Statement of Grant Cope, Feb. 27, 2001

Good morning Mr. Chairman and distinguished members of the Senate Subcommittee on Superfund, Waste Control, and Risk Assessment. I would like to thank you for the opportunity to speak about the important issue of brownfields legislation, in particular, “The Brownfields Revitalization and Environmental Restoration Act of 2001.” (“S. 350”)

My name is Grant Cope. I am an Environmental Advocate for the United States Public Interest Research Group. U.S. PIRG is a nonprofit, nonpartisan environmental and consumer organization with offices in 38 states across the nation.

Today, I will address four issues: first, the need to safely and expeditiously redevelop brownfields; second, the beneficial aspects of S.350; third, the main deficiencies of the legislation; and fourth, deficiencies in other proposals that may come before the committee.

I. THERE IS A GREAT NEED TO CLEAN UP AND SAFELY REDEVELOP BROWNFIELDS

There is a serious need in thousands of communities across our nation to safely and expeditiously clean up brownfields. While there is no definite tally on the number of contaminated sites across our nation, there may be as many as 450,000 such sites. Regardless of the ultimate number of sites, there is a clear consensus that the nation needs to clean up and safely redevelop brownfield sites.

The adverse effects of failing to meet this charge are clear. The health of women, men, and particularly children that live or work near contaminated sites will continue to be put at risk. Developers will continue to seek out greenfields, rather than helping to redevelop blighted inner-city areas in need of reinvestment. Of course, this will lead to sprawl, which contributes to numerous health and environmental problems, including increased contamination of our nation’s water resources, air pollution, and fragmentation of wildlife habitat. Clearly, good brownfields redevelopment needs to occur across our nation.

Good brownfields redevelopment programs, that include strong clean up standards, provisions to ensure that polluters pay to clean up their contamination, and meaningful involvement of citizens in clean up decisions are essential to help combat the dangers associated with contaminated sites.

The federal government can help facilitate these types of programs by providing common sense criteria for state clean up programs and federal funds to help spur beneficial redevelopment efforts.

Over the years, members in both the House and Senate have put forward responsible bills that sought to address the brownfield issue head on. S.350 has incorporated some of the best ideas from these bills. Unfortunately, on three key issues, S.350 also departs from important provisions of bills introduced in previous sessions of Congress.

I would now like to briefly highlight three benefits and three areas of concern associated with S.350.

II. THREE BENEFITS OF S.350

A. Good State Program Criteria

First, S.350 lays out very good state program criteria. Unfortunately, unless further clarifications to the bill are made, these great program criteria may be not be enforceable. That being said, U.S. PIRG supports S.350’s provisions for State surveys and inventories of brownfield sites, public notice and comment on proposed clean up plans, public access to all documents used to develop a clean up proposal, state lists of institutional controls (including the types of such controls and the parties responsible for enforcing the institutional controls used at brownfield sites), strong state oversight and enforcement programs and activities that ensure the long-term operation and maintenance of contaminated sites.

U.S. PIRG suggests one other program criteria. States should give any person the right under state law to ensure developers comply with clean up plans and, for the sake of consistency and increased safeguards, also provide for such a right under federal law. Some states can be enormously unreliable in ensuring that business interests comply with the law. In these states, informed citizens, acting in their proper role as private attorneys generals, are often the last best hope for adequate enforcement of public health and environmental laws.

C. Increased Funding Will Help Spur Redevelopment

Second, S.350 provides much needed federal funds to help promote the already ongoing process of redeveloping brownfields. In fact, a 1999 Report by the National Conference of Mayors, based on a survey of 231 city officials from across the nation, found that the lack of money to clean up sites was the number on factor inhibiting redevelopment. [1] S.350 appropriately addresses this need.

B. Funding Focused On The Appropriate Issues

Third, S.350’s funding structure concentrates on preserving and promoting parks and open spaces while also responding to the needs of local community, which sets an appropriate, and very beneficial, focus for such legislation.

We commend the many hours of hard work by your offices, and the office of former Senator Frank Lautenberg, in crafting a bill with these and other beneficial provisions.

III. THREE AREAS OF CONCERN WITH S.350

A. Clarification Needed On Ambiguous Term

First, the drafters of S.350 crafted a bill that is intended to apply only to sites with low levels of contamination. We request that your staff make a technical correction to the definition of “eligible response sites” that unambiguously clarifies this fact. We have supplied your staff with suggested language that we believe accurately reflects the drafters’ intent.

B. Lack of Upfront Review of State Programs Eschews a Preventative Approach For Protecting Public Health

Second, unlike past bills, S.350 fails to require an upfront federal review of state clean up programs. The lack of this upfront review process could result in federal funds increasing the capacity, but not the quality, of state clean ups programs. This could dramatically accelerate ill-planned and unprotective redevelopment activities. If this occurs, our nation could face a new public health crisis in the coming decades. After all, lead, arsenic, and mercury will be toxic long after the last developer leaves a brownfield site and the first homeowner moves in. Therefore, it is vital that states ensure developers thoroughly clean up sites.

Put another way, prevention is the best approach when protecting public health and environmental quality. Therefore, U.S. PIRG strongly supports an upfront federal review of state programs prior to the distribution of any federal funds or transfer of oversight authorities. A front-end review process is a preventative measure that helps to ensure peoples’ lives are not put at risk by inadequate and unprotective state programs.

An upfront review is commonplace in other environmental programs, including the Resource Conservation and Recovery Act and the Clean Air and Water Acts. [2] Despite this type of review, experience with these programs demonstrates that states are extremely varied in their ability and commitment to strongly enforce these laws that protect public health and environmental quality. [3] Simply put, some states do a better job of protecting public health than do others. However, because there are minimum standards, citizens can both work to ensure their states meet these minimal standards and, realizing the true benefits of federalism, push their states to go beyond these minimal protections.

2. Upfront Review Is Needed Because Some States Have Inadequate Clean Up Programs

It is clear that not all state programs are alike. However, some broad themes are evident from the available data. For example, initial data on state clean up programs demonstrates that some states do an inadequate job of protecting public health, meaningfully involving the public in clean up decisions, ensuring that polluters pay to clean up contamination, enforcing the law, managing contained sites over the long-term, funding their clean up programs, and retaining and developing sufficient technical expertise to remediate very contaminated sites.

These failings highlight the need to ensure that state programs meet minimum, commonsense criteria that protect public health and environmental quality.

a. Some States heavily Rely On Institutional Controls To Decrease Human Exposure, Rather Than Cleaning Up Contamination

For example, one of the most controversial issues regarding the clean up of contaminated sites is the use of institutional controls to decrease human exposure to toxic substances that are left on-site after clean up activities are complete. Institutional controls are legal instruments, such as a deed restriction, that restricts the use of land as a way of controlling exposure to toxic substances.

In 1997, the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) conducted a survey of 40 states to determine how they used institutional controls when remediating toxic waste sites. [4] The survey found that 31 states required the use of institutional controls, while 8 states allowed them as an option in clean ups. Of the 40 states, only 16 states required public notification or participation when there is a restriction put on the use of the land and only 11 required public notification and involvement when the there was restriction placed on the use of contaminated groundwater.

Importantly, limiting the use of land or groundwater in an area can adversely impact a community. For example, cleaning up areas to only industrial or commercial standards may decrease the amount of residential development in a neighborhood, while vastly increasing the amount of industrial development. This could increase pollution, depress property values and degrade the residential quality of nearby communities. These types of issues affect the entire community; therefore, states should reach out and attempt to integrate the public into the decision-making process for cleaning up contaminated sites.

The ASTSWMO study also surveyed states about their enforcement of institutional controls. [5] Only 9 states provided for fines or penalties for a failure to comply with institutional controls. Further, many types of institutional controls rely on local government for enforcement. However, 20 states noted that local governments generally lack adequate funding to enforce institutional controls. [6] The ASTSWMO survey also found problems with enforcing institutional controls, as well as raft of problems that inhibit the successful use of these controls.

Another study, by the Environmental Law Institute, examined the effectiveness of institutional controls at Superfund sites. [7] This study found problems with enforcement at a local level, even at these highly contaminated sites. One problem noted was the failure to implement some institutional controls, as required in clean up plans. Other failures included the lack of a public education program regarding the dangers of waste left on-site and the failure to pass local regulations restricting the use of contaminated sites. The study also documents instances of possible human exposure to contaminated waste as a result of noncompliance with institutional controls.

Importantly, a report published by Northeast-Midwest Institute in 2000 found that states are encouraging residential development on brownfields. [8] For example, California reported that 5,200 new housing units had been built on brownfields, and Colorado reported the construction of 2,855 such units. The report goes on to site numerous incentives that states have implemented to encourage residential development on brownfields. Particularly at residential sites, of developers use institutional controls, it is vital that the controls are effective.

However, even if a site is initially cleaned up and developed for commercial or industrial development, it is still vital that authorities monitor for any changing land use and the adequacy of protections over the long term. Land use is a dynamic process of economic and social growth, not static endpoint. Commercial developments can hold day care centers and industrial areas can be transformed into housing developments. Therefore, it is essential that authorities monitor the adequacy and enforce the requirements of institutional controls.

Public notice and involvement in cleanup decisions is critical for ensuring the long-term protection of public health, particularly when contamination is left on-site. When the public is informed about the risks of a site and understands the tools used to decrease those risks, they are uniquely situated to help enforce those controls, whether by telling children not to play in certain areas or by informing new residents or businesses not to undertake certain actions. [9]

However, a study by the Northeast-Midwest Institute on Ohio’s Voluntary Action Program (VAP) found that the public might not be notified of a clean up plan until after a cleanup occurs and the state has issued a covenant not to sue. [10]

A coalition of groups recently reviewed Ohio’s VAP. [11] Their findings are rather disturbing. Under Ohio’s VAP, if the Ohio EPA agrees that a site meets the standards set forth in the VAP, Ohio EPA will issue a Covenant Not to Sue, which releases the owner from state civil liability. By releasing developers from liability, the state largely forecloses its primary tool to ensure that landowners or developers pay to clean up dangerous contamination left on-site. This means that taxpayers may bear the costs of any future clean ups.

The report lists a number of other disturbing findings regarding Ohio’s VAP. For example, Ohio provided financial incentives for some sites to participate in the VAP, but the sites were never cleaned. Additionally, the report notes that the VAP process did not address offsite contamination concerns, as required by Ohio statutes, and that “[s]ome sites were located on or near critical resource aquifers, wells, and/or municipal water supplies. On- and offsite [contamination] threatened these critical resources, [and] potentially [threatened] human health.” [12]

The VAP program also strongly relies on institutional or engineering controls as a form of clean up, rather than requiring contamination to be remediated or removed. For example, deed restrictions on land use or groundwater use, the most common form of institutional control employed, were applied at 49.5 percent of the 111 surveyed sites. Additionally, Ohio’s program has an Urban Setting Designation that allows developers to avoid cleaning up contaminated groundwater. Thus far, the Ohio Program has issued 57 “Covenants Not to Sue” at VAP sites; of these sites, 17,526 acres of groundwater have been defined as Urban Setting Designators, while another 525 acres of groundwater and 828 acres of land have also been restricted through institutional controls.

Currently, citizens across Ohio are urging their state government to improve their program by meeting EPA’s standards that would allow for a Memoranda of Agreement. Thus far, the state has failed to make the required program improvements.

Problems have also been found with New York’s state clean up program. In February 2001, the New York comptroller published an audit of the state clean up program. [13] The audit found that since 1979, 167 sites have been taken off of the state contaminated site list. Of those sites, only two met the goal of being as clean as they were before being polluted. Of the 221 treated sites that were still on the list, 30 did not meet the state’s minimum standards for protecting public health. At five other sites, state workers had failed to meet their own cleanup goals. At 141 other sites, the comptroller found that state records did not demonstrate whether the state’s cleanup goals were met. The audit also noted that gaps in the system could have left the public unaware of the continuing dangers or the restrictions on some sites. Finally, the state administration has recently projected that the state clean up fund will be exhausted by March, with a projected deficit of about $50 million.

(3) California

In 1999, the California legislature failed to reauthorize the state’s Superfund cleanup law. [14] On November 19, 1998, a state agency had to adopt emergency cleanup regulations, which were effective for only 120 days.

In 1998, the Los Angeles Daily News reported that at least nine Los Angeles schools were built on sites that school district officials knew might be contaminated. [15] These findings came from a study prepared by California’s Joint Legislative Audit Committee.

(4) Pennsylvania

The Philadelphia Inquirer reported that “many states [including Pennsylvania], under the banner of so-called brownfields, have dramatically loosened cleanup regulations and standards in recent years to spur the development, or sales, of contaminated lands.” [16] The story quotes Rick Gimello, assistant commissioner at New Jersey’s Department of Environmental Protection as stating, “ I don’t think any state is as busy as we are. . . Our pace [of putting properties through the program] is off the charts. ”

(5) Washington

On April 16, 1999, the Seattle Post-Intelligencer reported that the state fund which pays for the cleanup of toxic spills and environmental contamination is facing a $5.9 million shortfall, about a seventh of the program’s annual budget. [17] The story noted that cleanup work could be halted or delayed at a minimum of 12 highly contaminated, high-priority sites. The shortfall could also severely limit monitoring and testing operations. The paper referenced Jim Pendowski, manager of the state toxic cleanup program, as stating that the “shortfall would compromise the department’s ability to detect emerging toxic problems in the environment and deal with existing ones.”

A series of reports by the same paper present compelling evidence that the state’s Department of Ecology failed to protect 635 Hispanic migrant workers from drinking contaminated groundwater, while providing other (mostly Caucasian) people with bottled drinking water. [18] The migrant workers lived for “several years at a camp with a well that had ethylene dibromide levels 17 times higher than federal regulators considered safe.” The paper quotes agency memos from 1988 and 1989 that describe agency debate about whether to provide bottled water to workers. The memos also express concern about the public reaction if people learned that the agency was providing water to white residents, but not Hispanic workers.

(6) New Jersey

In a series of stories, the Bergen Record reported that the Mayor of Secaucus, New Jersey failed to notify citizens and city council members about the migration of contamination from a nearby Superfund site, under the homes of nearby residents. [19] The paper also reported that the Mayor ordered engineers to locate test wells on municipal property where there was no requirement to notify the public. The Mayor stated that since the waste did not pose a danger to the residents, release of the information would have unnecessarily alarmed the public. While some city council members agreed with the Mayor’s decision, the paper reported that homeowners and other city council members insisted that they should have been included in the decision making process.

These problems do not appear to be relegated to the few state programs highlighted above. A 1999 report by the National Conference of Mayors surveyed officials in 231 cities across the nation. The survey asked the officials to rank their state’s voluntary clean up program. [20] Only 23% of the officials reported that their state programs were excellent, while almost one out of every five officials reported that their state program was not very good. Perhaps more troubling, 34% could not rank their states program, pointing to a large gap in knowledge or a lack of any coherent efforts at education, oversight, and implementation.

Recent EPA reports on the quality of our nation’s groundwater document the extremely high value of this resource and startling statistics on groundwater contamination. [21] These reports find that groundwater use is of fundamental importance to human life and is of significant important to our nation’s economic vitality. [22] Groundwater supplies drinking water to half of the nation and virtually all people living in rural areas. Some states obtain more than 50% of their total water supply from ground water. Groundwater supports billions of dollars worth of food and industrial production. It also supplies the majority of streamflow in large areas of the nation and provides much of the water in our country’s lakes and wetlands. [23]

A variety of agricultural, industrial , commercial, and waste disposal practices contaminate our nation’s ground water supply. [24] Some of the most frequently cited major sources of potential ground water contamination are landfills, hazardous waste sites , impoundments, industrial facilities, and hazardous waste generators. [25] “Spills [of industrial contaminants] are a source of grave concerns among states.” [26] Unfortunately, because of existing data gaps, inaccurate data submitted by states, and a lack of appropriate analytical tools, the problem of groundwater contamination may be far worse than currently estimated. [27]

(1) More Vigorous Oversight and Enforcement Is Needed To Clean Up Contaminated Ground Water

A wide variety of public health and environmental concerns accompany groundwater contamination from hazardous waste sites. [28] Only through the expense of millions of dollars to clean up contaminated groundwater have “people [been protected] from exposure to ground water contaminants released from sources such as hazardous waste sites and leaking underground storage tanks.” [29] However, despite these clean up efforts, the reports recognize that more federal, state and local coordination is needed to prevent future contamination and to clean up contaminated ground water resources. [30]

In order to protect public health and environmental quality, U.S. PIRG supports an upfront federal review of state programs prior to giving these programs the resources to ramp up their redevelopment activities. This position is supported by data that indicates a wide disparity between the protections afforded by state programs. Certainly, absent an upfront review, it is critical that EPA ensures states will adhere to S.350’s “reasonable steps standards” by implementing all of the bill’s program criteria within 2-3 years.

Looking at clean up programs along a continuum, upfront federal review protects public health by ensuring that state programs meet common sense criteria, while EPA’s order authority protects public health at the back end. Because there is no upfront review, it is even more critical to maintain EPA’s current authority to order people to clean up contamination.

C. Federal Government Should Preserve Protections For Public Health

Unlike past bills, S.350 contains a bar on EPA’s authority to order people to clean up contaminated sites. As established under currently law, EPA’s order authority provides a vital federal safety net that is the last line of defense for protecting public health and environmental quality. EPA’s order authority actually has numerous beneficial effects. For example, state clean up officials rely on EPA’s order authority to force intransigent parties to negotiate in good faith, or risk involvement by federal authorities. [31] Similarly, concerned citizens can go to the EPA and request that they facilitate clean up efforts. EPA’s order authority ensures that people have the choice to seek protections from both the state and federal governments. U.S. PIRG believes that the federal government should not degrade the public’s choice on a fundamentally vital issue, and risk weakening vital protections.

Proponents of barring or modifying EPA’s order authority fail to present coherent arguments for such actions. The main rational generally given is the need to ensure developers get “finality.” A brief examination of S.350, EPA’s historic use of its order authority and a growing market for environmental insurance demonstrate that there is no need for this increased “finality.”

In fact, by applying the bar and failing to initiate any upfront review process, S.350 could weaken EPA’s current process of developing Memoranda of Agreement (MOA) with states. Under the MOA process, EPA agrees to limit its enforcement activities in states that meet minimum criteria that protect public health and environmental quality. Unfortunately, S.350 would actually eliminate incentives for states with inadequate clean up programs to participate in the MOA process. This is unfortunate because citizens are already using this process as a tool to leverage increased protection under inadequate state programs. [32]

S.350 contains three different provisions that exempt responsible developers from liability. These provisions include exemptions for prospective purchasers, innocent landowners and contiguous landowners, which provide ample finality for responsible developers.

Development interests and other that call for finality beyond these three exemptions fail to point to any instance where EPA has abused its order authority. In fact, a 1999 study by the Northeast-Midwest Institute that surveyed 42 state clean up programs found that “virtually all of the states [confirmed] that U.S. EPA is not involved or only minimally active in monitoring the state’s [voluntary clean up programs].” Yet another 1999 study by the Northeast-Midwest Institute found that most state voluntary clean up programs offer “Covenants Not to Sue” or “No Further Action Letters” to developers that complete the clean ups under state programs. With these documents, a state largely forecloses its ability to make developers civilly liable for the costs of future clean ups.

There is an already established and growing environmental insurance market for brownfields redevelopment. The Northern Kentucky University and The E.P Systems Group, Inc. published a 1999 report of such products that is based, in part, on a survey and interviews with insurance carriers and brokers, including AIG Environmental and Kemper. [33] The report found that developers already widely use such policies; further, the types of coverage, occurrences covered, dollar limits, and coverage periods of polices are expanding, while costs and preconditions to coverage are decreasing. The report quotes one insurance carrier representative, “The market now provides very broad coverage, which it didn’t five years ago…” [34]

These insurance policies, which are no different from any other type of real estate insurance coverage, provide real estate buyers and developers with certainty. These policies cap liability, thereby enabling buyers and developers to better assess the impacts of market forces. Ultimately, these market forces dictate when, where, and how redevelopment occurs.

With minimal or no federal oversight, and bars on state civil liability for future clean up costs, developers actually enjoy broad guarantees of “finality,” so long as they do one simple thing: ensure that cleanups adequately protect public health. Indeed, the only people that would need additional “assurance” are developers that do an inadequate job of cleaning up contamination. Importantly, this is the very situation where the federal government should retain –unencumbered— its ability to protect public health.

There is an old saying, “If it ain’t broke, don’t fix it.” Nowhere is this adage more true than with the fundamental protection for public health that is currently embodied in EPA’s order authority.

IV. CONCERNS WITH OTHER PROPOSALS TO MODIFY EPA’S ABILITY TO PROTECT PUBLIC HEALTH

I would like to address a few concerns that we have with other proposals that may come before the committee. Some parties, including the National Association of Homebuilders, have proposed limiting EPA’s order authority under numerous statutes, not just Superfund. [35] This request for “relief” is a slippery slope that has led some parties to even suggested language to bar criminal fines and penalties. U.S. PIRG strongly urges the government to eschew eroding EPA’s ability to protect public health and environmental quality in this fashion.

A. Numerous Statutes Provide People With Protection Against Particular Contaminants

EPA and other federal agencies rely on these authorities to protect public health under a variety of circumstances. For example, EPA currently uses its order authority under the Resource Conservation and Recovery Act to protect children from lead based paint. Similar provisions also exist under the Toxic Substances Control Act (TSCA). TSCA and RCRA orders also apply to polychlorinated biphenyls, dioxin and a variety of other highly toxic substances. There is no justifiable reason to weaken EPA’s authority with respect to such dangerous substances.

Any attempt to modify EPA’s enforcement authorities under numerous statutes is fraught with peril. Different statutes apply differing standards to a variety of regulatory requirements that pertain to hundreds of highly toxic substances. Modifying EPA’s authority under numerous statutes risks not only creating massive confusion, but also an across the board weakening of EPA ability to protect public health and environmental quality.

The same is true when modifying EPA’s order authority under one statute. For example, EPA’s order authority under RCRA includes the ability to enforce a variety of different requirements at different types of sites regulated under the program. Varying standards provide flexibility while protecting human health. Modifying this structure would create an adverse ripple effect across the RCRA program.

B. At Gas Stations, Large Corporate Polluters Should Pay To Clean Up Contamination

Some parties also claim that the government should limit EPA’s ability to issue clean up orders at sites contaminated with petroleum, such as old gas stations. While the government can and should contribute funds to help redevelop these sites, there is absolutely no need to restrict EPA’s enforcement authorities at gas stations or petroleum sites. Many gas stations, while independently run, operate under franchise agreements with large oil and gas companies. Since these companies financially gained from the polluting activity, they should pay to clean up the contamination.

C. “Substantial and Continuous” State Activities Should Not Bar EPA Authorities

Parties have also suggested that EPA’s clean up enforcement authorities should be barred if there is “substantial and continuous” clean up activities or if a response action is in compliance with a clean up plan that a state has certified is complete. As demonstrated above, not all state programs are alike. And, even if they were all equally good, mistakes happen.

D. Owners And Operators That Benefit From Profits Should Also Shoulder Risks

Parties have suggested language that would shift liability for clean up from property owners and developers onto the back of innocent taxpayers. For example, one party has suggested modification that could give liability exemptions to owners and operators of contaminated sites who fail to supply the government with all legally required notices. People or corporations that financial profit from a polluting activity, and will likely experience financial gain from redevelopment, should shoulder the financial burden of their actions and pay for clean ups.

E. Conclusion

The government should not conduct a fire sale on the last 30 years of environmental protections to placate fears that are based more on fiction than fact. Developers are currently redeveloping brownfield sites, earning profits, and contributing to economic growth. The federal government should increase funding and provide commonsense criteria for state clean up programs.

V. CONCLUSION

In conclusion, with respect to S.350, the areas of concerns that I outlined earlier could weaken both upfront and backend protections during the clean up process. For these reasons, we believe it is vital that the sponsors make certain clarifications to the bill that will protect public health and environmental quality. However, any modification to the substance of the bill that weakens protections would certainly engender strong opposition from the environmental community. In particular, this includes the elimination of any reopener or the modification to any reopener that would weaken protections. Eliminating or modifying any of these provisions in this fashion would surely undo the many hours spent by your offices fine-tuning the language.

Thank you very much for opportunity to testify today. I will be happy to answer any questions that you may have.

[1] National Conference of Mayors, Recycling America’s Land , 11 (Feb. 2000).

[2] Resources Conservation and Recover Act, 42 U.S.C. § 6926; Clean Air Act, 42 U.S.C. § 7410; and Clean Water Act, 33 U.S.C. § 1342(b)

[3] E.g. , United States Public Interest Research Group, Poisoning Our Water (2000) (finding a lack of state and federal enforcement actions against significant noncompliers under the Clean Water Act); Environmental Working Group, Prime Suspects: The Law Breaking Polluters America Fails To Inspect (2000) (finding weak state monitoring and enforcement measures against sources of pollutants under the Clean Air Act); General Accounting Office, More Consistency Needed Among EPA Regions in Approach to Enforcement , GAO/RECD-00-108 (2000); Inside EPA has printed a number of articles on state enforcement of environmental laws and EPA enforcement and oversight of state programs that implement such laws. Articles include Vol. 20, No. 19 and Vol. 20, No. 21. Articles are based on internal EPA reports from the Office of Enforcement and Compliance Assurance that Inside EPA obtained through Freedom of Information Act requests. (Documents can be downloaded at http://www.iwpextra.com ); Environmental Protection Agency, Office of Enforcement and Compliance Assurance, Enforcement and Compliance Evaluation of Region 5, Final Evaluation Report , (Dec. 1998) (finding general decreases in state enforcement of environmental programs); Environmental Protection Agency, Office of Enforcement and Compliance Assurance, Enforcement and Compliance Evaluation of Region 9, Final Evaluation Report , 29, 31 (May, 1998) (same); Office of Inspector General, Environmental Protection Agency, Superfund, State Deferrals: Some Progress, But Concerns For Long-Term Protectiveness Remain , (Sept. 10, 1998) (finding that EPA administration of policy that allows states to clean up hazardous waste sites that would otherwise qualify as Superfund sites to result in less than adequate protections for public health); and Office of Inspector General, Region 6’s Enforcement and Compliance Assurance Program (1997) (noting that stronger state enforcement is needed to ensure effective deterrent against polluters breaking the law).

[4] ASTSWMO, Survey of State Institutional Control Mechanisms (Dec. 1997).

[5] Id .

[6] Other reports have noted similar problems. Resources for the Future, Linking Land Use and Superfund Cleanups (1997) (The report noted that an ICMA focus group had indicated “many state and local officials do not fully appreciate the long-term demands – including oversight and enforcement – that institutional controls may place upon local governments.”); and Robert Hersh, et. al . , Linking Land Use and Superfund Cleanups, Uncharted Territory , at 91 (1997) (citing International City/Council Management Association, ICMA Draft Preliminary Summary of Findings of Institutional Controls Study (Washington, D.C., Nov. 1996) (the survey “suggested that fewer than 10% of the local government respondents have experience implementing and enforcing institutional controls at former hazardous waste sites .”) (emphasis added).

[7] Environmental Law Institute, Protecting Health at Superfund Sites: Con Institutional Controls Meet the Challenge? (1999).

[8] Northeast-Midwest Institute (on behalf of the National Association of Homebuilders), Brownfields and Housing: How are State VCPs Encouraging Residential Development? , (May 2000).

[9] Robert Hersh, et. al . , Linking Land Use and Superfund Cleanups, Uncharted Territory (1997).

[10] Northeast-Midwest Institute (on behalf of the National Association of Homebuilders), Brownfields and Housing: How are State VCPs Encouraging Residential Development? , 5 (May 2000).

[11] Greene Environmental Coalition, The State of Ohio’s Voluntary Action Program: Findings and Recommendations (Jan. 2001).

[12] Id . at 7.

[13] H. Carl McCall, New York State Comptroller, Dept. of Environmental Conservation, Selected Operating Practices Related to the Remediation of Inactive hazardous Waste Disposal Sites (99-S-33) (Feb. 2001) (discussing audit); New York Times, McCall Faults Pataki’s Record on Cleanup of Toxic Waste (Feb. 9 2001); and Times Union, Superfund Cleanup Record Hit In Audit (Feb. 9 2001) (discussing audit).

[14] Legislative Analyst’s Office, State Superfund Reauthorization Expediting Hazardous Substance Site Cleanup , http://www.lao.ca.gov/011199_superfund_reprint.html, 1 (January 11, 1999) (noting sunset of law on January 1, 1999).

[15] David Baker, Nine Schools on Possibly Toxic Ground , Los Angeles Daily News, http://democrats.assembly.ca.gov/members/a43art98.htm (Aug. 28, 1998).

[16] Bob Fernandez, Rules let contaminants be covered, not cleaned , The Philadelphia Inquirer (April 13, 1999).

[17] Heath Foster, $5.9 million shortfall for toxic cleanup , Seattle Post-Intelligencer Reporter, http://www.ceattle-pi.com/pi/local/eco16.shtml (Fri., April 16, 1999).

[18] Heath Foster, Migrant workers heard nothing of pesticide danger, Seattle Post-Intelligencer Reporter, http://www.seattle-pi.com/pi/local/migr22.shtml (Mon., March 22, 1999).

[19] Peter Sampson, Something foul is spreading in the ground , The Bergen Record (Fri., May 14, 1999) & Peter Sampson, Council clears air on toxic plume , The Bergen Record (Fri., May 21, 1999).

[20] National Conference of Mayors, Recycling America’s Land (Feb. 2000).

[21] Safe Drinking Water Act, Section 1429 Ground Water Report to Congress , (1999) (Section 1429 Report ); Environmental Protection Agency, National Water Quality Inventory, 1998 Report to Congress , (2000) ( National Inventory ).

[22] National Inventory , 187.

[23] Section 1429 Report , ii, 5-6 and National Inventory , 157-58, 162-23.

[24] Section 1429 Report , ii, 15-16 (emphasis added); National Inventory , 161-64.

[25] Section 1429 Report , 12 (emphasis added) and National Inventory , 164, 166, 168 (emphasis added).

[26] National Inventory , 168.

[27] National Inventory , 187, 189; Section 1429 Report , iii, 25, 35-36; and U.S.G.S., Strategic Directions for the U.S. Geological Survey Ground-Water Resources Program: A Report To Congress , 4, 11-12 (1998) (hereinafter U.S.G.S. Strategic Direction ).

[28] National Inventory , 191; Section 1429 Report , 5-6, 19-20, 35.

[29] Section 1429 Report , 11.

[30] Section 1429 Report , iii, 11, 35-36. National Inventory , 158.

[31] General Accounting Office, Superfund, Stronger EPA-State Relationship Can Improve Cleanups and Reduce Costs , GAO/RECD-97-77, 4-5 (1997). (The GAO surveyed Minnesota, Washington, Wisconsin, New Hampshire, and Texas. The report choose these states because they “are among the most experienced in leading cleanups as NPL sites”)

[32] E.g. Greene Environmental Coalition, The State of Ohio’s Voluntary Action Program: Findings and Recommendations (Jan. 2001).

[33] Northern Kentucky University, The E.P Systems Group, Inc., Environmental Insurance Products Available for Brownfields Redevelopment (Nov. 1999).

[34] Id . at 52.

[35] Numerous statutes authorize EPA to issue clean up orders and assign liability, including 42 U.S.C. §§ 9606 (Superfund); 6973 (RCRA); 33 U.S.C. §§ 1321(c) (Clean Water Act); 15 U.S.C. § 2606 (TSCA: standard is “unreasonable risk”); 30 U.S.C. § 1271 (SMCRA: standard is “imminent danger to the health or safety of the public, or is causing, or can reasonably be expected to cause significant, imminent environmental harm.”); 42 U.S.C. § 107(a) (Superfund: must pay clean up costs); 42 U.S.C. §§ 7003 (RCRA: penalties for violating orders) and 6991b (RCRA: order and penalty authority for releases of petroleum); and 42 U.S.C. 404 (TSCA: federal enforcement authority under federal programs concerning lead abatement).

Testimony of Grant Cope on behalf of the U.S. PIRG U.S. Senate Committee on Environment and Public Works Subcommittee on Superfund, Waste Control, and Risk Assessment Hearing on S. 350, The Brownfields Revitalization and Environmental Restoration Act of 2001 February 27, 2001