are faced with larger, more costly, and more complex
sites to complete than the sites that have been completed in
the past. One of the charts that I have provided the committee
shows how the number of very large, complex sites that exceed
$50 million in cleanup costs and Federal facility sites have
become a much larger percentage of sites that have not yet had
cleanup construction completed. Managing these large, complex
sites, itself, presents new challenges, but I can assure you
that protecting public health and the environment remains a top
priority for EPA and the Superfund program.
On September 1, EPA can release the funds held back by
Congress in our appropriations bill. These funds, together with
the money we de-obligate, will allow us to fund more sites in
this fiscal year. We will be pleased to notify the members of
this committee, other Members of Congress, and State and local
officials when these funds are released, and I am pleased that
this recent Senate, VA, HUD, and Independent Agencies
appropriations bill has removed the September 1 hold-back
provision, which will give the Agency greater flexibility. We
are very thankful for that.
The Superfund program depends on appropriations to fund the
30 percent of site cleanups that aren't performed by
responsible parties. We work as hard as we can to identify
these responsible parties and hold them accountable for
cleaning up sites. EPA set a near record in fiscal year 2001 in
securing $1.7 billion in Superfund cleanup commitments and cost
recovery. In particular, we appreciate your support for the
nomination of J.P. Suarez as our Assistant Administrator for
Enforcement. It is important to have him confirmed and on the
job to continue that commitment to polluter pays.
I am afraid that there is a mistaken impression that by
reinstating the lapsed Superfund taxes that EPA would have all
the resources it needs to clean up the 30 percent of sites that
aren't cleaned up by private parties. Like many of the
challenges we face, this is not a simple issue. Superfund taxes
building a balance in the Superfund trust fund do not
necessarily provide EPA directly with funding. One of the
charts I have provided the committee shows that Superfund taxes
and a growing trust fund balance have not necessarily provided
EPA with any increased appropriations. Historically,
appropriations have stayed essentially level, notwithstanding
the balance in the Superfund trust fund.
EPA and the program have responded to challenges before,
and I am confident we will do so again. A program disparaged as
a failure in the 1980's turned a corner in the 1990's, thanks
to bipartisan reforms launched by President Bush and continued
by President Clinton. I'm looking forward to working with
Congress in that same bipartisan spirit, and I'm pleased to
hear that we are not going to turn back the clock and start
bickering about this program's future. The American people care
about this program and they deserve no less.
Senator Boxer. Thank you. Thank you very much, Ms. Horinko.
Believe me, there will be no bickering. There will be major
confrontation and debate, major, big time, until this
Administration, in my view, helps us get that fund. Now, one of
the points I want to make--and we're going to have to break now
and I have to ask your indulgence, both of you, because we have
four back-to-back votes, so we're going to have to take a
sizable break, and each vote is approximately 15 minutes, so
you can see it is going to be a sizable break, so if you want
to go have coffee or whatever, we will have Patina get in touch
with you by phone so you can come back. There's no point in
just sitting here, because it is going to be a long wait.
There are a couple of things I want you to think about
during the break so I don't surprise you. You said these sites
are complex and they're expensive and they're hard. The story
in the ``New York Times'' talks about a $1.2 million problem
that you couldn't find. It's unreal. A $1.2 million problem--
you couldn't find--$1.4 million problem, you couldn't find the
money.
And the other thing I want to ask you is: if you think this
is interesting that when the fund was filled we remained flat,
what's going to happen when the fund is cold, empty? Do you
expect that the taxpayer's going to pick up 100 percent of the
funding? That's exactly where we're headed. So I want you to
think about those things while we break to vote. We will come
back and have more debate. Thank you.
We stand in recess.
[Break.]
Senator Boxer. The subcommittee will come to order.
There continues to be yet another vote in just a few
minutes. So you need to know that I won't torture you with a
lot of questions, because I can't. I would if I could, but I
can't.
[Laughter.]
Senator Boxer. So I'm going to nonetheless ask a couple of
questions.
Ms. Horinko, one of the questions I have is that one of the
hearings, the last time, you said there was no list anywhere
about sites. And we were told by Ms. Hinkley very clearly in
her testimony that in fact, there isn't a list in the regions,
but there is a list in Washington. Could you explain why you
told us there was no list?
Ms. Horenko. Madam Chairwoman, I'd be happy to. The list
that I believe you were referring to at the last hearing, that
you were asking for, was a list of the sites that won't receive
funding in this fiscal year. And I tried to explain that we
don't know until the end of the fiscal year is over which sites
will or will not receive funding.
Senator Boxer. Well, if I had a list of what was going to
receive funding, I could make sense out of what was off the
list, is that correct?
Ms. Horenko. Well, and we did just last week provide to
your office the list that Nikki spoke to, which is the list of
sites prioritized----
Senator Boxer. Well, I'd like to say for the record that I
didn't think that your response was candid. If somebody asked
me, do you have a list of sites that are not going to be
cleaned, and I had a list of sites that were going to be
cleaned, I'd say, no, I don't have a list that aren't going to
be cleaned, but I sure have a list of what's going to be
cleaned, would you like it? So I find it very obstructionist,
and I'm concerned about it, I don't think it's right. I just
don't think it's right. That's one thing.
And, Ms. Tinsley, I want to thank you for the work that you
did, which is to take a snapshot of what occurred at the moment
you took it. That's all we want to know. That's all we were
trying to find out, and you gave us that snapshot. It was a
very disturbing snapshot, and maybe that's why we didn't get it
other places. But I want to just make a formal request to you
today that we take another snapshot in September. Do you need
me to do that in writing with the chairman, with Senator
Jeffords? I want a snapshot. First of all, Ms. Horinko said you
didn't have the information from the third and fourth quarter.
I thought you had information from the third quarter in your
report; is that correct?
Ms. Tinsley. No. I don't think we had all the third quarter
information.
Senator Boxer. So you had the first and second quarters. So
what date would you need to do it so that we'd have a report
from--a snapshot, if you will, of the program, because the year
ends September 30th. I don't know what they're keeping so
secret. We're going to have to find out what's going on. So if
I asked you to do a snapshot on September the 15th, would you
be able to do that for us?
Ms. Tinsley. We can do a snapshot whenever you would like
for us to do a snapshot.
Senator Boxer. Good.
Ms. Tinsley. If you just want something as of that date,
we're happy to do that.
Senator Boxer. Right. Well, that's what a snapshot would
be, because I loved your thinking on this. It was very clear.
``This is what the region asked for, this is what the region
got, and this is what is unfunded from the region.'' Pretty
straightforward, pretty simple. It's what we asked for, which
we never got from them, so we got it from you. That's your job,
and I appreciate that. So I will talk to Senators Jeffords,
Corzine, Clinton, Chafee, and others who are concerned, and we
will send you a letter, a formal letter, asking for you to do
an update on your snapshot that was dated June, and we will
decide what date we think is good, and we may talk to you about
it, Ms. Tinsley, to get your advice.
Superfund makes a rare deal with Florida. It's not the
first time Florida has gotten a rare deal. They got a good deal
on off-shore oil drilling leases that the President is going to
buy. But let me just ask you this question: you couldn't find
$1.2 million to clean up this water supply; is that right?
Ms. Horinko. Madam Chairman, first let me say it was not my
intent to be obstructionist, and we certainly continue to be
committed to work with your staff and be responsive.
Senator Boxer. I know. It may not have been your intent,
but you were. If you had a list of what was going to be cleaned
up, then all you had to do is say, ``I have that list. Let me
give it to you, and by process of elimination you can see what
isn't.'' So to say it is not your intent, it doesn't wash. That
doesn't make it better, Ms. Horinko, but I appreciate it. Go
ahead.
Ms. Horinko. In the interest of time--I know you want to
get to this issue--at the Solitron Microwave site the process
really focuses on the risk, and so when new sites come in to us
and request new projects for funding, those projects are
reviewed once a year by our National Risk-Based Prioritization
Panel, which is our regional senior career managers that meet
and review. They rank the risks at the site, the actual or
potential human health risks, the environmental risks at the
site, and then other construction factors, other special
factors such as environmental justice, and rank all the new
starts once a year.
This particular request for the water lines did rank
relatively low because the wells in question are not actually
contaminated. The State wanted to go ahead and put the water
lines in as a precaution. We are funding the study. We did fund
the remedial design for those water lines and we are funding
more than half a million dollars for the remedial design for
the groundwater cleanup this year, and we are very hopeful to
be able to fund that actual cleanup beginning in October of
2003, so I really commend EPA Region Four for working with the
State to find an innovative solution here. States are required,
as you know, by the statute to pay a 10 percent cost share, and
this will really allow the State to provide in-kind services to
meet their statutory obligation.
Senator Boxer. You said it wasn't in the water? There was
no problem with the water?
Ms. Horinko. In these particular wells, my understanding
from my Region Four office is that these wells did not have
contamination that exceeded drinking water standards.
Senator Boxer. All right. Let me read to you what the story
is in the ``Times.'' Maybe you don't agree with the story. You
didn't like their last one. ``The Florida site is on about 20
acres owned by Solitron Devices, a Florida electronics firm. It
is polluted by toxic industrial solvents which have bled from
the soil into the local aquifer into the local aquifer--''
meaning water--``with traces turning up in private wells and
the public water supply.'' You disagree with that?
Ms. Horinko. There are wells where traces did turn up, and
those sites were connected previously to the public water
supply.
Senator Boxer. How about in the public water supply? Do you
agree that they turned up in the public water supply?
Ms. Horinko. In some wells--I don't know if it was the
public water supply, but I can get the facts and make sure.
Senator Boxer. Wait a minute. You just said it didn't turn
up in the water supply.
Ms. Horinko. I don't know for a fact if it turned up in the
public water supply.
Senator Boxer. OK.
Ms. Horinko. But I can look into it.
Senator Boxer. Well, why don't you look at it and why don't
you give me an answer as fast as you can.
Ms. Horinko. We'll make sure we do.
Senator Boxer. When you send me the other papers next week.
It doesn't give a lot of comfort to this chair to be given
answers and then, confronted with the facts, given other
answers. Can't you just tell me the truth right up front? You
couldn't find the money, period. The stuff was in the water.
Now you're saying it wasn't a threat? Well, I assure you the
State of Florida didn't look at it this way.
I just think there are so many problems here. It is
unbelievable that a program of this size couldn't find $1.2
million, and if I were the people down there I'd have a pretty
negative attitude toward this President's EPA. I'd feel good
about my State EPA, though.
I wanted to correct something else in the record. When you
showed your chart there--could you hold up that chart again for
me on the funding of the Superfund? Let me make it clear.
President Clinton in 1998 asked for $2,094,000,000. Can you
point to 1998, sir, if you would? In 1998 President Clinton
asked for $2 billion plus. The Republican Congress gave him a
flat line, so let's be clear on what we're talking about here.
The bottom line is this is a major disagreement between
this committee, a majority of this committee, and the EPA. I am
hoping that we get all the information in the next 3 days or 4
days that we want. I told you before that you had one paper
that was marked--a blank piece of paper came to us
``privileged.'' What's secret about that document? Do you put
that on everything? This is the public's program here, the
Superfund program. This is the United States of America. This
is a country of, by, and for the people. It's not of, by, and
for the privileged. And we're going to just work on this until
we get all the facts. I'm going to write to Ms. Tinsley. I'm
going to ask her in a very straightforward way to do what she's
done.
I was also interested, because it appears that the
Inspector General got more information than we did, and Senator
Jeffords is very upset about that. By the way, I'm going to put
Senator Jeffords' full statement in the record, Senator John
Kerry's full statement in the record, also, and Senator
Kennedy's full statement in the record. These Senators are very
concerned.
[The prepared statements of Senator Jeffords, Senator
Kerry, and Senator Kennedy follow:]
Statement of Hon. James M. Jeffords, U.S. Senator from the State of
Vermont
I commend Senator Boxer for conducting today's hearing on the
Superfund program. Oversight of the Superfund program is a critical
task for this subcommittee.
Senator Boxer's efforts have the full support of this committee. In
fact, bipartisan concern over the pace of Superfund site cleanup was
highlighted in a March 8 letter to EPA from Senators Smith, Chafee,
Boxer and myself. Specifically, we wrote seeking information on the
backlog of Superfund sites, which are ready to proceed but stalled by a
lack of funding.
Unfortunately, EPA's response to date leaves many questions
unanswered. What is the reason behind EPA's slowdown of the Superfund
cleanup program? Is the Administration 's refusal to seek
reauthorization of the Superfund taxes contributing to this slowdown?
Is EPA headquarters providing the regions with the necessary guidance
and support to ensure the Superfund program's success?
Here is what we do know:
First, the Superfund program is experiencing a slowdown in the
annual number of toxic waste sites cleaned. From Fiscal Year 1997
through Fiscal Year 2000, an average of 85 sites per year were cleaned
up. This year, 40 sites will be cleaned.
Second, the Superfund tax expired in 1995 and has not been
reauthorized. As a result, the trust fund will only hold $28 million in
fiscal year 2003.
Third, through the General Treasury, taxpayers have picked up the
funding slack. Unfairly, I might add. Nonetheless, fewer sites are
being cleaned despite constant funding for the Superfund program.
Fourth, the Regions are feeling the pinch. In an August 2001 Region
1 Conference call, the minutes noted: ``Overall, based on the poll of
the regions, it appears that we have approximately 52 sites that should
be completed by the end of the Fiscal Year . . . for Fiscal Year 2002,
there will not be enough funding to cover all of the projected needs
and most new Remedial Actions starts could go unfunded.''
One month before the end of the Fiscal Year, EPA was talking of
cleaning 52 sites. The number actually cleaned was 47. What happened to
the other 5 sites?
If a funding shortfall for Fiscal Year 2002 was widely anticipated,
why didn't the Bush Administration request greater funding in its
budget request?
The Bush Administration claims that the cleanup slowdown is because
EPA is tackling more complex sites, which is taking more time and
resources. I find this hard to believe. After all, our cleanup
technologies have vastly improved since the 1980 passage of Superfund.
What could be more difficult to clean than Love Canal before the
expertise we have today existed?
These questions need answers. I find the vacuum of information
unacceptable. I do not wish to question the Bush Administration's
dedication to the Superfund program. However, the conclusions of the
Inspector General's Report furthers my concerns.
As chairman of this committee, I am committed to ensuring the
integrity of the Superfund program. All Americans deserve clean soil
and water. They should not have to worry about their children's health
being affected by a former industrial site in their community. And they
should not worry about when and how a toxic site is cleaned up. It is
my mission to ensure that Superfund functions exactly as it was
intended-to clean up toxic waste sites quickly and completely.
__________
Statement of Hon. Edward M. Kennedy, U.S. Senator from the Commonwealth
of Massachusetts
The lack of funding for Superfund sites across the Nation is a
serious problem that Congress and The Administration have a
responsibility to meet. Massachusetts has two Superfund sites on the
National Priority List that are of great concern to the well-being of
all the citizens in our State. The Atlas Tack Company site in Fairhaven
and the New Bedford Harbor site have a long history of toxic waste
contamination and are serious risks to public health. After years of
legal battles and environmental testing, these two sites are now at the
important construction phase of the clean-up, and they deserve full
funding.
The Atlas Tack Corporation manufactured large numbers of tacks and
nails from 1901 through 1985. The company discharged toxic wastes into
the ground and the wetlands surrounding the site. In 1990, the EPA
added the site to the National Priorities List of Superfund sites. The
EPA released a Proposed Plan in December 1999, identifying the
preferred cleanup alternative. In March 2000, a Record of Decision was
signed identifying the remedy and calling for a three-phase $18 million
clean-up strategy.
New Bedford Harbor is the largest Superfund site in New England. It
is a $317 million project and is one of the oldest Superfund sites in
the country. $72.4 million has been spent so far, including the
remedial design and remedial action. Starting next year and for the
next 7 years, dredging will take place. Each year, $30.1 million is
needed to finish the project. The revitalization of the city of New
Bedford depends heavily on the cleanup of the harbor.
To meet the continuing cost of Superfund clean-ups across the
country, Congress should re-authorize the corporate Superfund tax. From
1981 to 1995, these revenues provided close to $1 billion a year for
the clean-up of these sites. The failure by Congress to re-authorize
the tax in 1996 has shifted too much of the heavy financial burden of
cleaning up these sites to the average taxpayer. In 1997, $1.15 billion
for clean-ups came from the Superfund Tax Trust Fund, and $250 million
came from taxpayer general revenues. This year, only $783 million came
from the Trust Fund share, $676 million came from general revenues.
Polluters who endanger our communities and our environment should be
held responsible. The Superfund tax should be restored, so that
Superfund clean-up projects in States across the country can be fairly
and fully funded.
__________
Statement of Hon. John Kerry, U.S. Senator from the Commonwealth of
Massachusetts
Thank you, Madame Chair, for the opportunity to testify at this
important hearing today. I also want to thank you for your leadership
on Superfund issues in the Senate.
In the 22-year history of the Superfund program, the late 1990's
were the best of times. A record number of cleanups were completed,
achieving the environmental and public health results first envisioned
by Superfund's creators.
Unfortunately, this success is now in serious jeopardy from the
Bush Administration, which is dramatically reducing the number of
Superfund site cleanups completed each year, and allowing critical
funds instrumental to the program's success to be entirely depleted.
We cannot afford to let our nation's superfund program fall prey to
President Bush and his so-called Environmental ``Protection'' Agency.
People in communities all across America are counting on us to save
superfund--not only for the health of the environment, but for the
health of the public as well.
People in communities--like Patty Estrella in my home State of
Fairhaven, Massachusetts where the abandoned Atlas Tack factory leaches
poison every day into the bay--need our help.
There's no disputing the facts. In 2000, the EPA offered a cleanup
plan for the 24-acre arsenic-laden site that we all thought would
actually happen. But 2 years after the plan was approved by town and
State officials, the Atlas Tack site remains nearly as dangerous as it
was a decade ago.
The EPA doesn't deny it. In fact, the EPA's own reports say the
site is a health risk to any human or animal who visits the area or
ingests shellfish harvested nearby.
Knowing this, it's beyond my comprehension that Atlas Tack's
cleanup--once scheduled to start in April--is currently destined to
remain unfunded by the Bush Administration.
We are talking here about a site that is known to contain heavy
metals, cyanide, PCBs, pesticides, . . . We are talking about a site
where over 7200 residents, living within one mile of Atlas Tack, are
being forced to live in a toxic plume.
I want to know this of President Bush--is he willing to go back to
that community and look those families in the eyes and tell them that
he is not going to help?
Because that's exactly what the EPA Inspector General report says
is going on. The report identifies a funding shortfall in President
Bush's budget of more than $225 million dollars which will dramatically
slow the pace of cleanup at our nation's superfund sites. Thirty-three
sites in 19 States are adversely affected--sites like Atlas Tack in
Fairhaven.
The last time I checked, the goal of the Superfund program is to
expeditiously cleanup the most dangerous contaminated toxic waste sites
in the country to protect public health and the environment.
This goal is being seriously imperiled by the slowdown in cleanups
caused by inadequate funding in the President's Budget. But it doesn't
stop there.
By refusing to clean up the sites and then collect costs from the
responsible parties, Bush and the EPA have essentially given the
nation's biggest corporate polluters a multimillion-dollar reprieve.
Throughout the program's history, Superfund cleanups were primarily
paid for by the polluters themselves. A trust fund was also
established, based on funds collected from both a corporate
environmental income tax and excise taxes to pay for the cleanup of
sites where EPA could not find the responsible party, or the guilty
party was bankrupt or unwilling to conduct the cleanup. EPA says the
trust fund was used to clean 30 percent of the waste sites, while
guilty corporations paid for the other 70 percent.
The concept of polluter pays will become an empty slogan if
something is not done to keep the trust fund from going broke in 2004.
The fund has dwindled from a high of $3.8 billion in 1996 to an
estimated $28 million next year. So who's left footing a large portion
of the bill? The answer, unfortunately, is taxpayers.
This situation is unacceptable on a number of levels--not only is
the President not willing to clean up our nation's most contaminated
sites, he wants to shift the costs away from the polluters and toward
the taxpayers.
I would hope to hear today from the EPA not more of their excuses
for letting cleanups at our Superfund sites come to a standstill or
their excuses for letting corporate polluters off the hook, but what
the agency is going to do to remedy this situation.
I want answers and I want them today. People like Patty Estrella
that have been fighting for years to rid their neighborhoods of toxic
contamination deserve answers.
Senator Boxer. And so, Ms. Tinsley, just in concluding,
what is the policy of the Office of Inspector General on what
information must be provided to Congress when it is requested
by Congress through the appropriate committee chairs and so on?
Ms. Tinsley. We follow the Department of Justice policy,
which says if a committee chair requests or subcommittee
chair--I think I'm right on subcommittee--requests something,
then we'll provide it.
Senator Boxer. And can you confirm that in your view pre-
decisional, enforcement sensitive, or documents exempted from
release under FOIA must still be provided to Congress by an
agency if appropriately requested?
Ms. Tinsley. You're going to have to repeat that for me.
Senator Boxer. I will, because this is our understanding of
what the Justice Department rule is, but I want to get it on
the table because there are folks here from EPA who don't seem
to get it. We believe that pre-decision, enforcement sensitive,
or documents exempted from release under FOIA must still be
provided to Congress by an agency if requested by the
appropriate subcommittees and committees.
Ms. Tinsley. We agree with that.
Senator Boxer. The answer is yes. Well, Ms. Horinko, I'd
like you to take that back. We're asking for information. We're
entitled to get this information. We don't want to waste time
not having it. We don't want people dancing around the truth.
If the Superfund program is going down the tubes, be straight
enough with us to tell us it is going down the tubes.
I'll tell you, when I see stories like a State that has
poison in the water has to front $1.2 million, I'm embarrassed.
I'm embarrassed. I continue to be embarrassed by what I'm
learning about this program. It is very disturbing.
We will continue to press for the information. We're going
to ask Ms. Tinsley for a review. You're not going to be
blindsided. I'm telling you now we'll pick a date in September,
so I don't want to hear, ``Oh, we didn't know on September 12th
what we were going to do on September 13th.'' We'd like you to
work with us.
The fiscal year ends September 30th, you know, so by early
September we need our ducks in a row.
I want to thank the people within the EPA, within the
Inspector General's office who care about the environment and
who are there for the right reasons, and we are going to press
hard until we get every bit of information. We have justice on
our side, we have the rules on our side, and we have the people
with us on this.
Thank you very much. We stand adjourned.
[Whereupon, at 12:35 p.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
Thank you, Chairwoman Boxer, for holding this timely hearing today
on the status of the Superfund program. You have always been a great
champion of the Superfund program and I admire your leadership and
hard-work on this issue.
I am very concerned, as I know you are Madame Chairwoman, that
we're losing momentum on Superfund with this Administration.
As I've stated before, I remember very clearly when Congress
debated the original Superfund law, and I remember thinking what an
incredible legacy Congress could leave the Nation by enacting that
historic legislation.
Seeing how successful Superfund has been over the last 25 years,
particularly in Libby, Montana, reinforces my belief that we did the
right thing for the people of this country when we created the
Superfund program.
That's why I was very disturbed by the Inspector General's report
that indicated the Administration planned to reduce funding or delay
clean-up efforts at Superfund sites around the country. These are sites
that are heavily contaminated with hazardous and toxic materials, that
pose significant threats to public health and the environment.
Two of the sites mentioned in that report are located in my State
of Montana--the Upper Tenmile site and the Basin Creek mining site.
Both of these sites are on the National Priorities List. In the case of
the Tenmile site, the city of Helena's water supply is threatened with
toxic mine wastes. This is very serious.
I understand that Basin and Tenmile received some funding after the
Inspector General's report came out. But it's also my understanding
that this funding is less than one-third what Region 8 said was
necessary to move forward with long-term clean-up plans at these sites.
It looks to me like Basin and Tenmile got just enough funding to put a
band-aid on the problem.
I'm extremely concerned that the more we fall behind in securing
the funding necessary for clean-up activities at NPL sites like Tenmile
and Basin, the worse off we're going to be in future years. This has
serious implications for the future stability of the Superfund program.
How long can we fund the status-quo at heavily contaminated sites
before the risks to public health and the environment become too great?
How long before this practice ends up costing us far more than if we
provided the necessary funding at the front-end of the process?
Let me emphasize again that a Superfund designation is not a
trivial event for the communities involved--it invokes real fear and
uncertainty in people about the future, about the future economic
health of their community, and about the future effects of any
contamination on their health or their children's health.
In a place like Libby, Montana, people just want to know that
they're not going to be the next one to get sick or die. We should not
burden communities with such fear and uncertainty for any longer than
is necessary to remedy the problem.
I know my State is not alone in facing cut-backs in funding. I also
know that the Administration and Congress have to juggle a lot of
competing priorities. However, jeopardizing the viability of the
Superfund program is just not an option, not when public health and
safety is at risk.
Cleaning up massively contaminated sites and pursuing the parties
responsible takes money, it takes a lot of money--you just have to take
one look at the Berkeley Pit or the WR Grace vermiculite mine in my
State to grasp that fact. And, we're not always going to find a
responsible party.
The sooner this Administration accepts that fact, the sooner we can
start looking together for solutions to the problem, including taking
another look at re-authorization of the Superfund tax to replenish the
trust fund, so that individual taxpayers aren't stuck with the tab. I
commend you, madame Chairwoman, for starting that discussion by
introducing S. 2596. I'm proud to be a co-sponsor of that legislation
because we have to look at every available option to shore up
Superfund.
Madame Chairwoman, I thank you again for holding this hearing so we
can get to the bottom of what's going on with the Superfund program. I
look forward to hearing the testimony of the witnesses.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
__________
Statement of Hon. Hillary Rodham Clinton, U.S. Senator from the State
of New York
Thank you, Madame Chairwoman.
The release of the EPA IG's report last month once again has raised
questions and concerns regarding the status and the future of the
Superfund program--or, as I have already said, what I believe we will
soon be calling the ``Not-So-Super-Fund.''
According to the IG's letter to Congressman Dingell, at the time
the report was issued, EPA had appropriated only half of what was
requested by its regional offices for cleanups at Superfund sites
across the country.
Unfortunately, this left a number of sites, including a site in the
Village of Sidney in New York State, without the necessary funding.
Since the IG's report has been issued, EPA has made additional
allocations of funds, including $2.5 of the $4 million requested for
the GCL Tie and Treating site in Sidney, New York.
But many questions still remain about how EPA is handling the
program, and what the Administration's plans and goals are for the
program.
And additional questions flow from an article in today's New York
Times, in which the State of Florida is being given an I.O.U. by EPA
for a site cleanup, because the Agency doesn't have the needed funds,
and that lack of funding is slowing down cleanup.
With one out of every four people in this country living within a
mile of a Superfund site, we simply cannot afford to scrimp on this
program.
Yet the Bush Administration is reported to be presiding over a more
than 50 percent decline in the pace of cleanups, although I know that
Assistant Administrator Horinko will rebut this claim in her testimony.
To date, the Administration has been unwilling to acknowledge that
any particular sites would be affected by a slowdown in cleanups and a
lack of adequate resources in the Super Fund.
They have also refused to request a reauthorization of the polluter
pays tax, which has traditionally been used to fund Superfund site
cleanups.
The Superfund Trust Fund was established for the specific purpose
of funding cleanups, so that the polluters and not the American
taxpayer would be footing the bill.
But when the taxes that supported the Fund expired in 1995 and
Congress refused to reauthorize them, the Fund began to run dry.
Next year, more than half of the money requested by the
Administration for Superfund cleanups would come from taxpayers, not
polluters. And by FY04, there will be no money left in the Fund at all.
That is why I have joined with Senators Boxer and Chafee on their
legislation to reauthorize the Superfund tax and reinstate the
polluter-pays principle.
I was pleased to read an opinion piece published earlier this month
in the New York Times in which EPA Administrator Whitman stated, ``the
President and I both believe strongly in the principle that 'the
polluter pays.' Whenever my agency can determine who polluted a site,
we hold that polluter responsible for the full cost of the cleanup.''
I thought, ``Great. We're all on the same page here.''
And I know that Assistant Administrator Horinko will reiterate the
Administration's ``strong commitment'' to the polluter pays principle
in her testimony today.
So I was a bit surprised when in a consent order issued last week,
EPA only required GE to pay $5 million of a $37 million tab for past
costs associated with the Hudson River site cleanup.
A special notice letter of February 4, 2002, issued to GE read,
``Demand is hereby made for reimbursement of the balance of EPA's and
DOJ's unreimbursed past costs, $36, 967,290.72, plus interest.''
Yet the order issued last week only requires $5 million in partial
reimbursement, and it caps reimbursement for all Future Response Costs
paid by EPA at $2.625 million. Keep in mind, the overall cost of the
project is estimated at $460 million.
So I guess I'm just a bit confused. I understand that EPA has
reserved its right to recoup additional reimbursement in the future,
but I'm wondering what we're waiting for.
Now, don't get me wrong. We were all pleased to see the order
issued and the process moving forward--particularly since this means
that we will get some sampling in the Hudson completed this year.
But there are concerns that the order took too long, and that it is
only for sampling. The order does not address other aspects of the
remedial design, not to mention remedial actions. As such, EPA's order
is just a very small step forward.
And this is just one site in New York--albeit a very large and
significant site. But we have plenty of others, unfortunately. In fact,
New York is fourth in the country in terms of the number of Superfund
sites.
This is an issue of particular importance to New York and New
Yorkers. We need to ensure that the communities that are plagued by
these hazardous waste sites get the assistance and protection they so
desperately need and deserve.
And as we will hear from the EPA IG today, the impact of
insufficient resources for this program will be ``causing delays or
preventing important work needed to protect human health and the
environment.''
We simply cannot let that happen. And that is why we are here today
holding this hearing.
Thank you.
__________
Statement of Hon. Nikki L. Tinsley, Inspector General, U.S.
Environmental Protection Agency
Good morning, Chairman Boxer and members of the subcommittee. I am
Nikki Tinsley, Inspector General of the Environmental Protection Agency
(EPA). I am pleased to speak to you today about the Office of Inspector
General's report on funding needs to clean-up non-Federal National
Priority List (NPL) Superfund sites and discuss how my Office went
about conducting our work.
On April 17, 2002, the OIG received a letter from Congressmen John
D. Dingell and Frank Pallone, Jr., of the House Committee on Energy and
Commerce, requesting OIG assistance in identifying the funding needs of
each non-Federal Superfund NPL site. In the letter, the Congressmen
expressed their concerns that EPA was falling short of its cleanup
goals in fiscal year 2002 and was reducing their target further for
fiscal year 2003. Accordingly, the Congressmen requested that the OIG:
1) Identify and summarize the funding needed for each non-Federal
Superfund NPL site so that clean-up activities could be initiated,
continued, or expedited; and
2) Provide the remedial action prioritization list for each region
and any similar nationwide document.
They asked us to provide a response in a very short time-frame and,
in light of this time-frame, we did not conduct the type of detailed
analysis and verification that we would generally do in a typical audit
or evaluation.
In describing the results of our review, it is important to keep in
mind that these figures are accurate as of the date the OIG completed
its fieldwork. If the same information were requested today, some of
the figures could be different because EPA Headquarters provides funds
to the regions on a quarterly basis. Additionally, EPA periodically de-
obligates funds from some sites and uses them to fund cleanup
activities at other sites. So, in essence, the report represents a
snapshot in time.
I have attached the OIG's complete report to this written testimony
so I won't go into great detail on the specifics of the review. In
summary, we found that for Fiscal Year 2002, EPA regions requested $450
million for remedial actions and EPA Headquarters allocated $224
million. Also, for Fiscal Year 2002, the regions requested $46.7
million for long-term response actions, and received $33.2 million
In responding to the first request, the OIG obtained information on
remedial actions and long-term response actions from EPA Headquarters
and each regional office. We developed a series of questions which we
asked Superfund officials in each of EPA's ten regions. The questions
were designed to obtain information about the processes for requesting
and allocating funding; the officials' perspectives and/or concerns
regarding these processes; and the officials' views on the impact of
not receiving requested funds. We obtained information on the amount
requested by the region and the amount allocated by Headquarters for
each non-Federal Superfund site on the NPL.
We then compared the information from the regions to information
EPA Regions had previously reported to the Congress. Prior to
finalizing our information on funds requested and allocated to specific
sites, we sent the data back to EPA regional officials for
verification. Finally, senior auditors who had not worked on this
assignment, traced the amounts requested and allocated back to the
source documents provided by EPA.
In responding to the request for regional and national remedial
action prioritization lists, we found that EPA regions provide a
listing of sites to EPA Headquarters and the National Risk Based
Priority Panel develops the prioritized list. EPA considers this
prioritized list to be ``enforcement confidential,'' meaning that if
the document were to be released it could potentially jeopardize
enforcement negotiations. EPA also maintained that this document should
be withheld under guidance provided by the Department of Justice under
the Freedom of Information Act. In compliance with the Department of
Justice, we did not provide this document in our response.
As our report indicated, EPA regional offices did not receive the
full amount of funding requested to conduct remedial actions. When
sites are ready for cleanup and the funding estimated are accurate, not
providing sufficient funds can impact the program by causing delays or
preventing important work needed to protect human health and the
environment. For example, at the time of our fieldwork, a Region 4
official expressed concern about two partially funded sites that will
require an additional $6 million this fiscal year to maintain clean-up
progress. That official, as well as officials in Regions 6 and 8,
expressed concern over the lack of funding for sites ready to start
remedial activities. Further, a Region 7 official told us that the
remediation phase for several mega-sites may be lengthened because
sufficient funds are not available. For example, the Region may need to
stretch a 5-year, $100 million cleanup over 10 years given the current
funding levels. Above all the operational concerns, however, is the
concern that when sufficient funds are not provided, the risk presented
by the site is not fully addressed.
Madame Chairman, that concludes my remarks. Thank you for the
opportunity to participate today. I would be happy to respond to any
questions the committee may have.
__________
Statement of Hon. Marianne Lamont Horinko, Assistant Administrator,
Office of Solid Waste and Emergency Response, U.S. Environmental
Protection Agency
Good morning Madam Chairman and members of the subcommittee. I am
Marianne Horinko, Assistant Administrator of the Office of Solid Waste
and Emergency Response, U.S. Environmental Protection Agency. I am
pleased to appear today to discuss Superfund program progress, new
program challenges including Superfund program funding issues, and what
EPA is doing to address those challenges.
Administrator Whitman and the Bush Administration are fully
committed to Superfund's mission, protecting human health and the
environment by cleaning up our Nation's worst hazardous waste sites.
Thanks to a decade of reforms launched by the first Bush Administration
and continued by the previous Administration, the Superfund program has
achieved dramatic success. In that same bipartisan spirit, we embrace
the new issues facing the program as it matures.
superfund progress
The Superfund program continues to make progress in cleaning up
hazardous waste sites. To date, 93 percent of the sites on the National
Priority List (NPL) are either undergoing cleanup construction or have
cleanup construction completed:
<bullet> 815 Superfund sites have reached construction completion
<bullet> 391 Superfund sites have cleanup construction underway
Further, more than 7000 removal actions have been completed at NPL
and non-NPL sites. In Fiscal Year 2001, EPA completed construction at
47 Superfund sites. However, the decline in the number of NPL sites
that reached construction completion in Fiscal Year 2001, as compared
with Fiscal Year 2000, did not reflect the amount of cleanup
construction underway at Superfund sites. EPA has maintained the number
of construction projects underway at NPL sites, more than 730 per year,
from Fiscal Years 1999 through 2001. The President's Fiscal Year 2003
budget request continues a commitment to clean up hazardous waste sites
by maintaining EPA's budget for the Superfund program with a request of
$1.29 billion.
superfund cleanup commitments and cost recovery
Fiscal Year 2001 produced a near record $ 1.7 billion in Superfund
cost recovery and cleanup commitments from responsible parties. EPA's
enforcement program secured $1.3 billion in cleanup commitments from
responsible parties. An additional $ 413 million was secured to
reimburse EPA for past cleanup costs--nearly $300 million more than in
Fiscal Year 2000. The cumulative value of responsible party commitments
since the inception of the program now exceed $20 billion. This
Administration continues its strong commitment to the ``polluter pays''
principle, which has historically generated 70 percent of non-Federal
Superfund site cleanup from responsible parties. Under this
Administration, EPA vigorously conducts searches for responsible
parties at every Superfund site and is striving to maximize every
opportunity to recover Agency cleanup costs from responsible parties.
brownfields program
EPA's brownfields program, through its grants, loans, and other
assistance, continues to promote the cleanup, development and reuse of
blighted, abandoned brownfield sites throughout the country. The
brownfields program has successfully supplemented the cleanup and
development efforts of States, Tribes and local governments. I am
pleased to report that since its inception, EPA's brownfields cleanup
program has leveraged more than $3.7 billion in cleanup and
redevelopment funds, and has generated more than 17,000 jobs. EPA
funding has provided the resources to States, Tribes and local
communities to assess more than 2,600 brownfield sites.
Thanks to the enactment of bipartisan brownfields legislation, we
can expect to see even greater success by States, Tribes and local
communities in reclaiming brownfield sites and encouraging the cleanup
and reuse of sites by the private sector. EPA is now in the process of
planning implementation of the provisions in the Small Business
Liability Relief and Brownfields Revitalization Act (Public Law 107-
118). The Fiscal Year 2003 budget reflects the President's priorities
and our commitment to cleaning up and revitalizing communities by
doubling the brownfields budget to $200 million.
redevelopment and reuse
I have made land revitalization a top priority for the Office of
Solid Waste and Emergency Response and it is an integral part of the
way EPA is implementing all waste cleanup programs. Simply achieving
cleanup is not enough. It is necessary to view a property in terms also
of the future economic, recreational or ecological benefits it
represents to those who live nearby. It is important that we build on
our success in the Brownfields program and make land revitalization a
part of the Agency's organizational culture. We are making progress in
the Superfund program. More than 260 Superfund sites have been put back
into reuse, generating more than 15,000 jobs and representing $500
million in economic activity. While our fundamental mission remains to
protect human health and the environment, we need to ensure that we
fully consider a community's desired future land use for a property as
we make cleanup decisions. We are working on tools to assist EPA
managers and staff as they work closely with State, public and private
stakeholders in facilitating property revitalization.
oig response on superfund funding needs
By letter dated June 24, 2002, the EPA Inspector General (IG)
responded to an inquiry by U.S. Representatives John Dingell and Frank
Pallone on Superfund program funding needs. The IG response included a
series of enclosures that contained Superfund site information provided
by the Office of Solid Waste and Emergency Response (OSWER). The
enclosures contained Superfund site information from OSWER data bases
as of May, 2002. The information represented a snap-shot in time and
did not reflect end of fiscal year data. The response indicated that
EPA regions earlier in the year had estimated Superfund construction
needs of approximately $450 million, while EPA had $224 million of
appropriated funding available to allocate. The response did not take
into account the funding from unliquidated obligations available for
deobligaton in expired contracts, interagency agreements, and grants
that EPA and its regions are generating in the 3d and 4th quarters of
this fiscal year. This additional funding should total approximately
$40 million, for a total of $264 million.
Overall, the funding levels for the Superfund program have remained
relatively steady at
$1.3 to $1.5 billion over the past 5 years. Superfund program
funding has provided sufficient levels of funding to continue on-going
construction work. Notwithstanding recent press reports, no Superfund
sites have had cleanup construction suspended, and sites that pose an
immediate risk to public health or the environment have been and will
continue to be addressed by the Agency.
No Cuts to Superfund Site Funding
Recent media reports inaccurately attributed to the IG response a
list of 33 Superfund sites where EPA purportedly cut funding. The IG
response did not contain a list of 33 sites with funding cuts and never
characterized any of the information in the response as representing
funding cuts. An enclosure in the response listed all sites eligible
for construction funding and identified those sites that had not yet
received funding as of the date in May when the data was generated by
OSWER.
How Superfund Program Funding Really Works
Inaccurate media reports have exhibited a fundamental
misunderstanding of the Superfund program funding process. The
Superfund cleanup construction program is constantly evolving and
funding decisions are made over the course of the entire year--not at
the beginning of the fiscal year. Experience has taught us that the
preliminary funding need estimates generated by EPA regions often
represent levels that build in numerous contingencies that, over the
course of the fiscal year, result in an over-estimate of the amount of
funding needed to continue construction progress. Further, some sites
identified at the beginning of the fiscal year by EPA regions as having
construction funding needs are not actually ready to start construction
before the end of the fiscal year for a variety of reasons; including
changed site conditions, engineering or design modifications, or the
identification of a viable responsible party to fund the work in place
of EPA. Therefore, many of the construction funding decisions that will
be made by the Agency during this fiscal year, had not been made at the
time the IG response was released.
Many of the funding decisions in the Superfund program are
historically made in the 3d and 4th quarters of the fiscal year because
there is a congressional hold back of $100 million of cleanup funding
in the EPA appropriations bill until September lst, and moneys
deobligated from expired contracts, interagency agreements, and grants
generally become available during this timeframe. These moneys are used
to fund Superfund construction projects before the end of the fiscal
year.
Following Agency practice, EPA has made additional Superfund
funding decisions at sites since the release of the IG response.
Further, as expected, some sites identified early in the year by EPA
regions as needing construction funding, will not be ready for
construction funding by the end of this fiscal year. Of the 33
Superfund sites reported by the media as purportedly having their
funding cut, 8 sites have been funded for new construction work, 3
sites have been funded to continue on-going construction work, and 6
sites will not need construction funding in this fiscal year. Not all
of the sites have received money to date, and likely will not receive
funding until September of this year. The Agency will make further site
funding decisions as moneys become available from the regional efforts
to deobligate moneys from expired contracts, interagency agreements,
and grants.
new cleanup challenges
As the Superfund program continues into its third decade, new
challenges must be met to continue the progress in cleaning up
hazardous waste sites. In 2000, EPA had anticipated the potential for a
reduction in achieving site construction completions. The Superfund
process, from site listing to clean up construction, on average has
taken roughly 8 to 10 years. Decisions made 5 years before a site ever
reaches the construction phase, for instance delaying the Remedial
Investigation / Feasibility Study (RIFS), will have an impact on when
that site reaches construction completion many years later. This is the
current situation we face in the Superfund program.
The reduction in construction completions has resulted from a
variety of factors, including decisions made years ago on funding
priorities; the size and number of construction projects at remaining
non-construction complete sites on the NPL; and the need to balance
competing environmental priorities within the Superfund program. In
prior years, EPA focused resources on Superfund sites that needed less
construction work and that were further along in the cleanup process,
thus creating a backlog of more difficult sites and sites with
significant years of construction work remaining.
Remaining Sites Larger and More Complex
The remaining number of Superfund sites that have not reached the
completion stage includes area-wide groundwater sites, mining sites,
sediment sites, and Federal facility sites. The size and complexity of
these remaining sites generally indicate longer project durations and
increased costs required to complete cleanup construction. There is now
a greater number of Federal facilities and very large and complex sites
(sites exceeding $50 million in cleanup costs) as a percentage of NPL
sites not yet completed than ever before. Of the remaining 675 final
NPL sites not construction complete, 138 are Federal facilities and an
additional 93 sites are very large and complex sites.
Fewer Sites are Candidates For Completion
The pool of candidate sites for construction completion has become
much smaller, thus having a significant impact on the number of sites
that reach construction completion. The vast majority of Superfund
sites were listed in the first decade of the program. Many of these
sites have reached construction completion. As site listings
significantly declined in the 1990's, so did the pool of candidates for
construction completion. It has historically taken roughly 8 to 10
years to complete Superfund sites, therefore sites listed after 1994
are, for the most part, unlikely candidates for construction
completion. The Superfund program has final listed 190 sites on the NPL
over the past 7 years. Adding those sites to the number of Federal
facility sites (138) and very large/complex sites (93) that are not yet
construction complete totals 421 sites. Subtract that number from the
total number of sites not yet construction complete (675) and the
Superfund program is faced with a relatively small pool of likely
construction completion candidates (254)--as opposed to the more than
1200 sites final listed in the first decade of the Superfund program
(1983-1990).
superfund pipeline management review
Although the number of Superfund sites completing construction in a
given year is being affected by program decisions made years before,
EPA is looking for new ways to improve program performance. The Agency
has initiated a comprehensive review of all Superfund projects in or
approaching the most expensive phase of our project pipeline,
construction. After completion of this analysis and implementation of
some challenging decisions, EPA intends to manage toward creating an
optimal balance between the achievement of risk reduction, construction
progress, and beneficial reuse at Superfund sites. A draft 3 year plan
is scheduled to be completed at the end of the summer.
nacept process
EPA has launched a public dialog through the National Advisory
Council on Environmental Policy and Technology (NACEPT), a Federal
advisory committee comprised of a broad cross-section of stakeholders,
that will examine the role of the Superfund program in addressing very
large/complex sites, the appropriate role of listing sites on the NPL
as one of many tools to address contaminated sites, and strategies to
improve program effectiveness and efficiency through coordination with
States, Tribes, and the public. The first meeting of the NACEPT
Superfund Subcommittee was held in June. EPA will work closely with the
Environment and Public Works Committee as the NACEPT expert panel
debates these important public policy issues.
conclusion
EPA will continue its efforts to improve Superfund program
performance and meet the many new challenges facing the Agency in
cleaning up toxic waste sites. The Superfund program will continue to
clean up the Nation's worst toxic waste sites, to protect public health
and the environment, and provide opportunities for reuse and
redevelopment to communities across the country. The success of the
Superfund program can be attributed in large part to the bipartisan and
broad based consensus that developed for the common sense legislative
and administrative reform of the program over the past decade. By
working together in a non-partisan, problem solving fashion, I am
convinced that we can continue that success. The President is fully
committed to the Superfund program's success and toward fashioning a
sustainable future course for the program as it continues into its
third decade. EPA and the Administration look forward to working with
the members of this committee and the Congress in the months and years
ahead as we strive to meet our common goal of protecting public health
and the environment.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
______
Responses of Marianne Lamont Horinko to Additional Questions from
Senator Jeffords
Question 1. In the minutes of an August 28, 2001 Region 1
Conference call: ``Overall, based on the poll of the regions, it
appears that we have approximately 52 sites that should be completed by
the end of the Fiscal Year . . . Elaine also discussed the outlook for
FY02, there will not be enough funding to cover all of the projected
needs and most new Remedial Actions starts could go unfunded.''
One month before the end of Fiscal Year 2001, EPA staff indicated
in the above minutes that 52 sites would be cleaned up. The number
actually cleaned was 47. What happened to the other 5 sites?
Response. On August 28, 2001, 52 candidates were identified as
potential construction completionsites. At the end of fiscal year 2001,
47 sites achieved construction completion. The five candidate sites
that did not achieve construction completion in fiscal year 2001
encountered unexpected site delays in the final month of the fiscal
year which caused cleanup schedules to extend into the next fiscal
year.
One site encountered more significant groundwater contamination
than originally expected. This required additional construction to the
treatment process and adjustments to the monitoring program associated
with a monitored natural attenuation remedy. Another site had a pre-
final site inspection delayed until October 2001. Final seeding of the
cap and installation of a fence at this site was completed in November
2001 and the site achieved construction completion in December 2001.
Two other sites encountered delays due to unforeseen construction
issues. This included difficulties with operating a track hoe in a wet
marsh area and drilling through the presence of bedrock discovered in
the subsurface. The last site extended the public comment period
associated with a public meeting due to mail and service disruptions
related to the September 11th terrorist attack.
Question 2. If a funding shortfall for Fiscal Year 2002 was widely
anticipated, why didn't the Bush Administration request greater funding
in its FY03 budget request?
Response. The FY03 President's request does provide an increase for
Superfund. The Administration's request proposes funding the
Brownfields program, previously included in the Superfund
appropriation, under separate Agency appropriations. The Superfund
request was not reduced as part of this change. The majority of the
increase will provide funding for Homeland Security preparedness and
response readiness. While continuing remedial activities is a primary
mission of the Superfund program, expanded responsibilities in the
arena of Homeland Security have taken priority for any additional
funding in fiscal year 2003.
Question 3. You note in your testimony that funding has remained
relatively steady over the past 5 years. Accounting for inflation, how
can level funding possibly be keeping pace with cleanup needs?
Response. This Administration has put a premium on making available
resources go further. While inflation slowly reduces the purchasing
power of appropriated resources, increased efficiency has the opposite
effect. For instance, the Superfund program has begun using deobligated
moneys in expired contracts, interagency agreements, and grants to free
up resources already available to the agency. EPA expects this funding
in Fiscal Year 2002 to total approximately $40 million. The Agency has
also placed a high priority on securing commitments from responsible
parties to pay for and perform Superfund cleanups. As of the end of
June, EPA had recovered $230 million dollars from responsible parties,
which is substantially more than what was recovered in the entire year
of fiscal year 2001. These actions have allowed the Agency to maintain
progress at Superfund sites. A Pipeline Management Initiative is
underway to identify ways to streamline and spend money more
effectively.
Question 4. In your testimony, you note that historically the
``polluter pays'' principle has generated 70 percent of non-Federal
Superfund site cleanup from responsible parties. What has that
percentage been over the past 2 years?
Response. Private parties initiated 67 percent of new remedial
action (RA) starts at non-Federal facility Superfund sites in Fiscal
Year 2001 and 68 percent in Fiscal Year 2000. Over the last 3 years,
private parties conducted approximately 73 percent of the new RA
starts.
Question 5. In your testimony, you mention the National Advisory
Council on Environmental Policy and Technology, the Federal advisory
committee on Superfund. I am concerned that this committee does not
have an appropriate balance of interested parties. I also am concerned
that the committee does not seem to be addressing all the issues of
concern and relevance. Last month, 11 groups wrote to you with similar
concerns. How do you propose to resolve their concerns?
Response. With regard to membership balance, EPA took great efforts
to form a subcommittee that reflects the variety of diverse
perspectives held by stakeholders across the Superfund spectrum. During
our selection process, we were very mindful of the Federal Advisory
Committee Act (FACA) requirement that the membership of advisory
committees ``be fairly balanced in terms of the points of view
represented and the functions to be performed by the advisory
committee.'' FACA requires that committees reflect a range of points of
view and the necessary expertise relative to a committee's charge. The
Office of Solid Waste and Emergency Response (OSWER) believes the
subcommittee we formed clearly meets that standard and represents a
balanced point of view. EPA's Office of General Counsel (OGC) concurred
with OSWER's balance assessment when they conducted their legal review
of the subcommittee's proposed membership.
If the subcommittee determines they would like to hear from
individuals with other perspectives or expertise, EPA has made it clear
we are fully prepared to provide experts and consultants to ensure that
the subcommittee has access to any additional viewpoints and expertise
that the members believe are necessary to complete their mission.
__________
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______
[From the New York Times, Wednesday, July 31, 2002]
Superfund Makes a Rare Deal With Florida
(By John H. Cushman, Jr.)
state will finance cleaning up a site
Washington, July 30.--Short of money and struggling to end delays in
cleaning up toxic waste sites, the Federal Superfund program has
entered an unusual arrangement with Florida in which the State will pay
for work at a toxic site that would normally be handled by the Federal
Government.
Instead of waiting for the cash-strapped Federal program to provide
nearly $1.4 million to bring clean drinking water to 150 homes in a
polluted part of Port Salerno, as the Environmental Protection Agency
had promised to do, the State agency is paying for the speedy
installation of water lines, according to State, local and Federal
project managers.
The arrangement illustrates just how tight Superfund money has
become, forcing Washington to seek creative approaches to help finance
even a relatively small project. In June, a report by the environmental
agency's office of inspector general identified dozens of sites where
Federal cleanup money had not been allocated this year at the levels
requested by the agency's regional offices. The Florida site, known as
Solitron Microwave, is one of those named by the inspector general.
Usually, the State's share of cleanup costs would be just 10
percent.
In exchange for Florida's payment of the full cost of the project,
the Federal agency has agreed to give Florida a credit that can be used
to offset the State's share of future cleanups.
At first glance, the arrangement, which the officials say has never
been tried in the agency's southeastern region and hardly ever in other
parts of the country, might seem to be a model for speeding cleanup
work elsewhere at a time when critics in Congress are complaining about
delays in the program, The Superfund law authorizes such arrangements,
EPA officials said. At the end of last year, there were only about $10
million in credits outstanding, compared with an annual Super-fund
budget of about $1.3 billion.
But Florida's environmental department, in having cash on hand for
the project, is a rarity for having escaped severe budget cuts that
many other State environmental agencies are facing, according to the
Environmental Council of the States, which recently called on the
protection agency to seek a bigger budget for Superfund and other
cleanup efforts.
``Without adequate funding, the Federal and State cleanup programs
will drastically decline in effectiveness,'' the organization of State
officials told Christie Whitman, the environmental agency's
administrator, in a letter early this month.
There are other potential legal problems with broadening this
approach, too, specialists in government accounting rules say. Under
the Anti-Deficiency Act, which forbids expenditures of Federal money in
excess of appropriations, an expansion of the use of credits might be
suspect, say officials at the General Accounting Office, the auditing
arm of Congress.
While the anti-deficiency rules are arcane and there are
exceptions, an authoritative accounting office guidebook States, the
central principle is simple: Federal officials should ``pay as you
go.''
William Denman, the regional project manager at the environmental
agency, said in an interview that he had refused an earlier request by
Martin County, Fla., to do the work and to be repaid by the protection
agency later, because the Anti-Deficiency Act would have made that
illegal. But Mr. Denman said the, arrangement with Florida avoided this
problem because the actual credit would not be approved until the work
was completed, and because ``there is no real money that changes
hands.''
The Florida site is on about 20 acres owned by Solitron Devices, a
Florida electronics firm. It is polluted by toxic industrial solvents
which have bled from the soil into the local aquifer, with traces
turning up in private wells and the public water supply.
Two years ago, at a meeting attended by 230 local residents,
environmental agency officials promised the crowd ``that they soon
would be connected to public water thereby, relieving them of their
worries regarding the safety of their drinking water,'' according to a
letter from one local official to Florida's congressional delegation
complaining about the delays.
By last January, however, county officials announced that although
they had completed the engineering design work, which the EPA paid for,
the actual construction was being delayed because the agency lacked
sufficient money.
In public statements, they worried that the community might have to
compete for financing with other Superfund sites at a time when the
Federal program's budget fell short of what was needed to keep work on
schedule at sites nationwide.
Distressed by the delay, Martin County decided to move ahead
unilaterally.
But after Mr. Denman told them that was illegal, the agency and
Florida agreed to a somewhat different approach, with the State giving
the county an installment in June and promising to pay the rest later
this year. The work should be completed by winter. Further work to
remove contaminated soil and stem the flow of polluted groundwater has
not yet been financed.
Eventually, the Superfund program stands to collect money from
Solitron Devices, which is negotiating over the sale of the property
and over a further penalty drawn from its future earnings that would
settle its liability for the pollution. Details of the company's
negotiations with the EPA were reported in Solitron's financial filings
with the Securities and Exchange Commission.
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