<DOC>
[105th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:41517.wais]
GAO FINDINGS ON SUPERFUND CLEANUP
=======================================================================
HEARING
before the
SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,
NATURAL RESOURCES, AND REGULATORY AFFAIRS
of the
COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
__________
FEBRUARY 13, 1997
__________
Serial No. 105-15
__________
Printed for the use of the Committee on Government Reform and Oversight
U.S. GOVERNMENT PRINTING OFFICE
41-517 WASHINGTON : 1997
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
STEVEN SCHIFF, New Mexico EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California PAUL E. KANJORSKI, Pennsylvania
ILEANA ROS-LEHTINEN, Florida GARY A. CONDIT, California
JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York
STEPHEN HORN, California THOMAS M. BARRETT, Wisconsin
JOHN L. MICA, Florida ELEANOR HOLMES NORTON, Washington,
THOMAS M. DAVIS, Virginia DC
DAVID M. McINTOSH, Indiana CHAKA FATTAH, Pennsylvania
MARK E. SOUDER, Indiana TIM HOLDEN, Pennsylvania
JOE SCARBOROUGH, Florida ELIJAH E. CUMMINGS, Maryland
JOHN SHADEGG, Arizona DENNIS KUCINICH, Ohio
STEVEN C. LaTOURETTE, Ohio ROD R. BLAGOJEVICH, Illinois
MARSHALL ``MARK'' SANFORD, South DANNY K. DAVIS, Illinois
Carolina JOHN F. TIERNEY, Massachusetts
JOHN E. SUNUNU, New Hampshire JIM TURNER, Texas
PETE SESSIONS, Texas THOMAS H. ALLEN, Maine
MIKE PAPPAS, New Jersey ------
VINCE SNOWBARGER, Kansas BERNARD SANDERS, Vermont
BOB BARR, Georgia (Independent)
------ ------
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
Judith McCoy, Chief Clerk
Phil Schiliro, Minority Staff Director
------
Subcommittee on National Economic Growth, Natural Resources, and
Regulatory Affairs
DAVID MCINTOSH, Indiana, Chairman
JOHN E. SUNUNU, BERNARD SANDERS, Vermont
J. DENNIS HASTERT, Illinois JOHN F. TIERNEY, Massachusetts
JOE SCARBOROUGH, Florida JIM TURNER, Texas
JOHN B. SHADEGG, Arizona PAUL E. KANJORSKI, Pennsylvania
STEVEN LaTOURETTE, Ohio GARY A. CONDIT, California
VINCE SNOWBARGER, Kansas DENNIS KUCINICH, Ohio
BOB BARR, Georgia CHAKA FATTAH, Pennsylvania
------ ------
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Mildred Webber, Staff Director
Chip Griffin, Professional Staff Member
Cindi Stamm, Clerk
Dave McMillen, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on February 13, 1997................................ 1
Statement of:
Guerrero, Peter, Director, Environmental Protection Issues,
Resources, Community and Economic Development Division,
General Accounting Office, accompanied by Stanley
Czerwinski, Associate Director; Jim Donaghy, Assistant
Director; Mitchell Karpman, mathematical statistician; and
Elliot Laws, Assistant Administrator for Solid Waste and
Emergency Response......................................... 105
Klemm, Rebecca J., Ph.D., Klemm Analysis Group; and James
Wholey, Senior Advisor for Evaluation Methodology, General
Accounting Office.......................................... 180
Mica, Hon. John L., a Representative in Congress from the
State of Florida........................................... 176
Pallone, Hon. Frank, Jr., a Representative in Congress from
the State of New Jersey.................................... 32
Parris, Don, president, Environmental Remediation
Consultants, Inc.; Richard Castle, president, Castle
Concepts Consultants; and John F. Lynch, Jr., senior
partner, Carpenter, Bennett, and Morrissey................. 49
Letters, statements, etc., submitted for the record by:
Guerrero, Peter, Director, Environmental Protection Issues,
Resources, Community and Economic Development Division,
General Accounting Office, prepared statement of........... 108
Klemm, Rebecca J., Ph.D., Klemm Analysis Group, prepared
statement of............................................... 182
Laws, Elliot, Assistant Administrator for Solid Waste and
Emergency Response:
Information concerning methodologies used by EPA......... 162
Prepared statement of.................................... 124
Lynch, John F., Jr., senior partner, Carpenter, Bennett, and
Morrissey, prepared statement of........................... 61
McIntosh, Hon. David M., a Representative in Congress from
the State of Indiana, prepared statement of................ 4
Pallone, Hon. Frank, Jr., a Representative in Congress from
the State of New Jersey, prepared statement of............. 36
Parris, Don, president, Environmental Remediation
Consultants, Inc., and Richard Castle, president, Castle
Concepts Consultants, prepared statement of................ 52
Sanders, Hon. Bernard, a Representative in Congress from the
State of Vermont, prepared statement of.................... 19
Waxman, Hon. Henry A., a Representative in Congress from the
State of California:
Briefing memorandum for hearing.......................... 41
Certification of non-receipt of Federal funds............ 46
Prepared statement of.................................... 24
GAO FINDINGS ON SUPERFUND CLEANUP
----------
THURSDAY, FEBRUARY 13, 1997
House of Representatives,
Subcommittee on National Economic Growth, Natural
Resources, and Regulatory Affairs,
Committee on Government Reform and Oversight,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:15 a.m., in
room 2154, Rayburn House Office Building, Hon. David M.
McIntosh (chairman of the subcommittee) presiding.
Present: Representatives McIntosh, Sununu, Shadegg, Snow-
barger, Barr, Sanders, Waxman, Fattah, Kucinich, Turner, and
Tierney.
Staff present: Mildred Webber, staff director; Todd
Gaziano, chief counsel; Larisa Dobriansky, senior counsel; Chip
Griffin, professional staff member; Cindi Stamm, clerk; Phil
Barnett, minority chief counsel; Phil Schiliro, minority staff
director; Elizabeth Mundinger, minority counsel; David
McMillen, minority professional staff member; and Ellen Rayner,
minority chief clerk.
Mr. McIntosh. A quorum being present, the Subcommittee on
National Economic Growth, Natural Resources, and Regulatory
Affairs will come to order. As I have previously informed the
ranking member, Mr. Waxman, we will limit opening statements to
the chairman and the ranking member of the subcommittee.
Mr. Waxman. Mr. Chairman, it has been the tradition of
every subcommittee that I've served on that all Members are
given the opportunity for a brief opening statement. Yesterday,
I attended the Health and Environment Subcommittee, chaired by
Mr. Bilirakis. We had extensive comments by the Members. Each
Member was given the courtesy to say what they had to say and
they were able to lay out their concerns.
I see no reason why we can't have all Members be afforded
that opportunity. If you're going to be calling over there to
the left, and he's not wishing to make an opening statement,
since he's the only one who can deny your suggestion, that's
fine with me. But I would like to say that Members' rights are
being ignored.
Mr. McIntosh. I'm going to be following the precedent set
by Chairman Burton yesterday for the full committee.
Mr. Waxman. Mr. Chairman, are you suggesting you're going
to have opening statements by the chairman, the ranking member
of the subcommittee and then the chairman of the full committee
and ranking member of the full committee?
Mr. McIntosh. Yes. You're going to get your opening
statement. I'm sorry, there was a misunderstanding, both of you
will be able to give your opening statements.
The purpose of this hearing is to examine the pace of
Superfund cleanups at more than 1,200 Superfund sites from
around the country. I wanted to, in particular, thank Chairman
Burton for continuing the request of former Chairman Clinger to
the General Accounting Office to study this issue. I'm sure
that all members of this subcommittee agree with the need to
put politics aside and examine the important public health and
environmental impacts of this issue.
I know that Mr. Waxman, our full committee ranking member,
has been active on environmental issues for much of his career.
And although we sometimes disagree on exactly what the best
method and the fastest and most effective way to achieve that
end is, we both do share the goal of cleaning up the
environment. I especially want to thank Mr. Waxman, the ranking
member of the full committee, Mr. Sanders, ranking member of
the subcommittee and their staff for persuading EPA to
reconsider and join us today to testify on the delays in
cleaning up Superfund sites.
Now, at the subcommittee's hearing on the Superfund program
last year in May, we heard from the Tielmann family. They've
been dealing with this issue for about 13 years and counting
and it's taken that long for EPA to improperly treat the
Superfund site on their farm. It would have been bad enough if
the site had remained untouched for all that time, but instead,
the three Tielmann children were exposed to heightened levels
of asbestos and other dangerous toxins. This is because the
existing asbestos on their farm was dug up and not removed. In
addition, the truckloads of dirt from another toxic wastesite
were dumped on the property as part of the final cleanup. The
last I heard, EPA is still studying what to do with the
Tielmanns' farm. Now, when innocent children are endangered,
EPA needs to admit that there is a problem.
The purpose of today's hearing is to examine the extent of
that problem. I want to thank all of the witnesses for their
testimony. As most of our witnesses will attest, the goal of
fast, fair, and effective cleanups has gotten lost. There are
several contributing factors to this delay, endless disputes
over what should be done, and litigation over who should pay
for it. However, the focus of today's hearing is not so much on
the causes of that delay, but on whether the job is getting
done at all and in what timeframe.
The most critical question in assessing the problems with
the current Superfund program is whether the time to assess
cleanup and assess whether a site should be listed has
improved, remained the same, or gotten worse since the program
began in 1986. When Congress reauthorized the Superfund program
in 1986, it set a statutory goal of 4 years to assess a site
and decide whether to place it on the National Priority List.
In 1986, it took about 4 years to make that determination.
GAO's current study, which is based on EPA's own data, shows
that it is now taking 9.4 years on average to list a non-
Federal site.
In 1986, the average time to clean up a Superfund site that
was placed on the National Priorities List was less than 4
years. In 1993, EPA established an expectation of 5 years to
clean up a site. But by 1996, the cleanups were averaging 10.6
years. Once again, that is more than twice the 1993 goal and
about three times the average when Superfund was reauthorized
in 1986. In 1996, last year, the combined average time to list
a site and then clean it up is a staggering 20 years. Now,
regardless of the causes, there should be no covering up the
fact that something is seriously wrong with the Superfund
program.
Based on current trends, things may get worse before they
get better. Even if the administration does do a better job,
the sheer number of potential Superfund sites is staggering.
The total number of sites on the National Priority List as of
last November was 1,205. EPA has been adding about 16 sites per
year to that National Priority List for the last 4 years, but
there are an estimated 1,400 to 2,300 additional sites that
potentially should be added. If EPA can only clean up 64 sites
per year and is only taking 16 new sites per year, we may never
be able to tackle this problem. Man may go the way of the
dinosaurs before all the cleanups are done.
If EPA is defensive about the pace of cleanups, then I
welcome their testimony on what the different causes of the
delays are. I'm sure that past Congresses are partly to blame
for enacting a hydra-headed litigation monster that is the
Superfund law. And there is certainly enough blame to go
around. But I don't think that it is constructive for people to
try to evade the hard facts about the cleanup delays by arguing
over methodology. GAO has a sound methodology and the only one
that compares the same data over the relevant period of years.
And I'm very pleased to have their report today, to give us a
sense of what the nature of the problem is.
Before we can solve a problem, we must first admit that the
problem exists. That is not the sense I get when I read the
administration's prepared testimony. EPA's prepared testimony
suggests the agency is merely rearranging the decks on what
seems to be a floundering ocean liner. Now, I believe the
Members of both sides of the aisle and all families living near
the Superfund sites would find that unacceptable. In fact,
EPA's own figures for 1995 show that less than half of the
Superfund budget is spent on direct cleanup efforts. Forty
million Americans who live within the 4 mile radius of a toxic
wastesite and millions of their children who live there want to
know the truth, and they want a program that spends at least as
much on cleanups as on administrative and bureaucratic overhead
and litigation.
In short, the American taxpayers deserve better, and I look
forward to hearing the testimony of all the witnesses. I would
now like to recognize our ranking subcommittee member, Mr.
Sanders, for an opening statement.
Mr. Sanders, welcome to our committee.
[The prepared statement of Hon. David M. McIntosh follows:]
[GRAPHIC] [TIFF OMITTED] T1517.001
[GRAPHIC] [TIFF OMITTED] T1517.002
[GRAPHIC] [TIFF OMITTED] T1517.003
[GRAPHIC] [TIFF OMITTED] T1517.004
[GRAPHIC] [TIFF OMITTED] T1517.005
[GRAPHIC] [TIFF OMITTED] T1517.006
[GRAPHIC] [TIFF OMITTED] T1517.007
[GRAPHIC] [TIFF OMITTED] T1517.008
[GRAPHIC] [TIFF OMITTED] T1517.009
[GRAPHIC] [TIFF OMITTED] T1517.010
[GRAPHIC] [TIFF OMITTED] T1517.011
[GRAPHIC] [TIFF OMITTED] T1517.012
[GRAPHIC] [TIFF OMITTED] T1517.013
Mr. Sanders. Thank you very much, Mr. Chairman. And, Mr.
Chairman, thank you very much for holding this hearing today.
The State of Vermont, that I represent, is one of the most
environmentally conscious States in the country. We are very
concerned about toxic dumps that we have in our State and
throughout this country and want to see them cleaned up as
cost-effectively and as quickly as is possible. And, therefore,
I thank you very much for calling attention to this important
problem and the whole Superfund program.
Obviously, however, I hope that we can look objectively at
the program as it is run today without condemning the program
from mistakes made in the past. As you know, early on, EPA
administrators under President Reagan ran into many, many
problems relating to Superfund and ultimately the chief
administrator resigned in disgrace. And while we are all
disturbed about what happened in the early 1980's, and don't
want to dwell on that issue, I think it is important to bring
it into the record. What happened in the past is unfortunate,
the fact that EPA administrators started off in such a bad way
running the Superfund is unfortunate, but that was yesterday,
and today is today.
In the early days of the Superfund, progress reports were
abysmal and sites were just not started down the pipeline. And
that meant that future administrators inherited that backlog,
and that's an important point to be introduced into the record.
Superfund, as you know, addresses a large and complicated
problem. It is not necessarily apples and apples. Some sites
are in terrible condition, difficult to improve, others not so
bad. There are different toxic chemicals, different terrains
and different communities at each site.
As the EPA gains experience, cleanups are getting faster
and more cost-effective. And recently, the Clinton
administration adopted major reforms addressing some of the
problems that we'll be discussing today.
The general consensus, Mr. Chairman, seems to be that we
are doing better. In the last 4 years, EPA has cleaned up 250
Superfund sites, almost double the amount cleaned up in the
previous 12 years. Let me repeat that. EPA has cleaned up 250
Superfund sites, almost double the amount cleaned up in the
previous 12 years. That seems to me to be a pretty good record.
From 1983 through 1992, EPA completed cleanups on an average of
fewer than 15 sites per year, while during the first 3 years of
the Clinton administration, EPA's average soared to 65 sites
per year. That seems to me to be a pretty good improvement.
About 75 percent of Superfund sites are either under
construction or are construction-complete; of the approximately
1,300 NPL sites, 418 are construction-complete and another 491
are under construction, and cleanups are now 20 percent faster
and 25 percent less expensive than under the Reagan and Bush
administrations. Once again, not perfect, but that seems to be
a pretty good step forward. Even the large corporations
affected by the program seem to agree. In a December 1996
report, an industry group reported, ``EPA's track record is
substantial, especially in light of the severe obstacles that
EPA encountered during fiscal year 1996, as it began
implementation of these reforms.''
Yet, Mr. Chairman, you say that GAO has come to the
opposite conclusion. This disparity of opinion concerns me a
great deal. If we are truly interested in taking an objective
look at the program and how it is run today, we need to make
sure we are asking GAO to look at the current program. Now, if
we want to have a hearing, Mr. Chairman, and I think some of us
might be interested in doing it, and seeing how Superfund was
handled in the early 1980's, we can do it. But if we are
interested in looking at how EPA is functioning with Superfund
today, let's look at Superfund today.
I understand that this is a difficult issue because of
major reforms that have been implemented in the last 5 years.
But I don't think it's helpful to confuse the issues with
numbers that are not telling the true story. So this will be an
interesting hearing for all of us who want to make sure that
the Superfund cleanup takes place as cost-effectively and as
rapidly as we possibly can.
Thank you very much, Mr. Chairman.
[The prepared statement of Hon. Bernard Sanders follows:]
[GRAPHIC] [TIFF OMITTED] T1517.014
[GRAPHIC] [TIFF OMITTED] T1517.015
Mr. McIntosh. Thank you, Mr. Sanders. I look forward to
serving with you on this subcommittee.
Mr. Sanders. So do I.
Mr. McIntosh. And I look forward to getting the data out on
the Superfund issues. Before we turn to Mr. Waxman for his
opening statement, let me welcome the new members of the
subcommittee who are here. Mr. Kucinich, welcome.
Mr. Kucinich. Good to be here.
Mr. McIntosh. And Mr. Snowbarger, welcome, and also our new
vice chairman, welcome, I hope you will enjoy being on this
committee, Mr. Sununu from New Hampshire. The staff mentioned
you don't have an opening statement at this time, particularly?
Mr. Sununu. No.
Mr. McIntosh. OK. Thank you. Mr. Waxman, for your opening
statement.
Mr. Waxman. Mr. Chairman, I've been a Member of Congress
for 22 years. During that time we've had Republican
administrations and Democratic administrations, and the
traditions of the House and the rules have always required that
we treat people fairly. If it's an administration witness, you
try to put them on first. If it's a colleague who wishes to
testify, invariably, we put the colleague on first, because our
colleagues have other business. When Members come to a hearing,
all Members have been afforded the right for an opening
statement.
Mr. Chairman, we received notice of this hearing that was
going to be on the GAO report, which I think is a very flawed
report, and when we first heard about the hearing, the
Environmental Protection Agency wasn't going to testify. We
thought that was quite inappropriate and worked with you to
encourage EPA to come and testify so we would have a balanced
hearing. We also indicated, Mr. Chairman, that we wanted to
bring in some witnesses that were critical of the GAO and
requested those witnesses.
Well, evidently, now that the chairman sees that there is
going to be some criticism of the point of view that he wants
to advance, he's come up with some witnesses that he wants to
put on, but we haven't received notice about these witnesses
appropriately under the rules and under rule 2, it says,
``Every member of the committee, unless prevented by unusual
circumstances, shall be provided with a memorandum at least 3
calendar days before each meeting or hearing explaining (1) the
purpose of the meeting; and (2) the names, titles, backgrounds,
and reasons for appearance of any witnesses.'' And we didn't
get that notice under the rules.
I don't know what unusual circumstances there can be that
would require that we bend the rules. There's another rule that
says that we get testimony at least 24 hours in advance. We
didn't get the testimony 24 hours in advance.
Now, ordinarily if you've got a hearing, you try to let the
witnesses testify, and most people will not be a stickler to
the rules, but when I walked in today, Mr. Chairman, you
indicated you didn't want Mr. Pallone to testify first. You
didn't want Members to be able to make opening statements. You
wanted to be sure that the witnesses who agreed with you get to
testify first; those happen to be a panel of witnesses whose
names we never received in advance and whose testimony we did
not receive in the appropriate timeframe. And then you wanted
to have our witnesses at the very bottom, rather than have them
maybe together in a panel.
I'm making a record, Mr. Chairman, that I think that what
we have is a breakdown in the comity in which Members
ordinarily get together to try to work out what is a fair
hearing where all sides can be aired.
Let me talk about the issue before us, Mr. Chairman; we're
going to hear some testimony on how quickly we have been
listing and cleaning up toxic wastesites, and I appreciate the
fact we're holding this hearing, because we're frustrated by
stories of long, drawn-out cleanups and we all want sites
cleaned up quickly. On the other hand, we need to put the
testimony we hear today in perspective. It's my understanding
that the GAO's analysis is based on a methodology that is
flawed. We need to make sure that we do not condemn the program
as we know it today for the mistakes made in earlier years,
especially when the current administration has adopted reforms
that address these problems.
Sixty-eight million people, including 10 million children,
live within 4 miles of a toxic wastesite. The Superfund program
sets up an aggressive plan for listing and cleaning up these
sites. Unfortunately, during the early days of Superfund, in
the 1980's, the program was largely ignored by those in charge
of running it. Rita Lovell, the Republican-appointed EPA
assistant administrator who first ran this program, went to
jail for lying to Congress about the Superfund program and the
first EPA administrator charged with managing Superfund, Ann
Burford, resigned in disgrace in connection with the same
controversy.
A 1983 EPA management review concluded that, ``The Agency
never mobilized its full resources to implement the Superfund
program in a coordinated way . . . Top EPA policymakers at
headquarters were primarily concerned with `prudent fund
management,' [which] had a significant dampening effect on
aggressive front-line cleaning-up activities through the
application of restricted criteria for Federal action.''
Because of this early neglect, future administrations
inherited a tremendous backlog of sites that had not yet been
listed or cleaned up.
In stark contrast, the Clinton administration adopted wide-
ranging reforms that directly address the long-standing
problems of long, drawn-out cleanups, including: reducing the
delay caused by litigation by reaching settlement with
thousands of de minimis parties (14,000) shortening the time it
takes to study remedies by starting with a presumptive remedy
at many sites, and fully implementing the Superfund accelerated
cleanup model (SACM), which promotes expedited removals of
dangerous toxic waste. We will be releasing a minority staff
report on the progress made.
The progress report on these reforms is impressive: In the
last 4 years, EPA has cleaned up 250 Superfund sites, almost
double the amount cleaned up in the previous 12 years. From
1983 to 1992, EPA completed cleanups on an average of fewer
than 15 sites per year, while during the first 3 years of the
Clinton administration, EPA's average soared to 65 sites per
year. About 75 percent of Superfund sites are either under
construction or are construction-complete. Of the approximately
1,300 NPL sites, 418 are construction-complete and another 491
are under construction. And cleanups are now 20 percent faster
and 25 percent cheaper than under the Reagan and Bush
administrations.
In fact, a group of large corporations that are interested
in Superfund reforms reported in the December 1996 report,
``EPA's track record is substantial, especially in light of the
severe obstacles that EPA encountered during fiscal year 1996
as it began implementation of these reforms.''
Today, Mr. Chairman, we're going to hear some testimony
from the GAO about the Superfund program and how quickly we
have listed and cleaned up sites. Let's keep in mind that the
Superfund program today is a very different program than the
program we had in the 1980's. As we look forward and consider
what changes still need to be made to improve the program, we
must recognize the tremendous progress that has been made in
the last 4 years and we need to make sure that we do not
inappropriately condemn the Clinton reforms for the neglect of
earlier administrations.
Mr. Chairman, this hearing is an appropriate one for our
subcommittee, the issue is an important one for us to evaluate
in a fair manner. I would never reject the idea of witnesses
coming in to say what they have to say, even though I might
disagree with them. I think it's inappropriate to have the
rearrangement of the order of witnesses to try to have the
witnesses that agree with the Chair up front and the witnesses
that disagree with him down on the bottom. I think that this
hearing has not been handled the way it should have been, and I
say that with a great deal of regret, and I want the record to
reflect it.
I yield back the balance of my time.
[The prepared statement of Hon. Henry A. Waxman follows:]
[GRAPHIC] [TIFF OMITTED] T1517.016
[GRAPHIC] [TIFF OMITTED] T1517.017
[GRAPHIC] [TIFF OMITTED] T1517.018
[GRAPHIC] [TIFF OMITTED] T1517.019
[GRAPHIC] [TIFF OMITTED] T1517.020
[GRAPHIC] [TIFF OMITTED] T1517.021
[GRAPHIC] [TIFF OMITTED] T1517.022
[GRAPHIC] [TIFF OMITTED] T1517.023
Mr. McIntosh. We'll move now to the witnesses. Let me state
at the beginning, though I have a very different philosophy and
I think this whole Congress has a different philosophy than the
past 40 years, that it is perhaps best for us to hear from
citizens of the United States outside of Washington first and
then have the Government listen to itself about problems. And
for that reason, I intend always to have panels with citizen
witnesses come first and then Government witnesses.
Now, Representative Pallone has asked if he could go first
today, because he's got another mark-up over on the Commerce
Committee, and in order to accommodate his time, I'm happy to
move him up from the testimony with John Mica later, and we'll
hear from John later on in the hearing.
So with that, thank you for coming by, Representative
Pallone. I appreciate you spending time to come and share your
experiences on this subject with us. And let me now turn it
over to you for your statement.
STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Mr. Chairman. And I also want to
thank the ranking members, Mr. Waxman and Mr. Sanders also for
the opportunity to testify today.
As you know, I am a New Jersey resident and represent the
Sixth District in New Jersey, and I'm very familiar with the
Superfund's highs and lows. New Jersey has 116 sites on the
National Priority List, more than any other State in the
country, and my district alone contains 10 Superfund sites.
However, I'm here basically to tell you that I'm pleased about
the EPA's extensive Superfund presence in New Jersey. I know
that sounds a little strange, but the fact is that there are
more than 7,000 known contaminated sites in our State.
If you look at the State sites, it's obviously a lot more
extensive than the Federal Superfund sites. And for years on a
bipartisan basis, our State government has worked hard to find
and remediate toxic sites throughout New Jersey. But we can't
do much of it on our own, and that's why we're pleased that
there is a Federal program that is cleaning up the sites in New
Jersey and why I'm particularly pleased that Superfund is
working, and I stress, is working in my district.
In New Jersey almost 70 percent of our 116 sites are either
being cleaned up or are cleaned up. A great number of the sites
have not been delisted, only because long-term monitoring is
still ongoing there, because long-term treatment of ground
water is still ongoing. But I want to stress again that the
Superfund program is working in New Jersey. In my State, EPA
and our State government work hand-in-hand to save people's
lives and protect their health. And I just wanted to give you
an example: At the Grand Street Mercury Site in Hoboken, the
local and State departments of health, together with the EPA,
took swift action to protect the lives of 34 people living in a
building that was so contaminated with mercury that residents
were exhibiting early poisoning symptoms.
Let me tell you, mercury pollution is sort of a pet concern
of mine, because it is such an extensive problem in New Jersey,
and I think many of you know the very damaging effects that
mercury pollution can have. Today, the EPA is working with the
State to both remediate that site in Hoboken, that I mentioned
and to provide for shelter for the evacuated residents.
Mr. Chairman, I hope that today's hearing will have the
positive outcome of illuminating ways to speed up cleanups that
truly protect both human health and the environment. Let me say
that I understand that there have been some problems with
Superfund and with some individual site cleanups, and each of
us can talk about that, but let's be honest and acknowledge
that those problems were in many respects due to some
miscalculations on the part of Congress and past
administrations. For instance, it's clear that in writing the
original Superfund statute, Congress greatly underestimated the
original size and complexity of the toxic waste problem in this
country. And my colleagues, the ranking members, have also
mentioned, which I think is true, that the program was grossly
mismanaged during its crucial development phases by former EPA
officials.
The truth is that the Superfund program is a very
complicated answer to a complex problem, and, however, many of
the complaints that are often repeated about Superfund stem
more from a lack of understanding about the nature of
environmental pollution and remediation and, I think,
unrealistic expectations about Superfund. What many fail to
recognize is the sheer volume and complexity of the National
Priorities List, the contamination at any given site on the
NPL, and the need to develop a whole new generation of
technology just to treat the contamination.
What I wanted to do today, in the last few minutes here
before I conclude, is to talk about a couple of Superfund
success stories, and maybe that's appropriate. I can begin by
talking about one in my own district that's very close to my
heart. This is the Chemical Insecticide Corp., site in Edison,
NJ, and, in fact, today the EPA is going to announce that the
offsite cleanup is completed at this site.
The CIC site manufactured pesticides from 1958 through
1970. As a result of CIC's operations, the site became heavily
contaminated with arsenic, organic pesticides, herbicides and
other hazardous substances. This was basically the product of
Agent Orange for the Vietnam war. Nearly 77,000 people live
within a 3 mile radius of this site in New Jersey, however, of
real concern to residents and me was the contamination that
migrated offsite to an unnamed stream and the Mill Brook. Both
of these are used for recreation by local residents,
particularly children. Because we believed that the offsite
pollution posed a real threat to the health of Edison, NJ, I
wrote to the EPA in December 1994 urging the agency to ensure
full and swift remediation of all offsite contamination. By
March 1995, EPA had signed a record of decision on the offsite
contamination and by July of that year, EPA had begun removing
what was to amount to a total of 13,300 tons of contaminated
soil.
EPA completed that removal in December, and the agency has
also back-filled the excavated areas, restructuring and
stabilizing the stream beds, the banks, and planting thousands
of trees and shrubs. And I'm happy to announce today, this is
really being announced today at this hearing, that the EPA will
declare the offsite cleanup complete. So in only 2 years the
EPA has not only responded to our request, but actually
completed the offsite cleanup.
And I mentioned mercury contamination of a site in New
Jersey earlier, but this is my other example, if the committee
would bear with me. The best example of EPA's work in
addressing mercury contamination is at the site that's called
the LCP site in Brunswick, GA. This is an industrial site that
had many environmental problems and did not come into
compliance with the law when ordered to on various occasions by
the State of Georgia. The State actually filed suit to close
the facility. It's a dangerous site by any standards. Between
1980 and 1994, 380,000 pounds of mercury literally disappeared
into thin air, into the atmosphere. The site is also
contaminated with lead, PCBs and barium.
And as I've noted before, States can't always get the job
done on their own. They often lack the expertise or the funds
to cope with toxic threats. This was clearly the case with the
LCP site. Within a day of the facility's closure, the State of
Georgia asked EPA to come in to deal with the threat. That was
3 years ago. Almost immediately EPA began a removal action to
mitigate the threat to the surrounding people and environment
in addition to undertaking the removal action within 1\1/2\
years, EPA proposed the site for NPL listing and listed the
site less than a year later.
And let me just quickly describe what they did, because I
think the sheer volume of EPA's work at this site is
mindboggling. Since February 1994, EPA has removed 450,000
pounds of mercury, 130,000 tons of contaminated waste, and 20
tons of asbestos. It has demolished the main process building
and decontaminated 75,000 tons of steel and building debris.
The agency has also treated over 30 million gallons of
contaminated waste water and removed 120,000 gallons of
contaminated oil from the site. The sheer magnitude of it is
really mindboggling.
Perhaps the most impressive thing is EPA's work with a
developer at the site to tailor the cleanup to the future use
of the LCP site, because ultimately that's what we want to see
these sites used for new purposes, and because of the EPA's
work, a shipbuilder is already looking to purchase the site and
begin construction of dry docks on an area that is already
cleaned up. This holds the promise of bringing some 300 high-
skilled jobs to a site that the State of Georgia once tried to
shut down.
Now, I use those two examples, but there are many more
examples like that. And, as has been pointed out, particularly
in the last few years, the pace of cleanup has accelerated.
In closing, I just hope that my testimony provides some
insight into the bright side of the Superfund program and into
some of the complexities that necessarily arise from such a
complex undertaking as toxic waste cleanup. If I haven't made
it clear enough, my message to you and the American people is
that Superfund, while not perfect, does work. In fact, it often
works so well and there are people in communities that had a
very positive experience with the program and would continue to
welcome the EPA's efforts to help safeguard their well-being
and restore their lands to productive use.
I know that you're going to spend a lot of time on this
issue, and I know that the Commerce Committee, that I'm a
member of, will also be spending a lot of time on it, but the
bottom line is, whatever we do with the program, we have to do
it in a way that improves it, but understand that the program
right now is very successful in cleaning up sites.
And, again, I thank you for your attention and for the
opportunity today.
[The prepared statement of Hon. Frank Pallone, Jr.,
follows:]
[GRAPHIC] [TIFF OMITTED] T1517.024
[GRAPHIC] [TIFF OMITTED] T1517.025
[GRAPHIC] [TIFF OMITTED] T1517.026
[GRAPHIC] [TIFF OMITTED] T1517.027
Mr. McIntosh. Thank you, Mr. Pallone. I appreciate you
coming over, and we'll make your full remarks part of the
record.
Let me now call forward the first panel of witnesses, Mr.
Don Parris, Mr. Richard Castle, and Mr. John Lynch.
Mr. Waxman. Mr. Chairman, I seek recognition for a point of
order. Committee rule 2: The minority must receive at least 3
days notice of the identity of witnesses unless prevented by
unusual circumstances. This rule was not followed. If I might
be heard further on it. We didn't learn the identity of the
witnesses on panel one until yesterday afternoon. The late
notice has not allowed us ample time to prepare questions or to
investigate what the witnesses' testimony might be.
I don't object to hearing the testimony of these witnesses
today, but I would request that they testify at the end of the
hearing. This would allow us at least a minimal amount of time
to prepare for the witnesses' testimony. Delaying the testimony
of the panel would also allow us to extend the normal
courtesies to other witnesses that have prepared to be with us;
delaying the testimony would also allow us to extend the normal
courtesy to Mr. Laws, a senior official of the EPA.
Our tradition has always been to allow senior
administration officials to testify after Members of Congress
and before the other witnesses. You indicated these witnesses
are grassroots witnesses, you want to hear from them first. We
have other grassroots witnesses who will come with testimony
that disagrees with your position, they happen to be put at the
bottom.
But my point of order is on a violation of committee rule
2, and I assert that point of order at this time.
Mr. McIntosh. OK. Let me just say the Chair is cognizant of
Mr. Waxman's concerns here. Adequate notice did go out for the
hearing that we're having today, and these witnesses, as I
mentioned, do represent people from outside of Washington, who
have had real experience in these areas, unlike the fourth
panel, which are statisticians talking about the methods of
analysis, and we will proceed to have the hearing as it was
indicated, with this panel first.
Mr. Waxman. Mr. Chairman, you indicated that the notice of
the hearing was given out in an appropriate time, but the rule
says that the names, titles, background, and reasons for
appearance of any witnesses. Information on these witnesses
were not--their names were not submitted to us.
The only ones who are listed, and I have the notice before
me and wish to put into the record--the notice that was sent
out on February 6, 1997, indicating that the only witnesses
would be the General Accounting Office auditors, Mr. Peter
Guerrero, Mr. Stanley Czerwinski, Mr. John Donaghy on panel one
and panel two, Environmental Protection Agency officials, the
Honorable Carole Browner, Administrator, U.S. EPA (invited). So
we did not receive the names of the witnesses who are about to
appear right now. Again, I don't object to their testifying,
even though the rules have not been followed, but it seems to
me that they ought not to be ahead of everyone else. And so I
assert that point of order.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T1517.028
[GRAPHIC] [TIFF OMITTED] T1517.029
Mr. McIntosh. OK. And my understanding is the rules
recognize that you can have witnesses with less than 3 days
notice under special circumstances. Since the full committee
only organized yesterday afternoon, the Chair finds those
special circumstances to be present and overrules the point of
order.
Mr. Waxman. Mr. Chairman, I would like to be heard on a
last point. We organized yesterday, but we had agreed that the
subcommittees could call hearings. This hearing was called way
in advance of yesterday's official organization. We agreed that
this hearing would go forward, as with other hearings of the
subcommittees of the Government Reform Committee, and I can
hardly believe that that could be an excuse for not following
the rule for these witnesses, when it certainly didn't prevent
you from following the rules for all the other witnesses that
are testifying today.
Mr. McIntosh. And I will just state for the record that the
minority has had as much notice about these witnesses as we
have, including receiving copies of their testimony at the same
time as the majority did, and so we will proceed with the panel
as scheduled.
Mr. Waxman. Mr. Chairman, are you ruling my point of order
out of order?
Mr. McIntosh. Yes, indeed, I did.
Mr. Waxman. Then, Mr. Chairman, I appeal the decision of
the Chair. And I make a point of order noting the absence of a
quorum.
Mr. McIntosh. That point of order is overruled. There is a
quorum.
Mr. Waxman. Mr. Chairman, a quorum is not present under the
rules to deal with the appeal of a decision of the Chair.
Mr. McIntosh. Then the committee will stand in recess until
a quorum is present.
[Recess.]
Mr. McIntosh. The subcommittee will come back to order.
It is my understanding that the minority would like Mr.
Sanders to substitute for Mr. Waxman on making that point of
order.
Mr. Sanders. No.
Mr. McIntosh. OK. Then there's no legitimate point of order
raised. According to rule 9 in the Parliamentarian's office,
that has to be made by a member of the subcommittee. I will
recognize Mr. Sanders for the purpose of making that point of
order if he wishes to.
[No response.]
Mr. McIntosh. OK. No point of order. We will proceed to the
witnesses.
First, let me ask all of the witnesses to please rise and
repeat after me.
[Witnesses sworn.]
Mr. McIntosh. Let the record show that each of the
witnesses answered in the affirmative.
Before we begin taking your testimony, I understand that
each of you has submitted to the subcommittee your resume and a
brief statement regarding the receipt of Federal funds,
pursuant to House Rule XI. I want the record to reflect your
compliance with that truth in testimony rule, which I
appreciate your doing.
Mr. Parris, did you or any of the entities you are
representing before the subcommittee receive any Federal grant,
subgrant, contract, or subcontract?
Mr. Parris. We did not.
Mr. McIntosh. Mr. Castle, did you or any of the entities
you are representing before the subcommittee receive any grant,
subgrant, contract, or subcontract from the Federal Government
during the fiscal years 1995, 1996, or 1997?
Mr. Castle. We have not.
Mr. McIntosh. Mr. Lynch, did you or any of the entities you
are representing before the subcommittee receive any Federal
grant, subgrant, contract, or subcontract during the fiscal
years 1995, 1996, or 1997?
Mr. Lynch. I have not, sir, and I'm not representing any
entities.
Mr. McIntosh. Thank you. I ask unanimous consent to make
the witnesses' written certifications part of the record.
Mr. Waxman. Mr. Chairman, since it's the first time we have
come to this issue of the certification of the rule, I
understand that witnesses, all witnesses, have been given a
certification of nonreceipt of Federal funds by this
subcommittee, and the witnesses have been asked to sign it. I
find that at odds with the rule, and I certainly would urge
witnesses to be very wary about signing something which might
be inadvertently incorrect, because in signing such a statement
they would subject themselves to criminal penalties.
The rule, as I see it, says, ``Each committee shall, to the
greatest extent practicable, require witnesses who appear
before it to submit in advance written statements of proposed
testimony and limit their initial oral presentation . . . In
the case of witnesses appearing in a nongovernmental capacity,
a written statement of proposed testimony shall include a
curriculum vitae and a disclosure of the amount and source, by
agency and program, of any Federal grant or subgrant thereof,
or contract or subcontract thereof, received during the current
fiscal year or either of the two previous fiscal years by the
witness or by an entity represented by the witness.''
Our committee rules don't go so far. Our committee rules
say that when they appear, they provide a listing of any
Federal Government grants and contracts received in the
previous fiscal year. But this loyalty oath, almost, asserting
that you have never received anything, says, ``I am
representing I have not received any Federal grant or subgrant
thereof, or contract or subcontract thereof, during the current
fiscal year.''
I don't think witnesses are required to sign this. You can
give this to them if they want to sign it, but I think they
might be misled into thinking they had to sign something like
this. All they have to do is submit any grants or say that they
know of no grants. I question the propriety of this kind of
form, and I want that on the record.
I don't want to take up time from the witnesses, but I
think it's an issue that I want to highlight for further
discussion as we all try to deal with this new rule requiring
witnesses to make this disclosure.
Mr. McIntosh. So noted. That's the current policy of the
subcommittee, but we will look forward to working with the
minority in developing procedures to implement that rule.
Mr. Waxman. Current policy is a very strange notion. This
is the first time we have implemented the policy. This is an
attempt to implement the policy, and we want to talk further
about whether this is the appropriate way to do it.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T1517.030
[GRAPHIC] [TIFF OMITTED] T1517.031
[GRAPHIC] [TIFF OMITTED] T1517.032
Mr. McIntosh. Mr. Parris, if you would share with us your
testimony, please.
STATEMENTS OF DON PARRIS, PRESIDENT, ENVIRONMENTAL REMEDIATION
CONSULTANTS, INC.; RICHARD CASTLE, PRESIDENT, CASTLE CONCEPTS
CONSULTANTS; AND JOHN F. LYNCH, JR., SENIOR PARTNER, CARPENTER,
BENNETT, AND MORRISSEY
Mr. Parris. Mr. Chairman and members of the subcommittee,
we appreciate the opportunity to appear before you today and to
express our views on an EPA directive requiring extensive
reform, the Superfund Act of 1980.
Our companies are part of a consortium of environmental
professionals with over 70 years of combined remediation
expertise, small businessmen, each with their own expertise,
networking to scientifically assess and implement natural,
commonsense solutions to contamination problems. We are able to
tap into the academic and commercial advances throughout the
country, combining these with current remediation practice to
offer site-specific initiatives never before attempted.
Petroleum organics, solvents, chlorinated compounds, heavy
metals, and even low-level radiation, all are being
successfully remediated using innovative, cutting edge,
biologically based protocols. We are indifferent to the band-
aid approaches of dig-and-haul, managed abatement, or capping,
procedural throwbacks to the 1970's and 1980's that are still
being championed by many large firms with their ``one size fits
all'' mentality.
The focal point of our innovative methodologies centers on
in-situ bioremediation, the use of naturally occurring
organisms to augment the metabolic removal of hydrocarbons from
contaminated sites, and the only remediation technology
recognized by EPA that does not create secondary liabilities.
Our network has been successful in bridging the gap between
R&D and the actual field application, to offer a proactive
approach that is fast, effective, economical, and complete. We
have found the typical period for minimally impacted soils to
be 3 to 12 weeks, at a 25 to 30 percent cost savings over
traditional technologies.
Through the use of strain selection, population dominance,
co-treatment amendments, and hydrological manipulation
strategies, we are able to minimize and maintain increased cell
viability, thus allowing for the simultaneous cleanup of both
soils and ground waters, and eliminating the need for
``operable units'' at a site. The site itself, in fact, is the
operable unit.
Despite these obvious advantages proffered by small
innovative companies, we remain on the outside looking in. The
large approved vendors, garnering close to 90 percent of the
most lucrative Government contracts while accounting for only
10 percent of the total remediation firms, are inflexible and
have only one or two so-called ``technologies'' that they make
fit particular situations, disregarding any site specificity.
Since there are no time limits established for closure, the
incentive to clean the impacted area is minimal. Administer and
manage are the coveted cash cows of these vendors. Thirty- to
fifty-year cleanups are common in the industry, but what is
actually meant by ``clean''? Since the inception of the
superfund, only 33 sites have actually been cleaned, and we are
speaking of a technical closure now as opposed to a paper
closure.
Dig-and-haul rids the impacted area of the contaminant only
to spawn the next generation of Superfund listings; namely, the
landfills. Pump-and-treat was recently approved by a regulatory
agency because they knew of no other technology that fit a
specific site. The estimated time for that closure was 900
years, and this was actually approved by that agency, with the
caveat that, if something else came to light within that period
of time, they might possibly use it.
Another case in point substantiating the need for Superfund
reform is the Havertown PCP site near Philadelphia, PA. It was
formerly a wood treater facility that had PCP, creosote,
arsenic, copper chromate, dioxin, and various other
contaminants. The EPA held various town meetings to update the
community on its efforts and to ask for alternatives to the
record of decision, which was capping, due to citizen
opposition.
We visited the site and reviewed some of the available
documentation. We found that there was no thorough site
characterization; namely, no plume mapping, migration profiles,
or hydrological studies. There was no current toxicological
investigation.
There were very lax meeting protocols filled with a lot of
misinformation to the community, and there was constant
posturing at these meetings that the cap remedy was not
predestined and was merely an interim measure until a better
technology could be developed. The apathetic citizenry of that
area compared the entire project to a dairy farm that was about
to be milked for the next 30 years.
We felt we could help. We proposed to Havertown and the EPA
the following: we were to hold meetings with the EPA and the
community to explain our technology; we were to answer any
questions or any challenges; and we were to do treatability
studies, at our own expense, on soils and ground waters; we
would undertake a full site characterization to define the
sources, the zones of impact, and migration pathways; we would
submit a revised corrective action plan to clean up the soils
and the ground waters and all the adjacent properties; and we
could reach closure, we felt, with the information that we had,
within an 18- to 24-month period.
On top of all this, we were going to guarantee this closure
through performance bonding. No cleanup; no pay. EPA's response
to our efforts was less than desirable but not unexpected. It
ranged from our proposals being totally ignored--after all,
they had never put a guarantee and a cleanup in the same
sentence--through competency and nontechnical rebuttals of
proven facts.
Finally, the township was given the ultimatum to accept the
cap or lose funding. Federal marshals enforced this order, and
the site was topically sealed within 2 months. As a peace
offering, nonpermanent buildings could be erected on the site
or, in fact, it could even be turned into a playground.
In summary, it is obvious to us that the EPA fell far short
in their duties and responsibilities at Havertown. No. 1, in
light of technical advances and dynamic site conditions,
reevaluation is definitely warranted. The use of 1970's and
1980's technology, the evaluation of bioremediation by a
generic, nonspecific report with no regard to provable merit,
source elimination, and the lack of mandatory hydrological and
geological studies all support this finding.
No. 2, EPA's remedial plan fails to consider permanent
future use of the property and its concomitant tax base. They
would have restrictive building codes and no underground
utilities. Our methodologies actually clean the site up, to or
below Federal and State standards, with no use limitations.
No. 3, EPA would not consider or evaluate the economic
advantages of our technology. With it, there would be no need
to buy additional land, no need to construct roads, no need to
cap, no need to build a $10-million treatment facility, no need
to demolish buildings, and no need for an operating and
overhead expense for the next 30 years.
The total cost of the project would exceed, probably, $40
million, and nothing will be cleaned, only managed. The source
will continue to pollute the ground water, and, as we all know,
soil cleanup using pump-and-treat just doesn't work.
This is just one site among many and we are but one group
among many. If the EPA is to live up to its mandate, as
evidenced by the preceding scenario, clearly many changes are
necessary. They must get in step with the new thinking and put
the emphasis back on science. It is a sad note that cutting
edge, innovative companies can totally remediate a site in one-
tenth the time it now takes to simply administer that site,
saving countless lives, years of nonuse, and billions of tax
dollars.
We thank the committee for its efforts on behalf of the
environment and for allowing us to participate.
[The prepared statement of Mr. Parris and Mr. Castle
follows:]
[GRAPHIC] [TIFF OMITTED] T1517.033
[GRAPHIC] [TIFF OMITTED] T1517.034
[GRAPHIC] [TIFF OMITTED] T1517.035
[GRAPHIC] [TIFF OMITTED] T1517.036
[GRAPHIC] [TIFF OMITTED] T1517.037
Mr. McIntosh. Mr. Parris, I appreciate that testimony. What
we will do is, we will hear from each of the panelists and then
have a period of questioning from the committee.
Our second witness on this panel is Mr. Lynch.
Mr. Lynch.
Mr. Lynch. Thank you, Mr. Chairman.
Gentlemen, may I have your attention. I would like to
address particularly, Mr. Waxman, some of your concerns. I will
state at the outset that this is a personal statement. I am not
here in a representative capacity. Your staff invited a party
who had complained about the intractable delays and costs of
this program, and that party suggested me as an alternate
because I had experience with many more cases.
Mr. Sanders. Mr. Lynch, could I just encourage you to bring
the mic a little bit closer to your mouth, please.
Mr. Lynch. Sure.
Mr. Sanders. Thank you very much.
Mr. Lynch. I first spoke to someone on your staff about
this thing yesterday morning at 10 o'clock. I pulled an all-
nighter writing my testimony, but I do believe I'm coming in
the idea that someone who has made a living at this for 12\1/2\
years may have something of value for the very important
national debate that you folks are at the heart of.
Mr. Waxman. Mr. Chairman, I don't want to take up his time,
so maybe we can start it over.
Mr. Lynch, let me make a couple of things clear. You never
talked to anybody on my staff.
Mr. Lynch. You or the committee, sir.
Mr. Waxman. No, you never talked to anybody on my staff.
You might have talked to the majority staff, but not to our
staff.
Mr. Lynch. I agree.
Mr. Waxman. Second, the rules require that we have the
testimony in advance so that we can review it and ask
intelligent questions. I want people to see your testimony we
received this morning; it's all handwritten.
Mr. Lynch. I understand that, sir.
Mr. Waxman. Now, I have no objection to your testifying. I
want everybody to testify who has something relevant to say.
And my beef is not with you; my beef is that we should have had
this in advance, and the chairman didn't protect the Members.
Mr. Barr. Mr. Chairman, I have a point of order, please.
Could I inquire of the Chair if we can proceed under regular
order and whether a point of order would lie to that effect
now, so we can proceed.
Mr. McIntosh. Let us proceed.
Mr. Waxman. I would like to ask unanimous consent that the
gentleman's time start now so he will get the full 5 minutes.
Mr. McIntosh. We will do that.
Mr. Lynch, go ahead. Proceed.
Mr. Lynch. My apologies, sir, for the handwritten. It's the
best I could do. I tried to get it typed, faxed to my office,
typed back, and I did not know the handwritten was going to be
handed to you. I would really request the honor to be able to
put a proofread version in front of you sometime later.
Mr. McIntosh. We will gladly accept that testimony. Mr.
Lynch, let me just say, the committee is extremely pleased that
you are able to be with us today, and we understand that,
unlike the Government, the private sector doesn't have huge
staffs to help them prepare these things months in advance and
that you are taking time away from things you could be doing in
your business in the private sector. So thank you for coming,
and I appreciate the testimony you are giving.
Mr. Lynch. Well, that's OK.
My central idea is this, that you, a congressional
committee, should be at the heart of this national debate,
because you are involved with governmental operations affecting
the national economy. I think what's wrong with this program is
at that point. It's not in the details of administrative reform
or the other things you are probably going to hear more about.
I speak primarily to address the problems at multiparty
sites. I don't have any brief to file with regard to what the
Government wants to do to tell some guy to clean up his
factory. I'm talking about the multiparty sites, the kinds of
sites that are taking the administrative and litigation delay
that you are talking about.
The central point I want to make is that among all species
of Government programs, Superfund--and I don't think this is
widely recognized--is an entirely new animal. It looks like
some others, and parts of it can be recognized by comparison to
other species, so it's more like a mutation than an alien, but
this is fundamentally a new animal, and I don't think people
understand that.
What I'm saying is that the main problem with this program
is not the way it's dealt with in the field, though certainly
there are those kinds of problems. In the main, EPA employees
are certainly not stupid, ignorant, or evil. The companies that
respond to these cases are not rogues, insensitive to the
national will. All these folks are simply reacting to try to
deal rationally with something foreign to their experience and
the national governmental traditions.
Let me illustrate how different this program is, showing
how, in some ways, these factors of it can be recognized in
other statutes but together they represent mutations of a
governmental program which have produced a nonworking program.
First of all, most environmental statutes--RCRA, Clean Air,
Clean Water, NEPA--tell this generation how to deal with its
hazardous substances today. Those programs tell us how to
allocate resources to produce products today and fulfill
national environmental policies at the same time. In contrast,
Superfund asks this generation to use its assets to pay for the
sins of the past, and sometimes to pay for the good actions of
the past.
Second, most significant allocations of resources in our
society are done by market forces--Adam Smith's invisible
hand--or by legislative decisions by Congressmen such as you,
hammered out against the background of demands of competing
programs and their fiscal constraints, while you guys try to
reach, if not a balanced budget, at least a responsible one. In
contrast, Superfund does not give bureaucrats money to spend;
it gives them power to spend other people's money off budget.
Third, most governmental programs which operate by giving
power, check that power by making it subject to judicial review
before it matures into any order that must be obeyed. In
contrast, Superfund falls within an exception to the general
principle of prior judicial review carved out for health-
related cases in the U.S. Supreme Court case of ex parte Young.
Fourth, most governmental programs that come within the ex
parte Young exception are intrinsically limited in the amount
of the generation's wealth they relate to. The quarantine of a
ship in a harbor may be seriously bothersome to the cargo and
shipping companies, but their capitalization and risk
management decisions probably localize even that effect, and
the national economy is not affected.
In contrast, there is nothing under Superfund--absolutely
nothing--that prevents a single bureaucrat from ordering the
entire gross domestic product to be devoted to cleaning up a
single site. Now, that sounds silly. Perhaps it's really not
going to ever happen--although, when I look out my window at a
sediment case involving the Passaic River, I sometimes wonder--
but the point I do want to make is that bureaucrats performing
what they perceive to be their obligations under this statute
can order just about any amount of this generation's fisc and
can do it without a whole lot of cost considerations, cost
benefit constraints of the consequences.
I will skip a point, just because of the time constraints,
dealing with the fact that there is a delinkage between the
traditional legal concepts in our society of cause--you have to
cause a problem before you have to remedy it. Here, the
dilution of the concepts of joint and several liability are so
extreme that parties get dragged into cases with the smallest
scintilla and are threatened with the ruinous consequences of
the total dollar consequence of the entire site, and those
consequences are not reasonably related to any kind of result.
The problems are compounded by efforts to do promptly that
which ought not to be done in the first place, to do it by
employing gross diseconomies of Government contracting
processes, and to do it occasionally to serve the interests of
the preservation of Government jobs. But as applied to
multiparty sites, Superfund is a program made to make this
generation pay for the cures of the ills of the past.
As such, in my opinion, it should be based on a
congressional determination of how much we can afford, in this
generation, to address those prior ills. How many bucks can we
spend? We can't spend it all to clean dumps. Somebody has to
grow the food to feed the people that clean them. Once that
amount is determined, there ought to be a program implemented
that holds people in Government responsible to get the most
environmental bang for those bucks.
Instead, Congress has granted unprecedented power and tries
to hold people responsible for how many cases they have closed
and how fast they have closed them. This program has become yet
another example, in our computer age, of the perversion of
qualitative values into quantitative gymnastics. Protecting the
health of ourselves, our children, and our planet has, under
Superfund, become an exercise in counting beans.
Now, those are my conclusions, as I say, after 12\1/2\
years of dealing with this. If you want the details, anecdotal
examples of any of these things, I will be glad to provide
them.
[The prepared statement of Mr. Lynch follows:]
[GRAPHIC] [TIFF OMITTED] T1517.038
[GRAPHIC] [TIFF OMITTED] T1517.039
[GRAPHIC] [TIFF OMITTED] T1517.040
[GRAPHIC] [TIFF OMITTED] T1517.041
[GRAPHIC] [TIFF OMITTED] T1517.042
[GRAPHIC] [TIFF OMITTED] T1517.043
[GRAPHIC] [TIFF OMITTED] T1517.044
[GRAPHIC] [TIFF OMITTED] T1517.045
[GRAPHIC] [TIFF OMITTED] T1517.046
[GRAPHIC] [TIFF OMITTED] T1517.047
[GRAPHIC] [TIFF OMITTED] T1517.048
[GRAPHIC] [TIFF OMITTED] T1517.049
[GRAPHIC] [TIFF OMITTED] T1517.050
[GRAPHIC] [TIFF OMITTED] T1517.051
[GRAPHIC] [TIFF OMITTED] T1517.052
[GRAPHIC] [TIFF OMITTED] T1517.053
[GRAPHIC] [TIFF OMITTED] T1517.054
[GRAPHIC] [TIFF OMITTED] T1517.055
[GRAPHIC] [TIFF OMITTED] T1517.056
[GRAPHIC] [TIFF OMITTED] T1517.057
[GRAPHIC] [TIFF OMITTED] T1517.058
[GRAPHIC] [TIFF OMITTED] T1517.059
[GRAPHIC] [TIFF OMITTED] T1517.060
[GRAPHIC] [TIFF OMITTED] T1517.061
[GRAPHIC] [TIFF OMITTED] T1517.062
[GRAPHIC] [TIFF OMITTED] T1517.063
[GRAPHIC] [TIFF OMITTED] T1517.064
[GRAPHIC] [TIFF OMITTED] T1517.065
[GRAPHIC] [TIFF OMITTED] T1517.066
[GRAPHIC] [TIFF OMITTED] T1517.067
[GRAPHIC] [TIFF OMITTED] T1517.068
[GRAPHIC] [TIFF OMITTED] T1517.069
[GRAPHIC] [TIFF OMITTED] T1517.070
[GRAPHIC] [TIFF OMITTED] T1517.071
[GRAPHIC] [TIFF OMITTED] T1517.072
[GRAPHIC] [TIFF OMITTED] T1517.073
[GRAPHIC] [TIFF OMITTED] T1517.074
Mr. McIntosh. Thank you, Mr. Lynch.
Mr. Castle, the staff informs me that Mr. Parris had
presented testimony for both of you, but do you want to add any
additional comments at this stage of the hearing?
Mr. Castle. Actually, my mission is just to answer
questions, if there are questions. Being part of the consortium
that Don was speaking of, we're sort of on a joint venture here
into answering any questions as witnesses to the subcommittee.
I don't have a prepared speech.
Mr. McIntosh. Thank you for coming today.
Let's turn now to questions from the committee. Let me
direct the attention of all of the witnesses to the charts
there on the left. These are from the draft study that GAO will
be talking to us about in the next panel. What they indicate
are how long it takes to place a site on a Superfund National
Priority List and how long it takes to complete the cleanup
after they have been placed on that list.
As you can see, the slope of those lines indicates that
there's a steadily increasing amount of time since 1986, for
both of those decisions and actions to be taken. Back in 1986,
when Congress reauthorized the program, it took about 4 years
to place a site on the Superfund list and then about 2\1/2\,
maybe 3 years in order to clean it up. Today, in 1996, it takes
a little less than 10 years to place it on the list and perhaps
over 10 years to actually clean it up, making the total time
over 20 years.
In your experience, what would you recommend that we make
for changes that would try to, perhaps in an ideal world,
return the timeframe back to where it was in 1986, but at least
make some dramatic changes. I think we can recognize that, in
the last year or so, the time it takes to place a Superfund
site on the National Priority List has started to come down,
but, unfortunately, the cleanup time has continued to increase.
Any recommended changes that you would have us recommend to
EPA in this, or pass as a statutory change, in order to
dramatically decrease the time for both of those decisions?
Mr. Parris. On the average time it takes to clean up the
Superfund sites, I think the initiative that the EPA is
starting to undertake, the assessment based on presumptive
remedies, I think this is a good initiative to undertake if, in
fact, it is done correctly and the correct presumptive remedies
are, in turn, looked at.
And I think, as I stated, we've got to get more science-
based initiatives, as opposed to engineering or physical
removals of materials on sites. There's a lot of cutting edge
science out there, not just what we talked about today. There
are a lot of people looking at this problem, and a large
quantity of them are small businessmen such as ourselves. These
fellows need to be heard, and they need to have access to EPA
as do the large vendors. They need to cut through the red tape,
and they need to get to the people that they have to get to.
Mr. McIntosh. Let me pursue that, in particular, in the
example you cited where you wanted to use bioremediation to
actually clean up a site. Did EPA give any reasons for not even
considering your proposal? I mean, was it just kind of a black
hole, or did they give you some response?
Mr. Parris. Basically, none. We bantered back and forth a
little bit, and talked about the reasons we could not or could,
in fact, apply that remediation to this site. By the way,
bioremediation is a presumptive remedy for wood treater sites;
not the only remedy, but it is one of the ones that is
considered foremost.
Mr. McIntosh. So, under EPA's own standard, what you were
proposing fit into their presumptive remedies under their
reforms?
Mr. Parris. That is correct.
Mr. McIntosh. But they wouldn't even consider that proposal
for that site?
Mr. Parris. No, sir.
Mr. McIntosh. To the best of your knowledge, they didn't
provide any rationale for making that decision.
Mr. Parris. They provided none.
Mr. McIntosh. I must say that bioremediation, as you
described it, does seem to have a great deal of promise,
particularly because we would actually remove the toxic
substances from the site and not have to create another
wastesite somewhere else. I applaud you for promoting that as
an effort, because I think ideas like that will let us actually
do a lot better job of cleaning up the environment.
Mr. Parris. Yes. And I might add, too, since it is done in
place, we're not talking about two different cleanup entities
here. When ground water is, in fact, involved, it is cleaned up
simultaneously with the soil. It's a total package-type
concept, and we don't segregate it into, again, operable units
or anything. We go in, we assess the site, and we treat what we
see on a site-specific basis.
Mr. McIntosh. You were willing to test this at your own
expense at that site?
Mr. Parris. That is correct.
Mr. McIntosh. So they wouldn't even allow you on the site
to do that, at really no expense to the Government or any of
the parties?
Mr. Parris. No, sir.
Mr. McIntosh. A real quick question, Mr. Lynch, and maybe
we will give you time and some of my colleagues to answer this
in more detail, but if you could be thinking of some particular
examples in making your points, which I found very telling in
terms of the problems with litigation and the power of the
bureaucratic imperative.
You have worked a lot in New Jersey, in that State?
Mr. Lynch. Yes, sir.
Mr. McIntosh. Are there some particular sites there that
have been delayed as a result of those problems you raised?
Mr. Lynch. There have been lots of delays in the cases that
we deal with involving people fighting over issues that,
unfortunately, they have to fight over under the structure of
the statute; yes. In landfill cases where we are trying to
remediate--the State threw a lot of landfills on the list at
the outset--basically underlying decisions to throw municipal
garbage into the ground water of what previously was a swamp or
a sand pit.
People realized that they are being asked, if they have one
drum of dimethyl nasty, as an industry, to clean up what is
essentially a public health problem resulting from an
improvident siting of a dump, and they fight it. They try to
bring as many other parties in as they can.
In the lead sites, where a responsible manufacturer may
have been recycling its scrap lead to be cast back in ingots
and brought back on the site, they are getting sued for joint
and several liability because thousands of gas stations sent
their used auto batteries to this place where they run over
them with bulldozers, pick out the parts, and sweep everything
off to the side.
You wind up with lead in the ground, but the joint and
several liability means the guy that just had sent product to
get smelted and come back had a molecule go out of the stack,
undoubtedly, somewhere along the way, and he's jointly and
severally liable for the whole bunch. And the gas stations are
saying, ``You can't mean me,'' and the operator is out of
business. That's the kind of site we have there.
There's currently ongoing a site for the 6 miles of the
Passaic River. You know, Newark was founded in 1666. This is a
330-year-old industrial sewer, basically, and somebody is after
one company to do a study that's costing over $30 million, to
find out what's going on in the sediment, in the hope of
possibly picking them up, putting them in drums at $500 a drum,
to the depth of 10 feet, 100 feet wide and 6 miles long, and
shipping it off to Emile, AL.
That company is running around trying to beat up on every
other company that had anything within 100 miles--well, 10
miles anyhow--to say, ``You might have had one scintilla of
stuff; therefore, you are joint and severally liable. Join me
as we face this hundreds of millions of dollars of liability.''
And people are saying, ``Not me,'' fighting it back and forth.
You know, it's providing a living for me--thank you very much--
my kids are already through college. But as a matter of public
policy, it's crazy.
Mr. McIntosh. You're not able to get any actual cleanup
done during all of that time.
Mr. Lynch. We're getting some sites done. We just finished
a deal on the second phase of the Gems landfill where I'm
common counsel. The first phase was $32.5 million. We brought
it in on time and under budget. We're now addressing the ground
water. We got the $30 million raised, and the trust is formed
to go deal with it, and the consent decree is out for public
comment.
We've got a lot of companies that are putting their
shoulders to the wheel and willing to do it. A lot of them are
saying, ``I'm being dragooned. I'm facing Federal court for
years and years and years, and they won't let me out, and I
really am a little part of it.'' And frankly, they get their
arms twisted, and they throw in $100,000 and, you know, you
start building a $30-million pot of such inconveniences. That's
part of the reality.
But there is progress being made. I'm not saying that. I
think your question about how do we speed this thing up,
respectfully, if you were the board of directors of an aircraft
company that made planes that were unsafe, that were delivered
late, that cost too much, and you aggravated the customers all
along, you wouldn't be sitting here saying, ``How can I deliver
them faster?''
You know, you're focusing on the wrong thing. The problem
is structurally with the program. The agency, I believe--I've
met an awful lot of very fine, intelligent people in that
agency, and they are trying to do what they are told. To judge
them by how fast they are counting beans instead of how many
lives and how much of the environment they are protecting for
the dollars available is really the wrong way to go.
Mr. McIntosh. So you are urging fundamental changes in the
program.
Mr. Lynch. Yes, sir. This generation ought to decide how
much of its gross domestic product it can devote to what was
disposed of before manifests were available in 1978 and go
spend it and get bang for the buck. Right now we're creating
something, designating it a site, pushing it through the
system, and wondering how long we can do it. We're grading
these people on sites, not lives. That's stupid.
Mr. McIntosh. Thank you.
Mr. Sanders, do you have questions for this panel?
Mr. Sanders. I do, just a few. Thank you very much, Mr.
Chairman.
First of all, I want to thank all of you for coming. As you
know, the concern that we had is not hearing from experts, but
from people who are in the trenches. We appreciate it. The only
concern that we had is, we received your testimony very, very
late, and really didn't have a chance to--and that's not your
fault at all. We understand that.
The other point that I would simply make--and perhaps you
would agree with me--there are some charts over there. Some of
us have a problem with the methodology regarding that report. I
don't think any of you are experts in GAO methodology or in
tracing how fast or not fast the Superfund has been cleaned up
in the last 15 or 20 years. You don't have any expertise in
that, do you? You are businessmen who are involved in cleaning
up Superfund, so you really don't have much expertise in what
you have been asked.
Mr. Parris, I very much appreciate the thoughts that you
shared with us and can appreciate your frustrations. I was a
mayor of a city for 8 years. Dennis Kucinich is not here. He
was mayor of Cleveland for a while. I think you would also
agree that, on a particular case, you went in with a proposal;
you feel you were not treated appropriately by the EPA. You
would undoubtedly agree, would you not, that there may be
another side to the story? Maybe you're right; maybe you're
not. But there are two sides to every story; is that correct?
Mr. Parris. That's correct.
Mr. Sanders. And the problem that we all have, none of us
really have detailed information. I was a mayor. My God, how
long it took; right? We have to read the reports, and we hear
both sides, and we have to make difficult decisions. So you
have come to us with a concern; maybe you're right. I'm not
here to say that you're not. Maybe you're not right. I don't
know.
Mr. Lynch, I appreciate your thoughts. I think you made
some very good points, but I did not hear you say that in
recent years the situation has deteriorated, that it was really
good during the 1980's, but in the last 3 or 4 years, since
President Clinton has come in, there has been a rapid
deterioration in progress. All of these concerns are new, never
been seen before. You didn't say that, did you?
Mr. Lynch. First of all, sir, I haven't voted for a
Republican since Goldwater. OK? So my inclinations are to your
side of the fence. Frankly, the people I deal with at the EPA
are the same. The fellow that just recently was promoted to
regional counsel, I've been dealing with him since 1984. The
Government doesn't have a finer lawyer. I have not seen policy
changes really affect things in the trenches, for good or ill.
People are just trying to get their job done. They have some
pretty intelligent, creative people.
Mr. Sanders. I would just say that I think--not for me to
apologize--I think you haven't been treated quite the way you
should have been. We need your expertise, because you're out
there doing the work, and we often don't hear that. So I
appreciate your being here, and thank you very much.
That would be my remarks, Mr. Chairman.
Mr. McIntosh. Thank you, Mr. Sanders.
Let me turn now to the vice chairman of the subcommittee,
Mr. Sununu.
Mr. Sununu. Thank you very much, Mr. Chairman, and thank
you gentlemen very much for your patience today and your very
substantive testimony.
I believe you were here this morning to hear Congressman
Pallone speak, and certainly I have a great deal of shared
sense of concern. As he stated, nine Superfund sites in his
district. Coming from the First District of New Hampshire, I'm
sorry to say I have 14 Superfund sites in my district. I will
also agree with him that we have had some degree of success.
The State agencies in our State have worked extremely hard,
hand in hand, in some cases, with the EPA to make as much
progress as is possible.
But I think the underlying point that we need to stress in
these hearings today isn't a discussion about whether or not
some success has been achieved, or a congratulation that
technology may be improving and may hold some promise, the fact
is, it takes a tremendous amount of time to clean up these
sites. It has since the inception of the Superfund program. It
takes far more time to clean up these sites, I think, than most
people in the public realize.
Equally important, there is great concern and a good deal
of evidence that the amount of time to clean up a given site,
many would agree, is increasing. I think most would agree it
certainly isn't decreasing. And that's what we ought to concern
ourselves with is what's happened to the process here and, more
importantly, are there ways to improve the process. I think
we've heard discussion today of improvements that might be made
on the technological side, improvements that might be made on
the legal side, and certainly I hope that, as a committee, we
can pursue these.
I would like to address a few questions to Mr. Parris.
First, give us a feel for your organization. How many companies
are we talking about in your consortium that are dealing with
these more forward-thinking technologies? How many
professionals are we talking about? Give us a sense of where
they are located and to what extent they have been able to get
themselves involved in some, if any, of the existing NPL-listed
sites.
Mr. Parris. Basically, we have approximately 20 people in
the consortium at this time, and they range from New York State
down through Georgia, the Carolinas, Florida, and as far west
as Ohio, Indiana--pretty much on the East Coast. Basically, we
are brought together via the computer, Interneting, working
with new ideas, putting things on the Internet, buzzwords that
would attract people and different types of technologies to
respond.
We've gotten people that have gotten into the
phytoremediation, the use of plants to sequester heavy metals
and this sort of thing. Biomats; we have some gentlemen that
are very into that. But, again, our main focus--we can do the
pump-and-treat systems, we can do the dig-and-haul, if that's
required--but I think, right now and with the expertise that we
have with these people, it's just outdated, old technology that
we just don't want to deal with, and we have a much better way
to do it.
We don't, again, look at operable units. We can clean a
site of all the contaminants as a single unit, and we can do it
very proficiently. We look at co-treatments, for example. Mr.
Castle is an expert in polymer chemistry. And we've developed a
lot of co-treatments that were not available several years ago.
Everything that we do, co-treatments, different types of
hydro-logical manipulation, anything that we can do to increase
the viability of the cells to cause this type of remediation to
go on--after all, we've got to give an environment for the
organisms to work, and this is something that was overlooked in
the past.
In this consortium, these people that are involved, the
polymer chemists, the chemists, the biochemists, the
microbiologists, we're all looking at ways to improve the
plight of the organism in the ground. We're looking to increase
viability. We're looking to increase cell counts, and
ultimately to reduce the time that it takes to clean up these
sites.
Mr. Sununu. What percentage of the NPL sites that are out
there do you think would be suitable candidates for the
bioremediation techniques?
Mr. Parris. I would estimate in excess of 90 percent.
Mr. Sununu. Primarily those that are petroleum-related?
Mr. Parris. Right. Now we're starting to get into
chlorinated solvents. We're doing very extensive work on
chlorinated solvents, which a few years ago were not even
considered to be bioremediable.
Mr. Sununu. Are there any other sites out there or how many
sites out there that you are aware of that are at least
experimenting or allowing some sort of limited usage of
bioremediation to take place?
Mr. Parris. That would be hard to say. There are sites. As
I indicated, the presumptive remedy for wood treater sites is,
in fact, bioremediation, and there have been quite a few sites
that have been cleaned up partially using that technology.
Here again, bioremediation comes in a lot of different
flavors, and it's dependent on the type of technology that you
have, the people that are administering it, and the
professionals that know how to increase the productivity of the
cells. It's not just a simple augmentation with carbohydrates,
and this sort of thing, in the soils. It's actually increasing
the population of specific strains of organisms in the ground
that can metabolize the various organics, get those high enough
so that they outcompete the other organisms and focus directly
on the contaminant.
Mr. Sununu. Thank you very much.
Mr. McIntosh. Thank you, Mr. Sununu.
Let me check to see if there are any other questions for
this panel.
Mr. Waxman. Mr. Chairman, I don't want to ask any questions
of this panel, but I want to thank them for their
presentations. If they wouldn't mind, when I get a chance to
review their testimony, I might ask them to submit some
responses in writing so we can have it for the record.
Mr. McIntosh. And we will keep the record open in order to
do that.
Let me just say, I do appreciate your coming and your
testimony, and I think a couple key points have come out of it.
One is that some of the reforms that were, in fact, put into
place need to be more fully utilized out in the field.
And, Mr. Parris, you've got bioremediation as one example
of that.
I think your point, Mr. Lynch, that when you've got a bad
system, good people can't do a good job, and that they are not
personally responsible for that; they are trying to do their
best, but the system itself leads to results that none of us
want.
So I do appreciate all of you coming and testifying today
and helping us build this record. It is my fondest hope that we
can see some reform in this area in this Congress, in a
bipartisan fashion. We got close last time, and I think we've
got a chance this time.
Mr. Lynch. May I respectfully sensitize you to one thing
raised in the comments about Mr. Pallone's testimony. And I ask
you, in testing these data, to keep this point in mind, because
I think you will find it helpful. Three of the sites that Mr.
Pallone cited were EPA emergency response or quick remedial
action. I'm not talking about what--that's probably a pretty
good program.
The Kenbuck site was essentially a single party, the owner,
SCP, now Waste Management--they claim they are only an operator
or only a transporter--it was a single-party cleanup site, and
that's not a part of the program that's having the problem.
When you see data like this and you have those kinds of
things mixed in, you ought to be sensitive to the fact that
most of the grievances come from what are called multiparty
sites. Somebody sent a little bit of waste somewhere with a
bunch of other people. That's a discrete universe that is mixed
in there. Unless you are sensitive to that, you're going to
miss a lot of what really you're going to have to deal with.
Mr. McIntosh. Let me make sure I'm following you. The
problems are much greater in the multiparty sites than in the
single party?
Mr. Lynch. By orders of magnitude. The potential for
governmental abuses, in terms of overbearing on the poor guy
that gets caught, are much greater.
Mr. McIntosh. That's very helpful.
Thank you all. We appreciate your coming.
Let us move now to our second panel: Mr. Peter Guerrero,
who is the Director of Environmental Protection Issues; Mr.
Stanley Czerwinski, Associate Director; Mr. Jim Donaghy, who is
Assistant Director; and Mr. Mitchell Karpman, who is a
statistician, all from GAO; and then Mr. Elliot Laws, who is
the Assistant Administrator for Solid Waste and Emergency
Response.
Mr. Laws, thank you for coming today. I understand it's
your last day of service in that position. I congratulate you
on serving the public and appreciate your coming before us.
It is my understanding that Mr. Waxman and Mr. Sanders
would like us to implement the new rule that we have of
allowing each side to have 30 minutes uninterrupted to question
the panel as a whole.
Mr. Waxman. Mr. Chairman, I know that we're going to have
some more extensive questions. Maybe we can just allow a little
bit more leeway on the timing to pursue those questions. I
don't know if we need to be rigid in saying a half hour each
side. However you want to conduct it.
Mr. McIntosh. A little extra time for the entire panel
after they have presented.
Mr. Waxman. Yes. Let them present their testimony, and then
if the chairman would be indulgent with the Members to some
extent. I know I probably would take 10 minutes rather than 5
minutes. So maybe we can just handle it on an informal basis.
Mr. McIntosh. If no one objects, I am very happy to do
that.
OK. If all of the witnesses would please rise and repeat
after me.
[Witnesses sworn.]
Mr. McIntosh. Thank you very much. Let the record show that
each of the witnesses answered in the affirmative.
Let me now turn to Mr. Peter Guerrero. If you could please
summarize for us the findings of your draft report and any
other remarks that you would like to make.
STATEMENTS OF PETER GUERRERO, DIRECTOR, ENVIRONMENTAL
PROTECTION ISSUES, RESOURCES, COMMUNITY AND ECONOMIC
DEVELOPMENT DIVISION, GENERAL ACCOUNTING OFFICE, ACCOMPANIED BY
STANLEY CZERWINSKI, ASSOCIATE DIRECTOR; JIM DONAGAHY, ASSISTANT
DIRECTOR; MITCHELL KARPMAN, MATHEMATICAL STATISTICIAN; AND
ELLIOT LAWS, ASSISTANT ADMINISTRATOR FOR SOLID WASTE AND
EMERGENCY RESPONSE
Mr. Guerrero. Thank you, Mr. Chairman.
We are pleased to present the results of our examination of
the times to complete the evaluation and cleanup of Superfund
sites. This work was done at the request of the chairman of the
House Government Reform and Oversight Committee, and we plan to
issue a report on our findings to the committee next month.
We divided the Superfund process into two major segments:
first, the evaluation phase that occurs from the time a site is
discovered to when it is finally placed on the Superfund
cleanup list; and second, the cleanup phase that occurs after
listing, during which more site studies are done and cleanup
remedies are selected, designed, and constructed. Each of these
phases are represented in the charts to your left.
First, I would like to discuss the earlier of these phases,
from the time of discovery to listing. As the chart
illustrates--and that's the closest one to you--the sites that
were listed in 1996 were discovered an average of 9.4 years
earlier. While this is an improvement over 1995, it is longer
than earlier listing times.
SARA requires EPA to evaluate sites for listing within 4
years of discovery. However, the percentage of sites for which
EPA has made listing decisions within 4 years of discovery has
decreased in each succeeding year, from 51 percent in 1987 to
36 percent in 1991, the last year for which it is possible to
measure these percentages.
There are a number of reasons why the time from discovery
to listing has increased over the years. A major factor was
that the Superfund program started with a backlog of sites
awaiting evaluation, so not all sites could be processed at
once. Other factors include revisions to eligibility standards
that require the re-evaluation of many sites, the need to seek
State concurrence for listing, and reductions in the annual
number of sites that EPA added to Superfund in more recent
years.
This last factor will have a profound influence on listing
times in the future. In recent years, EPA has concentrated on
cleaning up sites that have already been listed. As a result,
EPA has recently added an average of only 16 sites per year to
the National Priorities List for cleanup. Yet somewhere between
1,400 and 2,300 more sites could potentially be added in the
future.
I would now like to turn to the time it takes to complete
cleanups after sites are added to the Superfund list, the time
period represented by the next chart, the chart in the middle.
As you can see, cleanup projects were completed in fiscal year
1996 onsites that had been placed on the Superfund list on an
average of 10.6 years earlier.
As with listing, cleanup completion times have also
increased over the history of the program. EPA set a goal in
1993 to complete cleanup within 5 years of a site's listing,
using this as a reasonable benchmark for the program. We found
that the percentage of cleanups within 5 years of listing has
increased from 7 percent for sites listed in 1986 to 15 percent
of sites listed in 1990.
Overall, EPA has completed construction of cleanup remedies
at over 418 Superfund sites, and construction is underway at
another 491 sites. The increase in cleanup times was
accompanied by a marked increase in the time taken to select
cleanup remedies or the study phase of the cleanup process, and
a time, also, during which attempts are made to reach
settlements with parties responsible for contamination of
sites.
This study phase was completed in about 2\1/2\ years after
listing in 1986, but took about 8 years after listing in 1996.
EPA officials attributed this increase and the increase in
listing times to the growing complexity of sites, efforts to
reach settlements with parties responsible for contamination,
and resource constraints.
In conclusion, Mr. Chairman, I would like to make a number
of points. First, average times to cleanup and list sites have
increased over the history of the program. Increasing cleanup
times are a concern because of the large number of sites that
could be listed in the future, as well as the amount currently
in the cleanup pipeline today.
As the third chart shows, while EPA has made progress at
many sites, completing the construction of remedies at over 400
sites, construction work does still remain to be completed at
up to 800 more. In addition, from 1,400 to 2,300 sites could be
added to Superfund in the future.
Second, EPA has a number of reform initiatives underway to
reduce timeframes and costs, but evidence that they are
accomplishing this is largely anecdotal. Our analysis, while
showing the progress of the program and the trends associated
with the time required for key segments of the Superfund
process, does not allow us to assess whether these reform
initiatives are having the intended effect of lowering program
timeframes and costs.
I should add that showing these effects is difficult, since
these reforms were largely put into place in 1994, or more
recently and, by EPA's own admission, could take up to a decade
to show results.
Finally, measuring the results of a program as complicated
as Superfund is a challenging task at best. The approaches we
have used have the advantage of showing both how long it has
taken to complete Superfund actions as well as whether
Superfund's legislative and program goals are being met. They
also highlight the growing times being spent deciding what to
do with sites in comparison to the relatively short times
actually spent cleaning them up.
This concludes my statement. As you know, we will be
working with the committee and others to support the Congress
as it works to reauthorize Superfund. I will be happy to answer
your questions.
[The prepared statement of Mr. Guerrero follows:]
[GRAPHIC] [TIFF OMITTED] T1517.075
[GRAPHIC] [TIFF OMITTED] T1517.076
[GRAPHIC] [TIFF OMITTED] T1517.077
[GRAPHIC] [TIFF OMITTED] T1517.078
[GRAPHIC] [TIFF OMITTED] T1517.079
[GRAPHIC] [TIFF OMITTED] T1517.080
[GRAPHIC] [TIFF OMITTED] T1517.081
[GRAPHIC] [TIFF OMITTED] T1517.082
[GRAPHIC] [TIFF OMITTED] T1517.083
[GRAPHIC] [TIFF OMITTED] T1517.084
[GRAPHIC] [TIFF OMITTED] T1517.085
[GRAPHIC] [TIFF OMITTED] T1517.086
[GRAPHIC] [TIFF OMITTED] T1517.087
Mr. McIntosh. Thank you very much, Mr. Guerrero.
Let me turn now to Mr. Laws. If you could share with us
your testimony. Thank you.
Mr. Laws. Good morning, Mr. Chairman. Thank you very much.
I have a written statement for the record.
I am pleased to appear here today to discuss the current
status of the Superfund program, focusing on the
accomplishments of our administrative reforms. Mr. Chairman, as
you know, the agency has a policy that its representatives not
testify on draft reports. Therefore, I will not be able to
comment today on GAO's draft report and testimony, nor will I
be able to answer questions concerning the draft report and
testimony.
I will be happy to answer questions about the current
status of the Superfund program, and once the GAO report is
completed and the administration has had an opportunity to
review it, an agency representative will be pleased to testify
before the subcommittee about the report.
Today, the Superfund program is hard at work cleaning up
toxic wastesites and protecting human health and the
environment. Unfortunately, the current success of the program
is seldom accurately characterized. In the past few weeks,
several public statements were made that only 30 Superfund
sites have been cleaned up. Statements like that are so
patently false that I would like to take this opportunity to
set the record straight.
Mr. Chairman, today 418 Superfund sites have been cleaned
up. More than 480 additional Superfund sites have cleanup
construction underway. In other words, 70 percent of all
Superfund sites are either cleaned up or under cleanup
construction. Today, EPA is protecting thousands of families
along the Gulf Coast of the United States by cleaning up homes
and small businesses poisoned by the misapplication of the
pesticide methyl parathion.
This is just one of the sites that the Superfund program
has addressed, immediate threats to human health and the
environment. We have performed over 4,000 of these emergency
cleanup actions.
The current success of the Superfund program can, in part,
be attributed to the administrative reforms undertaken by EPA
and the Clinton administration. Three rounds of administrative
reforms and selected Federal facility reforms were developed to
increase the pace of cleanup and ensure the selection of
commonsense, protective cleanups, and increase the fairness of
the liability system, while reducing litigation and transaction
costs.
These reforms are working. In a report issued in December
1996, the Superfund Settlements Project acknowledged the
agency's substantial track record since the agency began
implementing the administrative reforms. I believe others have
made reference to that report, as well. This is a private
analysis of just a sample of our administrative reforms, and it
supports the findings of our Superfund Administrative Reforms
Annual Report for fiscal year 1996.
Our administrative reforms were based on a fundamental set
of principles. EPA set out to increase the pace of cleanups,
lower the cost of cleanup, while maintaining long-term
protection of human health and the environment, and promote
fairness in the Superfund liability system, while reducing
litigation and transaction costs. We sought to involve States
and communities in Superfund decisionmaking, and promote the
economic redevelopment of Superfund and brownfields sites.
As I mentioned, pace of cleanup is one of the program areas
that EPA administrative reforms have focused on. Historically,
the pace of Superfund cleanups has been affected by many
factors. In the early years of the program, there was a
tremendous agency learning curve on how best to cleanup
Superfund sites. Congressional review of site-specific listing
and remedy decisions and lapses in program funding have also
affected the pace of cleanup.
I will briefly discuss some of the administrative reforms,
and a more detailed summary of them appears in my written
testimony. To increase the pace of cleanup, EPA is using more
standardized or presumptive remedies. These remedies are based
upon the scientific and engineering experience which we have
gained from hundreds of cleanups performed or overseen by the
agency. Presumptive remedies allow us to simplify and expedite
the remedy selection process.
To reduce cleanup costs, EPA has established a Remedy
Review Board to review proposed high-cost remedies at Superfund
sites. In fiscal year 1996, the board reviewed 12 proposed
cleanup remedies, resulting in potential future savings of $15
million to $30 million in cleanup costs.
We also established a technical review process where
targeted remedies are reviewed to determine whether new cleanup
technologies may be applied that will reduce the cost of
cleanup while still providing the long-term protection of human
health and the environment. These reviews alone have provided
approximately $280 million in potential future cost savings.
EPA is now offering orphan share compensation to encourage
settlements and reduce litigation and transaction costs. Under
the new orphan share administrative reform, EPA offers to
forgive past costs and future oversight costs of settling
parties to cover all or a portion of the orphan share
represented by insolvent parties. In fiscal year 1996, the
agency offered more than $57 million in orphan share
compensation to responsible parties at 24 Superfund sites.
EPA has increased liability fairness and efficiency by
publicly offering to reach no-cost--that is, zero-dollar--
settlements to the smallest waste contributors, known as de
micromis parties, to provide litigation protection from large
waste contributors. EPA is also aggressively entering into de
minimis settlements to get small waste contributors quickly out
of the Superfund liability system. More than 14,000 de minimis
settlements have been reached by the agency; more than two-
thirds of those accomplished during the past 4 years.
States are now assuming more responsibility for waste
cleanups under several administrative reforms. EPA is sharing
authority to select cleanup responsibilities with qualified
States and tribes. States and tribes will be able to select
remedies at Superfund sites with minimal EPA oversight.
A recently issued EPA memorandum that established criteria
for voluntary cleanup programs is paving the way for additional
memorandums of agreement to be entered into between States and
EPA. These agreements govern the division of responsibilities
for wastesite cleanups. Eight States have agreed to MOAs, and
several more agreements are close to completion.
EPA is expanding its efforts to redevelop abandoned and
contaminated properties throughout the Nation. We have funded
76 brownfields pilots to encourage State and local governments
and private developers to identify and assess contaminated
properties and work together to clean up and redevelop those
properties.
Mr. Chairman, the Clinton administration is committed to
making the Superfund faster, fairer, and more efficient. The
Superfund administrative reforms have gone a long way to help
us meet that goal.
That concludes my testimony, Mr. Chairman. I would be
pleased to answer any questions from the subcommittee members
concerning the current status of the program.
[The prepared statement of Mr. Laws follows:]
[GRAPHIC] [TIFF OMITTED] T1517.088
[GRAPHIC] [TIFF OMITTED] T1517.089
[GRAPHIC] [TIFF OMITTED] T1517.090
[GRAPHIC] [TIFF OMITTED] T1517.091
[GRAPHIC] [TIFF OMITTED] T1517.092
[GRAPHIC] [TIFF OMITTED] T1517.093
[GRAPHIC] [TIFF OMITTED] T1517.094
[GRAPHIC] [TIFF OMITTED] T1517.095
[GRAPHIC] [TIFF OMITTED] T1517.096
[GRAPHIC] [TIFF OMITTED] T1517.097
[GRAPHIC] [TIFF OMITTED] T1517.098
[GRAPHIC] [TIFF OMITTED] T1517.099
[GRAPHIC] [TIFF OMITTED] T1517.100
[GRAPHIC] [TIFF OMITTED] T1517.101
[GRAPHIC] [TIFF OMITTED] T1517.102
[GRAPHIC] [TIFF OMITTED] T1517.103
[GRAPHIC] [TIFF OMITTED] T1517.104
[GRAPHIC] [TIFF OMITTED] T1517.105
[GRAPHIC] [TIFF OMITTED] T1517.106
[GRAPHIC] [TIFF OMITTED] T1517.107
Mr. McIntosh. Thank you very much, Mr. Laws. I appreciate
that.
Let me now yield my questioning time to our vice chairman,
Mr. Sununu.
Mr. Sununu. Thank you, Mr. Chairman.
I would like to just take a few moments to talk, not
necessarily about the methodology--and I understand your
concerns, Mr. Laws, with regard to your policy--but to try to
talk a little more specifically about where we are and what the
public can expect in the pace of cleanup and the effort and the
commitment that's going on, and hopefully find a way to improve
the situation.
I will come back to that point. That's where we need to go
from here, and I'm very reluctant, despite the commitment and
the effort, not just at the Federal level, but at the State
level, as well, to deal with this problem. I don't believe that
we ought to suggest that all is well, that we're streaming
along, that everything is working efficiently or as efficiently
as it can, because that detracts us from the most important
aspect of these hearings and of our goal, which should be to
improve the current process.
Mr. Laws, you spoke about 410 sites that have been
completed, have been cleaned up. My question for you first is,
410 sites cleaned up, how many of those sites have been
delisted?
Mr. Laws. A very small portion; 120, approximately, have
been.
Mr. Sununu. So less than half of those have been delisted.
So despite the fact that we use terms like ``cleaned up,'' the
fact is that they remain hazards, that there is still an issue
out there even for the vast majority of those sites.
Mr. Laws. I wouldn't characterize that they remain
hazardous. What construction complete indicates is that all of
the construction necessary to clean up a site has occurred.
There are a lot of operation and maintenance responsibilities
that go on.
Mr. Sununu. So they are contained.
Mr. Laws. It's more than contained. There are things that
will go on. You have to realize that in a lot of these sites it
took, literally, hundreds of years to create the contamination.
You can't make it go away in 4 or 5 years; that's just
impossible.
No one is suggesting that all is well in the Superfund
program. This administration is probably the first one to admit
that there were major problems in the administration and the
law of Superfund, and we've taken tremendous strides in
correcting that. What we are saying is that we think the
program is improving; that is, it's different from the program
that was in existence 5, 10, or 15 years ago.
We are in no way saying that it is fixed. We are still
supportive of comprehensive Superfund reform legislation, but
what we are saying is that the debate on how to fix Superfund
must take into account how this program is operated today, and
not go back and listen to war stories about how the program was
run 10 and 12 years ago.
Mr. Sununu. I would certainly agree, generally, with those
remarks. Again, I appreciate the efforts that are being
undertaken every day by people at sites. As I mentioned, people
are undertaking those efforts at a large number of sites, in my
district, in particular.
So when we throw the 410 number, that refers to areas where
the construction is complete, and obviously there is still
activity going on. Let's try and get a handle on how long that
construction phase takes place. Another number that I have
heard discussed is that, over the past 4 years, 250 sites have
been cleaned up. Now, again, I guess that means at 250 sites we
have completed construction; they haven't been delisted.
Mr. Laws. That's correct, sir.
Mr. Sununu. But of those 250 sites that have been cleaned
up in the past 4 years, how many of those were listed and
cleaned up in the past 4 years? In other words, on how many of
those sites has the cleanup activity actually taken or
construction activity actually taken 4 years or less?
Mr. Laws. Of the sites that have been cleaned up in the
last 4 years, are you asking when were they listed?
Mr. Sununu. No, I'm saying, we hear the phrase ``250 sites
with completed construction.'' So 250 sites with completed
construction, but how many of those has the construction period
actually taken 4 years or less?
Mr. Laws. There have been some. I mean, we would have to
break out the entire list. We can provide that to the
subcommittee.
Mr. Sununu. Do you have any feel? Because I don't want to
just use one statistic to characterize all 250 sites. If we
don't have an answer to that question, what is the average time
to clean up those 250 sites? We see an average construction
time of 12.5 years; that's the current average, but I'm trying
to get a better feel for the 250.
Mr. Laws. We believe the current average is closer to 8 to
10 years.
Mr. Sununu. So for the 250 where we have completed
construction, we're still talking about 8 years, 10 years, or
perhaps even more, on average, to clean up a site.
Mr. Laws. We think it's 8 to 10. We think it's going down.
And we think that once we get continued benefits of the
administrative reforms that it will go down even further by the
year 2000. Clearly, Congress can help us. If we get a Superfund
reform law, we could probably shave some more time off.
Mr. Sununu. I'm looking forward to doing everything I can
to help you decrease that amount of time. But to be clear, you
think that the average time to clean up a site is going down?
Mr. Laws. Yes.
Mr. Sununu. Has the agency been able to present statistical
evidence that would indicate that the average time to complete
construction at a site is going down?
Mr. Laws. We do have our analysis to support our position,
and we can provide that to the subcommittee.
Mr. Sununu. I would be interested in any statistical
evidence that you might be able to present. Let me try and look
at one other way to determine whether or not the amount of time
for construction is going up or going down, and that is to look
at the rate that we're completing sites. We all know the NPL is
actually increasing, and that's a fact of the large number of
sites that are out there.
So we have a list of sites whose total number is
increasing. We have, obviously, a large degree of resources
being committed, and rightly so, to the effort. At what rate?
How many sites per year have we been able to complete
construction on over the past--again, just talking in 4- or 5-
year terms--in the past 4 or 5 years, how many sites are we, on
average, completing construction on per year?
Mr. Laws. We're averaging now 64 to 65. I would point out
that in the President's budget he has asked for a substantial
increase for the Superfund program to address that very
problem, that we do have a backlog of sites that are ready to
go, that can be cleaned up in a short timeframe. We are
anticipating that, by the year 2000, we will be able to clean
up, under current budget levels, an additional 250 sites. The
President is proposing to double that to 500 sites, and his
budget reflects the amounts of money that will be necessary to
accomplish that.
Mr. Sununu. I understand that, and I appreciate that
commitment. I will also point out that I am pleased that it
shows a funding commitment similar to that that was proposed in
legislation in the last session of Congress, as well.
You are averaging 60 or 65 sites per year, construction
completed, now; 3 or 4 years ago, what was the average; how
many sites were you completing per year?
Mr. Laws. That has been the range for about the last 4 or 5
years.
Mr. Sununu. So the rate hasn't changed, unfortunately. The
number of sites we're completing construction on per year
really isn't increasing at all.
Mr. Laws. No, but there are a lot of factors that go into
that. That could be and most likely is a reflection of what our
budget levels have been. I mean, that's the reason that a lot
of these reforms have been implemented. The reason we have gone
to a national prioritization system is that we have got a lot
more sites that are ready, that could be cleaned up, than we
have dollars to fund them.
Mr. Sununu. And I appreciate that.
Mr. Laws. So what we're seeing with the dollars is just a
reflection of the steady state of the Superfund budget over the
last few years.
Mr. Sununu. So with the current funding levels,
improvements in technology, improvements in effort,
improvements of efficiency that may have taken place over the
past 3, 5, 6 years hasn't improved your ability to clean up a
greater number of sites.
Mr. Laws. I would not agree with that, Congressman. I mean,
what I'm saying is that the numbers that have come in, because
of our funding capabilities, have gone down. The numbers of
sites that are ready, that could be cleaned up in a shorter
amount of time, increased significantly. We had sites at the
end of last year that we couldn't fund, that were ready to go
to construction, that we couldn't fund. That number went up the
last fiscal year, and it's going to go up this fiscal year, as
well, and that is part of the reflection of the President's
budget request for fiscal 1998.
What we have done is gotten more sites to the point where
we can make a big influx of dollars to clean them up, but we
don't have the dollars to do that, so they are going to sit
there until we get those dollars.
Mr. Sununu. To clarify, my point is that, for a given
amount of money, I believe we should be able to find ways to
employ new technology to improve the practices we have, to
increase the number of sites that we are completing
construction on, for a given year, for a given amount of
funding.
Mr. Laws. I agree with you wholeheartedly.
Mr. Sununu. I think that the overall funding levels have
been relatively consistent, but we have not been able,
unfortunately, to see an improvement in the number of sites
that we completed.
One last question--and then I will certainly yield to
anyone else that would like to ask some questions--and that is,
you talked about trends or a trend of reduced time to complete
construction, which I think interests us all, and statistics or
data that you might have to show this positive trend. How many
sites are included in the sample that is used to identify that
overall trend?
Mr. Laws. That is by looking at all of the sites on our
construction complete list, the 410.
Mr. Sununu. So you look at all 410 sites, and you are
saying, by analyzing that data, you show, on a year-by-year
basis, we're reducing the total time for construction?
Mr. Laws. To complete the construction; that's correct,
sir.
Mr. Sununu. And that's information that you would be
comfortable sharing with the committee?
Mr. Laws. Oh, of course.
Mr. Sununu. Thank you very much.
Thank you, Mr. Chairman.
Mr. McIntosh. Just let me follow up very quickly on that.
Mr. Shuster, last August, had written complaining that data
supporting the assertion that there was a 25 percent
accelerated pace of cleanups hadn't been received. Has he been
provided that data?
Mr. Laws. Not all of it.
Mr. McIntosh. No. Is that the same data that you are
referring to here?
Mr. Laws. Yes.
Mr. McIntosh. When will they be able to make that
available?
Mr. Laws. Within the next 2 weeks.
Mr. McIntosh. Within the next 2 weeks. OK. Thank you very
much.
Let me now recognize Mr. Sanders for 10 minutes.
Mr. Sanders. Thank you very much, Mr. Chairman. I'm going
to yield to Mr. Waxman in a moment. I would just like to begin
by making two points. I think we can all agree that coming with
an objective and fair assessment of how well an agency is
dealing with this very, very complicated problem isn't easy.
Several examples: We talk about the number of Superfund
resolved and cleaned up. I trust that there is no disagreement
amongst you or the members of this committee that you could
have one site which is in terrible shape, which requires a
whole lot of money, and you could have the agency do an
excellent job on a project which takes many, many years. And
then you could have 10 other sites which do not have serious
problems, and the agency could do a bad job and yet clean them
up in a short period of time.
You lump them all together, and we say, ``Well, gee, they
didn't do a good job here,'' or ``They did do a good job
there,'' and you end up with a conclusion that means absolutely
nothing.
Mr. Laws, is that a fair assessment of the situation?
Mr. Laws. I think that would be.
Mr. Sanders. So you throw all these things in the hopper;
they end up suggesting perhaps nothing.
Second of all, what I would suggest--and we will get into
this at some length later--we have some very, very serious
problems with the methodology that the GAO used, and we will
talk about that later. But I would hope, Mr. Chairman and
members of the committee, that we could all recognize this is,
in fact, a very, very complicated problem.
I would now yield to the ranking member of the entire
committee, Mr. Waxman.
Mr. Waxman. We've changed the rules on the way committees
operate, and we can do a half hour on each side, but rather
than do that, the Chair seems to be indulgent of Members to go
a little bit longer than ordinarily is the case, just to
complete our questioning. I thank him very much for that
courtesy to us.
I want to talk about this methodology for this GAO report,
because it's important, when we use numbers in public policy,
we make sure we're using the right numbers. In my work with
environmental issues, I've learned to take nothing at face
value.
As I understand, Mr. Guerrero, how GAO did its evaluation,
it took EPA's data to determine the date each site is
discovered, listed, and determined to be cleaned up. Then you
looked at the sites that are listed in a given year and
calculated the average numbers of years between the discovery
and the listing. And then you calculate the average cleanup
time the same way; that is to say, you look at all of the sites
determined to be cleaned up in a given year, and then calculate
the average years since the listing.
So you go backward. You take what happened in a given year,
and you go backward to when it was first listed. I have worked
with GAO in the past, for many years. I asked GAO to do an
evaluation for me on drug issues. I want to have a chart about
that, because I'm going to show you what GAO said about this
kind of an evaluation.
But the reason I'm concerned about how unfair the
methodology is, we know that during the Reagan years the
administration was hostile to Superfund, so hostile, in fact,
that the person in charge of it went to jail for failing to
enforce the law. Few sites were cleaned up in the beginning.
Most sites were deferred.
Under your methodology, because you ignore the sites that
aren't cleaned up, the Reagan administration looks very good.
Its average cleanup time for those very few sites that it
cleaned up is short. Wouldn't that be the case?
Mr. Guerrero. I'm sorry, I didn't follow the question.
Mr. Waxman. If you looked at the Reagan years, you would
have to say they had a pretty good record, because they didn't
take on a lot of sites, but what they took on they cleaned up
real quickly.
Mr. Guerrero. Well, for that reason, Mr. Waxman, we did not
include that data in our analysis.
Mr. Waxman. But for your methodological approach, if you
looked at it, the way you analyzed this issue, you would have
to say they had done a pretty good job. On the other hand, the
current administration's record looks poor. The current
administration is cleaning up this huge backlog of cases. These
are sites left over from the early 1980's.
It is certainly good public policy to clean up this
backlog, but under your approach, the Clinton administration,
to evaluate them, they get penalized. It looks like their
average cleanup time goes up because you include in that
average cleanup time the huge backlog of sites left over from
the prior administration. So a methodological approach that
makes an administration that is doing a good job look bad,
while making a bad administration look good, seems flawed to
me.
Now, I have this quote here. This is a quote from GAO, and
this quote says that--when you measure the time it takes to get
FDA approvals for drugs--GAO said, ``Whenever the possibility
of a backlog exists, basing time on year of approval is a less
appropriate way to measure current practice because it
incorporates older applications. In contrast, time based on
year of submission eliminates the confounding effects of the
backlog and, therefore, is the preferable measure.''
Now, it's my understanding that there is a considerable
backlog in cleaning up the Superfund sites, and that was your
testimony, as well. Does your measure follow the guidelines
given in the GAO report that I have cited?
Mr. Guerrero. We certainly took that into consideration
when we developed our measures.
Mr. Waxman. But you didn't use their evaluation method; you
rejected it.
Mr. Guerrero. We used a different evaluation technique
because we were attempting to show a different thing.
Mr. Waxman. Well, the measure you use in your report, I
think, is less appropriate as a way to measure the current
practice. I find it troubling that you are putting on measures
that your own organization would find misleading, because GAO
says whenever you go look at a situation where there is a
backlog, if you measure the time for approval without looking
at the time it took to deal with the whole backlog, you are
clearly going to get a longer period of time. It's going to
make it look worse.
Mr. Guerrero. We don't dispute the fact that a backlog can
influence that, but we did not set out to look at current
practice and current timeframes. We looked at how could you
describe the productivity of this program over time.
Mr. Waxman. OK. Well, let me walk through your methodology
with you, and I want another chart to go up. I'm going to give
you a hypothetical situation. Let's say there's no policy
change, only a few sites, and cleanup progresses at a steady
pace.
Suppose there's an agreement to list 10 sites in the first
year and to clean up those 10 sites at a rate of 1 every 2
years over the next 20 years. The next year we list another 10
with the same agreement; we clean up 1 of those sites every 2
years for the next 20 years. The third year we list another 10
sites with the same agreement. In other words, nothing changes
from year to year; 10 sites are listed, and those 10 sites are
cleaned up over a 20-year period.
Now, let's look at the chart to the left. This chart shows
the data in the way your organization said was the preferable
measure, at least when we asked them to look at the backlog of
drug approvals. The 10 sites listed in year 1 took, on average,
11 years to clean it up. The 10 sites listed in year 2 took, on
average, 11 years to clean up, and so on. In other words, a
straight line on that chart shows there is no change in policy
and, therefore, the average cleanup time does not change from
year to year.
Wouldn't you say, as you would evaluate that progress, that
it's proceeding at a steady pace?
Mr. Guerrero. Well, I can't speak to this specific example.
Mr. Waxman. Well, why can't you speak to it? I've given you
a hypothetical. I've given you the facts, and we need to show
how it works out on a chart if you follow the exact same
pattern year after year. Wouldn't that show that there is a
steady pace of proceeding to clean up?
Mr. Guerrero. The difference between the listing by a
completion cohort, which is what we did, and the listing here,
the example you give, by a listing cohort, is exactly the issue
that EPA raised with us in their comments to our draft report
back in November. When we looked at their numbers, we had
particular problems with using a listing cohort to assess the
progress of the Superfund program.
The particular problem was that it will always, at this
stage, show far more favorable results than the decision
cohort. And the reason for that is, it's based simply on the
observations which are incomplete at any given time and does
not take into account the backlog.
Mr. Waxman. I'm talking about the problems in your
methodology, and the problem in your methodology--which GAO
already indicated there are problems in that kind of a
methodology, under other circumstances--is that you, in effect,
show a distorted picture because of that impact of the backlog.
I use that example which shows a steady way that they are
handling it, that 10 sites were listed, in the 5th year get
cleaned up at the same rate as the 10 sites listed in the 4th
year, and the same rate as the 10 sites listed in the 3d year,
and so on. There is no change across the time.
I would like you to put the next chart up. This shows the
kind of bias. Using your methodology, you can see that it looks
like it is going to take a longer period of time because you
are calculating from the date going backward. It shows cleanup
times increasing, when, in fact, cleanups are happening more
quickly.
Mr. Karpman. Excuse me, Mr. Waxman.
Mr. Waxman. Yes.
Mr. Karpman. I'm not sure I follow you yet on the middle
chart. Are you saying that all of the sites are completed in
1983, and you have the full measures of them?
Mr. Waxman. No, I'm saying that there are 10 sites listed
in year 1, and it took, on average, 11 years to clean it up.
And the 10 sites listed in year 2, 11 years to clean that up.
And each year it's the same.
But if you look backward, then you are looking back at the
time of completion from the very, very beginning, and that
seems to me the fallacy in your methodology. It's always got to
be skewed. I mean, here you have an administration that's
trying to deal with a backlog. If you didn't have a backlog,
then it wouldn't so distort what is going on, using your
methodology.
Mr. Karpman. May I make a comment?
Mr. Waxman. Sure.
Mr. Karpman. Thank you. Regarding, first, the quote, I have
a report, PEMD-96-2, which is from the same division, in which
it says, ``The two methods provide different information and
are useful for different purposes. Using the date of decision
cohort,'' which is the approach GAO took, ``is useful when
examining productivity and the management of resources. This
method takes into consideration the actual number of
applications from your request reviewed in a given year,
including all backlogs from previous years. Alternatively,
using the date-of-submission cohort is useful when examining
the impact of a change in FDA review policy, which quite often
only affects those applications submitted after its
implementation.''
The operative word there is ``current practices.'' That's
as if what we were trying to do is measure some programmatic
change, and we certainly did not in this objective study.
Mr. Waxman. Excuse me. The heading of your testimony is,
``Cleaning up sites is taking longer.'' The reason we are
holding this hearing today--it's not even on a final report--is
so that the message could get out that cleaning up sites is
taking longer. That would make people think that Superfund is a
failure. But, in fact, you aid that conclusion which you cannot
reach by the methodology that's flawed.
Mr. Karpman. Sir, when you measure forward in time, you are
only taking into account those sites forward. If I can give an
example, think of a weight loss clinic. You have 100 people
enter a weight loss clinic. You want to see what happens to
them. I would submit that that weight loss clinic will then
say, ``Well, 30 people finished, and they lost an average of 10
pounds. Case closed.'' But I think what we were tasked to do is
follow those 100 people and see, over a period of time, what
happened to them.
Mr. Waxman. But your example has no backlog, does it? What
we are dealing with is a situation where we are penalizing the
progress based on going and dealing with the backlog.
Mr. Karpman. You say my example has a backlog--it does not
have a backlog.
Mr. Waxman. Yes. You are giving me an example, and I'm
trying to figure out the relevance of it.
Mr. Karpman. Well, the problem with the prospective study,
the example you are showing, you are only using a portion of
the cases to compute something in a given year.
Mr. Waxman. Yes, but in my hypothetical example I'm telling
you in the future how everything happens, the same amount of
progress in cleaning up each site listed, and how, if you
follow that kind of hypothetical example, which we would all
say was steady progress, using your methodology it would look
like it's a slowed-down, delayed progress.
Mr. Karpman. I would concede a straight line, but I think
what you need to concede is that, in a given year, you don't
have all the information.
Mr. Waxman. No, but in my hypothetical example you do. And
given my hypothetical example where you do have the
information, using your methodology we end up with a chart like
the one at the far left, which says the average time to clean
up would mean it's taking longer.
That's the point I'm trying to make. By using your
methodology--which GAO told us they wouldn't use because it's
not appropriate, in other circumstances--you used here, I think
your conclusion then becomes unhelpful, inappropriate, and not
consistent with what we need to evaluate what reforms have
taken place in the way Superfund cleanup is conducted, what
changes we ought to make.
Do you have recommendations for us to help, or do you sort
of say you don't know whether the reforms are working, which
means we don't know whether we ought to do something to change
the plan.
Mr. Guerrero. One of the problems, Mr. Waxman, with this
example and the Superfund data that we analyzed from EPA is
that, while in this particular case you may have all the
outcomes, in Superfund you don't. There is an awful lot still
in process. To use a date of listing cohort, as opposed to a
date of decision cohort, would effectively give you an
understated average time to complete those cases, because the
mean or the average will only rise over time, as additional
cases out of the backlog are finished.
So, in other words, EPA's criticism of our report offered a
methodology that was more seriously flawed.
Mr. Waxman. Well, I think that you can raise flaws with
both methodologies. The problem with your methodology is, you
reach a conclusion that cleaning up sites is taking longer, and
I think that conclusion cannot be reached in a legitimate way,
using the methodology that you have offered to us. Your
methodology has to distort the progress that is made.
Mr. Chairman, you have been very indulgent in the time that
is allotted to me. Perhaps, when other Members have completed,
we can go back to this, but this is the complaint I have with
the GAO report. It isn't a final report. You ought to think
this over. You ought to talk to the other people at the GAO who
rejected this kind of methodology because they thought it was
inappropriate, because they thought it would distort the
conclusions.
I think what we have is a report that is fairly useless for
policymakers as a guide as to what actions we ought to take for
the future.
Mr. Czerwinski. Mr. Waxman, may I?
Mr. Waxman. It's up to the Chair.
Mr. McIntosh. Go ahead and make your comment.
Mr. Czerwinski. You raise some very interesting concerns
about the methodology, and they are concerns that we have had.
We did not rely solely on one methodology. We looked at not
only the cohort analysis going backward but also forward, and
found that it verified the results. We also tried to make
adjustments for the backlog, found that it verified the
results. We went into the different phases of the cleanup
process, and, again, those were stretching out as time went.
So your points are very well taken and they are ones that
very much concerned us, but they also did not change the bottom
line of where we came out.
Mr. Waxman. The only comment I would make, and maybe we can
get into it later, is, EPA used an analysis showing that their
progress time was going down, by using a methodology of moving
forward and based on the time of the listing. Even though you
acknowledge in your testimony and your report the backlog and
the complications that are there, you lead to a conclusion
which is solely based on this methodology, which I think is
flawed, that says that cleaning up the sites is taking longer.
Mr. Guerrero. If I could just clarify one point there, that
the title--and we were very careful with this exactly for that
reason--to say that the statement is entitled, ``The times to
assess and clean up hazardous wastesites exceed program
goals.'' We make no projection of timeframes in the future, and
one of the approaches that we used, and it was not the sole
approach we used, talks about times that it has taken in the
past.
Mr. McIntosh. Let me move on to the next. Before I lead to
Mr. Snowbarger, let me make two points on this that I think are
important. One, Mr. Waxman's chart there and his preferred
methodology--and I don't know whether that was meant to be a
hypothetical example, Henry.
Mr. Waxman. That's a hypothetical example where everything
is being done consistently, the same amount of time to clean it
up. Using one methodology, you would say it's equal; using
another methodology, the exact same situation, would show
there's a gap because you are looking backward.
Mr. McIntosh. And my point is that 11 years in the
hypothetical--and we could find out what the real data is, in
and of itself, unacceptable. Whether it was back in the Reagan
or Bush or Clinton administrations, we need to do better in
terms of reducing that time, as an overall goal.
The second point--and I want to check to confirm this--but
it's my understanding that your methodology that you used in
the report is the same one that EPA uses in its end-of-year,
fiscal year, trends analysis to justify its budgets when they
come up here to Congress. Is that correct?
Mr. Guerrero. That's correct. It's the same approach that
EPA has used. It's also an approach that the CBO has relied on
to estimate timeframes for cleanups, and they, in fact, came
out with higher estimates than we did.
Mr. McIntosh. So since the inception of the program it has
been used by the agency and CBO to measure progress and
determination of what budgets would be necessary to continue
the program.
Mr. Guerrero. That's correct.
Mr. McIntosh. Mr. Laws, do you agree with that?
Mr. Laws. I don't know.
Mr. McIntosh. OK. If you want to put anything in the record
later on that, let me know.
Let me now yield the rest of this 10-minute segment to Mr.
Snowbarger, if he has questions.
Mr. Snowbarger. Yes, thank you, Mr. Chairman.
My line of questioning is a little simpler. Simpler minds
require simpler questions, so I hope you will bear with me and
walk me through this, not having a great deal of background
either in the Superfund or as my colleague, Mr. Sununu, with an
engineering background.
This is for the GAO and whoever needs to respond. You have
described the long time that it takes in evaluating sites and
deciding whether to place them in the Superfund program, so let
me try to see if I can understand the consequences of that slow
pace. Now, how many sites could be added to the program in the
future? What's your estimate of that?
Mr. Guerrero. Our estimate of that is from approximately
1,400 to 2,300 sites.
Mr. Snowbarger. So there are a potential of 1,400 to 2,300.
How many have we been adding, let's say per year, over the last
few years?
Mr. Guerrero. The average over the last 5 years has been 16
per year.
Mr. Snowbarger. OK. So it's clear that we've got a problem
getting these sites into the program to begin with. It sounds
like we have an awful lot of sites and very few of them getting
on the list; is that correct?
Mr. Guerrero. That's correct.
Mr. Snowbarger. What's the consequence of delaying in
getting onto the list?
Mr. Guerrero. The consequence, if they are not addressed
under other authorities at the State level or by other Federal
authorities, is that they will sit there, and the issues will
remain unresolved regarding the issues of public health and
safety.
Mr. Snowbarger. OK. Well, let's shift over. Can you talk to
me about the pace of cleanup? We've got a delay at the front
end. It sounds like we also have a delay now, once it's placed
on the list, after it has been added to the Superfund. How long
does it take to clean up?
Mr. Guerrero. In 1996, it took an average of 10.6 years.
Mr. Snowbarger. From your study, why does it take so long?
I guess that's the bottom line question.
Mr. Guerrero. There are numerous reasons given for why it
takes that long. EPA tells us that it has to do with a number
of factors: complexity of sites, available resources,
negotiations with responsible parties over who is liable for
contamination. All of those are possible explanations. I have
to say that we did not look into, specifically, whether any of
those had greater validity than others.
What we did observe is, there is a shift of resources
within the Superfund budget, placing greater emphasis on the
tail end of the process, that is, the cleanup itself. That has
the effect of stretching out the front end or the study phase
of the process. That study phase has been stretched out so long
that it's driving up these averages.
So, in other words, to get something out of the pipeline
and put a lot of effort into that, the price we're paying--
we're robbing Peter to pay Paul. We're adding to the front end
of the process and stretching the whole process out.
Mr. Snowbarger. Let me follow up, then, with Mr. Laws, if I
could.
EPA's 1996, end of the fiscal year budget indicated that 70
percent of EPA Superfund spending was going to cleanup, yet
your budget shows only 47 percent of the trust fund actually
goes to Superfund cleanups. I don't understand the difference
between the 70 percent number and the 47 percent number.
Mr. Laws. We don't subscribe to the 47 percent number,
Congressman. We say that that amount of our budget goes to
cleanup. It includes site assessment, our long-term actions,
our early actions, our laboratory analysis, and what it costs
to pay for our site managers.
Mr. Snowbarger. What you just listed is all within the 47
percent?
Mr. Laws. It is within the 70 percent. That also includes
some of our enforcement activities. We have a history of our
enforcement program: for every $1 spent we bring in $7 from
responsible parties. It also includes some of the work that is
done by other Federal agencies, including the Justice
Department, the Department of Health and Human Services, NOAA,
and things of that nature.
Mr. Snowbarger. So when the agency is talking about how
much of their budget is going into cleanup, we're including an
awful lot of other activities other than those directly related
to cleanup.
Mr. Laws. No, everything is directly related to cleanup. I
mean, you have to run a cleanup program, and those are the
components that are necessary to run that cleanup program. If
you take any one of them away, you won't be accomplishing the
same level of cleanup.
Mr. Snowbarger. Well, are we, though, talking about
virtually--well, the FTEs that are at your headquarters here in
Washington, are they involved directly in cleanup, in your
interpretation?
Mr. Laws. They most certainly are, sir. Yes, they are.
Mr. Snowbarger. Well, is there anything the EPA does that's
not involved in cleanup?
Mr. Laws. There's our management and support of the
program; our contracting, part of that is not included.
Mr. Snowbarger. And that's not included in the 70 percent
that you're talking about?
Mr. Laws. That's correct.
Mr. Snowbarger. Well, fewer sites have been added to the
NPL over the last 5 years, and you've cut your site assessment
budget during that time period. It seems to me we would have
expected that money to be marked for cleanup, and yet the
cleanup budget doesn't seem to be increased over that period of
time. Where did the money go?
Mr. Laws. The money that is not going into site assessment
is going into cleanup. We are doing things differently this
year. If I could take a step back, when you talk about getting
sites listed, the atmosphere for getting sites placed on the
NPL has changed dramatically. There are a number of factors
that play into that. Probably the main one is the fact that
when this program was started, back in 1980, nobody knew how to
do Superfund cleanup sites. It was entirely new. So the Federal
Government assumed that responsibility.
Since then, the States have taken up a tremendous amount of
the weight of doing that. What has happened, then, is that we
have entered into partnerships with the States. So when we
discover a site, it's not automatically determined that that
site is going to be placed on the National Priorities List.
States are given the opportunity to work to clean them up
themselves.
We give opportunities to private parties to come in and
clean sites, to work it out with the State. Whether that is
going to happen or not, we don't know up front. We've had
situations where the State thought they would be able to handle
a site, where they did not. So you've got this time where the
State was trying to work out the site, it didn't work, so then
we have to restart the listing process.
We are doing a lot more early removals. The General
Accounting Office actually did a report on us last year that
was very positive about our removal program which gets to sites
before we have to go through the lengthy listing process. So
the funds that are coming out of site assessment are going to
support these new activities.
If I could go a little farther, a lot of the things that
have been leveled as criticisms are legitimate things that we
should be looking at, but you are not getting the accurate
picture of what's going on. We have an office that is dedicated
solely to advancing innovative technology in hazardous waste
cleanups, and it's a very successful office. It's the only one
of its kind in the Environmental Protection Agency.
We support innovative cleanups. We have recently, in our
New England division--at a New Hampshire site, I might add--
entered into our first agreement where the Federal Government
is going to share the risk of a failure of an innovative
technology, something that the vendors of innovative
technologies have been supporting for years.
So what we are doing at the agency is trying to address a
lot of the problems that have been raised over the years, and
we are making progress toward it. Like I said before, no one
here is saying that we have fixed this problem, but I don't
think that it's fair, in the debate that we're going to be
entering into under Superfund, to be trying to portray this
program in the light that it was 10 and 15 years ago, because
that is not the way this program is operating today.
If you are basing decisions on a report that admittedly
doesn't take into account the administrative reforms that we
have put in place the last 3 or 4 years, I really question how
that is going to aid in our debate.
Mr. Snowbarger. I'm kind of confused here about the budget.
It's my understanding that these are EPA figures. For 1995, it
shows 47 percent direct site cleanup; 1996, it shows 71
percent, and yet there has not been more money going to
cleanup. I don't understand. Are we just renaming these things?
We decide we need to show a better face on cleanup, so we add
other functions in?
Mr. Laws. I'm not sure what chart you are referring to.
Mr. Snowbarger. Well, the two pie charts there.
Mr. Laws. Like I said, I don't know where those charts came
from.
Mr. Snowbarger. I believe the figures came from your
budget.
Mr. Laws. I don't know that as a fact, sir. I mean, if you
would like to see what our budget projections were for fiscal
1995 and fiscal 1996, we can certainly provide that. If, in
fact, that is correct, we will provide an explanation.
Mr. Snowbarger. Yes, I would like to know. Again, if we're
just reshuffling resources and calling them cleanup now, I
think that's important for us to find out.
Thank you, Mr. Chairman.
Mr. Sununu [presiding]. Thank you very much, Mr.
Snowbarger.
Mr. Kucinich.
Mr. Sanders. Let me speak for a few minutes and then give
it over to you, Dennis.
Mr. Kucinich. Sure.
Mr. Sanders. Let me just begin, Mr. Chairman, by expressing
a concern that I think we have a problem, and I'm not sure that
we are addressing it effectively today. My concern is that this
is an enormously complicated issue.
I remember, when I was a mayor and I came into office, we
had a guy who used to give us reports by telling us what a
great job he was doing on everything. Fortunately, he never did
anything, but he looked really good on paper. Then we had
another guy who was knocking his brains out doing a good job,
trying to do as much as he could, couldn't quite put it on
paper, and it didn't look quite as good.
I mean, one of the basic problems that you have is if you
have somebody who works for the administration and wants to
look good to us, who is not an expert on every detail, they
could deal with minor problems and say, ``Look. We knocked this
one off. We knocked that one off. We've got 83 projects we
ended in 3 weeks. We're great.''
Meanwhile, some of the major environmental crises facing
this country are not dealt with. Children are getting sick, and
somebody up here says, ``Gee,'' you know. So it is a tough
problem, and I don't know that we're getting to the root of it
today.
Having said that, I happen to believe that we do need to
take a very hard look at the Superfund. I happen to believe
that there are problems there. I happen to believe that we
could make it more cost-effective, could speed up the process.
But I really would hope that we don't make it into a partisan
issue and just the goal of it is to say, ``Hey, these guys are
doing a terrible job. Cut their funding,'' or something like
that. If we do that, we've done a real disservice to the
public.
I have some questions, but if Mr. Kucinich wanted to jump
in now. Do you want to?
Mr. Kucinich. Yes.
Mr. Sanders. I will take it back after Dennis.
Mr. Sununu. Please, go right ahead.
Mr. Kucinich. Thank you very much, Mr. Chairman and members
of the committee. It's a pleasure to join all of you on this
committee.
My questions dovetail some of the questions that Mr.
Snowbarger raised relating to performance. I would like to
direct the questions, with the Chair's permission, to Mr. Laws.
And keep in mind that I am new here, so you may think these
questions aren't relevant, but it appears to me they might be.
Mr. Laws, you have had this program cut, as has been
testified by the GAO, and you have talked about the
implications somewhat. I'm just wondering, should this Congress
or the administration be cutting the EPA's budget when there is
a backlog of sites and the program has been overwhelmed?
Mr. Laws. No, I don't think so. I think that the
President's budget for fiscal 1998 reflects the fact that we do
have a commitment to the American people. Because of some of
the delays that we have admitted to, there are communities out
there that we have been promising to get their sites cleaned
up, and I think it's now time that we follow through on that
promise. That's what the President's budget reflects, an
increase for dealing with Superfund sites and not a decrease.
Mr. Kucinich. Is it your opinion, Mr. Laws, that the
budget, as has been submitted, is going to be adequate to
expedite the process of the cleanup?
Mr. Laws. Yes, sir. The budget includes a proposed $650-
million increase for Superfund. That is the first of a 2-year
request in that amount, which will allow us, by the year 2000,
to clean up an additional 250 sites.
Mr. Kucinich. Do you have any recommendations other than
the obvious funding one that would help the EPA expedite the
cleanup and fix the problem of the delay?
Mr. Laws. I assume that we will be engaging in a very
healthy debate with the Congress in the months to come over
Superfund reauthorization. We have had, over the last two
Congresses, a very spirited back-and-forth on what is
necessary.
We are committed to reforming this law in a way that makes
these cleanups go faster, that makes them fairer to the parties
involved, but at the same time ensures that the people who have
to live near these sites are fully protected in their health
and in their environment. So I think that is where the debate
will center, as to exactly what is going to be necessary to
ensure that we can accomplish all of those goals.
Mr. Kucinich. Thank you, Mr. Laws.
Mr. Chairman and members of the committee, it seems to me
that this committee might benefit, in terms of analyzing the
performance here by the EPA, if we had the benefit of the
manning tables, if you will, of personnel from the EPA, to see
how reductions in the budget over the past couple years may
have resulted in certain cutbacks that have affected directly
the administrative functions of EPA that relate to these
programs. Because anytime you cut money, you're cutting people.
You cut people who do certain jobs, and the jobs aren't done,
and then the responsibility shifts.
I would like to, with the permission of the Chair, just
make that request, if we could get that information. So then,
if the funding levels come back, we get some idea of how
personnel might be changed so that we would see a corresponding
improvement in the function.
Is it possible we could get that?
Mr. Sununu. To the extent that the agency would like to
submit that funding and personnel data, in addition to the
other information that has been requested by the committee, I
think it would be appropriate to include it for the record.
Mr. Kucinich. Thank you, Mr. Chairman.
Mr. Sununu. Thank you very much, Mr. Kucinich.
The Chair recognizes Mr. Barr.
Mr. Barr. Thank you.
Mr. Laws, during the last questioning, maybe to assist you
here, since you said you didn't know where the figures came
from on those pie charts, they do come from EPA. They are
directly from your agency, and we can provide those to you, if
you would like, in a small version. Would that help?
Mr. Laws. I'm sorry, Mr. Barr.
Mr. Barr. I'm questioning, Mr. Laws. I'm sorry. Let me
repeat it then. You expressed in previous questioning that you
didn't know where the information came from on the charts, to
which I think the chairman of the subcommittee referred. Is
that correct?
Mr. Laws. Yes.
Mr. Barr. OK. Trying to help you out. The information came
from EPA, and that is what the bottom of the charts say. Would
it help you, in responding to questions to try and determine
why we have gone all of a sudden from 47 percent to clean up to
71 percent, to have a smaller version of those charts which
indicate also that they are EPA's figures? Or would that not
help you in responding to questions?
Mr. Laws. Well, I mean, what you are talking about is for
the budget submission; what we are talking about is how the
program operates. What the program does is, it looks at what
are the dollars necessary for it to respond directly to sites,
and that includes more than the actual dollars that are spent
to clean up a site.
Mr. Barr. You're right. I mean, they can include whatever
you want to include in them. That's a given. Whatever people
want to include in them, they include in them. All I'm asking
is, would it help you to have those charts, because you
expressed that you didn't know where the information came from.
It does come from EPA.
Mr. Laws. OK.
Mr. Barr. Why don't you provide the witness those. That may
help.
Just so I have clear in my mind what your previous
testimony was, also, Mr. Laws, I think that this was in
response to questioning by the subcommittee chairman, that you
don't know what methodology EPA uses in its budget submissions
to the Appropriations Committee.
Mr. Laws. No, I think the question was that the methodology
that EPA uses was identical to the methodology that GAO used,
and I'm not in a position to say whether that is, in fact,
correct.
Mr. Barr. OK. Do you know what methodology EPA does use in
submitting and calculating its budget submission to the
Appropriations Committee of the Congress?
Mr. Laws. No, sir, I don't. We can provide that for you,
but I can't tell you.
Mr. Barr. Well, I don't need you to provide it for me. I'm
just asking if you know what methodology they use?
Mr. Laws. No, sir.
Mr. Barr. OK. Also, Mr. Laws, I was intrigued by what I
think is also your testimony that the Superfund program is now
a fundamentally different program today. And I certainly
recognize there is a time when we can make general statements,
and general statements are appropriate, but I think we're at
the point now where we need to be a little bit more specific.
On what basis can you make that statement, when EPA has
stated, as recently as just a couple of months ago in a
submission to the Congress, ``Duration data would not be
conclusive and results not complete for another 8 to 10
years.'' In other words, if the data isn't even near being
completed, how can you make a fairly general but very specific
statement that--or very clear statement--that the Superfund
program is fundamentally different today?
Mr. Laws. Well, very simply because a lot of the problems
that have been identified with the program simply aren't
occurring. Others aren't occurring as often as they were in the
past.
The administrator likes to tell the story that when she
first came into the agency, back in 1993, not a week went by
that she didn't get a call from a Member of Congress or a
Governor or a mayor, complaining about something happening at a
Superfund site. And she said that doesn't occur anymore. We
were always getting complaints from small parties who had been
sued by larger parties.
Mr. Barr. What do you read into that? Do you read into that
that the programs are working?
Mr. Laws. I think what I read into that.
Mr. Barr. Hold on, please. I'm just asking you what you
read into that. To me that doesn't mean anything, but maybe I'm
missing something. What do you read into that, that Members of
Congress are frustrated with the response, so they don't bother
calling back, or that they are much more satisfied now, or that
the programs have been concluded? I mean, what does that mean?
Mr. Laws. I think what it means is that the issues that
were being complained about we have taken very strong efforts
in trying to address, and that they are, frankly, not occurring
in the way that they were in the past.
Mr. Barr. Well, if that's the basis on which EPA reaches
conclusions.
Mr. Laws. Well.
Mr. Barr. Hold on.
Mr. Laws. There are others.
Mr. Barr. Sir, please hold on. Hold on, please. OK. I'll
give you time, and I'm giving you time, but don't interrupt me,
please.
That is a very strange basis, it seems to me, on which to
reach very broad conclusions to the American people and to the
Congress about how EPA is faring and what problems have been
resolved and what problems remain. The fact that, gee, Members
of Congress don't call up and complain as much anymore, I mean,
is there really not something a little more substantial that
you can tell us that has been used as the basis by EPA to make
these general statements about how well the programs are doing?
Mr. Laws. As I was going to say, Mr. Barr, a lot of the
problems that have been identified in the program have been
addressed. We were constantly criticized that small parties
were never intended to be in the Superfund liability net, were
being brought into the case by larger parties who were trying
to expand the liability net. We have addressed that by
providing zero-dollar settlements to tiny parties and settling
out de minimis parties; over 14,000 have been done. That is a
fact as to things that did not occur in the past that are
occurring today.
We have been accused that we have not been carefully
looking at high cost remedies and that there were cheaper ways
to do that. So we established a remedy review board which is
going to review every remedy that falls within a certain
parameter of criteria. The Board first went into operation last
year and has already resulted in between $15 million and $30
million in savings.
We have established a process where we're going to relook
at old remedies to make sure that technology innovations and
changes in technology and science that might have impacted our
decision are relooked at. And if, in fact, a better decision is
in place, it should be in place. In region one alone, we have
had $56 million in savings because of changed remedies as a
result of that initiative.
I can provide, and I will, Mr. Barr, a list of the
specifics as to why we think this program has changed and how
we are doing things differently. One of the major criticisms of
this program is that we cleaned everything up to residential
use.
Now, that is not how these sites are cleaned up, but what
we have done is, we have made it a requirement that before we
decide how a site is going to be cleaned up, we are going to
determine what the reasonably anticipated future land use is.
That is going to eliminate scenarios where sites which have
been industrial for the last 100 years and will be industrial
in perpetuity are even analyzed for a residential type cleanup.
So there are very concrete examples as to why we believe
this program has changed.
Mr. Barr. OK. I would appreciate it if you would furnish
that. If you would also, pursuant to--I think you indicated to
the chairman that you would provide information on exactly what
methodology EPA does use in its budget submission.
Mr. Laws. Certainly.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T1517.108
[GRAPHIC] [TIFF OMITTED] T1517.109
[GRAPHIC] [TIFF OMITTED] T1517.110
[GRAPHIC] [TIFF OMITTED] T1517.111
[GRAPHIC] [TIFF OMITTED] T1517.112
[GRAPHIC] [TIFF OMITTED] T1517.113
Mr. Barr. That would help us, since there seems to be some
disputes about methodologies here.
Let me ask just one other question, Mr. Laws. I was looking
at, again, some of these charts and graphs that have to do with
the average time to complete Superfund cleanup projects. Is
there any data that you all have that indicates, with some sort
of tangible figures, how much it costs local communities in
lost investment business coming into those communities during
the course of whether it's 11 years or 20 years of a site being
maintained on NPL?
In other words, you have small communities all over
America, and once a site is on the NPL it has a disastrous
effect on new business coming into that community. Do you all
have any studies or information on--and that sort of is a cost
of having a site listed on the NPL, and I think a very real
one. Do you have any data on how much it does cost the
communities or the local governments?
Mr. Laws. I'm not sure if the agency has any data that
might reflect that. We can check and see if any of the local
government organizations have done some sort of studies. My
guess is, however, that it's probably more anecdotal as to what
communities believe the economic impact of a Superfund site has
been, just as anecdotally there is evidence that some of them
actually benefit because of the construction activity that
comes into the community in getting the site ready for economic
redevelopment.
I know there is not a study that we have done specifically
on that, but there might be something that other organizations
have done that we might be able to get.
Mr. Barr. OK. If you are aware of any or could locate any,
with reasonable efforts, I would appreciate it. I think it's
relevant and important.
There are some other questions I have, but I see that the
time is just about up, so I will defer for right now. Thank
you, Mr. Chairman.
Mr. Sununu. Thank you, Mr. Barr.
We will reserve time at the conclusion of Mr. Sanders'
questioning, if you would like to add some additional comments.
Mr. Sanders.
Mr. Sanders. Thank you very much, Mr. Chairman.
Mr. Chairman, if I may, as I understand it, Mr. Laws, today
is your last day, and your co-workers are giving you a going
away party.
Mr. Guerrero. I thought this was his going away party.
[Laughter.]
Mr. Laws. I would assume they are having a little more fun
right now than I am.
Mr. Sanders. I would respectfully suggest, Mr. Chairman, if
there are other questions that any Member might have of Mr.
Laws, may we present them now, so that he can perhaps enjoy his
last day in a little better way.
Mr. McIntosh. Mr. Barr, would you like to conclude?
Mr. Barr. Just one quick question, then, for Mr. Laws
specifically.
I think, Mr. Laws--and I think this was in response to a
question previously by Mr. Sununu--that EPA does not have any
evidence that shows that the average cleanup time is going
down.
Mr. Laws. No, I didn't say that. I'm not sure that that
evidence has been put in a report type form. The data that we
have gone through does indicate that, and we will provide that
to the subcommittee.
Mr. Barr. OK. That will be provided?
Mr. Laws. Yes, sir.
Mr. Barr. OK. Thank you.
Thank you, Mr. Chairman.
Mr. Sununu. If I may just conclude the questioning by
yielding myself a few moments, Mr. Laws. I understand that, in
a letter that you put together for Congressmen Oxley and
Boehlert in May of last year, you responded for the EPA with
regard to the Superfund reform proposal by stating that there
wasn't evidence that would support your claim--meaning that of
Congressman Oxley--that the existing liability scheme delays
the time for cleanup.
Contradicting that, however, was GAO testimony that stated,
``EPA officials also said that the time to find the parties
responsible for contaminating site and reach cleanup
settlements can increase the cleanup times.'' These two
statements, both by EPA parties or officials, obviously
contradict one another.
My question to you would be, in the light of the GAO
findings, how can you suggest that the time to track down tens
and sometimes hundreds of potentially responsible parties
wouldn't delay the cleanup time involved?
Mr. Laws. Because the analysis, the site investigation, the
study of what is going to be necessary to clean up that
particular site proceeds while the enforcement side of the
House is looking to try and identify who the responsible
parties are.
I think, if you look at the time it takes, on another GAO
report, for the private sector to clean up a site and the
Federal Government to clean up a site, the difference is
something like 6 months difference. So I don't think that the
PRP search has a major impact on the length of time.
Mr. Sununu. Thank you very much. At this time, I would like
to return the Chair to Mr. McIntosh, who has one or two final
questions.
Mr. McIntosh [presiding]. Thank you, Mr. Sununu. Did you
have any further questions before I finish up?
Mr. Sununu. Not at this time.
Mr. McIntosh. I wanted to check in with you--and I
appreciate the panel's willingness to participate in all of
this. I have a question for the General Accounting Office.
Mr. Sanders is pointing out that you are trying to leave
for an engagement.
Mr. Laws. Yes, sir.
Mr. McIntosh. I do have one more for the GAO, but I will
put that on hold for a second and ask Mr. Laws a question.
In your testimony, you had indicated that EPA had
established a ``worst problems first'' priority system. The
National Risk-Based Priority Panel has evaluated and tried to
rank cleanup actions according to five different criteria:
risks to humans and the environment; instability in
characteristics of the contaminants; and economic, social and
program management considerations.
Now, based on these criteria, the panel had ranked one of
the Superfund sites, the Havertown PCP site, the eighth worst
cleanup project in the Nation. The site was placed on the NPL
list in 1982. According to the documentation supporting the
agency's decision to cap the site, this site is indeed one of
the ones that is very stable.
EPA has stated that the contaminants at this site, such as
arsenic, dioxin, PCPs, and PAHs, all bind with the soil and are
not volatile or highly mobile. The most highly contaminated
area of the site is surrounded by a berm that prevents any
further migration of soil.
The agency apparently has also stated that these soils
onsite present minimal threats to the community and, if capped,
would present no threat to the community or anyone using the
cap. Previously, EPA actions have stabilized the site so that
there's no significant threat to local residents.
Now, the relative priority of this response appears to have
been established on a first-come, first-served basis rather
than on risk. Does this site, in fact, present the type of risk
that would make this the eighth worst cleanup project in the
country, or was it listed that way because it was one that they
were about to finish cleanup?
Mr. Laws. No, actually the national risk priority system--
to get to the second point first--is actually working kind of
perverse effect on those sites that are ready to complete
cleanup. I mean, the sites that have had most of the work done,
that are ready for maybe a final operable unit to be done--
where we have stabilized the risk, we have protected the
communities--are constantly bumped to the bottom of the list by
newer sites that are coming along where the sites have not been
stabilized to that point. So actually the risk system works the
other way.
My understanding with the Havertown site, though, is that
the reason it ranked so high was because of ground water
problems and not because of the soil problem.
Mr. McIntosh. That is what was confusing to me, because
apparently the type of contaminants there all seem to be the
type that do bind with the soil, so you would have less of a
significant concern about the ground water problems than
perhaps other sites where you've got water soluble
contaminants.
Mr. Laws. I'm not familiar with that particular site, but I
do know that it was a ground water issue that was pushing the
higher ranking of it.
Mr. McIntosh. Do you know if that ground water problem that
they did detect presented a great amount of risk?
Mr. Laws. I think it was threatening a drinking water
source, is my belief. I would have to check on that, but I did
have a couple of conversations with the Regional Administrator
about that site, and that's my recollection.
Mr. McIntosh. OK. Mr. Laws, I do understand it's your last
day, but perhaps the agency could give us some further answer.
Mr. Laws. Actually, because it did refer also to the
testimony of one of the earlier witnesses, we can provide the
committee with an analysis of what the problem was, our
responsiveness summary, which would have addressed the issue
raised by the vendor who had testified earlier, and we can
provide all of that information about that.
Mr. McIntosh. Yes, that would be helpful, and some analysis
about why it was placed at that risk level.
Mr. Laws. Certainly.
Mr. McIntosh. Thank you very much, Mr. Laws. I appreciate
your coming. I don't think there are any other questions for
you. We wish you well in your next life.
Mr. Laws. Thank you very much, Mr. Chairman.
Mr. McIntosh. One final question for GAO. I understand that
you did not focus only on the trend lines for listing in
construction completions, but also looked at sites that had
gone through various stages of the listing process and the
cleanup process. I wanted to check, what stages in each process
did you observe that the average processing times had
lengthened?
Mr. Guerrero. Yes. The answer to your question is, yes, we
did look at the stages. There were two areas that basically
were driving the numbers. The first is, the period of time
after all the initial assessments are done for listing was
increasing. So the time between that point and the listing was
increasing.
Then, on the cleanup side of the picture, it was the time
spent selecting a remedy and studying what possible remedies to
use was driving the process.
Mr. McIntosh. So, in each case, it was the latter stages
that were doing it?
Mr. Guerrero. In the first part, it was the very tail end;
in the second part, it was the very front end of the process.
Mr. McIntosh. Are both of those stages the stages at which
there are a large number of parties that are consulted and
brought into the process?
Mr. Donaghy. Yes, there is some enforcement in the end
stage of the listing process, where an attempt is made to find
parties responsible for the contamination. And then, early in
the cleanup process, there are negotiations. After listing,
there are negotiations carried on with the responsible parties
to attempt to reach a settlement.
I think that the delay in getting the construction started
at sites after they are listed is a result of a delay in
starting the cleanup study, the process that leads to the
selection of a cleanup remedy, and also a stretch-out in the
time that it has taken to conduct that remedy selection.
Mr. McIntosh. Let me just close by saying thank you for GAO
coming and the work on your draft report. I look forward to
seeing the final report. I have a high degree of confidence on
the methodologies that you have used in that report. I think
they will serve us well in this Congress as we move forward in
looking at reauthorizing Superfund.
Mr. Guerrero. Thank you, Mr. Chairman.
Mr. McIntosh. Mr. Sanders, did you have a closing comment?
Mr. Sanders. I'm not quite sure that we had the adequate
time. I think more of the time was on your side. So I think
we're entitled to at least 10 minutes.
Mr. McIntosh. OK. I was not here. Mr. Sanders has some
questions. Excuse me.
Proceed.
Mr. Sanders. Thank you very much. Mr. Chairman, despite the
inauspicious beginning of this meeting, I certainly don't want
to be terribly partisan, but I must raise an issue, and it's a
quote from you, Mr. Chairman, which I want to bounce off the
GAO.
We have a memorandum here from the chairman, Mr. McIntosh,
dated February 6, 1997, that states, ``GAO estimates that EPA
will take, on average, at least 21 years to complete cleanups
at nonFederal sites whose discovery was reported in 1995.''
My question to Mr. Guerrero is, do you agree that it takes
21 years? Is it appropriate to use your analysis to project how
long it will take EPA to list and clean up sites that are
reported in 1995?
Mr. Guerrero. As I stated earlier, Mr. Sanders, our
analysis does not allow you to project forward what those
timeframes will be.
Mr. Sanders. I don't want to put you on the spot, but I
read you a quote from the chairman, and what I'm hearing from
you, it's not a totally appropriate quote. You can nod your
head if you don't want to offend anybody, but I'm understanding
you to say that.
Mr. Guerrero. The numbers are based on what it did take,
the average times that it took in 1996, and that number is the
sum total of those two timeframes.
Mr. Sanders. So what you are saying, in essence, is that it
is not useful, that the quote of the chairman is not
necessarily appropriate or accurate, and that it is not useful
for examining the impacts of changes in EPA Superfund policies
and procedures which could affect the program's future
performance.
In other words, I guess the only point that I wanted to
make is, the chairman had a quote, and I think it was probably
not an appropriate quote, based on the information that you
provided.
Mr. Czerwinski. In all fairness, Mr. Sanders, though, I
think that's probably from our lack of specificity in dealing
with the chairman. We have been refining our message as our
work progressed, and, most likely, the misunderstanding was due
to our poor communication.
Mr. Sanders. OK. And maybe that's one of the problems with
having a hearing with a work in progress. Possibly.
Mr. Guerrero. I would like to clarify, though, GAO's policy
is to testify on work that is in progress, provided that we
have sufficiently completed that work that we can usefully
contribute to the discussions.
Mr. Sanders. Let me just continue and suggest that, as I
understand it, your methodology doesn't even look at the
average time for sites reported in a certain year. Instead, it
looks at the average for sites completed in a certain year. Is
that correct?
Mr. Guerrero. That's correct. That's what Mr. Waxman was
talking about earlier.
Mr. Sanders. OK. My conclusion would be that, hopefully,
perhaps the chairman did not fully understand the situation
when he made his quote. The same memorandum refers to the title
of your draft report, ``It now takes more time to address and
clean up hazardous wastesites,'' that's the title.
This title tells me that you analyzed how long it takes to
list and clean up sites under the new reforms, and it is a
clear indictment of the reforms. Yet you testified that your
analysis should not be used to judge the reforms or to project
the average cleanup times for sites discovered after the
reforms were adopted.
Is this going to be the title of your final report?
Mr. Guerrero. No, it will not.
Mr. Sanders. So the title that you now have for your draft
report, ``It now takes more time to assess and clean up
hazardous wastesites''--interesting title--is, in fact, not
going to be the title for your final report; that's correct?
Mr. Guerrero. That's correct.
Mr. Sanders. I think that's important to state for the
record. Can you tell us what your new title will be?
Mr. Guerrero. We haven't selected it. However, what I would
want to say is that the approach used shows that it has taken
the amount of time we indicated in these charts, in each of
those years. The choice of the title for our draft report,
which was sent to the agency for comment, as is a typical
practice of ours, led us to believe that that could be
misunderstood, so we are going to change the title of the
report.
Mr. Sanders. We appreciate it. We happen to think that the
whole methodology, as you know, is misleading, not only the
title, so we appreciate your at least changing the title.
Mr. Chairman, as it was just established, in our opinion,
in my view, the GAO's analysis should not be used to judge the
current program or to project how long cleanups will take in
the coming years. And it cannot show the impossible, that it
took an average of 21 years to clean up sites, because
Superfund hasn't even been around that long.
Therefore, I hope that the final report clearly explains
the inherent bias in the methodology and clearly spells out the
limitations of the data. I would not want the chairman, or any
member of the committee, or any reader, to be misled on this
subject again.
Mr. Chairman, I would like to explore the reasons for delay
for a little while.
You testified that a major factor was, the Superfund
program started with a backlog of sites awaiting evaluation.
That's a quote. Correct? Now, let's say, hypothetically, there
is a huge backlog of sites because previous administrations had
neglected the program, and, again, hypothetically, a new
administration aggressively and successfully attacks this
backlog by finally finishing up those long, drawn out listings
and cleanups.
Would the results of your analysis show that the cleanups
completed by this new administration were actually taking
longer than cleanups completed by previous neglectful
administrations?
Mr. Guerrero. The average, based on our analysis, would
rise because it takes into account the backlog. However, that
is not the only approach that we used in our analysis.
Mr. Sanders. One more time, I think the point that we're
trying to make is that the information provided does not
necessarily reflect the reality of what is taking place and the
efforts of the Clinton administration to improve upon the
situation.
Mr. Chairman, let me just ask a few more questions, and
thank you for your indulgence here.
I would ask GAO what recommendations they are making today
for fixing the problems related to delay.
Mr. Guerrero. We are not making any formal recommendations
in our testimony, nor do we anticipate making recommendations
in our final report. I would make several observations,
however. And I would like to speak to the methodology, because
I think it's important to note that the methodology does show
some very, very important things.
Among those is the fact that the timeframes spent within
specific parts of the Superfund cleanup process are changing.
Certain parts are getting longer; other portions may be
remaining the same. In effect, as I said earlier, this is a
result of a number of decisions to emphasize the tail end of
the process or the cleanups. It is robbing Peter to pay Paul
and, in effect, will be shown in even higher average times in
the future.
We feel very strongly, and we have made recommendations,
that because of the size of the backlog in this program, which
it began with, because of the large number of sites yet to be
listed, and because of the large number of sites in the
pipeline, it is imperative that we use a risk-based approach to
manage this process and ensure that the worst sites are getting
addressed first.
That's something we have recommended in the past and we are
recommending today before Chairman Horn's subcommittee in our
high risk reports. We feel even stronger about it based on the
analysis we've done here. This is a program where results are
important, and we have not been convinced in the past that the
agency has used that type of approach.
Mr. Sanders. My time has expired. I would just, with the
chairman's indulgence, take a brief moment to ask you this:
Would you recommend the reforms implemented by the EPA in the
last few years?
Mr. Guerrero. The reforms that the agency has put in place
all have potential to achieve what the agency is setting out to
do, which is reducing timeframes and reducing costs.
Mr. Sanders. You see these in a positive light.
Mr. Guerrero. We see them in a positive light. I think
where the debate has been this morning is, how can you measure
that, and how can you show those kinds of examples.
Mr. Sanders. I appreciate that. Honest people can disagree.
It's a complicated issue. But what I'm hearing you say is that
the changes and the reforms implemented in recent years are
positive. That is what you're saying; is that correct?
Mr. Guerrero. They are headed in the right direction.
Whether they are having the impact is the question we have been
talking about.
Mr. Czerwinski. Mr. Sanders, I think the key word is
``implemented.'' We are not sure how extensively they are being
implemented, and we are undergoing studies at the request of
this committee, the authorizing and appropriations committees
to see the exact extent of EPA's implementation.
Mr. Sanders. I do appreciate it. What you are saying--
again, I don't want to put words in your mouth--but you are
saying you like the reforms; you see them moving in the right
direction; you are concerned about the implementation.
Mr. Czerwinski. We see the concepts as being very positive;
the results have yet to be proven.
Mr. Sanders. OK. My last question, Mr. Chairman, is a very
simple one for the members up there. In order to better
implement those processes, would you recommend that Congress
appropriate more funds?
Mr. Guerrero. Again, I would say that, going back to the
earlier discussions, you can always put more funds into this
program, and you will probably get more output. The question
is, are you getting the right kind of output? And whatever that
funding level is, we would continue to strongly urge that the
agency use a risk-based approach to ensure it is addressing the
worst sites.
Mr. Sanders. My time has expired. I thank you very much,
Mr. Chairman.
Mr. McIntosh. Thank you very much, Mr. Sanders.
Let me turn now to Representative Barr who has a couple
questions for this panel.
Mr. Barr. Thank you, Mr. Chairman. Is it a fair assessment,
Mr. Guerrero, of GAO's role, not just in your testimony here
today but in general, that GAO uses commonly accepted,
defensible, verifiable, legitimate means of computing data as
objectively as possible, and then makes the results of that
analysis available to Members of Congress and others in the
executive branch, and that it's not your job to draw,
necessarily, conclusions from it, with regard to how it can be
used in determining policies?
Mr. Guerrero. That's right. We will, on occasion make
recommendations, when we believe the evidence is compelling. In
this particular case, we are simply trying to present data that
suggests a troubling picture.
Mr. Barr. Would it be fair to say that, from time to time,
Members of Congress on both sides of the aisle and members of
the executive branch disagree with what you have done, and may
reach different conclusions based on the evidence?
Mr. Guerrero. Absolutely.
Mr. Barr. Without beating a horse here, again, about
methodologies, is it a fair statement, based on your objective
analysis, as reflected in your testimony today, that the
average completion time for projects has increased
substantially over the last several years?
Mr. Guerrero. Yes.
Mr. Barr. Is there any doubt in your mind about that?
Mr. Guerrero. No.
Mr. Barr. Is that based on an objective analysis according
to commonly accepted standards and methodologies of analysis?
Mr. Guerrero. Yes.
Mr. Barr. Thank you, Mr. Chairman.
Mr. McIntosh. Thank you, Mr. Barr.
Let me conclude this panel by summarizing some of the
important things that have, indeed, come out. And I think as
much as we may dislike the results, I don't think it's
appropriate to be attacking the method when you don't like the
results, when the facts are staring you right there in the
face.
It is a fact that, in 1996, it has taken 20 years, on
average, to clean up the sites that were finished there, and
that your study showed that, in that year, that is the case for
those sites. That's an appallingly long time and not acceptable
for us.
It also appears that the reforms which began being
implemented in 1992 and were fully implemented in 1994, and
additional reforms in 1995 and 1996, don't seem to have slowed
down the increase in time it takes to list a site onto the
National Priority List. That number continues to climb every
year since 1992 by roughly the same amount.
Finally, it appears to us that 53 percent of the money that
is spent on this program is used for bureaucratic expenses, and
47 percent is used for real cleanup; and that, when we're being
asked whether we should spend more money or not in the program,
the first question should be asked, are we using the money that
is already there appropriately to get the maximum amount of
cleanups for the taxpayer money that is being spent. I think
the answer to that is a very clear no.
I appreciate the effort that you have brought forth in
bringing out these facts. I understand, when people disagree
with facts or they don't agree with their agenda, that they may
attack your methods. But I think you've got very sound methods
behind this report, and I look forward to seeing the completed
work product presented to our committee.
Thank you.
Our next panel is a colleague of ours who has done a lot of
work in this area, has become somewhat of an expert, and I am
very much pleased to now recognize the Representative from
Florida, Mr. John Mica.
STATEMENT OF HON. JOHN L. MICA, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF FLORIDA
Mr. Mica. Thank you, Mr. Chairman. I thank you for your
leadership on this issue and for again tackling some of the
environmental cleanup that is so important to our country, our
children and our communities.
I am pleased to see Mr. Sanders has joined the panel as a
ranking member. They have not only recognized his seniority but
also his expertise. He also is someone with whom I've served,
and I know his true compassion to see that the environment is
protected and that those that, indeed, are the least fortunate
in our society are not victimized by Government inaction,
particularly in hazardous waste cleanup sites.
I come to you today having served on a similar panel back
in my first term, served among leaders of the Congress like Mr.
Synar, who is not with us, rest his soul, and Mr. Towns, and
others. We looked at these issues. Mr. Chairman and members of
the panel, I tell you, I've been there and I've heard before
what EPA and GAO are telling us today.
It continues to concern me that we, in fact, are now--and
this report confirms--taking a longer time to clean up sites;
in fact, that the only ones that are ``cleaning up'' in some of
this process are the attorneys and the people conducting
studies--expensive studies--and that the sites are not being
cleaned up.
Again, this confirms previous GAO findings, other
subcommittee and committee findings of Congress. We all want to
get to the same place, and that is cleaning up the sites that
pose the most risk to our communities and to our children.
Where have we come? I don't think we've come very far.
I am here to suggest today a couple of steps. One, I think
we need to start turning more and more of this responsibility
over to States. It's easy to criticize the Federal Government,
and their record is obvious, but we should look at what the
States are doing and their initiatives. I think, if you
analyzed it and your subcommittee analyzed it, you will find
some of the cleanup sites that EPA is taking credit for
actually have been State and local initiatives that have
resolved these situations.
Let me give two examples. In Pennsylvania where our
colleague, Mr. Ridge, became Governor 2 short years ago, he has
cleaned up 13 brownfields sites in just 1 year at a cost of
$711,000. As you may recall, last fall EPA planned to host a
brownfields conference in Pittsburgh at a cost that was, at
that time, estimated to be $729,000. So they were going to
spend the money for a conference. I think they revised that
down to half a million, after hearing some congressional
protests.
Here's an example of a State cleaning up brownfields sites
at a cost of $711,000, as opposed to spending it on a get
together to talk about it.
Minnesota is another good example. Minnesota has a
voluntary investigations and compliance program. I heard a
speaker say recently, in fact, just within the last week, that
Minnesota has cleaned up more sites than the entire Federal
Government Superfund program. This State permits innocent
developers and others to clean up contaminated land in return
for a legal shield against future liability. The ultimate goal
is, in fact, cleaning up these sites and not, again, becoming
involved in a legal morass.
In my own State of Florida, we had one site we looked at
that had a project manager almost every other year. They had so
many project managers that, in fact, the project managers left,
became consultants to this process and were further studying
the hazardous wastesites. So we see that the Federal approach
hasn't worked. We see good examples of where the State
approaches are working.
Now, there are a couple of other recommendations other than
turning some of this over to the States and locals who can act
a little bit more expeditiously. First of all, we've got to use
cost-benefit and risk assessment. You heard the EPA talking
about the use of risk assessment. What disturbs me is that we
see the same problem. Remedy selection doesn't use risk
assessment. It is important that we look for the most cost-
effective solutions for cleanup.
And we heard this before. Another GAO report that was
presented to us just months ago said that the sites that are
cleaned up under these Federal programs are not the sites that
pose the most risk to human health and safety, nor do they
address the poor in the community. That problem still has not
been addressed. So some risk assessment should be used in
priority selection of the sites.
Then addressing, finally, the question of retroactive
liability, EPA continues to let polluters not pay and then come
back to us and ask for more money from the taxpayers. The
original intent was good: have polluters pay, have polluters
clean up. This has been distorted. Over $4 billion, according
to EPA Watch, has been lost because EPA did not pursue these
folks and let the statute of limitations expire.
So we've got a problem that still exists. It requires our
oversight and our staying on EPA to make this program work. And
we need to look at other effective solutions that States are
adopting to clean these sites up that pose the most risk to our
communities and our children.
I thank you for the opportunity to be here. I was hoping
that I would come before your subcommittee and all the sites
would have been cleaned up by now, and we could have had a
meeting of celebration, but that's not the case. Again, thank
you all for your leadership on this issue.
Mr. McIntosh. Thank you, Mr. Mica. Hopefully, we can
perhaps get some reforms and continue to further implement the
reforms the agency has put into place, and achieve a record
somewhat like Governor Ridge's, where you actually get the job
done at relatively little expense.
I have no questions for Mr. Mica.
Mr. Sanders.
Mr. Sanders. I would just say a few words. First of all,
John, thank you very much for your kind remarks. As you know,
there are disagreements about some of the conclusions that
you've reached and the chairman has reached. It is not
necessarily agreed by everybody that the process now has slowed
down. There is difference of opinion about the methodology used
by the GAO.
Second of all, I'm sure you will agree that while we all
want flexibility, we want to learn from everybody involved in
the process, and that we all agree some States have done an
excellent job, you will not disagree that some States have done
an atrocious and neglectful job. That is my assessment.
I think we can all share the common goal of getting these
sites cleaned up as quickly as possible and as cost-effectively
as possible. Thanks for your contribution.
Mr. Mica. Thank you. I look forward to working with you in
that regard.
Thank you, Mr. Chairman.
Mr. McIntosh. Thank you very much, Mr. Mica.
Mr. Sanders, I propose we take a 10-minute recess to go
vote and come back.
The committee will stand in recess.
[Recess.]
Mr. McIntosh. The subcommittee will reconvene and come to
order.
Let's proceed now to our final panelists of the day. I
appreciate both Mr. Wholey and Ms. Klemm for coming forward and
talking. Now, I understand that GAO and administration
witnesses are not covered by House Rule XI, obviously, but Ms.
Klemm would be. And it is my understanding that you do, in
fact, receive some Federal funds, and I am also told that you
will provide the subcommittee with a written record of all
Federal grants, subgrants, contracts, and subcontracts that you
receive.
Why don't we first proceed to swearing everybody in, and
then I've just got a couple questions for you along those
lines. If both witnesses would please rise.
[Witnesses sworn.]
Mr. McIntosh. Let the record show that both witnesses
answered in the affirmative.
Ms. Klemm, just to make sure we understand the facts
correctly, so that the record will be clear, do you receive
some Federal grants?
Ms. Klemm. Yes.
Mr. McIntosh. Could you summarize those grants by the
amount and type they are?
Ms. Klemm. I called my office to get some information so
that I can at least have some response. First, let me say that
none of the money that I, as the owner of Klemm Analysis Group,
or the organization, have received has ever come from EPA.
The largest contracts we have with the Federal Government,
and this is over the past 10 years, are with the Centers for
Disease Control and Prevention. We have a task order contract
that is in its 5th year, and the total of that, to date, has
been slightly over $7 million. It was signed in 1992.
We also, last year, received one of the Presidential
Advisory Panel awards for Gulf war illnesses, which is through
Fort Detrick, Department of Defense. That is for $778,000 and
is a multiyear contract awarded last June.
We have been working for the Substance Abuse and Mental
Health Services Administration since September 1991. The amount
of that contract at the time of award, and it has remained at
the same amount, is about $1.5 million. It is still ongoing.
We have a project with the Department of Veterans Affairs
to study women who served in the Vietnam era. The second phase
of that study is ongoing now and is for $1.3 million.
Mr. McIntosh. Ms. Klemm, if you would like to just go
ahead, we can put all of that into the record.
Ms. Klemm. OK. Fine. I thought you wanted me actually to go
through those.
Mr. McIntosh. I did ask that, and you were very kind to
proceed. But in order to get to your testimony, we can do that,
and we do look forward to seeing the full list.
Ms. Klemm. OK.
Mr. McIntosh. Let me emphasize, just for the record, that
our effort here is not to create a trap for people in any way
but really just to comply with the spirit of this new rule in
the House. So I think your best efforts, in terms of
disclosure, which you have done admirably, is great, and I
thank you for that. We can submit the rest of the list and
update it further later on.
Ms. Klemm. OK. Great. That's fine.
Mr. McIntosh. Thank you.
Let's turn now to Ms. Klemm, if you could give us your
testimony.
STATEMENTS OF REBECCA J. KLEMM, PH.D., KLEMM ANALYSIS GROUP;
AND JAMES WHOLEY, SENIOR ADVISOR FOR EVALUATION METHODOLOGY,
GENERAL ACCOUNTING OFFICE
Ms. Klemm. Mr. Chairman, I have a written statement which I
ask that you include in the record of this hearing, and I will
briefly summarize my views and then answer any questions you
might have.
Mr. McIntosh. We will include the full statement.
Ms. Klemm. OK. My name is Rebecca Klemm. I am the president
of Klemm Analysis Group here in Washington, DC. It is a
statistical research and analysis company that has done a large
number of studies assessing statistical work and performing
analysis for both Government and commercial clients.
I have served as a court-appointed expert witness on
statistical evidence and am currently a member of the National
Conference of Lawyers and Scientists of the Association for the
Advancement of Science and the American Bar Association Science
and Technology Section. I earned my Ph.D. in statistics from
the Iowa State University and have served on the faculty of
Georgetown University and Temple University, where I taught
statistics. I am also past president of the Society of Risk
Analysis, the Washington, DC, chapter.
I am not an expert on the Superfund and, in fact, have
never done any work for the EPA. I am here today because
Congressman Waxman asked me to look at the methods used by GAO
in the work they are reporting and did report in their
testimony today. I have only seen their testimony and I heard
it today, and have not had the opportunity to review the data
in detail that they used. However, reading their testimony and
hearing today, I believe that I can make some suggestions that
would be helpful to their analysis and the work of this
subcommittee.
The GAO's work reports their estimates of the time that it
takes to list a hazardous site after it is discovered and to
clean it up after it is listed. The issue is whether the
procedure they used to make their estimates is the most useful
one.
One issue is that GAO only looks at the sites that were
listed. If a site was discovered but not listed, it does not
come into their calculations of the average time. We do not
really know the effect of this on the results. It could be that
sites which are not listed are quickly decided, or it could be
that because they are less of a problem, EPA takes longer to
get to them. But they are not included.
Another issue is that GAO calculates time by averaging the
time it took for cases closed in a particular year, and we have
heard a lot of discussion about this. They look at the year
that it is closed and how long it took to get to this, looking
backward.
Because the law was passed in 1980, there were fewer years
available in the earlier period. So, in 1982, there were only 2
years since the law was passed. It is a bit uncertain as to
what the discovery dates for the early cases were. In other
words, the further out you get from 1980, the more years appear
to be available for being included in the average.
If we calculate the number the other way, that is to say,
examining cases discovered in a particular year, going forward,
the problem is presented in mirror image. There are fewer years
available for averaging in the later time period. So it is not
at all surprising that these two methods get different results,
and we have heard about results from both kinds of methods
today.
Another issue is how GAO treats severity or complexity of a
site. It could be that time to completion is influenced by how
serious the hazard is, but there is no analysis of this
presented. During panel one, there was discussion about the
various locations of sites, and that they tend to be more
complex because of the various locations or operational groups,
and that they do tend to take more time. I think that should be
included in the analysis.
It is important for this work to specify how we are going
to use these results; specifically, what we are going to
compare the result to. In fact, the Superfund determinations
involve many decisions and reviews. To get a good idea of what
is going on, we need to include information about all of these
decisions, even those pending. An analysis of ``time to
decision'' or oftentimes called ``events-based analysis'' must
include information about all decisions made and those that are
pending.
In this situation, that includes all decisions about all
discovered sites, as well as separate locations of an original
single site. We need to look at the entire process, as was
mentioned by the second panel and the first panel about the
complexity. I agree with including those issues into the
analysis.
Mr. Chairman, after that short statement, I would be happy
to answer any questions.
[The prepared statement of Ms. Klemm follows:]
[GRAPHIC] [TIFF OMITTED] T1517.114
[GRAPHIC] [TIFF OMITTED] T1517.115
Mr. McIntosh. Thank you very much, Ms. Klemm.
Mr. Wholey, would you please share with us your testimony.
Mr. Wholey. Mr. Chairman, my name is Joseph S. Wholey. I am
a professor of public administration at the University of
Southern California and senior advisor for the evaluation
methodology at the GAO. My work focuses on the use of
performance measurement and evaluation to improve Government
performance and policy decisionmaking.
I don't have a prepared statement. I would be happy to
respond to any questions that you may have.
Mr. McIntosh. Thank you very much. Let me just ask you, I
guess as the first question, do you agree with Ms. Klemm's
comments on the study that was presented today.
Mr. Wholey. Mr. Chairman, I agree with the thought that
there is no perfect measurement system, if that was part of Dr.
Klemm's testimony. I think that we are always trying to weigh
the feasibility and cost of different measures against the
usefulness of the measures, which certainly was part of Dr.
Klemm's testimony.
GAO, in my view, has used a reasonable, appropriate
measurement scheme in its analysis. Other measures might also
be appropriate. I could expand slightly, if you wish.
Mr. McIntosh. Yes, that would be great.
Mr. Wholey. In my view, and this is what I would hope to
see coming out of the hearing today, the key to useful
performance measurement is, first, to get some agreement
between the agency and the Congress on a set of goals that we
are working toward, and then for each goal, a reasonably small
set of measures that will let us know if we are making progress
or not.
A lot of time has been spent today on two of the goals of
the Superfund, which might be called timely listing and timely
completion, but the Superfund program has many goals. So the
first step is to try to come together on what are the goals;
what are we trying to accomplish around here? We heard about
risk toward the end, I guess the next to the last panel, as you
would classify it, or perhaps the last panel.
So the point, though, as Dr. Klemm had to say, is that we
have to think about the use of the information. Is this
performance information going to help manage the program
better, help the program to perform better, help inform the
Congress better as to what is happening in the program, help in
your own decisionmaking process?
Mr. McIntosh. Now, GAO mentioned in its testimony that
there were alternative means of analyzing the data that
confirmed the results they achieved with the method they chose.
Are you familiar with those?
Mr. Wholey. Well, I had seen some draft versions of their
testimony for today, and over the last several days made some
suggestions. I looked at the statutory deadlines for listing in
SARA. I looked at the expectations that EPA had set for cleanup
of sites in SARA.
Some supplementary analyses were done of a prospective
nature, talking about the percent of time that those deadlines
or expectations were being met. That is a prospective
methodology that is included in the testimony that was given
earlier today. Unfortunately, I was not in the room, but I have
read the testimony that was given earlier today and submitted
to you.
Mr. McIntosh. Wouldn't you say, if the goal is to quickly
clean up the sites and reduce the risk to the environment and
health, that a measurement of the length of time it takes to
clean them up would be important in determining whether you
meet that goal?
Mr. Wholey. Well, as I said before, Mr. Chairman, I think
there will typically be more than one appropriate measure. I
think the measure you just mentioned, looking backward in time,
is one appropriate measure. I think the percent of cases that
are completed within some reasonable standard is another
appropriate measure. And I have no doubt that there might be
two or three other appropriate measures.
The worry, if we just keep adding more and more measures,
however, is, how is the reader or the listener to process it
all. That's why I say, for each goal, a few measures, and if
possible, an agreement between Congress and the agency to use
these measures and report back, in a consistent fashion, what
is happening in terms of those measure for each goal.
Mr. McIntosh. Thank you.
Ms. Klemm, would you say there are multiple measures, as
well, and that it depends on the goal as to which measure you
look at?
Ms. Klemm. Yes, basically. There are multiple measures. One
can do retrospective measures, as GAO primarily does. One can
do prospective measures, which some analysts call those
cohorts. I think they all have value for presenting something
about what is going on.
I do think, in some of the questions that were raised today
about backlog and concern about backlog, that the more one
looks retrospectively, the more the effect of the backlog can
come into play. Particularly, if there is interest in backlog
that has been reoccurring or preexisting across different
administrations, then I think that information should be
augmented and brought forward; if, in fact, one is to
ultimately have a goal to understand how the length of time
relates to what we can do to shorten it.
I think we all agree we want to maybe shorten anything that
has a public health implication and environment implication.
Just providing information or average of time to get to where
we are, where, in fact, there could have been a hiatus, we
don't know even, that things were stopped, doesn't really help
to know what we can do to shorten the gap in the future.
Mr. McIntosh. But it would, if you demonstrated there was a
lengthening of time, alert you to a problem, if your goal is to
have rapid cleanup.
Ms. Klemm. I do believe that looking only retrospectively
will not tell you whether it is really lengthened, because it
could be an artifact of the fact that you actually have
calendar time that has gone forward, and you could be just
measuring the length of more available calendar time and not
necessarily due to the lengthening of the time to do the actual
activity.
Mr. McIntosh. But if you have, as we do there with those
slopes, where it continually takes a longer and longer amount
of time to put a site onto the listing, and then that triggers
another 10-year period of actual cleanup, it appears that each
year, as you add a new site to that, it looks as if you are
going to, if history repeats itself, have a longer and longer
period before you can expect the cleanup to occur.
Ms. Klemm. It could, because you have more time that has
elapsed. In the same kind of situation, let's suppose--I think
on the chart that's on the left over there, is it 1986, the
first year?
Mr. McIntosh. Yes.
Ms. Klemm. There has only been 6 years from 1980 at that
time. If, in fact--and I don't know whether this is true or
not--but if, in fact, the easy cases were completed, they were
completed right away. If the difficult or the multiple
locationsites were kept partially completed, we don't even know
that, but they keep going on. If they are still in the
pipeline, partly because they are more complicated and they
themselves take more time, they are going to show up, by the
date when they were completed, looking as if it took longer to
complete them.
Now, this is a flow process. There are new ones coming in
every year, and there are ones getting completed every year.
The tradeoff between the incoming new cases and the completed
old cases aren't being told in that kind of a chart. It leaves
out the impact of the original backlog. You can't see that. And
you could get into that information if we were to look at when
were they actually started on discovery and where were they at
the beginning of each year? Had they even been begun? Were they
in process? Were they partially completed? And so on.
I think that level needs to be looked at, and that's what I
mean by more of the events-based. What is pending? Have they
even been started? Because you could have the easier ones done
first, like a lot of us do with a lot of our tasks when we are
confronted with a choice of things to do, get some done, then
you will look like you do them quickly, and the hard ones are
still remaining. And somebody who then actually solves the hard
ones might look like they took a long time.
Mr. McIntosh. So, in order to fully understand that, you
would want to break it down into different components, is that
what I am hearing?
Ms. Klemm. Yes, that's correct.
Mr. McIntosh. If one of the components was pretty
consistent in taking, say, 2, 2\1/2\ years, and another
component you saw a significant fluctuation over time, then you
would be more concerned about that component that fluctuated
over time?
Ms. Klemm. I would certainly want to look at it and
understand why. This chart is too combined. We can't really, to
me, use it for understanding what we might do and deciding
whether, in fact, it really has taken more time, and then what
we can do to shorten it if it has.
Mr. McIntosh. Then one of the things I think would be
useful would be, as GAO moves to a final report, is to break
out different subsets of that overall time and let us see which
ones seem to have been expanding and the amount of time they
take.
Ms. Klemm. Yes. That's a recommendation that I would make.
Mr. McIntosh. My hunch is, you are going to find that sort
of the final stages of action, where they are really cleaning
up, have roughly about the same amount of time for them, but
the preparatory stages have been what has been expanding. But
we need to see.
Ms. Klemm. It may very well be. I don't know.
Mr. McIntosh. Which, I agree with you, would then tell
you--that might be the source of reform, an area to look at to
try to reform those stages which have been expanding.
Thank you very much. I have no further questions.
Mr. Waxman.
Mr. Waxman. Thank you, Mr. Chairman.
I want to thank both of you for being willing to stay this
long day and to give us your views on this issue.
Mr. Wholey, you work for the GAO, and you have had a chance
to review their methodology and their conclusions.
Mr. Wholey. That's correct.
Mr. Waxman. The chairman repeated something that he had
said earlier, that GAO found that it will take 20 years to
clean up a site discovered today. Is that GAO's conclusion?
Mr. Wholey. Having heard GAO say no, I feel confident in
saying no. I did come to the hearing about noon, however. I
have not been here for the whole morning.
Mr. Waxman. Mr. Guerrero is here, if I'm saying something
incorrectly.
Mr. Wholey. He did say no.
Mr. Waxman. I did not understand GAO to say that.
Mr. Wholey. I heard him say no.
Mr. Waxman. OK. Then I further understood that GAO did not
make a determination that the reforms that have been put into
place in the Superfund programs have been unsuccessful or
successful. The chairman indicated he thought GAO has concluded
that the reforms were unsuccessful.
Mr. Wholey. Mr. Waxman, if I could respond in general to
your question.
Mr. Waxman. Sure.
Mr. Wholey. Because I would like to refer, again, to the
testimony that was given on my left a little while ago, which I
thought was helpful to getting us somewhere here. It occurred
to me, in reading over the testimony and also in listening to
Dr. Klemm, that the idea of adding in some intermediate
measurement points, which the chairman has also been talking
about, a couple that I noted down were what proportion of the
cases are we reaching a reasonable--within a reasonable time,
are we at least selecting a remedy, that would be one.
Further on down, at a quite later stage, within what
proportion of the time are we at least initiating the cleanup
action. So apparently EPA, at one point, perhaps they were a
little too enthusiastic, had suggested that after the site was
a listed that a good standard would be to get it cleaned up in
5 years. As I now understand it, just from reading the GAO
testimony, which you have heard, they now think that perhaps a
reasonable standard would be to clean the sites within 7 or 8
years from the time of listing.
Then I would wonder, couldn't we have--it's sort of like a
set of milestones--have they at least selected a remedy.
Mr. Waxman. Well, I think what you are saying.
Mr. Wholey. Could I finish my response to you?
Mr. Waxman. Yes. Well, you're not really responding to my
question, but I will let you finish, because you are being very
instructive. But my question to you was, did GAO say they had
enough information to judge that the reforms were a failure?
Mr. Wholey. I appreciate your reminding me of the question,
because I might have missed responding to the question in my
enthusiasm to outline, but it is responsive, however.
If the reforms are working successfully, and if we had
standards or rough time estimates by which we would try to
complete the different stages in a cleanup, then we would
expect to see movement in a favorable direction on the
proportion of sites listed for which we get the remedy selected
in a reasonable time. That will be sensitive measure. You don't
have to wait for the whole cleanup.
We would also expect to see favorable movement in the
proportion of the sites, once listed, for which we have begun
the cleanup in a reasonable time. Then, finally, we would have
the proportion of the sites for which they did the cleanup in a
reasonable time.
So I think it would be possible to introduce a more
sensitive measurement system into the game that would have a
chance to pick up the effect of the reforms of 1992 and 1994.
Mr. Waxman. Right. And then we would know whether they have
succeeded or not.
Mr. Wholey. Well, we wouldn't know.
Mr. Waxman. We would have some idea of whether they are
moving in the right direction.
Mr. Wholey. Yes, we would.
Mr. Waxman. Look, what is happening at this hearing is a
GAO draft report that is being rushed to a congressional
subcommittee. Now, that's very unusual, because usually you
wait until there is a final report, because a draft report
means that GAO is still getting input and evaluating the issue.
GAO has a draft report, and that draft report can be used
for a political agenda. And the political agenda is to make a
statement like, ``It will take 20 years before a Superfund site
that is listed today ever gets cleaned up.'' That's a political
statement, not a statement of reality. Or, ``The reforms have
failed.'' That's not a statement that gives us an analysis of
what's happening; it's a statement that can be used for a
political point of view.
Now, if we want to evaluate what's really going on, we
have, as both of you pointed out, measurements to make, points
to evaluate. We have to look at the kind of cleanup that's
involved, whether it's a complex cleanup or a simple cleanup.
That gets me to the point that I wanted to pursue with you,
Dr. Klemm. Some Superfund sites, like an oil spill, are
relatively simple to clean up. I say ``simple,'' relatively
speaking, but for some the techniques for cleanup are known and
the extent of damage is limited. At other sites, damage is
widespread, varies across the terrain, and the best technique
for cleanups are unknown. Clearly, these sites will have quite
different cleanup times.
Now, the GAO, in calculating averages, ignores the
characteristic of the site. Is that appropriate? I think you
would agree it is not, but I would like you to give your answer
to it. Is it helpful?
Ms. Klemm. I don't think it's particularly helpful for
understanding whether improvement is being made and in
understanding, from a management and decisionmaking point of
view, whether, in fact, there is something that can be done to
shift resources, or whatever. You need to look at the parts and
the complexity of the sites and/or their multiple locations.
We have heard already today from individuals who have the
kind of technology to do cleanup that that does affect the
length of time. Since length of time, by people who seem to
know about those things, does potentially relate to the
complexity, then we should look at that, the types of cleanup
required, and break out by those characteristics into subgroups
to see whether, in fact, there are some of them that are
generating what on the surface might look like very lengthy
cleanup times, and they are the most complex, possibly.
Mr. Waxman. Well, the GAO has disagreed with its own advice
when it came to the drug approval evaluation, where they said
that measurement shouldn't be based on the time of completion;
it's less appropriate than one based on time starting from the
origin of the approval process. But in this report they seem to
think that--because both are flawed, and you indicated clearly
that both are flawed, they give you a different measurement--
they are free to choose whichever suits their purpose.
This is not the only subject where people want to look at
the change in the duration of something over time. Some
scholars studying poverty measure how long people are poor.
Others measure spells of unemployment. Do any of these other
disciplines use the kind of average used by GAO today in their
report? How do these scholars measure and compare durations?
Ms. Klemm. The issues that are being addressed here, in
terms of time to clean up, are not unique to this application
or this particular kind of a problem. Analyzing time to an
event along a continuum of a process occurs in lots of places.
How to handle those is not unique here.
The issue where you have a starting point and you have a
truncated history is a very important concept to keep in mind,
because the initial conditions, as some people might call them,
can play a lingering effect into the future. So understanding
what the backlog is, or initial conditions, or where you start,
it is important to continue that into the analysis into the
future.
That's where looking at events-based analysis, which in
some areas they call survival analysis or proportional hazards
analysis, allows you to watch the dropoff over each of the
events from whence you started, taking into consideration the
truncation at the beginning, with a backlog, location in time,
and the truncation at the new end, which happens if you follow
just a cohort. Those things are available as procedures and are
used in lots of areas, having, I guess, originally been
developed in biological and economic applications.
Mr. Waxman. Mr. Wholey, let me ask you this question. You
recommend that an index of site complexity should be developed,
and I think that's a very useful suggestion. But let's suppose
for the moment that 1 year EPA spent all of its resources
cleaning up simple sites, and the average cleanup time, using
the GAO method, was 2 years. Then the next year they focus on
finishing a few complicated sites, and the average is 3 years,
again using the GAO method.
Would it be reasonable to conclude from those numbers that
cleanup is taking longer?
Mr. Wholey. Mr. Chairman--I'm sorry--Mr. Ranking Member.
Mr. Waxman. Call me Waxman. Call me Henry. Whatever.
Mr. Wholey. Mr. Waxman. I wouldn't call you Henry, but I
would call you Mr. Waxman. Mr. Waxman, I think it would be
valuable to include both averages for the total cases in the
report and also averages for subgroups, such as easy sites,
average sites, and more difficult sites.
Mr. Waxman. You are saying what would be appropriate, but
would it be reasonable to conclude?
Mr. Wholey. Mr. Waxman, could I respond to your question?
Mr. Waxman. No, because I want you to answer my question.
Mr. McIntosh. Mr. Waxman, let the gentleman answer. If you
don't interrupt him, he would be able to answer.
Mr. Waxman. I don't want to interrupt you except, at some
point, the chairman is going to say, enough time. The question
I asked you, given that hypothetical, would it be reasonable to
say, when they have spent a short period of time on the easy
ones and a longer period of time, on average, on the more
complicated ones, that therefore they are taking a longer time
overall to clean up sites? That doesn't sound reasonable to me.
Does it sound reasonable to you?
Mr. Wholey. Would you like me to respond to your question,
Mr. Waxman?
Mr. Waxman. As long as you've got my question clearly in
mind, go ahead.
Mr. Wholey. I do. Right. Thank you for reminding me of the
question.
Mr. Waxman, if the average cleanup took 2 years for one
group, one time, and the average cleanup took 3 years another
time, most people would say that 3 is bigger than 2.
Mr. Waxman, to continue my response, it would be most
valuable for everybody to have a breakdown that would clearly
reveal for all, which is the point you're getting at, that the
two had been for easy sites, and therefore one shouldn't think
that the three, which was, by definition, for more difficult
sites, nobody should say that three was performing worse than
two, because the degree of difficulty of the task had been
obviously changed over that time.
Mr. Waxman. Well, again, to follow on this kind of logic,
if we have simple and complex sites, let's assume we can know
how long it should take to clean up a site and that EPA is
meeting that expectation in every case. Now, 1 year they finish
10 simple sites that average 2 years, and then they have 5
complex sites that average 5 years. The GAO has calculated
averages today that would say this is an average of 3 years.
Would it be a fair evaluation of EPA to say that they were
taking too long to clean up simple sites?
Mr. Wholey. If I may respond, Mr. Waxman, it is the case
that GAO has calculated year by year in as much detail as Mr.
Waxman would wish.
Mr. Waxman. As I would wish?
Mr. Wholey. Yes, what time it had taken. For the purpose of
summary testimony, GAO has averaged different years together,
but there is no doubt that the calculations were made, say, for
1986, for 1987, 1988, 1989, 1990, 1991, and so forth, and all
of those numbers are available, as well.
To come back to a point that you made earlier, Mr. Waxman,
which appeared to be directed to GAO, could I respond to that
point?
Mr. Waxman. Yes.
Mr. Wholey. You suggested that, at certain points, when GAO
testified on uncompleted work, somehow or other GAO was rushing
to testify.
Mr. Waxman. No, no. Excuse me. I didn't say that GAO was
rushing to testify. I think the chairman of the subcommittee
was rushing to have GAO testify because he had a report that
would fit in with a preconceived notion of his evaluation of
the Superfund program.
After all, this report says, if one looks at it only
briefly or quickly, it's just taking a longer time for EPA to
do the job of cleaning up the Superfund sites. That would seem
to most people to say, ``By God, here we've got a Superfund
program, and it's taking longer for them to do the job.'' That
would presume that years ago they were doing a better job,
because they were doing it faster, and now, with those Clinton
people in office, it's taking them longer.
So ordinarily we wouldn't have a hearing on a report until
it was in final form, but the GAO report, in draft form, is now
brought to us, I presume not at GAO's request but at the
chairman's request.
Mr. McIntosh. Mr. Waxman.
Mr. Waxman. Yes, I yield to you.
Mr. McIntosh. Yes. What I'm hearing you saying is, that's
not a criticism of GAO but a criticism of the Chair.
Mr. Waxman. You got it.
Mr. McIntosh. OK. Good. Let me put on the record, I've been
very careful not to say this administration is doing a worse
job than previous administrations. In fact, if you read
carefully, in my opening statement there is plenty of blame to
go around.
The problem is in the program and inherent features in the
program which allow us not to do a good enough job for the
American people in getting these sites cleaned up. I believe
that this report is very telling about the nature of that
problem. And I don't have any intention of saying that
therefore this administration is to blame any more than any
previous administration, but there is a flaw in the program
that I think all of us should work together to try to fix.
Mr. Waxman. I thank you for that statement, and then I want
to ask Mr. Wholey if, given the chairman's statement--and we
both want to make sure that there is a Superfund program that's
working--should we learn from this GAO report, as the chairman
indicated, that it's going to take, on average, 20 years to
clean up a site that is discovered today? And should we learn
from this GAO report that the reforms are not successful?
So, therefore, we should do something to change the
situation, because if those two statements are correct, that's
pretty alarming and might well lead us to certain kinds of
changes. But if those statements are not correct, we might want
to evaluate the whole problem in another way.
Mr. Wholey. Mr. Waxman, we don't have a GAO report in front
of us.
Mr. Waxman. A draft.
Mr. Wholey. And it appears to me that Congress often has to
take action before a GAO report will be finished. It just seems
to me likely that the Congress, on certain occasions, will wish
to have GAO testify on work in progress. We can't say that a
GAO report says anything; it does not exist.
Mr. Waxman. You are really trying to slip around. The
report is going to be final in a month. We know what the report
pretty much says. We have an indication it's probably not going
to be changed.
But given the report that we have now before us, if it were
to be the final report and Congress were going to make some
policy decisions on it, I don't think it's fair, and I think
you indicated you don't think it's fair for us to read that
report and conclude that EPA is going to take 20 years, on
average, in the future, and that the reforms that are being put
in place, which GAO specifically says in its testimony--Mr.
Guerrero said in his testimony, he is not in a position to
evaluate--we can't conclude because of that statement that the
reforms have failed.
I want to know what we should get from this report so we
can make good policy. Let me ask Ms. Klemm, do you think that
we--you've been here all day, and you've read the draft report,
and you've looked at the methodology--do you think that's a
conclusion that we should take from this GAO report in this
hearing?
Mr. McIntosh. Let me remind Mr. Waxman that we've asked
these witnesses to come and talk about the methodology, not the
conclusions of the report.
Mr. Waxman. Given the methodology. Mr. Guerrero is here. If
he wants to come forward and tell us--because, as I
understand--if I'm wrong, Mr. Guerrero, I do want you to speak
up. GAO did not tell us, on average, it's going to take 20
years in the future. And GAO did not tell us that the reforms
have failed. Mr. Guerrero, for the record, is sitting in the
front row.
Mr. McIntosh. Mr. Waxman, let me read for you the paragraph
in the draft report, so everybody can know what we're operating
off of.
It says, ``At its current pace,'' which is a key qualifier,
``EPA will take, on average, at least 21 years to complete
cleanups at nonFederal sites whose discovery was reported in
1995, 11 years for evaluating the sites before listing, plus at
least 10 years for cleanups after listing. Completing cleanups
of newly reported Federal sites would take at least 15 years.
Furthermore, EPA's data show that the agency's efforts to
expedite cleanups by applying the Superfund accelerated cleanup
model, launched in 1992, are having no noticeable effect on
reducing the total time required for Superfund cleanup.''
That is the paragraph in the draft report that we are
discussing.
Mr. Waxman. Mr. Chairman, reclaiming my time and to respond
to that point, I think that's a misleading statement from the
GAO report. Now, maybe it's GAO that's making the misleading
statements. I've accused the chairman, but maybe I shouldn't be
so kind to the GAO.
Ms. Klemm.
Ms. Klemm. I would not make that statement from the result
of the two charts to the right. I don't think they tell me what
it will take in the future unless I know something more about
the sites, their complexity, and what really has been the
genesis of the numbers in the two blue charts.
Mr. Waxman. Do you disagree with Ms. Klemm?
Mr. Wholey. Mr. Waxman, I think I would refer you to this
point which I made earlier, and I would make it again, that GAO
does have available year-by-year, looking forward in time, what
proportion of sites, once listed, have been completed within a
5-year period. It would shed light on the issue that you're
interested in having light shed on here.
Unfortunately, by definition, we're not going to spend much
time worrying about sites discovered in 1995, but at least
there are data for several different years, and I think they
are such years as 1986, 1987, 1988, 1989, 1990, what proportion
of the sites listed in that year were cleaned up within a 5-
year period. At least that would show what the trend was, and
it could help shed light on the question that you're trying to
shed light on here.
Mr. Waxman. I appreciate what you're saying, but of course
all those years were before the reforms.
Mr. Wholey. Fair enough. But I'm just saying that that
method would allow us to also track the same thing for sites
listed in 1991, 1992, 1993, and so forth.
Mr. Waxman. I want to conclude, Mr. Chairman, because
you've been very kind in allowing this extra time. The last
sentence on page 7 of the GAO report says, ``The percentage of
sites with 5-year completions increased from 7 percent for
sites listed in fiscal year 1986 to 15 percent for sites listed
in fiscal year 1990.'' So, in fact, GAO came to a different
conclusion as to those previous years. It looks like one could
read that sentence and be encouraged, things they are moving in
the right direction.
Mr. Wholey. That's correct. That's correct. But that was
before--yes, that is correct, Mr. Waxman.
Mr. Waxman. Well, Mr. Chairman, this has been a most
interesting hearing. I don't know what value to put on the GAO
report. I know GAO has always done quite good work in the past
and has been helpful for policymakers. I'm going to have to
look at this more carefully and evaluate it, as will others, to
see whether this is going to be a helpful guide for us as we
try to make policy decisions this year with the amount of
information that we know and that the GAO has reviewed.
Thank you.
Mr. McIntosh. Thank you. I would look forward to additional
information being provided by the administration and EPA, which
they indicated they would be doing. In fact, if there is
unanimous consent, we will hold open the record for 2
additional weeks for information from EPA and some of the other
witnesses--I know Mr. Mica said he had some additional
documents he wanted to put in--and complete the record that
way.
Mr. Waxman. All Members?
Mr. McIntosh. Yes, all Members will be able to submit
additional information and statements. I think that one key
thing that has come up in this last panel is that we need to
break down those charts and look at the different
subcomponents, as well. I am confident that GAO will do a good
job in analysis of that.
Thank you both for participating and helping us out with
this.
At this point, the committee will stand adjourned.
[Whereupon, at 2 p.m., the subcommittee was adjourned.]
[Additional information submitted for the hearing record
follows:]
[GRAPHIC] [TIFF OMITTED] T1517.116
[GRAPHIC] [TIFF OMITTED] T1517.117
[GRAPHIC] [TIFF OMITTED] T1517.118
[GRAPHIC] [TIFF OMITTED] T1517.119
[GRAPHIC] [TIFF OMITTED] T1517.120
[GRAPHIC] [TIFF OMITTED] T1517.121
[GRAPHIC] [TIFF OMITTED] T1517.122
[GRAPHIC] [TIFF OMITTED] T1517.123
[GRAPHIC] [TIFF OMITTED] T1517.124