PREPARED STATEMENT OF
MICHAEL W. STEINBERG
ON BEHALF OF THE
SUPERFUND SETTLEMENTS PROJECT
Before the Subcommittee on Superfund,
Toxics, Risk, and Waste Management of the
Senate Committee on Environment & Public Works
April 10, 2002
EXECUTIVE SUMMARY
Status of
Superfund Program. Superfund today is
a mature program that has largely accomplished its goals. Private parties are cleaning up most of the
sites on the NPL and paying the full cost of those cleanups. Superfund has also addressed most of its
original workload; construction of the remedy has already been completed at
most of the sites on the NPL.
Pace of
Cleanups. Ironically,
Superfund’s accomplishments have given rise to a concern that cleanups may be
slowing down. But cleanups are not
slowing down. Instead, Superfund is
working on the remaining sites, which include some of the largest, most
complex, and most challenging NPL sites.
For example, construction has been completed at roughly 75% of the
non-federal NPL sites, but at just 20% of the federal facility NPL sites. Selecting, designing, and constructing
remedies at these federal facility sites takes longer for a variety of reasons,
including the technical challenges they pose.
The NPL Should
Become the Tool of Last Resort.
Looking ahead, we confront many thousands of sites perceived to be
impacted by contamination, most of which either are being addressed by
increasingly robust State programs or
else pose no immediate risk to human health or the environment. There is no reason to “make a federal case”
out of these sites. Instead, NPL
listing should be the tool of last resort, reserved for sites that:
(1)
are severely contaminated;
(2)
pose severe risks; and
(3)
have no near-term prospect of cleanup by responsible private
parties.
Most Large
Mining Sites and Sediment Sites Do Not Belong on the NPL. These two types of sites differ greatly from
the type of site that the Superfund process was designed to handle. To date, there has been no Congressional or societal
debate about whether the Superfund program – or indeed any other federal
program -- should attempt to handle these extremely large and complex sites,
which may prove to be so costly that the risks and benefits involved would not
warrant such expenditures.
Removal Actions Should Be Limited to “Emergencies.” EPA spends about
$250 MM/yr on removal actions, 75% of which do not involve “emergencies” of any
kind. The removal program should be
refocused to its original purpose.
INTRODUCTION
The Superfund Settlements Project appreciates the
opportunity to share with the Subcommittee some perspectives on the status and
future of the modern Superfund program.
The Superfund Settlements Project is a not-for-profit association of
nine major companies from various sectors of American industry.[1] It was organized in 1987 in order to help
improve the effectiveness of the Superfund program by encouraging settlements,
streamlining the settlement process, and reducing transaction costs for all
concerned.
The members of the Superfund
Settlements Project share an extraordinary degree of practical, hands-on
experience with the Superfund program.
These companies have been involved at hundreds of Superfund sites across
the country over the last 20 years. Representatives
of the Superfund Settlements Project have testified before Congress on numerous
occasions regarding various aspects of the Superfund program. The Superfund Settlements Project has also
played an active leadership role in the national policy debate over many
Superfund issues, and has been a strong
supporter of EPA’s Superfund Administrative Reforms since they were first
announced in 1995.[2]
Collectively, these nine companies have paid out well over two billion dollars in site cleanup and site study costs since 1980. They have also paid out hundreds of millions of dollars more in dedicated federal Superfund taxes paid during the first 15 years of the program’s life. These payments far exceed any fair or equitable measure of their responsibility for the contamination at these sites.
The
Superfund Settlements Project regards Superfund as a mature program that has
largely accomplished its goals (albeit at a cost that was not always justified
by the risks being addressed). The gaps
in environmental regulatory programs that led to the creation of many Superfund
sites have been filled. Today, private
parties are cleaning up most of the sites on the National Priorities List
(“NPL”), and they are paying the full cost of those cleanups. The Superfund Trust Fund is paying for
cleanups at the “orphan” sites where no responsible party exists.[3]
Superfund
has also largely addressed its original workload. Significantly, construction of the remedy has already been
completed at most of the sites on the NPL.
Ironically, this progress has given rise to a concern that cleanups may
be slowing down. But cleanups are not slowing down. Instead, Superfund is working on the
remaining sites, which include some of the largest, most complex, and most
challenging NPL sites.
For
example, construction has been completed at roughly 75% of the non-federal
NPL sites, but at just 20% of the federal facility NPL sites. Selecting, designing, and constructing
remedies at these sites takes longer due to the technical challenges they
pose.
In the body of this statement, we address several key
aspects of the Superfund program’s past, present, and future. First, we describe the evolving partnership
between EPA and industry that has enabled the program to achieve successes,
particularly since the announcement of the administrative reforms in October of
1995.
Second, we address more fully the concern about the current
pace of cleanups. In this discussion,
we explain why the number of “construction complete” sites is tapering off and
why this does not represent a slowdown in the pace of the cleanup program.
Third, we focus on the future scope of the NPL, proposing
that it be “the tool of last resort,” to be used only for sites that meet the
relevant criteria.
Fourth, we briefly discuss the reasons why large mining
sites and contaminated sediment sites, in particular, typically do not
belong on the NPL.
Fifth, we show how, despite the passage of recent brownfields
legislation, Superfund remains a major impediment to the goal of restoring
contaminated sites to productive use.
Sixth, and last, we propose refocusing the removal action program
so that it will serve its original intended purpose – addressing “emergency”
threats to human health or the environment.
I.
Superfund Today
Represents a Highly Successful Partnership Between EPA
and Industry.
Although the Superfund program has generated extraordinary
levels of controversy and criticism, EPA has, over time, developed
institutional capability and expertise, solved problems, improved
relationships, and ultimately established a program that operates relatively
effectively and performs a critical function in society. Tens of thousands of contaminated sites have
been evaluated, short-term removal actions have been taken at several thousand
of those sites, longer term remedial actions have been completed at most of the
non-federal sites on the National Priorities List, and construction is underway
at most of other NPL sites, which are among the most severely contaminated
sites.
Superfund, a topic of intense public concern -- once
dominated by controversy and emotion -- has fundamentally achieved its
objectives and accordingly has receded in the public focus. Today a general public recognition exists
that the actions which should be taken now are being taken.
In the process and in recent years, EPA has also worked to
improve relationships with PRPs and has minimized its previously
confrontational approach to private parties.
For the most part, there now exists an atmosphere of cooperation and
mutual respect. EPA should be commended
for its accomplishments in this field.
It should also be recognized that industry has made major
contributions to the success of this program.
Perhaps unfairly, industry initially bore the brunt of criticism for
past disposal practices that in essence reflected the values and scientific
knowledge of society in an earlier era.
Stung by such criticism and offended by a liability system that many
regarded as totally unfair, much of industry initially protested and resisted
the obligations imposed on it by the Superfund statute.
By the mid to late 1980s, however, those attitudes had
changed, and most national corporations accepted the imperative that they must
participate constructively in addressing this national problem. At site after site across the country, those
companies rose to the challenge. They
organized PRP groups, established committees within those groups, investigated
the conditions of contamination, and developed action proposals. Once EPA selected the remedies, those
companies carried out remedial actions, and today they are managing long-term operation
and maintenance at most sites. They
provided the leadership, the technical resources, and the funding to perform
required work at an ever-increasing percentage of contaminated sites. That percentage is now greater than 70% of
NPL sites.
Welcoming the more cooperative spirit that EPA has
demonstrated since adoption of the administrative reforms in 1995, those
companies have
themselves taken pride in the results of this program. They have earned the right to be regarded as
constructive partners in the achievement
of success under Superfund.
They will continue to be constructive partners in addressing other sites
through other cleanup programs.
II. Superfund is Making Rapid Progress on Cleaning Up the NPL.
Specifically, in the years since 1995, Superfund has
achieved levels of operational progress and public acceptance it had never
before experienced. Much of the credit for that improvement is attributable to
the set of administrative reforms announced by EPA in October 1995, which
reduced the elements of confrontation between the government and PRPs and
achieved a number of specific improvements in program management. In addition, building on past experience and
accomplishment, EPA made solid progress each year in moving sites on the NPL
into remedial construction and bringing sites to construction completion.
Today,
Superfund can point to a remarkable 810 sites where construction of the remedy
is already complete, and another 400 or so where construction is underway. The vast majority of these cleanups were
conducted and paid for by private parties.
What does this means in practical terms? It means two things.
First,
it means that the great majority of NPL sites either already have remedies in
place, or are well on their way toward that status.
Second,
and equally important, it means that if we measure progress solely in terms of
the number of “construction complete” sites achieved in each fiscal year, then
we will see an apparent tapering off in the rate of progress from this point forward. There are fewer sites available each year
for “construction completion,” of course, and, more importantly, those that
remain are among the largest, most complex, and most challenging sites of all.
This
apparent tapering off does not represent a real-world slow-down in the pace of
cleanup. Instead, it reflects the fact
that Superfund, having addressed most of its original workload, must now
focus on those sites that remain.
The nature of these sites makes it inherently more difficult – and thus
more time-consuming -- to select, design, and construct remedies.
A good example of
this phenomenon is the roughly 140 federal facility NPL sites at which
construction has not yet been completed.
By far the largest and most threatening sites in the country
are those created by the federal government, mainly the U.S. Department of
Energy and the U.S. Department of Defense.[4] Thus, federal facilities comprise 13% of the
total sites listed on the NPL, but a much lower percentage of the “construction
complete” sites. Today, construction
is complete at nearly 75% of the non-federal NPL sites, but only 20% of the
federal facility NPL sites.
Many
of these federal facility NPL sites are particularly challenging to remediate
for one or more of the following reasons:
(1)
they are very large, sometimes extremely large;
(2)
they contain numerous distinct operable units;
(3)
they have ongoing public missions that cannot easily be
disrupted by site study or cleanup activities; and
(4)
they are remediated with funds from the DOD or DOE
budgets.
These
unique features of federal facility NPL sites help explain why only 20% of them
have reached the “construction complete” stage to date. It also explains why, going forward, these
sites will not reach that stage as quickly as many of the non-federal NPL sites
addressed in earlier years.
In
sum, Superfund has made remarkable progress in cleaning up the NPL. The sites that remain will likely take
somewhat longer to complete than the sites already completed. This should be viewed as an indicator of
progress made, not as a sign that the pace of cleanup, or the commitment
to cleanup, is waning.
III. The NPL Should Be “the Tool of Last
Resort” for Addressing Contaminated Sites.
Based
on 20 years’ worth of experience with Superfund, it is also timely to
reconsider the purpose and scope of the NPL itself. Indeed, this is one of the specific recommendations made by
Resources for the Future in its July 2001 report to Congress. In response to that recommendation, EPA has
already taken steps to convene a broad-based dialogue on this subject, with a
new NACEPT subcommittee likely to begin meeting in the very near future.
In
thinking about the purpose and scope of the NPL, it is helpful to bear in mind
the lessons learned during the past 20 years in three main areas:
(1)
the universe of contaminated sites;
(2)
the alternatives available for addressing those sites; and
(3)
the strengths and weaknesses of the Superfund program.
We
address each of these points below, before presenting our specific proposal on
the future role of the NPL.
First,
experience has dramatically changed our knowledge about the number and
character of contaminated sites throughout the country, as well as the risks
associated with them. Rather than
having only a few hundred of sites, each of which was initially believed to
pose severe threats to public health, it now is clear that we have a great many
contaminated sites, most of which pose relatively small risks. For example, one EPA count of potential
Brownfield sites indicated over 600,000 sites perceived to be impacted by
contamination, the great majority of which either are being addressed through
State programs or pose no severe or immediate risk to human health or to the
environment. These factors mean that
contaminated sites should be managed by leveraging all appropriate private and
public resources. The framework for response
should emphasize state, local, and private efforts, rather than “making a federal
case” out of each site.
Second,
the choices available to society to address contaminated sites are far greater
today than the situation that existed when Superfund was enacted in 1980. Virtually all states have developed strong
regulatory programs to control such sites.
Most states also have developed their own “mini-Superfund” programs and
voluntary cleanup programs that have achieved success. In addition, at the federal level, EPA’s
RCRA corrective action program now governs operating facilities, and another
program (UST) covers underground storage tanks.
Third,
Superfund’s strengths and weaknesses as a cleanup program can now be seen far
more clearly with the benefit of 20 years’ worth of experience. As to its strengths, Superfund has
focused attention on the need to remediate sites contaminated as a result of the inadequacies of pre-1980 disposal
requirements. It has galvanized cleanup
efforts, and it has achieved cleanups at most of the nearly 1,500 sites listed
on the NPL. Superfund has also
performed thousands of successful removal actions, most of them at non-NPL
sites.
As
to its weaknesses, Superfund has attached a lasting stigma to those
sites and to some of the communities that surround them. In many cases, Superfund has also imposed
excessive operational, legal, and financial restrictions on these sites that
will interfere with their future reuse or redevelopment. Moreover, the cost at which Superfund has
achieved results – over $30 billion in EPA appropriations alone since 1980, and
at least $30 billion more in private sector spending -- is widely viewed as far
higher than necessary or justified in light of the risks being addressed.
In
hindsight, at least, it seems clear that many of the sites addressed under
Superfund never presented major risks to human health or the environment.[5] Instead, sites were listed or targeted based
on fairly crude assessments of their potential threats. Once a site is listed or targeted under
Superfund, however, the focus shifts from potential risk to “cleanup.” Instead of focusing on risk reduction, where
the program has actually achieved dramatic results, Superfund has tended to
focus on “cleanup,” where progress is much slower and closure is maddeningly
elusive. Ironically, this focus on “cleanup”
often delays or limits the reduction of risk that should be Superfund’s
principal objective.
In
light of this experience, it is clear that the Superfund NPL must be regarded
as just one tool among many to address the full range of contaminated sites. In fact, the NPL should be the tool of
last resort -- a tool that because of its unique nature should only be used
in those rare situations that require such a high-cost, inefficient
mechanism. EPA itself adopted this term
– “the tool of last resort” -- as its unofficial policy some years ago, but EPA
has failed to change its actual decisionmaking in any concrete way to reflect
this policy.
The
special circumstances that might warrant use of the Superfund NPL as “the tool
of last resort” might include sites that:
(1)
are severely contaminated;
(2)
pose immediate or severe risks; and
(3)
have no near-term prospect of cleanup by responsible private
parties.
Some
so-called “mega sites,” such as large mining sites and sediment sites, might
meet these criteria, but not simply because of their size. Many, perhaps most, “mega sites” simply do
not belong on the NPL. In fact, their
very complexity and potential huge cost make them presumptively unsuited for
NPL listing, as we discuss below.
Apart
from those sites that meet the above criteria for NPL listing, nearly all other
sites should be managed under whatever other programs are most appropriate for
them. This would include the RCRA
corrective action program as well as the full range of state cleanup
programs. If those other programs are
viewed as deficient in some respects, then they should be improved rather than
shifting sites to Superfund and thereby removing the incentive to remedy the
shortcomings of those programs.
It
is fully expected that private industry will continue to perform and fund
cleanups, either individually or in conjunction with regulatory agencies, at
sites they have contaminated. The point
here is simply that Superfund is not the proper mechanism to address these
sites.
The
implementation of this “tool of last resort” approach would require only modest
changes to current EPA policy and practice.
EPA should continue to treat the Superfund NPL the tool of last
resort. To that end, EPA should
identify in each new proposed NPL listing which other cleanup programs or
approaches it has considered, why it believes such other programs or approaches
are not suitable, and what it hopes to achieve through listing on the NPL. The Office of Emergency and Remedial
Response at EPA Headquarters should carefully review these findings before it
concurs with a proposed NPL listing.
These issues should also be explored during the public comment period on
proposed new NPL listings.
Finally,
it would be consistent with the above to implement this approach with regard to
NPL delistings or deletions, not just NPL listings. This raises some additional complications, and careful thought
would be needed as to practical aspects of changing the current criteria for
NPL deletion. The core idea is that if
the studies and cleanup work performed at an NPL site have brought it to the
point where the remaining risk would no longer justify application of “the tool
of last resort,” then EPA should find a way to remove that site from the NPL so
it can be addressed in a more appropriate way.
Whatever the criteria for NPL listing, it makes little sense to keep a
site in the NPL universe once it no longer meets those criteria.
IV. Most Large Mining Sites and Most
Sediment Sites Do Not Belong on the NPL.
A
special case of the NPL listing issue discussed above involves the large mining
sites and sediment sites that make up many of what are now called “mega sites”
due to the extraordinarily high cost of cleaning them up under Superfund. Like any other sites, they should not be
listed on the NPL unless they meet the criteria described above. In addition, however, these two types of
sites present some unique features that warrant a presumption against adding them
to the NPL. We summarize below some of
those distinctive features.
First,
these sites are very different from the type of site that Superfund was
intended to address. Unlike abandoned
disposal sites and drum burial sites, there has never been a public debate
about whether large mining sites or sediment sites belong in the Superfund
program. Nor has Congress ever
indicated its view as to whether the federal government should assume
responsibility for these sites or whether they would be properly addressed
through the Superfund approach.
Second,
in the case of large mining sites, we are looking at the legacy of a domestic
industry that has been economically devastated. Many large mining sites will therefore be orphan sites. Their cleanup costs will be staggeringly
high, and those costs will be paid by the Trust Fund if these sites are added
to the NPL. At a minimum, it would be
fiscally prudent to explore alternative options for addressing these sites
before seizing on the Superfund program as a vehicle for obtaining
cleanups. It would also be appropriate
to consider ways in which the industry responsible for creating these sites can
absorb as large a share of the costs as possible.
Third,
in the case of sediment sites, the
question of how to deal with contaminated sediments in rivers, harbors, and
estuaries remains a daunting challenge.[6] EPA is beginning to recognize that dredging
is not the solution for all instances of contaminated sediments. Unfortunately, dredging remedies are being selected
at certain locations but without any clear policy rationale as to their
selection.
The implications of starting down this
path are staggering. Virtually every
industrialized river system in this country could trigger remediation if overly
stringent criteria were to be applied.
However, given the limitations of existing dredging technology, these
remedial efforts may cause more damage than allowing natural processes to
address the contamination.
Society presently faces the prospect of
enormous disparities in treatment between sediment sites that are subjected to
dredging action and those that are not.
Ironically, municipalities are among the larger sources at many sediment
sites. Along with much of private
industry, these cities and towns will face the prospect of sharing in the
extreme costs of dredging remedies.
These potentially responsible parties will have little choice but to
seek judicial review of these ad hoc remedies, and the courts should be able to
hear such challenges (on an expedited basis, so that cleanup is not delayed).
In
sum, most large mining sites and most sediment sites presumptively should not
be listed on the NPL.
In recent years, it has been increasingly recognized that a
major objective of programs addressing contaminated sites must be to achieve
the return of such property to productive use in society. Particularly in areas of historical
industrial development where major sections of urban and
metropolitan areas were long devoted to industrial
operations, it is unacceptable to leave those properties sealed off and
consigned to
"warehouse" status simply because the costs of
remediation of such areas would exceed their market value after remediation.
The prevalence of such areas, commonly referred to as "brownfields,"
has driven policy debate to confront difficult realities of the tension between
goals of restoration to original background purity and goals of returning land
to productive use after effective controls have been achieved to prevent risks
to health.
During the past five years, increasing attention has been
placed on returning contaminated sites to productive use. Often that has involved
redevelopment for industrial or commercial purposes, while
other sites have been converted to recreational use or wildlife
preservation. Such
constructive accomplishment may easily be precluded by
unrealistic requirements as to acceptable levels of concentration that must be achieved
before reuse will be permitted. That
risk would be exacerbated if these sites were addressed under Superfund. The unwillingness of EPA and the
Department of Justice to support state decisions on brownfields by withdrawing
the threat of future Superfund action is a serious deterrent to many projects.
An intensive
bipartisan effort to address these problems resulted in the Brownfields
Revitalization and Environmental Restoration Act of 2001, Pub. L. No. 107-118,
which is an important first step. But
Superfund – particularly the fear of EPA second-guessing state cleanup
decisions – remains an enormous
obstacle to redevelopment at many brownfields sites around the country. EPA and the Department of Justice should
seriously reassess their policies on waiving Superfund claims at sites cleaned
up under state programs. Incentives also must be provided to owners of contaminated property,
analogous to those currently authorized for purchasers of contaminated
property, in order for the full potential brownfields programs to be achieved.
VI. The Removal Action Program Should Be
Refocused In Order to Address its Original Intended Purpose.
The Superfund
removal action program poses somewhat different issues. The true emergencies it was originally meant
to address now account for only one-fourth of all removals. The other three-fourths consist of so-called
“time-critical” actions, where EPA believes work should be commenced within a
period of six months, and even “non-time-critical” actions. For example, of the 2,440 removal actions
commenced during the period from FY 1992 through FY 1999, a total of 1,892
(77.5%) were either “time-critical” or “non-time-critical” actions.[7]
Many of these
non-emergency actions are undoubtedly beneficial. But it is unclear why a continuing $250 MM/yr federal program is
needed to perform primarily non-emergency removal actions. Instead, Superfund removal actions should be
limited to those contaminated sites, orphan or otherwise, that need immediate
action to avert an actual health or environmental emergency.
The idea here
is not to bog down in endless debate about the precise contours of the term
“emergency.” Rather, the idea is to
limit the removal program to sites that present an “emergency” under some
reasonable definition of that term.
Most Superfund removal actions today, by EPA’s own definition, simply do
not involve “emergencies” in any sense of the term. Accordingly, the removal program should be narrowed in order to
refocus on its original intended purpose.
EPA can accomplish this change as a matter of policy, without the need
for any legislative action or any protracted rulemaking.
[1] The current members of the
Superfund Settlements Project are Ciba Specialty Chemicals Corporation, E.I.
duPont de Nemours & Co., Inc.,
[CHECK SPELLING!!] General Electric Company, General Motors Corporation,
Honeywell International Inc., IBM Corporation, Solutia Inc., United
Technologies Corporation, and Waste Management, Inc.
[2] In addition, members of the Superfund Settlements
Project are also active members of other organizations analyzing the Superfund
program, including the Superfund Action Alliance, the American Chemistry
Council, the Business Roundtable, and the National Association of
Manufacturers.
[3] This includes “orphan” sites where the
responsible party is insolvent, or has been exempted from liability by
Congress. The Trust Fund is also paying
for general informational and outreach programs such as technical assistance to
community groups, research and development, remedial and brownfields policy
development, and public participation.
[4] Superfund
policy debate tends to focus on the sites associated with private industry,
especially because Superfund dollars are not used to clean up the federally
owned DOD or DOE sites. But in evaluating both problems and successes, we
should not forget the huge involvement by government on both sides of this
program.
[5] See,
e.g., U.S. General Accounting Office, Environmental
Protection – Meeting Public Expectations With Limited Resources 17-18
(1991) (GAO/RCED-91-97) (risks from contaminated sites ranked relatively low by
EPA scientists, but relatively high by the public).
[6] The issue is further complicated by the fact
that sediment sites, unlike most Superfund sites, typically involve both (1)
continuing movement of contamination into the area being remediated and (2)
continuing expectation of public use and/or access to the area for recreational
or commercial purposes.
[7] Probst et al., Superfund’s Future – What Will It Cost? at 25, Table 2-4 (2001).