Good morning. My name is Vernice Miller-Travis, previously I served as the Director of the Environmental Justice Initiative of the Natural Resources Defense Council. I am a member of the National Environmental Justice Advisory Council (the NEJAC), and I chair the Waste and Facility Siting subcommittee of this FACA. This subcommittee works closely with EPA's Office of Solid Wastes and Emergency Response on a variety of policy issues including: Superfund and federal relocation policy, Brownfields redevelopment, the regulation of solid waste transfer stations, hazardous waste facility sitings and operations, hazardous wastes clean-up and remediation activity, EPA hazardous waste enforcement activities, and a host of other issues. I come before you today to present the thinking of the environmental justice community on CERCLA amendments and Superfund reform. Thank you for the opportunity to present my views on S. 1090, the "Superfund Program Completion Act of 1999."
The primary focus of the environmental justice community in Superfund reform is the creation of a program that will position protection of public health and the environment as the centerpiece of the nations Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and 1986 amendments. We also believe that the role of communities who live or work at or near a Superfund site must be expanded to allow for substantive involvement of these critical stakeholders in Superfund site decision-making.
The paramount concern of the environmental justice community is achieving fairness in communities experiencing disproportionate environmental impacts and preventing unfairness in the future.
The history of Superfund application in environmental justice communities Communities of color are exposed to environmental hazards disproportionately, and have been inadequately protected from environmental degradation by Superfund in the past. According to the National Law Journal, in its report Unequal Protection, the Racial Divide and Environmental Law, published in September of 1992, communities of color wait up to four years longer than white communities in getting Superfund sites cleaned up. Moreover, not only has Superfund been disproportionately ineffective, it has also been discriminatorily implemented. According to this report, permanent treatment remedies were selected twenty-two percent more frequently than mere containment technologies at sites surrounded by white communities. In contrast, containment technologies were selected more frequently than permanent treatment at sites surrounded by communities of color. Other national studies have replicated these findings that government agencies have engaged in disparate treatment of communities of color and low income communities in the implementation and enforcement of both Federal and state environmental laws and regulations. In 1983 the GAO documented similar finding with respect to hazardous waste landfills. Recent studies found that the percentage of African-Americans and Latinos in communities with NPL sites is greater than the national average. Communities with relatively high percentages of people of color have fewer clean-up plans or signed RODs than other NPL sites in majority white middle class communities.
Additionally there are significant deficiencies in the provisions of CERCLA to address native American tribal and sovereignty issues with respect to Superfund implementation and enforcement on native and tribal lands.
Environmental justice communities want a comprehensive Superfund reauthorization plan that encompasses: revisions to the Hazardous Ranking System and how sites are ranked and listed on the NPL; minimum clean-up standards; the selection of permanent treatment technologies over containment; remedial activity that is based on human and ecological exposure pathways and health risk assessments; assuring that responsible parties are held liable for clean-up costs; and an expanded defined role for public participation in Superfund site clean-up and re-use decision-making. General concerns with the "Superfund Program Completion Act of 1999"
The following aspects of S. 1090 are problematic from an environmental justice perspective. Waivers of the Federal safety net (Sec. 201, page 33)
-this provision could eliminate all enforcement actions under Superfund, including the citizen suit provision
-creates less protective framework by the absence of minimum state program criteria, and allowing self certification without EPA program review and approval of adequacy of state programs
-sets unrealistic requirements for EPA to receive state concurrence on EPA enforcement actions (Sec. 201, page 35) New NPL listings prohibited unless requested by the Governor (Sec. 202, page 38)
-this is a new provision which is extremely problematic to environmental justice groups. In many states the Governors and Commissioners of State environmental agencies have expressed open hostility to environmental justice communities and their concerns, openly refusing to implement state or Federal environmental laws and statutes fairly and vigorously in all communities. Many Governors and State agencies are in active litigation with ej groups over a range of environmental problems.
-It is not likely that these same Governors are going to recommend new sites for clean up in the very communities that they have ignored in the past, or litigated against in the present.
-Past recommendations have allowed EPA to add sites to the list as it sees fit, with Gubernatorial concurrence. This new construct could effectively prevent the listing of any NPL sites in communities of color and low income communities in the future. Shifts clean-up costs to states and municipalities and tax payers, places a cap (30 per year) on additions to the NPL (Sec. 202, page 38)
-this is a new provision which we find unworkable
-no provision is made for states who are unable to clean-up sites
-New York State DEC (1996) and the NGA are on record opposing this concept
-EPA estimates it would be adding only 30 to 40 new sites a year "Small Business" exemption is overbroad and could drain the fund (Sec. 301(b), page 46)
-this provision goes beyond exemptions/limitations for small contributors of hazardous wastes, contributors of municipal solid wastes and parties who are financially unable
-this provision would also exempt contributors of very large amounts of hazardous waste who are financially solvent, and the owners and operators of sites "Allocation" scheme could slow cleanups and require paying the polluter (Sec. 303, page 77)
-the elimination of strict, joint and several we view as undermining of the original intent of Superfund
-the new allocation review process outlined here is cumbersome, time consuming and wasteful of EPA resources, and does not lead to expedited site clean-ups
-requiring this kind of allocation review for each NPL site and proposed site would slow the program down to a halt
-statutory orphan share for all exempted parties is shifted to the fund and must be paid out before any settlement for final clean-up. This could tap the fund dry by prioritizing payment of orphan share and reimbursement of PRP's as more important that money for clean-ups or conducting site clean-ups. This is contrary to the original intent of Superfund.
-If EPA can't pay the orphan share they can't issue order to do cost recovery against identified liable parties
-establishes a favorable framework for uncooperative litigants versus those who voluntarily complied with Superfund This bill shuts the program down and provides no stop gap Federal system in place to address unlisted or future sites (Sec. 401)
-the ramp down of appropriated dollars over the next five fiscal years is unworkable
-the decrease in authorized spending for Superfund clean-ups means many sites will go unaddressed, and some sites may not be able to complete clean-up activities
-the recommended appropriations start at levels that are lower than current levels and decrease from there. The bill does not provide sufficient monies for DOJ and ATSDR activities (sec. 401)
-the bill shifts all non-EPA (DOJ, ATSDR, NIEHS) costs from Superfund and HUD/VA budget, this is the equivalent of another reduction in Superfund appropriations and spending on clean-ups and remedial activity
-additional funds would have to be taken from general revenue/taxpayers Shifts funding of the program from industries to the Taxpayers
-this bill does not reauthorize the Superfund tax on polluting industries
-all Superfund program costs and clean-ups would now come out of the general revenue after the fund runs out of money in FY 2001. Despite reduced funding many new obligations are created that drive up the costs of the program not related to clean-ups
-EPA performance allocations
-site by site evaluations on all CERCLIS sites over the next two years
-new rule making requirements for determining the origin of original hazardous release on a site by site basis
-changing state cost share to a flat 10% -these changes will slow clean-ups down and shift resources from clean-ups From an environmental justice perspective the substantive changes proposed in S. 1090 portend disastrous consequences for the hundreds of communities who have sought relief from hazardous wastes contamination in their communities under Superfund. This bill provides no relief for them, but rather increases their potential for exposure and harm, shifts the burden of clean-up costs from polluters to tax payers, and removes EPA and the Federal government as a instrument of protection.
Finally, the notion of devolving the entire Superfund program to the states will only magnify the environmental injustices already visited on too many communities by the very agencies that presently ignore the disproportionate pollution burden borne by communities of color and low income communities across this nation.
This bill is not a mechanism for achieving environmental justice in the context of the Superfund program, but rather for compounding an already difficult situation.