ASTSWMO and individual States have participated in the debate to reauthorize the Superfund law for the past three congresses. We wish to extend our gratitude to Senators Smith and Chafee for drafting a bill which appears to acknowledge the evolution of the Superfund program and the important role that States currently play in remediating contaminated sites. I would like to dedicate the first part of my testimony to speaking on the accomplishments of State programs. As with the federal Superfund program, most State programs have had the benefit of 18 years to grow and mature in infrastructure capacity and cleanup sophistication. We believe it is very important that Congress understand the actual status of State programs, in order to make a fully informed decision regarding the future of the federal Superfund program. The second part
of my testimony will be devoted to analyzing key aspects of S. 1090 from a State program manager's perspective.
ASTSWMO STATE ACCOMPLISHMENTS STUDY:
The Association of State and Territorial Solid Waste Management Officials recently conducted a study on the accomplishments of State cleanup programs. The association asked States to provide detailed information on all short-term removal actions and long-term remedial actions conducted between January 1, 1993 and September 30, 1997 for each site in the State system where hazardous waste cleanup efforts were performed by States directly, under State enforcement authority, and under State voluntary cleanup and property transfer/brownfield programs. Sites listed on the National Priorities List, Resource Conservation Recovery Act corrective actions and underground and above ground storage tank and other petroleum spills were not included in this study. The association received information on 27,235 sites from thirty- three responding States. I should note that the primary ground rule for the study was that information had to be reported site-specifically and had to be accompanied by background data. Estimates were not accepted or counted as part of either the individual State or national totals for work accomplished.
While this study does not capture the complete site universe either on a national level or individual State level, it is the view of ASTSWMO that enough information was obtained to confirm that a trend has developed whereby on a national level States are not only addressing more sites at any given time, but are also completing (construction completes) more sites through streamlined State programs. State programs have matured and increased in their infrastructure capacity.
Key results of the ASTSWMO study included:
States have completed seven times as many sites per year these last four and three-quarter years than they did during the first twelve years of the program. During the first twelve years of the program, States completed 202 sites per year on average. Over the last four and three-quarter years, States have averaged 1, 475 completions per year for a total of 6,768 completions. State managers believe the large increase in completions can be attributed to the growth of State programs, the advent of State Voluntary Cleanup programs and the development of State cleanup standards (i.e., clearly defined endpoints).
States have completed almost twice as many removals per year during the last four and three-quarter years of the program than they did during the previous twelve years of the program. On a national basis, States completed approximately 48 removals per year as compared to 293 per year during the first twelve years of the program. This doubling of the pace of removals indicates a substantial increase in risk reduction the field.
Three times as many confirmed contaminated sites have been identified and are working their way through the State system than during the first twelve years of the program. During the first twelve years of the program, States had approximately 1,850 sites working their way through their systems at any given time. Today, States are addressing an average of approximately 4,700 sites at any given time. NOTE: the word "address" could refer to site remediation, no further action designations, or site prioritizations. These findings clearly show that States programs have matured and State infrastructures have increased in their capacity to identify and address more sites.
Only 8.9% (2,426) of the total sites identified by States (27,235) were classified as inactive. As the data indicate, State capacity to address large numbers of sites has increased dramatically. Most sites are being actively worked on by States either through traditional State Superfund programs or through voluntary cleanup programs and it is the professional judgment of the ASTSWMO membership that the majority of sites classified as inactive are probably of lower relative risk and not destined for the NPL due to the triage system employed by most States.
ANALYSIS OF S. 1090 "THE SUPERFUND PROGRAM COMPLETION ACT OF 1999" BROWNFIELDS AND STATE RESPONSE:
ASTSWMO wishes to commend the Committee on the drafting of titles I and II of S. 1090. These are well crafted titles containing provisions which ASTSWMO can fully support. First, ASTSWMO supports the National Governors' Association position that Governors' should be given the statutory right to concur with any new National Priority Listing (NPL) in their State. We believe the facts support that position. States today employ a triage system whereby, the worst sites are addressed first. For example, only 8.9% (2,426) of the total sites (27,235) identified by the recent ASTSWMO survey were classified as inactive. It is, therefore, the strong belief of the ASTSWMO membership that most sites that have been identified within a State that could qualify for listing on the NPL are already being worked on by the State.
We believe the views of our membership were validated by the recent General Accounting Office (GAO) Report entitled, "Hazardous Waste: Unaddressed Risks at Many Potential Superfund Sites". In this report the GAO reviewed the status of 3,036 sites which had pre-scored above 28.5 but for a variety of reasons had not been placed on the NPL. Out of a total of 3,036 sites only 7.6% (232) were estimated by both EPA and State officials to potentially warrant listing on the NPL. This confirms that the EPA regional staff had utilized good judgment in not placing the vast majority of these sites on the NPL; it also confirms that the hazard ranking system could be improved.
The question before this Committee is what should be the appropriate role of the federal Superfund program in the future? While there may be forty plus States with State Superfund programs and Voluntary Cleanup programs there will always be States who choose not to develop a program and federal government assistance may be warranted. There will also be sites which due to either technical or legal complexity or cost, a State either cannot or may prefer to have the federal government address. The point I wish to stress is that with the current status of State programs the choice as to whether a site is addressed by the federal government or State government should be determined by the State. A Governor should be able to make the determination of whether a site will be listed on the NPL as specified in the S. 1090 mandate that a site must receive governors' concurrence prior to listing on the NPL. While it is EPA policy to routinely seek concurrence from the Governor before a site is listed on the NPL, it is not -mandatory that the concurrence be received. If a dispute should arise between EPA and a Governor the process within EPA is to have the Assistant Administrator for OSWER make the final determination. Frankly, that is not a satisfactory policy.
Fortunately, there are very few sites where the States and EPA disagree, however, when a dispute does occur the site quickly becomes high profile and both the State and federal government can lose credibility. As indicated by the ASTSWMO survey and GAO survey, the States have clearly become the primary regulators for overseeing site remediation. The NPL should be reserved for those sites which both the State and federal governments believe warrant expenditure of federal resources. The NPL is no longer reserved for the "worst of the worst" sites, rather the NPL has shifted to a venue for remediating sites which require federal resources. The criteria for listing sites on the NPL may quickly shift from one of risk based determinations to one based on resource needs. We, therefore, support the provision for governors concurrence as outlined in S. 1090.
Second, States are responsible for remediating the vast majority of sites in this country and while it is crucial to clarify the issue of who actually will determine in the future whether a site is listed on the NPL; it is equally as important to clarify which governmental entity will be given the responsibility for determining when a site is fully remediated. In other words, the concept of finality needs to be addressed. The federal Superfund statute technically applies to any site where a release occurs. However, the reality today is that States are responsible for ensuring the remediation of all sites which do not score above 28.5 using EPA's Hazard Ranking System (HRS) - the cutoff for federal listing on the NPL. The EPA removal program is able to address some sites which are not listed on the NPL, but the program is designed to stabilize a site, not to ensure the full remediation of the site. EPA can not expend fund money for remediating a site not listed on the NPL. Consequently, the State is often still responsible for completing the remediation of a site even after an EPA removal action has been performed at a site.
It is our belief that Congress needs to decide definitively whether EPA should retain a role in the remediation of non-NPL sites. While in practicality EPA has little or no role at these sites and as our survey indicated, the States are addressing the large universe of non-NPL sites, the statute still maintains a role for EPA In theory. Although the majority of these sites (typically brownfield sites) will never be placed on the NPL, they are still subject to CERCLA liability even after the site has been cleaned up to State standards. It is our belief that we can no longer afford to foster the illusion that State authorized cleanups may somehow not be adequate to satisfy federal requirements. The potential for EPA overfile and for third party lawsuits under CERCLA is beginning to cause many owners of potential Brownfields sites to simply "mothball" the properties. We believe it is imperative that Congress seek to clarify the State-Federal roles and potential liability consequences under the Federal Superfund program. States should be able to release sites from both federal and State liability once a site has been cleaned up to State standards. In situations which are deemed emergencies end where the State requests assistance, we believe the federal government should be able to address the site and if necessary hold the responsible party liable consistent with liability assigned under State cleanup law. Emergency actions should be the only exceptions to such releases from federal liability.
This has been a very contentious issue and we understand that many in the Administration have raised objections to provisions of this nature. We do not agree with the basis for these objections for several reasons. First, EPA does not have the ability to compel parties to take remedial actions at sites not listed on the NPL, except for removal actions. Second the majority of these sites will never be listed on the NPL, therefore, EPA does not have regulatory authority to spend fund money at these sites to perform the necessary remedial actions. Third, if a State should release a site from State liability (of course, all States have standard reopener provisions contained in their liability releases), and a situation should develop which warrants federal attention, the State will act responsibly and contact EPA For example, the State of New Jersey, as well as Michigan and many other States throughout the country, has a very successful Voluntary Cleanup program. The New Jersey program has remediated over 6,000 sites and receives approximately 150 applications a month for entrance into their Voluntary Cleanup program. One of those sites, the Hoboken site, was remediated under the State Voluntary Cleanup program and a certificate of completion was issued by the State. Previously unknown mercury was later found to be present at the site and the State for financial and technical reasons called EPA in to address the site. Unknown conditions will occur at both NPL and non-NPL sites.
We recognize that situations such as the Hoboken site will occur and believe that the exceptions specified in S. 1090 adequately address the situation. While it is clear in emergency situations that EPA should have the ability to enter a site, we believe the second prong of the condition must also be met, i.e., with State concurrence similar to our recommendation for listing sites on the NPL. We wish to avoid duplication as much as possible and therefore believe that if a State is capable of addressing the emergency then there is no need to utilize EPA's resources. The States have proven they act responsibly in these situations and it is to the State's advantage to notify EPA when either the State's financial, legal or technical resources are not sufficient to adequately address the problem.
We believe the universe of sites to be addressed by State Cleanup (State Superfund and State Voluntary Cleanup) programs and the sites eligible for releases from federal liability is the non-NPL universe of sites. It seems only practical to officially exclude proposed and listed NPL sites simply for the fact that much work has already ensued in order to place these sites on the NPL. Some suggest that the non-NPL universe can be divided into two categories, NPL-caliber and low risk sites. We are the primary regulators for non-NPL sites and we are here to tell you that there is no clear line that differentiates these sites. Many would suggest the bright line should be 28.5 (as determined by the HRS), but there are two problems with using this arbitrary cutoff. First, 28.5 is the quantitative scoring factor used to determine if a site qualifies for placement on the NPL. However, this figure is based on an arcane hazard ranking system which many EPA and State managers admit is flawed, so much so, that EPA and State managers in the GAO study identified only 7.9% of the 3036 pre-scored universe of sites for potential listing on the NPL. Second, in order to use the quantitative NPL-caliber designation, States would have to score sites prior to admitting them to a voluntary cleanup program (a suggestion we understand one EPA Region has made to a State). Clearly, the pre-scoring of a site as a condition for entering a State Voluntary Cleanup program would be a huge disincentive for marketing a State Voluntary Cleanup program and would not serve to move this large universe of sites to cleanup nor to facilitate economic redevelopment of brownfields. Essentially, the program has operated for years on a "you know it when you see it basis" in identifying NPL-caliber sites. This is bad public policy and should not be acceptable for differentiating State and EPA roles and for providing certainty to the process. If a site is not to be listed or proposed for listing on the NPL, then the State should be free to address the site without EPA interference and the site should be eligible for the same benefits as any other site, such as liability releases. We believe legislation such as S. 1090 is needed and hope that Congress chooses to recognize the benefits of State programs which have had over 18 years to grow and mature and which clearly have become the leaders in site remediation today.
Third, we are also pleased that S. 1090 seeks to streamline the program by providing a fixed State cost share, namely 10% of remedial action costs and 10% of operation and maintenance costs. The current cost share system has served only to exacerbate the tension which exists between State Waste Agencies and the U.S. EPA. Under the status quo the financial incentives for EPA and the States are diametrically opposed when considering final remedies for a site (States desiring more capital intensive remedies and EPA seeking remedies with lower capital costs and higher operation and maintenance costs). State Waste Officials believe this is a fair and well-reasoned position.
FAIR SHARE LIABILITY ALLOCATIONS AND PROTECTIONS:
As State Waste Managers, our principal concern is ensuring the timely and effective cleanup of contaminated sites. We are not the legal experts and therefore will leave the analysis of this title to other State professionals. We would simply note, that the current liability scheme may not be entirely equitable to some responsible parties, but in the past it has provided a stable source of funding. We understand that reforms are needed and understand that the goal of the title is to insert a level of fairness into the program for parties such as municipalities and small businesses. ASTSWMO is in favor of providing relief to these parties so long as the pace of cleanup is not sacrificed.
CONCLUSION:
In conclusion, while our membership has not had an opportunity to conduct an in-depth review of S. 109O, or to reach consensus on the bill's language, the initial impressions and reactions from our members is favorable. The primary provisions outlined in S. 1090 are elements ASTSWMO could support. These provisions appear to parallel ASTSWMO's basic positions regarding governors' concurrence, brownfield liability release and State cost share. We are very encouraged and look forward to working with the Committee as the process continues.