Testimony of U.S. Senator Richard J. Durbin Before the Subcommittee on Superfund, Toxics, Risk and Waste Management of the Senate Environment and Public Works Committee July 31, 2002

Thank you, Senator Boxer, for inviting me to testify before the Subcommittee on Superfund, Toxics, Risk and Waste Management of the Senate Environment and Public Works Committee on the important topic of the Superfund program. I also want to thank Senator Jeffords, and the members of this Subcommittee, for your leadership on the many critical environmental protection issues we face. Finally, I want to applaud Senators Boxer and Chafee for introducing legislation to reinstate the Superfund "polluter pays" taxes. I am proud to be a cosponsor.

The Inspector General of the Environmental Protection Agency (EPA) reported on June 24 that the agency has slowed or stopped funding at 33 Superfund sites in 18 states. One of them, the Jennison Wright Corporation in Granite City, Illinois, is not receiving the funding needed to bring the site to the construction complete phase. For years we have seen the Superfund Trust Fund dwindle, as some in Congress, and now in the Administration, has resisted reauthorizing the "polluter pays" taxes. Today's testimony will demonstrate the high costs of this abdication of responsibility.

Superfund sites are cleaned up in one of three ways: 1) the potentially responsible parties (PRPs) enter into a Consent Decree with EPA to execute and pay for the clean up, or remedial action; 2) the EPA cleans up the site and recoups the cost from PRPs through legal action; or 3) the EPA pays for and cleans up the site when PRPs are bankrupt, unidentifiable, or cannot be forced to pay for the site, despite enforcement or legal actions EPA has taken. The Superfund Trust Fund pays for the clean ups in the third category, making these sites the most threatened when this program is underfunded.

Three dedicated taxes historically provided the majority of the Trust Fund's income, but expired in 1995. By the end of FY 2003, the Fund's balance will have dwindled to $28 million. Every year after 1995, the Clinton Administration requested that Congress reauthorize Superfund taxes as part of its budget, and Congress declined. The Bush Administration has not included such a request in its FY 2003 budget submission or its FY 2002 submission. As time passes, taxpayers are paying a larger portion of the clean up than corporations. From 1.991-1995, the portion of Superfund spending coming from general revenues averaged 17 percent; in fiscal years 20002002, it was 50 percent.

The Boxer-Chafee would reinstate the Superfund "polluter pays" taxes. However, the Administration does not support reinstating these taxes. The Administration prefers that all taxpayers have the burden of paying for cleanup. In a recent editorial, EPA Administrator Christine Todd Whitman asserts, "Financing the cleanup of these orphan sites, as they are called, comes from the Superfund trust fund and from Congress's general revenues." The reality is that general revenues do not belong to Congress. These revenues are taxpayers' money. Also, while it is true that some funds from general revenues have historically contributed to orphan site cleanup, taxpayers are paying a significantly larger portion of the clean up than corporations than they have in the past.

In response to a letter I sent to Administrator Whitman, she has told me that we should not worry that the Superfund taxes have expired, and that polluters no longer have to pay their fair share of the clean up. In a letter she sent to me on June 28, she noted "Congress has supplemented the Superfund appropriation by appropriating dollars from general revenues. I am confident that Congress and the Administration will continue to work together to provide adequate funding for the Superfund program." She also told me that they do not yet have a clear understanding "as to whether project schedules in future years will be impacted by competing funding needs." There seem to be some major management issues in this program that need to be examined.

Illinois

In Illinois there are 39 Superfund sites. Only 19 have reached the milestone of "construction completion," where all the final remedies for the sites are fully in place, with operation and maintenance remaining, and, in some cases, an ongoing pump and treat system to restore the aquifer underlying the site to drinking water quality.

Recently I visited one of these sites, the Outboard Marine Corporation (OMC) in Waukegan, Illinois. I saw firsthand the environmental damage of that site, and how it is impacting the local community, especially its efforts to restore the beach of Lake Michigan and proceed with important economic development.

Hazardous wastes at the OMC site include PCBs and Volatile Organic Compounds (VOCs). From approximately 1948 to 1971, OMC purchased an estimated 8 million gallons of hydraulic fluid which contained PCBs for die casting of outboard marine/recreational engines. PCBs were discharged through floor drains into a tributary of Lake Michigan and were ultimately discharged to Waukegan Harbor. As a result, 700,000 pounds of PCBs were estimated to be present on OMC property soils and 300,000 pounds of PCBs in the soils and sediments of Waukegan Harbor.

In the early 1900's a wood-treating plant operated on the site, followed by a manufactured gas plant in the 1920's and a coke oven gas plant in the 1940's. Soil and grounwater contaminants include coal tar, which contains many polynuclear aromatic hydrocarbons (PNAs), phenols and volatile organic compounds (VOCs), and ammonia (byproducts of the manufactured gas and coke operations). Other contaminants, primarily in groundwater, include arsenic, cyanide and heavy metals.

The plant was purchased and disassembled by OMC in approximately 1972. Between 1973 and 1989, OMC used the site for fire training. Other more current uses include waste oil storage, parking, stockpiling of sand from a dredging operation,and testing of snowmobiles. OMC declared bankruptcy in December 2000, complicating site cleanup actions.

PCBs have contaminated on-site soil and sediments in Lake Michigan. The Waukegan Harbor is identified as an Area of Concern by the Great Lakes Water Quality Agreement between the United States and Canada due to its persistent, harmful sediment problem. Although the PCB problem has begun to be dealt with, groundwater and soils are still contaminated with PNAs, ammonia, phenol and arsenic as a result of activities that occurred at the former Gas and Coke Plant.

The residents of Waukegan, Illinois, and I want to know: what is taking so long? Why isn't EPA cleaning up this site?

Unfortunately, cleanups in Illinois overall are slowing down. In my correspondence with the EPA, Administrator Whitman delivered a saddening piece of news. Whereas the USEPA had earlier projected that the Byron Salvage Yard, a Superfund site in Illinois, would reach the construction complete phase in fiscal year 2002, they are now projecting that it will not be until fiscal year 2003. That means only two sites will have reached the construction complete phase this fiscal year in Illinois, and one of those sites was carried over from last year. In addition, only one site, A & F Materials Reclaiming, is projected to be deleted from the list this year-meaning it is the only site in Illinois that will be totally cleaned up.

The EPA's Inspector General also reveals that the Jennison Wright Corporation site in Granite City, Illinois is not being cleaned up, even though it is not one of the "megasites" that EPA claims take longer to complete. Although the officials at the EPA requested $12.5 million for clean-up of the Jennison Wright Corporation site in Granite City, Illinois, this year, only $570,000 has been allocated, meaning that the work has been put off'. This Fund-lead Superfund site has groundwater, surface soil, and subsurface soil contamination, including arsenic, benzene, manganese, naphthalene, beryllium, chromium, and other contaminants. Surface waters are contaminated with creosote, pentachlorophenol, and other related compounds.

The Jennison-Wright Corporation site is a 20-acre, bankrupt railroad. tie-treating facility in Granite City, which has a population of 33,000. The site is located in a low income, mixed industrial/residential neighborhood. Operations as a railroad tie treatment facility began prior to 1921 and continued until 1989. After operations ceased, wastes were left at the site in a railroad tank car, a buried railroad tank car, two above-ground storage tanks, and two lagoons. Neighboring residents may be affected through direct contact or ingestion of contaminants emanating from the site. Although the Illinois Environmental Protection Agency performed work on this site as early as 1992, it was not proposed to the list until October 1995, and it became final in June 1996. Despite being listed for six years and being known as a contaminated site for 10 years, it has not reached the construction complete phase. It seems that work is ready to proceed there, except for lack of funding. The appropriate clean-tip for this site should include soil excavation, off-site disposal, and a groundwater pump and treat system.

Is the Jennison Wright Corporation site not being funded due to lack of money in the Superfund Trust Fund? If so, why are we encountering so much resistance to reviving this important fund? Senators Boxer and Chafee, and members of this Subcommittee, I hope you are able to get to the bottom of some of the pressing questions raised by my testimony and that of my colleagues in the Senate. We need answers before any further damage to our communities and to the public health is done.