ECOS, which formed in December 1993, is a non-partisan, non-profit organization comprised of environmental agency commissioners and directors responsible for the states and territories. The ECOS mission is to improve the environment of the United States by providing for the exchange of ideas, views and experiences among the states; fostering cooperation and coordination in environmental management; and articulating states' positions to Congress and EPA on environmental issues.
As you know, states are responsible for the vast majority of hazardous waste cleanups across the United States. In New Hampshire, for example, we are dealing with about 600 hazardous waste sites and 3,000 petroleum sites. Of the 600 hazardous waste sites, 18 are federal NPL sites, one of which is the former Pease Air Force Base with multiple contaminated sites. Thus, the state is solely responsible for the investigation and/or cleanup of 97 percent of the hazardous waste sites within New Hampshire's borders. Other states have a similar, if not higher, percentage. This is an important point when considering reform of the federal Superfund Program.
In addition, a high percentage of the NPL sites across the nation have entered the cleanup phase of the Superfund program. For example, of the 18 NPL sites in New Hampshire, 15 sites or 83 percent are in the remedial action phase. New Hampshire is assuming the major oversight lead for these sites through the state groundwater management permit process. Through this process, a groundwater management zone encompassing the contaminant plume is developed as an institutional control, prohibiting groundwater use. The groundwater and surface waters within the zone are then monitored over a period of years to ensure that the remedy is effective and that cleanup goals have been achieved. There are many states across the country which are fully capable of managing all hazardous waste cleanup programs within their borders. EPA and Congress should take steps to delegate Superfund to any states which have these capabilities and are willing to assume responsibilities for the program. However, we are not saying that there is no need for a federal Superfund program. Some states do not have the capacity, resources, or interest in handling federal Superfund sites. Even sophisticated, well-funded, and experienced states rely on the federal Superfund program to achieve their goals. If the federal program is not funded to address the upcoming orphaned high risk sites that will appear on the NPL, then these sites are going to languish, threatening our citizens and the environment and stymieing reuse. It would be a mistake to think that these high risk sites will be cleaned up without a fully funded federal program. States simply do not have the financial resources to complete cleanups at high risk, orphaned NPL sites.
In the past eleven years as the environmental commissioner for New Hampshire, I have seen a prescriptive Superfund program, which created duplication of effort between the federal and state governments, evolve into a more rational, cost-effective Superfund program, which fosters mutually supportive roles for the federal and state governments. Although ECOS commends EPA for making a number of administrative improvements which have helped to streamline the implementation of the Superfund program, some states feel there is considerable overlap and duplication of effort. Duplication of effort is an inefficient use of government resources and may lead to confusion about roles, responsibility and accountability.
For example, four years ago in New Hampshire, state project managers were working with site owners and their consultants to investigate the same contaminated properties where EPA and its contractor were conducting site investigations at the same time. Through EPA's administrative improvements in the pre-remedial program and a federal voluntary cleanup program grant to New Hampshire to strengthen the state site cleanup program, this duplication of effort has been eliminated. New Hampshire and EPA New England have agreed that New Hampshire can now use federal pre-remedial money to investigate abandoned/dormant sites and contaminated water supplies to identify potentially responsible parties (PRPs). Once PRPs are identified, New Hampshire can then work with them to remediate the site; without having to list the site on the NPL, if possible. Out of New Hampshire's approximately 275 unresolved hazardous waste sites, the approximately 40 sites that are abandoned/dormant or involve contaminated water supplies and that were not being addressed because of a lack of state funding, are now being addressed. EPA should be encouraged to extend this initiative to all states who want to participate in this program.
This initiative illustrates the important point that the NPL is no longer reserved for just the nation's "worst of the worst" sites. NPL listing has become the final resort for those high risk sites that are truly orphaned and are in need of federal funding for remediation. According to a recent General Accounting Office (GAO) report entitled, "Hazardous Waste: Unaddressed Risks at Many Potential Superfund Sites", there are 232 sites on EPA's inventory of potentially contaminated sites that either states or EPA believe should go on the NPL. This underscores the need for a continuing, fully funded federal Superfund program. Many states have expressed the need for a waiver of CERCLA liability when the state has cleaned up a site under an approved state plan. As a case in point, South Dakota has taken over the Brohm gold mine in the Black Hills. Even though the state has communicated and coordinated with EPA throughout the entire process, EPA cannot guarantee that the state will not incur CERCLA liability. The mining industry offered to assist the State of South Dakota on this project, but after researching the CERCLA law, they decided to stay away or risk exposure to CERLCA liability. Superfund reform is needed so that states and others who are not the parties responsible for creating the problem can work together to get things fixed. This would accelerate the rate of site cleanups while reducing federal expenditures.
ECOS strongly supports the voluntary cleanup program. The Superfund program and state hazardous waste cleanup programs have focused on sites posing the greatest threat to human health and the environment. However, there remain many low and medium risk sites. For them, the majority of states have initiated voluntary cleanup programs in which the owner or developer works cooperatively with the state, as opposed to adversarial enforcement-driven program. Site cleanups can take less time, and many states offer such additional benefits as technical assistance, financial support, and importantly, liability assurances. Federal Superfund liability should also be waived at non-NPL sites that have been cleaned up in compliance with a state plan. ECOS believes voluntary cleanup programs should be encouraged and expanded.
ECOS also strongly supports the brownfields program. The need to encourage "smart growth" through the redevelopment of brownfields sites has never been greater. As reported in the March 3, 2000 issue of the Environment Reporter, published by the Bureau of National Affairs, "Redeveloping contaminated urban properties known as brownfields could add 550,000 jobs and $2.4 billion in new tax revenues, according to a survey report released by the U.S. Conference of Mayors". Successful initiation of these projects is heavily dependent on adequate funding, the liability language in prospective purchaser agreements, and innocent landowner and contiguous property owner provisions.
Over the last several years, EPA and the states have launched several successful efforts spurring redevelopment of brownfields sites. The work done to date has resulted in the investigation, cleanup and redevelopment of many sites across our nation, resulting in the elimination of health and safety threats to our citizens, creation of new jobs, and the revitalization of our communities. ECOS supports increasing and continuing grant funding to states and municipalities (urban and rural) for these initiatives. In spite of these noteworthy accomplishments, financing site cleanup remains a significant barrier to brownfields redevelopment. Conventional lending institutions continue to be wary of lending for actual site cleanup, thereby making it extremely difficult for developers to obtain financing for this work.
In 1997, EPA began providing grant funding to cities and states across the nation to establish Brownfields Cleanup Revolving Loan Funds. This funding is to be used to establish revolving loan funds to provide financing for cleanup activities at brownfields sites. The New Hampshire Department of Environmental Services received a $1.45 million loan fund grant and is currently working to develop its loan program. New Hampshire is very pleased to be the beneficiary of EPA's efforts to provide financing for cleanup of brownfields sites, but I am also very concerned about the future success of our loan fund and those across the nation. Since 1997, over 60 Brownfields Cleanup Revolving Loan Fund pilots have been granted nationwide. To date, only two loans have been made nationwide, totaling only $250,000.
We believe that the central reason for this apparent failure of the Revolving Loan Fund initiative is the onerous set of requirements placed upon both the fund administrator and participating borrowers. The loan fund pilot grant funding is provided under the authority of CERCLA Section 104. All projects receiving funding under the program will be subject to compliance with CERCLA and the NCP. These requirements are hindering the success of the initiative for two reasons. First, grant recipients are required to expend considerable time and resources to establish their lending programs, with requirements that far exceed those in more traditional revolving loan fund programs. Many grant recipients are city governments whose personnel resources are already stretched thin, and are ill prepared to take on the additional administrative burden associated with the loan fund program. These grantees would benefit significantly from a simpler, more streamlined grant program.
Second, and more important, the requirements imposed upon borrowers in which the relationship that must be established between the grant recipient and borrowers are too restricted. Borrowers are allowed to use cleanup loan funds only for activities deemed eligible under CERCLA and the NCP. While the borrower is not necessarily required to make this determination, the "brownfields site manager," and government employee designated by the grant recipient, is required to oversee the cleanup operations in order to ensure that all work is eligible and compliant. This creates a rather unattractive scenario from the borrower's perspective since all actions of his cleanup contractor are scrutinized by a regulatory authority to determine if they will be eligible for financing. In our experience in New Hampshire, the developers who have the willingness and the capability to tackle difficult and potentially risky brownfields redevelopment projects are not receptive to this kind of oversight. It leaves too many questions unanswered with regard to total project costs and the availability of financing.
We are very supportive of EPA's efforts to provide Brownfields Cleanup Revolving Loan Fund grants, but the program needs to be simpler, and more accessible and attractive to developers of brownfields properties.
Congress and EPA should be very careful when considering changes in federal liability provisions, especially with respect to sites that are not on the NPL. These sites, comprising a universe far greater than the NPL, represent the bulk of our workload in the states and the success of many state programs in addressing these sites has been reliant on the present federal liability structure. It should be noted that the states do not have a consensus approach to liability. While many states rely on strict liability to clean up sites, some believe a causation standard of liability is fairer and would encourage the redevelopment of brownfields.
Maintaining adequate federal funding is critical to the success of the Superfund program. Since the majority of PRPs are national corporations and since not all states have equal abilities to generate the needed funding for site remediation, the amount of federal funding is crucial to the success of state cleanup programs nationally. It provides a level playing field for all the states and ensures that PRPs are treated in a fair and consistent manner.
CERCLA should also be changed so that the response trust fund can be used to support operation and maintenance activities for the entire period of remedial action and monitoring. ECOS recommends that these expenditures be subject to the same 10 percent state match requirement as cleanup actions. States have currently been held responsible for 100 percent of the operation and maintenance costs. The dichotomy between the state cost shares for remedial action and those for operation and maintenance has, in some instances, led to conflicting interests between EPA and the states in making remedy decisions. In some cases, operation and maintenance at NPL sites may cost more in the long run than the remedial action itself. We urge you to correct this by ensuring that the state cost share for both the remedial action and operation and maintenance are the same.
As I have experienced in New Hampshire, and most of the other states would agree, EPA's Superfund Removals program plays a critical role in the Superfund program. Great risk reduction to both public health and the environment has been accomplished through this program. EPA, on average, conducts 2 to 3 million dollars worth of emergency removals each year in New Hampshire alone. The success of the Superfund Removals program needs to be fully recognized and the program should be strengthened. The strengthening should include increased funding to more quickly address time-critical (imminent threat to public health or the environment) actions that shouldn't have to wait in a funding priority queue. Technically capable states should be allowed to conduct federally funded state-lead time-critical removal actions.
In October 1996, EPA and ASTSWMO committed to conduct two federally funded state-lead time-critical pilots, one in New Hampshire and one in Texas. The final report on the pilots was released in January 2000. The ASTSWMO Removal Action Focus Group believes that state-lead removals initiate early risk reduction and lead to complete and final remedies. The pilots demonstrated that state action at sites ended with complete remediation, eliminating what is often a two step process involving a federal removal action being taken, followed by state or federal remediation. This provides for shorter cleanup time lines. Furthermore, the states were able to effectively coordinate and leverage additional governmental resources to address local public health, public information and redevelopment issues in addition to ensuring a timely cleanup.
ECOS commends EPA's efforts for considering land use in the development of soil cleanup standards, and in moving toward a resource based and pragmatic approach for groundwater remediation decisions. We believe it represents a significant improvement for the Superfund program. However, extreme care must be used when determining the use and value of groundwater. In states, such as New Hampshire, where groundwater is a primary source of drinking water, low cost remedy components such as natural attenuation and point-of-use treatment, may be short-sighted. A benefit/cost analysis should be evaluated over the life-cycle of the remedy, so that the most cost-effective groundwater remedy is chosen.
Since the hazardous waste sites in each state being remediated under the federal program are a small subset of the total sites being addressed by each state, preserving the state's role and authority in a consistent manner at all sites in a state is essential. The preemption of state authority would damage the integrity of both the federal and state programs. For example, if an NPL site is contaminating an aquifer and is not subject to the same standards as non-NPL sites, the work being performed at surrounding non-NPL sites to cleanup the aquifer will be regarded as useless since the lowest common denominator would apply (i.e., the standard at the NPL site). Any new legislation should ensure that the states are an equal partner in the process, since it is the state and local governments that are actually the trustees of the state's resources. Most site remediation problems really are local rather than national, and thus, states and local government should have a strong role.
ECOS believes that the best option is a comprehensive bill addressing a full range of issues, including the following: · Reinstate the Superfund tax to provide sufficient funds to achieve program goals; · Provide greater authority and funding to the states through support grants for remedial program development, site assessment and remediation enforcement, and oversight; · Provide greater authority and funding to states to execute the Superfund Removal program if they are capable and wish to do so; · Provide greater support for state Voluntary Cleanup Programs in the form of a legal release to those who voluntarily clean sites; · Provide liability protection to non-culpable parties in state "brownfields" programs to encourage potentially responsible parties and prospective purchasers to reuse and redevelop these contaminated properties; · Provide that the 10 percent state share be applied to operation and maintenance costs as well as remedial action costs; · Improve the natural resource damage claims program through changes such as allowing for funding natural resource damage assessments from Superfund; · Ensure a strong state role in the cleanup of federal facilities, with no preemption of state standards; and, · Provide Governors the statutory right to concur with the listing of any new NPL sites in their states.
If comprehensive reauthorization isn't possible within the next year, then Congress and EPA should focus on the following items for further administrative and legislative changes: · Reinstate the Superfund taxes to provide more money/resources; · Address liability issues associated with prospective purchasers of contaminated properties, innocent landowners, contiguous property owners, and the liability of small parties; · Authorization with federal funding for the removals program; and, · Federal funding to states for "Superfund Prevention" through voluntary cleanups, brownfields redevelopment, and state enforcement actions.
In closing, ECOS appreciates the opportunity to continue working with you in a spirit of cooperation.
Any reforms to the federal Superfund Program must acknowledge the maturity of the Superfund program, the maturity and capability of state programs, and enhance the complimentary and mutually supportive state and EPA roles that have developed. The Superfund program must be built on a common ground resolution that is both protective of public health and the environment, and cognizant of economic opportunity and the revitalization of blighted areas.