[Senate Hearing 106-913]
[From the U.S. Government Publishing Office]
S. Hrg. 106-913
EPA'S FISCAL YEAR 2001 BUDGET FOR OFFICE OF SOLID WASTE AND EMERGENCY
RESPONSE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
SUPERFUND, WASTE CONTROL, AND RISK ASSESSMENT
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
MARCH 30, 2000
__________
Printed for the use of the Committee on Environment and Public Works
__________
U.S. GOVERNMENT PRINTING OFFICE
68-417 WASHINGTON : 2001
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington DC
20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SIXTH CONGRESS, SECOND SESSION
BOB SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
Dave Conover, Staff Director
Tom Sliter, Minority Staff Director
------
Subcommittee on Superfund, Waste Control, and Risk Assessment
LINCOLN CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
MICHAEL D. CRAPO, Idaho BARBARA BOXER, California
(ii)
C O N T E N T S
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Page
MARCH 30, 2000
OPENING STATEMENTS
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island 1
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 4
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 2
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 4
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 16
WITNESS
Fields, Hon. Timothy, Assistant Administrator for Solid Waste and
Emergency Response, U.S. Environmental Protection Agency....... 5
Prepared statement........................................... 16
Responses to additional questions from Senator Smith......... 20
(iii)
EPA'S FISCAL YEAR 2001 BUDGET FOR OFFICE OF SOLID WASTE AND EMERGENCY
RESPONSE
----------
THURSDAY, MARCH 30, 2000
U.S. Senate,
Subcommittee on Superfund, Waste Control
and Risk Assessment,
Committee on Environment and Public Works
Washington, DC.
The subcommittee met, pursuant to notice, at 10:30 a.m. in
room 406, Senate Dirksen Building, Hon. Lincoln Chafee
(chairman of the subcommittee) presiding.
Present: Senators Chafee, Inhofe and Crapo.
OPENING STATEMENT OF HON. LINCOLN CHAFEE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Chafee. Good morning.
Today the Subcommittee on Superfund, Waste Control, and
Risk Assessment is conducting an oversight of the President's
fiscal year 2001 budget request for programs that fall under
the Environmental Protection Agency's Office of Solid Waste and
Emergency Response, or OSWER. EPA Assistant Administrator Tim
Field will testify regarding the budget request for programs
such as Superfund, brownfields, and underground storage tanks.
This is Tim Fields' second appearance before the subcommittee
in as many weeks.
Don't worry, Tim, we'll let you have a few weeks off before
the next hearing.
Under the leadership of Chairman Bob Smith, each
subcommittee is conducting oversight hearings on EPA's budget.
EPA Administrator Carol Browner testified on EPA's overall
budget before the full committee last month. Today we will have
the opportunity to review OSWER's budget and priorities in
greater detail.
It is important that this subcommittee focus on OSWER's
priorities so that Congress can make informed decisions on
EPA's overall needs.
I hope that Mr. Fields will address criticisms that some
have made of EPA's spending habits. Critics have claimed that
EPA funds new initiatives before it has completed work at
existing priorities, and that EPA spends too much money on
administrative costs and too little on cleanup. But we must
strike a delicate balance between our constrained resources and
our top priorities.
For example, the Centredale Manor Superfund site in North
Providence, Rhode Island was added to the National Priorities
List just this year. This site contains high-rise apartment
buildings for handicapped and elderly citizens. Significant
levels of dioxin were found in the cellars at the site, and in
sediments in the Woonasquatucket River. You can only imagine
the high level of emotion that exists when residents learn that
toxic chemicals are present in the ground near their homes.
This is certainly not a unique situation in Rhode Island. Using
their emergency response authorities, EPA did respond swiftly
and effectively to the relief of everyone in the community.
I want to ensure that EPA has sufficient funds to carry out
emergency response actions and other necessary functions, but I
also want to know that each dollar is spent appropriately.
I am also looking forward to Mr. Fields' testimony
regarding underground storage tanks. Public attention has
focused on the discovery of MTBE in groundwater resources.
Since leaking underground storage tanks are the primary pathway
for MTBE to reach groundwater, it is imperative that EPA
maximize its underground storage tank funding to ensure
compliance with the Federal requirements.
Establishing priorities and balancing the needs of all
programs within OSWER and EPA is a difficult task. Given
unlimited resources, there will always be projects that we
could fund. However, today's fiscal environment demands that we
establish priorities and fund those priorities first. I hope
that today's hearing will provide a forum for EPA to identify
its priorities and that we can have an open discussion among
members of this subcommittee. Thank you very much.
Senator Chafee. Senator Inhofe?
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman. First let me
congratulate you on having chaired your first meeting, and now
your second one, and each one gets easier.
Senator Chafee. I hope so.
Senator Inhofe. So you will enjoy it, and it's such an
honor to be serving with you on this committee and with you in
Congress, as it was with your father.
Mr. Fields, thank you for appearing before the subcommittee
today. As I know you are well aware, the EPA is under a court-
mandated order to make a determination as to whether combustion
waste, such as fly ash, should be regulated as hazardous waste
under RCRA.
Originally, the EPA was supposed to announce a
determination by March 10, and then got a 30-day extension to
April 10. I have some very serious concerns about this course
of action, Mr. Fields. In 1999, the EPA--the Agency that you
represent--recommended to Congress that these wastes not be
regulated by RCRA. In fact, the report came out of your
department, Mr. Fields; your scientists reported that the
States were doing an adequate job in regulating and managing
these wastes. That report represents 19 years of research by
the EPA, and many of the scientists--I'll be asking you later
how many scientists you have in your department; you might be
thinking about that--but now this year, less than a year after
the report was submitted, I hear that you have proposed a rule
to OMB that would regulate these wastes as hazardous, and would
be making that determination, what, 10 days from now, I guess.
During many of the debates up here I have emphasized and
reemphasized the use of sound science. You can recall when we
did this during the ambient air fight that we went through.
Does that concept mean anything to the folks at EPA? I really
don't know. And the reason I ask is because I know there is a
serious problem when you can't even agree with a report that
your own Agency, your own scientists, released. I guess I don't
understand why you all keep doing this. We saw the same thing
in the ozone fight, and the EPA ignored CASAC, and that's 21
scientists, of which only 2 out of 21 scientists agreed with
Carol Browner on ambient air changes, and yet they are just
totally ignored. And these are scientists who were appointed
for that purpose from the private sector, who work in the
private sector, on a staggered basis--not Democrats, not
Republicans. Totally ignored.
We see it today with the MTBE and the EPA ignoring the Blue
Ribbon Panel and their recommendation. What makes the EPA think
these recommendations are just beyond consideration?
I am very concerned that issues like this seem to be taking
such a political tone. They are beyond scientific justification
because the scientists believe that these wastes should be left
to the States to regulate.
Let me just remind you of what your own report says on
pages 3 to 5, ``Subtitle (c) is inappropriate to address any
problems associated with disposal of these wastes, and the
continued use of site- and region-specific approaches by the
State is more appropriate for addressing the limited human
health and environmental risk that may be associated with the
disposal of these wastes.''
So let me just make one reference to the costs. It is my
understanding--I'm not sure it's your Agency I ought to be
asking this question--that came up with between $3.5 billion to
$5 billion, but that will be along the line of questioning that
I will have, and I'm going to talk about just what these costs
include and what they don't include.
So again, Mr. Chairman, I thank you for having this
hearing. I know this is a budget hearing, but I can tell you
right now if they go ahead and do what I think they're going to
do, that is going to affect the budget.
So I thank you very much for having this.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James Inhofe, U.S. Senator from the State of Oklahoma
Thank you Mr. Chairman. Let me take a minute to congratulate you
for holding your first hearing. I know that hearing took place last
week and I wasn't able to attend, but never-the-less, it is an
important milestone and you should be recognized for it. After the
first one, they only get easier.
Mr. Fields, thank you for appearing before the subcommittee today.
Now, as I know you are well aware, the EPA is under a court ordered
mandate to determine whether low level combustion wastes should be
regulated as hazardous waste under the Resource Conservation and
Recovery Act. Originally, the EPA was supposed to announce a
determination by March 10, but I understand that you were granted a 30-
day extension so the final determination from you isn't required until
April 10.
I have some serious, serious concerns about this course of action
Mr. Fields. In 1999, the EPA, the Agency that you represent,
recommended to Congress that these wastes not be regulated by RCRA. In
fact, this report came out of your department, Mr. Fields. Your
scientists reported that the States were doing an adequate job in
regulating and managing these wastes. That report represents 19 years
of research by the EPA. But now, this year, less than a year after the
report was submitted, I hear that you have proposed a rule to OMB that
would regulate these wastes as hazardous.
During many of the debates up here, I have emphasized and re-
emphasized the use of sound science. Does that concept mean anything to
you folks at EPA? The reason I ask is because I know there is a serious
problem when you can't even agree with a report that your own Agency,
your own scientists, release.
I guess I don't understand why you all keep doing this. We saw the
same thing in the Ozone/PM debate when the EPA ignored CASAC's
recommendations. We see it today with MTBE and the EPA ignoring the
Blue Ribbon panel and their recommendation. What makes the EPA think
that these recommendations are beyond your consideration?
I am angry that issues like this seem to be taking a political
tone. They are obviously beyond scientific justification because the
scientists clearly believe that these wastes should be left to the
States to regulate. Let me just remind you of what your report says. On
page 3-5 your scientists state that `` . . . Subtitle C is
inappropriate to address any problems associated with disposal of these
wastes and that the continued use of site and region specific
approaches by the States is more appropriate for addressing the limited
human health and environmental risks that may be associated with
disposal of these wastes.''
Finally, let's talk about cost for this regulation. Your Agency
concluded in the report that the total cost could be between $3.5 and
$5 billion, or even more. I know how these things work and I am
assuming that your numbers will fall far below the actual costs.
Thank you Mr. Chairman. I look forward to addressing these issues
in more depth during the question period.
Senator Chafee. Thank you, Senator.
Senator Crapo?
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. Thank you very much, Mr. Chairman. I, too,
appreciate your attention to these issues in holding these
hearings. Unfortunately, I have a speaking engagement that is
going to take me away immediately; I won't be able to be here
for the rest of the hearing, probably, but I do have folks here
watching it carefully, and we will be very focused on these
issues. It is very important to us that we address the budget
issues relating to the management of the funds that the EPA
utilizes, especially in these critical areas that you've
indicated, like Superfund and brownfields.
So I just wanted again to thank you for the hearing and
indicate that my failure to attend the rest of the hearing is
not because of lack of interest. I will be very interested in
the testimony that is presented here today.
Thank you.
Senator Chafee. Thank you very much for coming down and
showing your interest in these issues.
Senator Lautenberg is detained at a budget hearing and has
submitted a statement for the record.
[The prepared statement of Senator Lautenberg follows:]
Statement of Hon. Frank R. Lautenberg, U.S. Senator from the State of
New Jersey
Mr. Chairman, I thank you for the opportunity to review EPA's
budget for the Office of Solid Waste and Emergency Response in the
authorizing committee. And since I also sit on the Appropriations
Committee, these are issues I have long been interested in.
As you know, during the years I've served as the ranking Democrat
and before that, chair on this subcommittee, I've been very involved in
the programs under your purview, and I am proud to say that there have
been many accomplishments over the years.
Just about half of the Superfund sites on the National Priorities
List are completely cleaned up. And final cleanup plans have been
approved for more than 1,000 other sites. Over 90 percent of the sites
on the National Priorities List have cleanups underway or completed.
Now that Superfund is really hitting its stride, we need to keep
that momentum going.
I am extremely supportive of brownfields and the progress of the
brownfields assessment pilot projects. EPA has signed more than 300
agreements for brownfields assessment pilots. These, and other EPA
brownfields projects, are enhancing the abilities of communities all
across our nation to redevelop abandoned properties for productive
reuse.
The Underground Storage Tank Program has also made progress over
the years, and we have increasing evidence that this is a very
important program and critical to protecting our groundwater. For
example, from the beginning of the program in the late 1980's through
late 1999, approximately 400,000 leaks were detected, and approximately
230,000 cleanups were completed.
The RCRA program, addressing ongoing facilities has also been
vastly improved over the last few years, including the recent reforms
to the RCRA cleanup program. I applaud the Administration for proposing
additional funding for this program and hope it continues to get our
attention.
All of these programs have a tremendous influence on the health and
quality of life for our constituents. I am proud of the role we on this
committee have played in bringing these programs into law, and I am
committed to making sure that they are funded adequately.
Mr. Chairman, I look forward to an excellent presentation from
Assistant Administrator Timothy Fields and I thank him and the
committee for this opportunity to review the OSWER budget.
Thank you, Mr. Chairman.
Senator Chafee. And now, the Honorable Tim Fields, if you
could give the introduction to your budget?
STATEMENT OF HON. TIMOTHY FIELDS, ASSISTANT ADMINISTRATOR FOR
SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL
PROTECTION AGENCY
Mr. Fields. Thank you very much, Mr. Chairman, Senator
Inhofe, Senator Crapo. We appreciate the opportunity to be here
today to talk about the programs under our purview in the
Office of Solid Waste and Emergency Response within the EPA
that involve mainly the cleanup and waste management programs
within EPA. It is a pleasure to again be before this
subcommittee to discuss these important programs and, more
importantly, be able to respond to your questions about these
programs.
EPA's overall Agency budget is $7.3 billion, and it
reflects the Administration's priorities. For the programs
within the Office of Solid Waste and Emergency Response, I am
pleased to say that the President's budget provides the
necessary funding to continue the Agency's success in
protecting public health and the environment through the
Superfund, brownfields, Resource Conservation and Recovery Act,
and the Underground Storage Tank Programs, as well as other
program areas within environmental cleanup and waste
management.
Let me start with Superfund. The President's budget
requests $1.45 billion for the program, an increase of $50
million over the fiscal year 2000 enacted budget of $1.4
billion. The President's request will allow EPA to stay on
track to complete 900 toxic waste cleanups by the year 2002.
We believe the Superfund program has turned around and has
become a real success story. Roughly three times as many
Superfund sites have had cleanup construction completed in the
past 7 years than in all the prior 12 years of the program
combined. More than 92 percent of the sites are now in
construction completion or have cleanup construction under way.
More than 1,000 sites have all cleanup decisions already
approved. We have done more than 6,000 removal actions. We have
allowed 70 percent of the cleanup work to be done by the
responsible parties; 21,000 small party contributors have been
eliminated from Superfund liability, and $16 billion has been
provided by responsible parties to do the work of toxic waste
cleanup. We think that's a real success.
In brownfields, the budget provides for roughly $92 million
to fund the continued need to do brownfields assessments,
brownfields cleanup, and redevelopment activities to help take
the more than 450,000 brownfields sites across America and turn
them back into some productive use.
Third, the Resource Conservation and Recovery Act budget is
roughly $224 million for the fiscal year 2001 request, which is
a $17 million increase over the fiscal year 2000 budget. Most
of that increase goes to RCRA corrective action, and we believe
that is a major priority. We have begun to implement a series
of reforms to allow RCRA corrective action to be done in a more
accelerated, more efficient way. We think that's a major
priority that we share with this subcommittee.
Finally, the President's budget requests $91 million for
the Underground Storage Tank Program, with $72 million going
toward the Leaking Underground Storage Tank Trust Fund
expenditures to support EPA, the States, and the tribes in the
cleaning up of underground storage tank contamination.
Mr. Chairman, Mr. Inhofe, we believe the President's budget
continues to support our mission to protect public health and
the environment and our environmental cleanup and waste
management programs, while providing innovative funding to
improve the quality of life for communities throughout the
country. With the help of members of this subcommittee and
others, we have made tremendous progress in our efforts to
clean up sites and properly manage waste. However, although
tremendous progress has been made, much more still needs to be
done. That's why this fiscal year 2001 budget request is
important to continue this job and continue the momentum of
environmental cleanup and proper waste management.
That concludes my prepared remarks. I will be happy to
answer any questions that the subcommittee may have.
Senator Chafee. I know Senator Inhofe has an Armed Services
Committee meeting. Are you ready for coal ash and budget waste?
[Laughter.]
Senator Inhofe. Thank you very much.
First of all, Mr. Fields, let me thank you for the way that
you responded to the questions that we had back during the
propane hearing that we had--my committee did--because you
answered in a straightforward manner and very honestly, and it
wasn't an easy answer to give. I remember when I just asked you
point-blank, ``Do you consider propane to be a hazardous
substance,'' and you said, ``No.'' So I do appreciate that, and
I'm sure that you will be just as straightforward in this line
of questioning.
I understand that the EPA received a report from the
environmentalists regarding this new regulation--or
determination, I guess I should say. I would ask, first of all,
was there any new scientific evidence in that report?
Mr. Fields. The report provided additional damage cases
involving coal ash waste that we are still investigating. It
included comments and concerns about the management of certain
coal ash wastes, particularly in mine-filling of certain of
these wastes, as well as information about certain surface
impoundments that were not properly lined. That is information
that was contained in that report.
Senator Inhofe. Was there anything in that report that
contradicted what your own scientists came up with in their
report a year ago?
Mr. Fields. Well, it raised some new concerns. I want to
make sure I put this in context.
The report to Congress issued in March 1999 was, as the
report that you quoted from indicates, a tentative conclusion.
I've talked to the technical staff, the scientists who were
involved----
Senator Inhofe. Tentative conclusion?
Mr. Fields. Yes.
Senator Inhofe. You worked 19 years on it, and it's still
``tentative''?
Mr. Fields. Well, if you read the report, we say that it
was a tentative conclusion for comment. The March 1999 report
to Congress was a report where we reached a tentative
conclusion that we would not regulate certain coal ash wastes
under subtitle (c) of RCRA. We made clear that we would be
taking comment on that over the next 6 months. We said in that
report, as you recall, that this report and those
recommendations did not address mine-filling operations. We
said in that report that we did not have enough information to
conclude whether or not mine-filling waste should be regulated.
We indicated that we did not have sufficient information on
mine-filling, and we requested comment from the public on
whether or not mine-filling operations should be regulated
under subtitle (c).
Regarding what we know now versus March 1999, that report
you referred to from some of the environmentalists did provide
information on additional damage cases----
Senator Inhofe. Before getting into all this, let me just
ask you this. On that report that you were referring to that
came from the environmentalists, I have heard it is flawed, so
that implies to me that somebody has seen it; obviously, you've
seen it. My staff informs me they haven't seen it. This
committee's staff, apparently, has not seen it.
Mr. Fields. We'd be happy to share that with you.
Senator Inhofe. Well, yes, but with 10 days to go? This is
really disturbing to me, but let me go ahead.
I guess the next question I was going to ask is, was that
report available to the public and open for public comment?
Mr. Fields. The reports that we have received were in
response to comments that EPA requested from the public. I
don't know----
Senator Inhofe. No, no----
Mr. Fields.--I don't know----
Senator Inhofe. The procedure, Mr. Fields, is that you come
out with a report, then you have a comment period, you have
hearings--that's what I'm asking. Was this done?
Mr. Fields. I don't know whether that report----
Senator Inhofe. Well, if it were done, it would seem that
this committee would know something about it, unless our staff
is just grossly inadequate.
Mr. Fields. Well, we have received hundreds of comments
since March 1999 from a variety of parties, including----
Senator Inhofe. How about on this report? On this report?
On the environmentalists' report?
Mr. Fields. Well, we did not--we didn't seek comment on
anybody's comments. The comments came in from hundreds of
people----
Senator Inhofe. I think your answer is no.
Who were the groups who filed the report? Who made this
report?
Mr. Fields. Various environmentalist groups. I would be
happy to provide for the record----
Senator Inhofe. I think I have the list of them right here.
I'll just read the list that I have here, and you can tell me
whether or not you think that my list is accurate:
The National Environmental Trust;
U.S. PIRG, which is Public Interest Research
Group;
National Resources Defense Council;
Environmental Defense Fund;
The Clean Air Task Force; and
The Isaak Walton League. Does that sound right?
Mr. Fields. That sounds right.
Senator Inhofe. Let me ask you a question. Do these groups
receive any money from the EPA?
Mr. Fields. I don't know precisely----
Senator Inhofe. Could you ask your staff?
Mr. Fields. We don't know, sir. Certain environmental
groups do receive money from the EPA. I don't know whether U.S.
PIRG or NRDC are receiving funding.
Senator Inhofe. For the purpose of the hearing today, even
though I am sure you will supply that answer for the record, is
it safe to say that you cannot tell us at this time that they
do not receive funds from the EPA, grants or otherwise?
Mr. Fields. I cannot say that.
Senator Inhofe. All right.
Mr. Fields. You are correct. I cannot tell you whether they
are receiving funding from EPA.
Senator Inhofe. All right.
This study that we have was done by your scientists. How
many scientists do you have--I really don't know; I'm asking
for information----
Mr. Fields. Well, in terms of the scientists who have
actually been working on this fossil fuel issue, we have about
10 technical scientific staff who have been working on this
issue. I will be happy to provide for the record the names----
Senator Inhofe. You have about 10 staff scientists?
Mr. Fields. Right.
Senator Inhofe. OK. And they came out with this report?
Mr. Fields. Well, yes. They worked on that report, yes,
that came out in March 1999. Yes, sir.
Senator Inhofe. All right. Have you done any cost-benefit
analysis on the environmentalists' report?
Mr. Fields. We have factored that report into our review.
We looked at what that report had in it, versus other reports.
That was just one source of information. We still have not made
any final decision on----
Senator Inhofe. But if you make a decision predicated on
the recommendation of that report, it is very significant, I
would think, that you would want to answer to the affirmative
that you will have done cost-benefit analyses on that report.
Mr. Fields. Well, we will make sure that we do all the
appropriate analysis. We will assess the costs of any kind of
regulation that might be looked at. We will look at what the
benefits might be.
Senator Inhofe. Isn't that the cart before the horse a
little bit, Mr. Fields? I mean, if we say that we're going to
make, first of all, a declaration 10 days from today that is
going to declare that this substance is hazardous, and
therefore it's going to have to be treated differently, it's
going to have an effect on a lot of things like electrical
rates and all of that.
Mr. Fields. Right.
Senator Inhofe. And that's what I'm talking about in cost-
benefit analysis. Do you think it's prudent to do that before--
to make the declaration before we conduct that cost-benefit
analysis?
Mr. Fields. Well, Senator, I might just reply that we've
done a lot of analyses, like you said; a lot of study has been
done on this over many years. This began when I worked on that
sort of regulations back in 1986.
Senator Inhofe. Well, I'm aware of that. In fact----
Mr. Fields. We have estimates as to what the costs would
be. We have a lot of analyses that were done prior to any
comments from any parties, including that environmental group
that you referred to.
Senator Inhofe. Yes. I remember the Bevill amendment that
gave birth to all of this back in 1980; in fact, Tom Bevill and
I served together in the House of Representatives. I called and
talked to Tom Bevill this morning down in Alabama. He's
practicing law now; he's retired from the House. And he said,
``You mean nothing has happened to my amendment in 20 years?
Nothing has come from that?'' And he informed me that at that
time--he had the amendment, because they were actually going to
make this declaration before they had any scientific evidence.
So I said, how long did you think it would take for them to
make this determination? He said, ``Well, normally you do a
study, and in a year or two it's done.'' Now, that was Tom
Bevill in my conversation just this morning, and he was in
shock. So I know it's been around for a long time.
In my opening statement I used the range of between $3.5
billion and $5 billion. I'm not even sure where I came up with
that. Does that sound familiar to you as to the cost that this
would incur?
Mr. Fields. Those costs are high based on preliminary
estimates that I've seen. I've seen numbers up to around $1
billion in terms of the costs to industry of complying with
regulatory requirements under RCRA. I have not seen a cost as
high as $3.5 billion.
Senator Inhofe. When you make evaluations of costs like
that and come up with estimates, you are doing it internally,
is that correct?
Mr. Fields. Yes.
Senator Inhofe. I would remind you that back 3 years ago
when we started with Administrator Browner's proposed ambient
air changes and particulate matter and ozone, her cost estimate
first--not this committee, but the subcommittee that I chair on
air--it was $6 billion. Then just a short while later, the
President's Council on Economic Evaluations came up with $60
billion. And then the Reasoner Foundation out in California
came up with a range between $120 billion and $150 billion a
year. Now, if we apply that same thing to your $1 billion here,
it's getting pretty expensive.
I have to ask you, when you come up with a figure do you
consider what the capital costs to the facilities would be that
would result from this for retrofitting and so forth?
Mr. Fields. That is considered, yes, sir. But keep in mind,
Senator, that we have not implemented any regulatory program--
--
Senator Inhofe. I understand that. My concern is, we can
sit here and not talk about this and then find 10 days from now
that this declaration is made, and then we're going to start--
and in the meantime, what's going to happen to all this stuff?
Let me finish.
Retrofitting the leachate collection system--any
consideration for that?
Mr. Fields. Those impacts are being considered.
Senator Inhofe. How are they being considered, when you
came up with your estimate about approximately $1 billion? Is
that a part of that $1 billion?
Mr. Fields. Those were factored in, the cost of
retrofitting liners to surface impoundments, the cost of
upgrading landfill marking systems. That was all----
Senator Inhofe. All right. How about the cost of disposal?
The disposal of fly ash?
Mr. Fields. Yes.
Senator Inhofe. That's considered, too?
Mr. Fields. That's considered.
Senator Inhofe. What about the lost revenue from not being
able to sell this material, where it is currently being sold--
concrete, building roads--is that a part of the consideration?
Mr. Fields. Yes, sir. We believe--again, no decision has
been made there--certain coal combustion wastes that are being
used for beneficial uses would be able to continue, even if we
made certain determinations of what would be covered under
RCRA. Not everything would be covered.
Senator Inhofe. OK. Let me ask you this, then. If your
determination 10 days from now is that this is hazardous, and
that material is already existing in buildings and streets and
all that, would we need to perform remedial action on these
sites?
Mr. Fields. Like I said, we are looking carefully at the
reuse issue. I'm just saying that an option would be to exclude
certain reuse practices from a regulatory determination. That's
an issue we're looking at.
Senator Inhofe. Let me wind this up, Mr. Fields.
I know, Mr. Chairman, that I've taken more time than you
normally have in a round, but as you pointed out I do have my
Armed Services commitment that I have to make, have to keep.
The EPA, the DOE, the Army Corps of Engineers, the Federal
Highway Administration have all endorsed the use of coal
combustion products. Now, by regulating this as hazardous,
don't we create serious shortfalls in the use of this material
while we wait for utilities to ensure that no low-volume waste
is included in the high-volume waste? Isn't that going to be a
problem that we're going to have deal with?
Mr. Fields. Well, we would look at how we carefully
construct any regulatory determination if we decide to go with
subtitle (c), but we can make very clear that certain very
beneficial uses, like use as concrete and cement and roadbeds,
etc., could continue and not be included as hazardous waste.
Those practices would be excluded from any regulatory
determination. That is an option that we are considering.
Senator Inhofe. Are you aware that there is a bipartisan
letter that is circulating through the Senate, Democrats and
Republicans alike that are just as shocked as I am at the
procedure that has brought us to this point today?
Mr. Fields. I would not be surprised. We've gotten letters
already from members of both Houses of Congress, Senators as
well as Congressmen, Democrats as well as Republicans, on this
issue. I was not aware of that letter but that type of letter
does not surprise me.
Senator Inhofe. One thing I learned a long time ago, when
you see a train coming, you do everything you can at the last
minute. But you know, this train has been coming for 20 years
now. As I mentioned, I talked to Tom Bevill this morning; he
was as shocked as others out in the real world are, that he
could have an amendment and not have a response for 20 years.
To have something out there that we've had access to to
make a determination for 20 years, Mr. Chairman, and then we
find out that there's some report that this committee has not
read, that our staff hasn't read, Oversight hasn't read, and
yet if you follow that--you're not saying that you're going to
follow that recommendation and make that declaration 10 days
from now, but if you do, I can't imagine that--this is
unconscionable to think that you would base it on this, when
this, I repeat, contradicts what you have in this report right
here that came out of your own shop, only a year before. And it
can't be--if you're talking about a 20-year span, all these
findings that would have challenged the findings of your
scientists last year could not have happened in the last year
of a 20-year time span.
And so I would just conclude by saying that I know this is
an appropriations hearing, but I can tell you right now that if
that declaration is made, it's going to have an effect on the
appropriations. I don't know whether it's going to mean that if
you're not going to listen to your own scientists, that we
``de-fund'' those positions; I'm not sure how we'll have to
look at it. I will be talking to Ted Stevens about this, and we
will be anxious to see what your findings are on April 10.
Thank you, Mr. Fields.
Mr. Fields. I thank you.
Mr. Chairman, if I could just respond briefly, I thank you,
Senator Inhofe, for your comments. I assure you that any
decision we make by April 10--the current order is April 10--
will not be based on just that one report from the ``enviros.''
We have done a year's worth of analyses subsequent to March
1999. We looked at additional damage cases. We have looked at
surveys of waste management practices in various States----
Senator Inhofe. And you have considered also your own
scientists' report?
Mr. Fields. Right. And everything since that March 1999
report, those analyses of various State programs--we're looking
at whether or not coal ash should be regulated or not. That's
an open question. Even if we decide that certain parts of coal
ash should be considered for regulatory inclusion, certain coal
ash practices may be excluded from that determination; other
parts could be included. And that only means that we have
determined that we ought to consider developing a regulatory
proposal. That regulatory proposal then has to go through
several years of development of a proposal, notice and comment,
rulemaking----
Senator Inhofe. Except that in the meantime, you've got
this out there. What are you going to do with it?
Mr. Fields. If we made a regulatory determination that we
ought to consider developing a rulemaking, it has no impact----
Senator Inhofe. So you're saying then, in this meeting,
that if you make that determination, that there would be no
change in the treatment of fly ash and other comparable types
of materials----
Mr. Fields. Right. Absolutely not.
Senator Inhofe.--that they could continue to use them as
they are, that they could continue to use them as byproducts in
other substances?
Mr. Fields. That's true. That's true. The regulatory
determination does not in any way impact current practices for
this industry. It does not in any way----
Senator Inhofe. And it would not affect their current
disposal practices in any way?
Mr. Fields. It should not.
Senator Inhofe. Good. Thank you very much for that
clarification.
Mr. Fields. We will try to clarify this in writing further.
But no, that is definitely----
Senator Inhofe. No, that's clear enough. I don't want it in
writing; it might change.
[Laughter.]
Senator Inhofe. Thank you very much.
Mr. Fields. Thank you, Senator.
Senator Chafee. I will also just add that we are both
former Mayors, and as Mayor--Senator Inhofe was Mayor of Tulsa,
Oklahoma, and I was Mayor of Warrick, Rhode Island, and we had
EPA levels for asbestos in our schools being violated. And we
had to spend $2 million in our community, $2 million that we
couldn't afford, because EPA standards on asbestos were so
low--they said you could get the same levels of asbestos in the
air as if you stood on the street corner from brake linings,
and the chance of getting asbestosis was lower than getting
struck by lightning, by these levels of asbestos in schools. So
I think what Senator Inhofe is saying about it----
Senator Inhofe. Mr. Chairman, I think that's significant.
You and I both were Mayors. I tell my colleagues up here, if
you want a hard job, be a Mayor. There's no hiding place;
you're right out there where everybody knows. And we're having
a hearing in my Clean Air Subcommittee that is going to bring
the Mayors in, talk about the effects of these regulations.
Because as you know, the biggest problem that you dealt with in
being a Mayor was not necessarily crime or all these other
things; it was unfunded mandates, and that's what we're going
to try to correct from here.
Senator Chafee. Yes. So these are legitimate concerns, and
I appreciate your honest answers. As you know, as Senator
Inhofe said, this is a hearing on appropriations, but these are
important issues. So someday we will have to readdress those
asbestos standards. I think New York City went through a
similar asbestos crisis, generated by a long winter with the
windows closed. And I believe it was from the students with the
dirt and grime and the sand being put down for the icy
sidewalks, getting on the linoleum, with the asbestos in the
linoleum kicking up the fibers into the air. Then we tested and
came up high; the parents thought everyone was going to die. A
crisis ensued and we had to shut the schools for a week and go
through this cleanup, which I thought was a complete waste of
money and time. We should have just opened the windows and let
the air clean up from the outdoors.
But my question has to do with my appropriation for
brownfields, almost $92 million. Do you think that's enough to
address in the coming year all the cleanups we have to conduct
around the country?
Mr. Fields. We had requested $92 million, roughly the same
as we requested for fiscal year 2000. We believe that is what
we need to implement an effective program. It provides funding
for 50 Brownfields Assessment Demonstration Grants; 70
Brownfields Cleanup Revolving Loan Fund Grants; 10 Job Training
and Development Fund Grants; and provides approximately $10
million for our State Voluntary Cleanup Programs.
We have found historically that the proposed budget for
brownfields is what we need, based on the demand out there from
cities that are applying for brownfields assistance annually.
The funding proposal for State Voluntary Cleanup Programs is
the level of funding we have provided in the last 3 years. We
have found that the $90-plus million level for brownfields
overall is adequate to meet the brownfields needs of the local
governments and the States.
Senator Chafee. We'd have to take that money from your
scientists and put it into----
[Laughter.]
Senator Chafee. The last question I have is regarding MTBE.
Do you consider that level of funding to address the concerns
that have been raised, the leakage of MTBE into the
groundwater?
Mr. Fields. We are working carefully with the air program,
obviously. As you know, the Administrator announced recently
some actions she is taking to try to take MTBE out of the air.
We are obviously working very closely with the air program, and
we are working with the States. We are working in the States
through monitoring to determine how much MTBE is leaking from
underground storage tanks that we're out there assessing and
cleaning up.
We are finding that right now 85 percent of the underground
storage tanks are in compliance with our upgrade requirements
of December, 1998. We expect to be at 90 percent by the end of
the year. Studies that were done or supported by the University
of California at Davis found that for tanks that are properly
retrofitted, very low leakage occurs. Less than 1 percent of
the tanks that were properly retrofitted with the 1988
requirements, that had to be in place by December 22, 1998,
very low leakage is occurring. So, in those cases where people
have properly complied with our underground storage tank
regulations, we're not finding very much leakage of MTBE or any
other contamination.
We're hoping that we can bring the remainder of those tanks
over the next couple years so that we have roughly 100 percent
of the tanks in compliance. But what we're also doing on a
parallel track is, we are reviewing our current regulatory
requirements which were put into place 12 years ago. We're
looking, Senator, at whether or not we want to make any
modifications to those regulations to make sure that MTBE is
not causing unique problems that require a modification of the
regulations.
We are cleaning up tanks, with State assistance, with the
roughly $72 million that have been appropriated in the last 3
years, from the Leaking Underground Storage Tank (LUST) Trust
Fund. With that oversight money we are cleaning up roughly
21,000 leaking underground storage tanks a year. Many of those
include tanks that are leaking MTBE.
We do recognize that MTBE does cost more money to clean up
when it is in groundwater. It is more difficult to remove than
some of the other contaminants. So the cost of remediation does
go up. But the money that Congress provides to us for
underground storage tanks is not provided as cleanup dollars.
It is provided as oversight dollars for the States, primarily,
and the tribes, and EPA to oversee the cleanups that are being
done. The cleanups are done primarily by responsible parties
and by the States. Most of the funding for cleanup comes from
State assurance funds. The States annually accumulate about
$1.3 billion in cleanup dollars that they utilize to clean up
leaking underground storage tanks. That's where most of the
money that is utilized for underground storage tank cleanups,
including MTBE, comes from. However, we are cognizant of the
increasing threat posed by MTBE. That's why the Administrator
wants to get it out of the air as quickly as possible, so that
we don't have the problem of it getting into the groundwater.
We're trying to do all that we can to prevent it from getting
into the groundwater, and when it does get there, we think that
our LUST Trust Fund dollars that are being used to oversee
these cleanups will help States in making sure that MTBE
remediation does occur efficiently and effectively.
To respond directly to your question about the current
need, we think we have enough money for fiscal year 2001. We
are looking now, with our Air Office, as to whether or not we
want, in subsequent years--2002 and beyond--to seek additional
funding out of the LUST Trust Fund due to the additional threat
and new challenge posed by MTBE contamination.
Senator Chafee. Well, thank you very much.
Maybe just in conclusion, I suppose every Department
director that puts together a budget has regrets that there
wasn't more funding for certain areas. Assuming you're no
different, what areas do you especially regret not having more
money for as you put together this budget?
Mr. Fields. That's a good question.
One regret I have that has been a ``combination issue'' for
2 years, the 2000 and 2001 issue--I just can't divorce it--I
regret that we don't have what we really wanted to have for
Superfund for fiscal year 2000. That reverberates in 2001 and
2002, because I only have $1.4 billion in fiscal year 2000, and
that means that I will not be able to start about 15 new
construction site projects that I would like to have started
this year. That means that although for the last 3 years we
have achieved 85 or more construction completions, we believe
we can get 85 this year because construction is funded on a 2-
year cycle. You start a project 1 year and you finish it the
second year. Because I will not be able to start those projects
in fiscal year 2000 because of the $100 million budget cut, it
means that I will only be able to achieve an overall number of
construction completions which is about 75 constructions being
completed in fiscal year 2001.
My regret over the last year is that we have not had the
level of funding that we really need for Superfund, because I
would like to have been able to continue to do 85 or more
construction completions. I think everybody who lives around a
Superfund site wants to get that site cleaned up as quickly as
possible. So obviously a major priority of mine and this
Administration is to continue to do, with the resources we have
available, as many construction completions as we can do.
Within the limitations of the budget we have, we will produce
as many cleanups as we can under the Superfund Program.
Senator Chafee. Thank you very much, sir.
Mr. Fields. Thank you, Mr. Chairman.
Senator Chafee. Any other comments?
[No response.]
Senator Chafee. The meeting is adjourned.
[Whereupon, at 11:20 a.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Bob Smith, U.S. Senator from the State of New
Hampshire
Good morning. I would like to thank Senator Chafee for holding
today's oversight hearing on the President's fiscal year 2001 budget
request for the Office of Solid Waste and Emergency Response. As
chairman of the committee, I held the first of a series of oversight
hearings on EPA's hearings and asked that each of the subcommittee
chairmen followup with detailed hearings on the programs within their
jurisdiction. Senator Chafee's hearing today is a critical one in that
process.
I am particularly interested in looking at how EPA manages risk in
both the Superfund and RCRA programs. In past years, I often questioned
the level of funding for the Superfund program, the cost of Superfund
cleanups, the slow pace of cleanups, and the relative lack of attention
to or funding for RCRA corrective action cleanups. It seemed to me
then, and it still does, that EPA invests too much of its limited
resources on Superfund remedial actionsites, as compared to other
remediation programs that yield more risk reduction per dollar
invested, such as RCRA corrective action and the Superfund removal
program.
Similarly, on the RCRA corrective action side, hundreds of
thousands of sites aren't being cleaned up because EPA's regulations
would require expensive cleanups that are not necessary because of the
low risk involved at most of these sites. The bottom line is that we're
spending too many of our limited resources on cleanups without
targeting the greatest risks. EPA's approach seems to be technology
driven, rather than risk driven. We need a better system to prioritize
the use of funds and resources. I hope to do just that through these
kinds of oversight hearings and then later through an EPA authorization
bill.
I also plan to take the first legislative step toward a risk-based
approach to cleanup by releasing a remediation waste bill. The
committee has been working for 2 years now to craft a bill that will
make it easier and less costly to remediate old dirt. The bill would
facilitate the cleanup of 6,000 hazardous waste sites, and 450,000
brownfields sites across the country, removing regulatory obstacles
under RCRA that act as a disincentive to cleanup and helping target
resources on the sites that present the greatest risk. My goal is to
ensure that more of these sites get cleaned up. I believe that EPA
shares that goal and hope that we will be able to work together to
improve the RCRA corrective action program and bring back these
contaminated sites into productive use.
To the extent that EPA has requested additional funds for these
sites through the RCRA corrective action program, I applaud that. I
remain concerned, however, that the funds requested are still not
enough to address high priority risks or even the Agency's GPRA goals.
I'll look forward to hearing Mr. Fields address that issue.
I have been working for years to achieve reform in the Superfund
Program; however, I recognize that there are numerous issues still
outstanding. I will note that the funding requested for the Superfund
program is $1.45 billion which is more than the whole budget requested
for OSWER. We need to set priorities for the money appropriated to EPA
to implement Superfund. If we can't reach consensus on Superfund
reform, we should ensure that the money appropriated actually goes to
cleanup instead of administrative costs.
I look forward to hearing about the Office of Solid Waste and
Emergency Response budget request for fiscal year 2001 and hope to work
with you in setting priorities for the coming years.
______
Statement of Timothy Fields, Jr., Assistant Administrator, Office of
Solid Waste and Emergency Response, U.S. Environmental Protection
Agency
Introduction
Good morning, Mr. Chairman and members of the subcommittee. I am
pleased to have this opportunity to appear before you today to discuss
the state of EPA programs. I will give a brief overview of the Agency's
fiscal year 2001 budget and address the current status and future
direction of the Superfund, Resource Conservation and Recovery Act
(RCRA), brownfields, and Underground Storage Tank (UST) programs.
EPA and its partners have made significant strides in providing
some of the best environmental and public health protections in the
world, while maintaining a strong economy. Building on this record of
success, the fiscal year 2001 budget charts a course designed to meet
the environmental challenges of the 21st century. The President's
fiscal year 2001 budget for EPA requests a total of $7.3 billion to
protect public health and the environment. It builds on environmental
progress made under the Clinton-Gore Administration and addresses our
country's greatest environmental challenges, such as, providing our
children and communities with cleaner air, cleaner water, cleaner
lands, and improved quality of life. Major environmental initiatives
and on-going priorities include:
Cleaner Water. The budget provides $762 million for the
Administration's Clean Water Action Plan, with an additional $22
million in related spending, designed to finish the job of cleaning up
America's waters. These funds will ensure that Federal agencies,
States, tribes, and local communities can work together in
unprecedented ways to improve access to environmental information,
enhance natural resource stewardship, protect public health, and
restore the full use of America's lakes, rivers and bays.
Cleaner Air. The President is requesting $215 million in
fiscal year 2001 to support partnerships with States, tribal
governments and local communities so that we collectively can work
together to improve air quality across the nation. $85 million is
requested for the Clean Air Partnership Fund to provide a magnet for
local innovation and investment in clean air. The President's request
also includes $227 million for the Climate Change Technology Initiative
to expand voluntary programs that save energy costs and reduce global
warming.
Protecting our Children. The President's fiscal year 2001
budget for EPA provides $68 million for children's health, in order to
target environmental threats to children such as lead contamination and
air pollution that causes asthma. $75 million also is dedicated to
implementation of the Food Quality Protection Act, which for the first
time sets food safety standards designed specifically to protect
children.
Providing for Communities. The Information Integration
Initiative, which is funded by $30 million in the President's fiscal
year 2001 budget, represents a fundamentally new approach to ensuring
broad and immediate public dissemination of environmental data through
the Internet and by other means. The Better America Bonds initiative is
an innovative financial tool to provide communities with the resources
necessary to address problems like brownfields, threatened water
quality, shrinking parkland, and traffic congestion. Through $690
million in tax credits over 5 years, Better America Bonds will support
$10.8 billion in bond authority over 5 years for investments by State,
local, and tribal governments.
These innovative and cost-effective approaches to the protection of
public health and the environment for all Americans and their
communities represent an important investment in the 21st century.
Office of Solid Waste and Emergency Response
EPA plays a critical role both in preventing and responding to
waste-related or hazardous substance releases. The Superfund,
brownfields, RCRA and UST programs share an important common goal of
ensuring that America's wastes will be managed and cleaned up in ways
that prevent harm to people and to the environment. As EPA cleans up
previously polluted sites, the Agency works to assist surrounding
communities in restoring them to appropriate uses. I am pleased to
report to the subcommittee on the significant progress we have made in
achieving our goals for these programs under the Government Performance
and Results Act.
Superfund Program
The Administration is requesting $1.45 billion in discretionary
budget authority and $150 million in mandatory budget authority in
support of the Superfund program for fiscal year 2001. The Agency and
its State and tribal partners have achieved significant progress in
cleaning up hazardous waste sites. More than three times as many
Superfund sites have had construction completed in the past 7 years
than in all of the prior 12 years of the program combined. As of March
7, 2000, 92 percent of sites on the final NPL are either undergoing
cleanup construction (remedial or removal) or are completed. More than
1,000 NPL sites have final cleanup plans approved, and approximately
6,000 removal actions have been taken at hazardous waste sites to
immediately reduce the threat to public health and the environment.
Responsible parties continue to perform approximately 70 percent of new
remedial work at NPL sites, and more than 32,000 sites have been
removed from the Superfund inventory of potentially hazardous waste
sites in order to help promote the economic redevelopment of these
properties.
Environmental indicators show that the Superfund program continues
making significant progress, reducing both ecological and human health
risks posed by dangerous chemicals in the air, soil, and water. The
Superfund program has cleaned over 232 million cubic yards of hazardous
soil, solid waste and sediment, and over 349 billion gallons of
hazardous liquid-based waste, groundwater, and surface water.
The Superfund Administrative Reforms have been successful in
ensuring a fairer, more effective, and more efficient program. Among
the noteworthy achievements are: 43 site decisions have been reviewed
by the National Remedy Review Board, resulting in an estimated savings
of $70 million; 300 remedies have been updated based on changes in
science and technology, resulting in a projected savings of over $1.4
billion; more than 300 projects have been evaluated since the
establishment of the Risk-Based Priority Panel; and Community Advisory
Groups have been established at 51 non-Federal sites (more than 100
already exist at Federal facilities).
In fiscal years 2000 and 2001, the Superfund program will continue
to emphasize the completion of construction at NPL sites and the use of
removal actions to protect human health and the environment. Although
EPA will maintain its current construction completion goal of 85 sites
for fiscal year 2000, the goal will be 75 sites in fiscal year 2001.
The cumulative cleanup target for construction completions by the end
of 2001 is 830. The President's goal of 900 construction completions is
still scheduled to be achieved by the end of fiscal year 2002. The
fiscal year 2001 construction completion target is principally a
consequence of the $100 million reduction (from $1.5 billion to $1.4
billion) in fiscal year 2000. The fiscal year 2001 budget request for
Superfund reflects tough choices the Administration had to make in
balancing its environmental priorities and fiscal responsibility.
The President's fiscal year 2001 budget requests reinstatement of
all Superfund taxes (including excise taxes on petroleum and chemicals,
and a corporate environmental tax). The Superfund tax authority expired
December 31, 1995. The Trust Fund balance (unappropriated balance) was
roughly $1.5 billion at the end of fiscal year 1999 and if the
Superfund taxes are not reinstated, the Fund balance is projected to be
$200 million at the end of fiscal year 2001. The President's budget
also requests $150 million in mandatory budget authority to pay for
orphan shares at Superfund sites.
Brownfields Initiative
The Agency is requesting $91.7 million in fiscal year 2001 to
support the Brownfields Initiative. This initiative empowers States,
local governments, communities, and other stakeholders interested in
environmental cleanup and economic redevelopment to work together to
prevent, assess, safely clean up, and reuse brownfields. Brownfields
are abandoned, idled, or under-used industrial and commercial
properties where expansion or redevelopment is complicated by real or
perceived contamination. The General Accounting Office has estimated
that there are over 450,000 brownfields properties across America.
Since EPA Administrator Carol Browner announced the Agency's
Brownfields Initiative on January 25, 1995, significant results have
already been achieved. The Agency has awarded 307 assessment pilots to
local communities. These pilots have resulted in the assessment of
1,687 brownfields properties, cleanup of 116 properties, redevelopment
of 151 properties, and a determination that 590 properties did not need
additional cleanup. The Brownfields Initiative has also generated
significant economic benefit for communities across America. To date
1,580 cleanup jobs and 4,300 redevelopment jobs have been generated as
a result of the program. In addition, pilot communities have already
reported a leveraged economic impact of over $1.8 billion.
In fiscal year 2000, the Agency will fund as many as 50 additional
Brownfields Site Assessment Demonstration Pilots for up to $200,000
each. In addition, EPA will provide funding to 50 existing Brownfields
Site Assessment Demonstration Pilots for up to $150,000 each for
continuation and expansion of their brownfields efforts. In fiscal year
2001, the Administration has requested $8 million to provide
supplemental funding and technical support to 40 assessment pilots at
up to $200,000 each. New and ongoing pilots will continue to provide
EPA, States, local governments, and federally recognized Indian tribes
with useful information and new strategies for promoting a unified
approach to environmental site assessment and characterization, and
redevelopment. These demonstration pilots are estimated to address 5 to
15 potentially contaminated properties in the participating
communities.
The Agency has developed a ``second-stage'' type of brownfields
pilot program, known as the Brownfields Cleanup Revolving Loan Fund
(BCRLF) Pilots. These pilots are designed to enable eligible States,
Tribes and political subdivisions to capitalize revolving loan funds
for use in the cleanup and reuse of brownfields. To date, 68 BCRLF
pilots have been awarded. These pilots represent 88 communities and
include pilot awards to individual eligible entities and coalitions.
Three BCRLF loans have been made. The Agency has requested funding to
support more BCRLF pilots in fiscal year 2001
The centerpiece of the Brownfields National Partnership is the
Brownfields Showcase Communities project. Under this program, the
Federal partners designated 16 communities in 1998 to serve as national
models demonstrating the benefits of collaborative activity to clean up
and redevelop brownfields. The Partnership is providing a range of
technical, financial, and staffing support, depending on the particular
needs of each community. These showcases are beginning to yield
results, and the Federal partners are planning to designate an
additional 10 new Showcase Communities in fiscal year 2001.
In fiscal year 2001, EPA will continue to implement its Brownfields
Job Training Pilot program to help local citizens take advantage of the
new jobs created by assessment and cleanup of brownfields. To date, EPA
has awarded 21 pilots to community-based organizations, community
colleges, universities, States, tribes, political subdivisions and non-
profit groups. The Agency plans to award 10 additional pilots in fiscal
year 2001.
RCRA Program
The Administration is requesting $224 million to support the RCRA
program in fiscal year 2001. The RCRA program protects human health and
the environment from hazardous wastes by reducing or eliminating the
amount of waste generated, and encouraging waste recycling and
recovery; ensuring that wastes are managed in an environmental safe
manner, and cleaning up contamination resulting from past mismanagement
of industrial wastes.
Some of the efforts the Agency is planning for 2001 for waste
minimization are to continue to provide leadership, technical
assistance and support for recycling and source reduction through
voluntary programs such as our WasteWise and Jobs Through Recycling
programs. In 1998, the fifth year of the program, WasteWise partners
reduced over 7.7 million tons of waste through prevention and
recycling.
In 2001, EPA plans to remove barriers to recycling through efforts
such as our streamlined regulations for recycling lead-contaminated
cathode ray tubes found in many electronic products. The Agency will
help improve the market for products made from recycled materials by
developing guidelines for Federal and State purchasing of these
products. And, EPA will focus waste minimization on persistent,
bioaccumulative and toxic (PBT) chemicals in hazardous wastes.
In the area of safe waste management, EPA has a number of efforts
planned for 2001, such as examining whether to regulate certain wastes
from the inorganic chemical and paint industries. The Agency is also
developing concentration-based exemptions to exclude lower risk wastes
from hazardous waste regulation, and is studying the impact of waste
management units such as surface impoundments, and developing guidance
for the management of non-hazardous industrial solid wastes. EPA is
working to improve test methods and streamline permitting requirements,
and is re-examining requirements for ``hard-to-treat'' wastes such as
mercury, arsenic and other toxic heavy metals.
The RCRA Corrective Action Program is the cleanup program under
RCRA, and is administered by EPA and authorized States. Approximately
3,500 facilities must undergo RCRA cleanup. The focus is currently on
the 1,714 highest priority facilities, where people or the environment
are likely to be at significant current or potential risk. In July
1999, EPA announced a series of RCRA reforms that are already producing
faster and more flexible cleanup actions. Specifically, the cleanup
reforms reduce impediments to achieving effective and timely cleanups,
enhance State and stakeholder involvement, and encourage innovative
approaches. However, as progress is being made, the Agency is beginning
to address increasingly complex cleanups. The Administration's fiscal
year 2001 request includes additional resources that are absolutely
necessary to implement these reforms, and to stay on track to meet the
goals. Most of the increase will go to State implementors.
The Agency has been a leader in working with tribes on
environmental issues. Waste management, particularly open dumps, is a
significant environmental concern for tribes across the country. In
fiscal year 2001, EPA will provide funding and technical assistance to
at least 10 tribes to assist them in developing and implementing solid
waste management programs, and closing their open dumps. EPA will also
continue to provide assistance for hazardous waste management.
Finally, since the RCRA program is predominantly implemented by
authorized States, one of the Agency's highest priorities continues to
be providing funding and assistance to State programs, and working with
States to remove any Federal barriers to making progress in State solid
and hazardous waste programs.
Underground Storage Tank Program
The Agency is requesting $90.9 million in fiscal year 2001 to
support Underground Storage Tank (UST) and Leaking Underground Storage
Tank (LUST) programs. Of this amount, $18.8 million will support EPA,
the States' and tribal UST programs in reducing the annual number of
confirmed releases for USTs, and $72.1 million will support EPA, the
States and tribes to clean up LUST contamination.
The Agency's goal is to prevent, detect, and correct leaks from
USTs containing petroleum and hazardous substances. The strategy for
achieving this goal is to promote and enforce compliance with the
regulatory requirements aimed at preventing and detecting UST releases
and taking corrective action where necessary.
EPA and States have made significant progress in addressing the UST
problem. For example, since the inception of the UST program in the
late 1980's, more than 1.3 million substandard USTs have been closed.
As a result of those closures, these tanks are no longer sources of
actual or potential leaks which could contaminate groundwater and soil.
Currently, the Federal UST requirements apply to approximately 760,000
active USTs. From the beginning of the program through the end of
September 1999, approximately 400,000 releases have been discovered
from tanks and approximately 230,000 cleanups have been completed. In
fiscal year 2001, EPA expects to complete approximately additional
21,000 cleanups.
EPA will continue to work with the States in fiscal year 2001 to
increase the compliance rate with the spill, overfill, and corrosion
portion of the regulations which require all substandard USTs be
upgraded, closed, or replaced. These regulations have improved the
quality of USTs, which is leading to a reduction in the number of new
releases, and the States and EPA are continuing inspections and
enforcement efforts, striving to reach 90 percent compliance by the end
of fiscal year 2000 and 99 percent by the end of fiscal year 2003.
EPA will also continue to work with the States to improve the
compliance rate with the leak detection requirements. One of EPA's
highest priorities for fiscal year 2001 is to work in conjunction with
the States, undertaking a major multi-year effort to increase owners'
and operators' compliance rates with the leak detection requirements.
This will include compliance assistance, inspections, and enforcement.
Conclusion
EPA's priorities and budget request for fiscal year 2001 focus on
the importance of building strong and healthy communities for the 21st
century. I believe this goal holds particularly true for the cleanup
programs described in my testimony today. The fiscal year 2001 budget
reflects the Administration's continuing commitment to address
environmental problems posed by Superfund sites, brownfields
properties, RCRA facilities and LUSTs. Environmental problems don't
just exist in the abstract; they affect thousands of communities across
the Nation. While we have made great progress in addressing these
environmental problems, more needs to be done.
______
Responses by Timothy Fields to Additional Questions from Senator Smith
Question 1a. There is accumulating evidence that the Superfund
National Priorities List cleanup program is ``ramping down'' or will do
so soon. For example, the General Accounting Office reported in October
1999 that 545 sites will be completed between 1999 and 2008. Since the
Agency is removing 85 sites per year and adding about 30 sites, for a
net reduction of about 55 sites per year, why is the Superfund budget
request increasing instead of decreasing especially considering that
the majority of the sites on the NPL will be coming to completion by
2008?
Response. The budget for fiscal year 2001 maintains EPA's pace to
achieve 900 completions by the end of fiscal year 2002. EPA expects to
list approximately 40 NPL sites in fiscal year 2000, roughly the same
number as the Agency listed in 1999. Our workload remains steady as we
continue work at ongoing sites, and as a result of the approximately 40
new sites added to the NPL each year. While EPA has achieved 685
construction completions as of 4/25/00, more than 500 sites will not be
construction complete by fiscal year 2003. The workload at these sites
covers all pipeline activities, and steady funding is required to
continue our current pace of cleanup. It is important to continue
funding for all phases of the remediation pipeline, including funding
necessary at sites after ``construction completion'' in order to ensure
proper post-cleanup management.
Question 1b. What are the Agency's current plans for NPL listing?
Response. EPA expects to list approximately 40 NPL sites in fiscal
year 2000, roughly the same number as the Agency listed in 1999. EPA
and most States view the NPL as one among a number of options for
cleaning up hazardous waste sites and releases. In addition to Federal
actions at NPL sites, sites are being cleaned up by States using
enforcement actions, voluntary cleanup programs, and State cleanup
funds. EPA is addressing others sites through Fund-lead removals,
through enforcement actions under CERCLA, and under other environmental
statutes. One common theme among many of these cleanups is that the
alternative of NPL listing is often important to inducing cleanups by
the responsible parties.
Question 1c. When is the program anticipated to have a decrease in
funding needs commensurate with the net decrease in sites listed on the
NPL?
Response. EPA believes that funding levels consistent with the
current budget request will be required for at least the next 5 years.
Given current site completion projections, EPA will still have the
responsibility for cleanup work at over 500 existing NPL sites in
fiscal year 2003. At the same time, EPA will continue to need resources
to clean up sites newly listed on the NPL. As before, we will focus any
listing decisions on those sites that States agree should be added to
the NPL--such as those that have recalcitrant PRPs or where cleanup is
needed and is not occurring. In recent years, State governments have
requested that EPA add over 170 new sites to the NPL. We listed 43
sites on the NPL in 1999, and this year we expect to list roughly the
same number.
Predicting the resource needs for the Superfund program beyond 5
years is much more difficult. The pace of cleanup will be substantially
affected by the resources appropriated during the next 5 years for the
Superfund program. We already anticipate that the fiscal year 2000
budget cut to the Superfund program will have an impact on future
funding needs. Funding needs will depend greatly on the number and
character of sites requiring a Federal Government role in cleanup. As
States, PRPs, and EPA further enhance their abilities to achieve
successful cleanups at sites without resorting to NPL listing, a larger
proportion of Federal cleanup resources may be needed for these cleanup
activities.
Question 2. Several years ago, EPA proposed and then withdrew a
Voluntary Cleanup Guidance effort for the States. The issue that caused
the negotiation of the guidance to break down was how to address
finality for State decisions. Does the Agency plan any further efforts
to revive such a guidance?
Response. You are correct that on November 25, 1997, EPA withdrew
draft guidance on developing Superfund Memoranda of Agreement (MOAs)
concerning State voluntary cleanup programs (VCPs). At the time the
draft guidance was withdrawn, EPA Regions were asked to continue to
work with their States to support effective State VCPs, including
entering into VCP MOAs. Since November 1997, EPA and States have signed
an additional three Memoranda of Agreement, which brings the total
number of signed MOAs regarding State VCPs to fourteen. EPA plans to
continue negotiating VCP MOAs under the current process. EPA Regions
are advised to look to the November 14, 1996, memorandum entitled
``Interim Approaches for Regional Relations with State Voluntary
Cleanup Programs'' as a framework for these negotiations. EPA has no
plans to revive the draft guidance that was withdrawn at the end of
1997.
Question 2a. If so, how does the Agency intend to address the issue
of State finality?
Response. As stated in the response to Answer 2 above, EPA has no
plans to revive the draft guidance that was withdrawn at the end of
1997. EPA plans to continue negotiating VCP MOAs under the current
process.
Question 3a. Is the EPA Brownfields Program specifically authorized
by an Act of Congress?
Response: The Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA) section 104 grants the President broad
authority (delegated to the EPA Administrator) to take response actions
whenever there is a release or substantial threat of release of
hazardous substances, and permits the EPA Administrator to undertake
certain investigative and planning activities deemed necessary and
appropriate to plan and direct response actions. These are the
authorities EPA uses to provide cooperative agreements to assist
States, political subdivisions, and Indian Tribes in assessing
(brownfields assessment pilots) and/or cleaning up brownfields
facilities by capitalizing revolving loan funds (Brownfields Cleanup
Revolving Loan Fund Pilots). CERCLA section 311(b) authorizes EPA to
conduct a training program in which participants are trained in the
procedures for the handling and removal of hazardous substances
(Brownfields Job Training Pilots). EPA's Office of General Counsel
(OGC) has provided legal opinions in each of these Brownfields Pilots
areas. The detailed OGC opinions are attached.
______
July 7, 1994.
MEMORANDUM
SUBJECT: Legal Authorities to Conduct and Fund ``Brownfield'' Projects
FROM: Earl Salo, Assistant General Counsel for Superfund, Solid Waste
and Emergency Response Division
TO: Marjorie Buckholtz, Director Office of External Relations Office of
Solid Waste and Emergency Response
You have asked for our opinion on whether CERCLA \1\ provides legal
authority to fund various ``brownfield'' pilot projects. While
brownfield projects will vary in the methods and activities
implemented, their ultimate objective remains the same--to return
contaminated inner city properties to productive use. It is our
understanding that the sites productive for inclusion under the
``brownfield'' projects program present either an actual, threatened or
suspected release of a hazardous substance for which the various
section 104 response authorities could, as appropriate, be invoked
(section 104(a) requires a release, or threatened release, while
section 104(b) provides authority to act whenever there is a reason to
believe a release has occurred or is about to occur.\2\
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\1\ Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), 42 U.S.C. 9601, et seq., as amended by
the Superfund Amendments and Authorization Act of 1986 (SARA), P.L. 99-
299.
\2\ Sections 104 and 111 allow EPA to address pollutants and
contaminants as well as hazardous substances. This memorandum, however,
addresses only hazardous substances.
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If the activities proposed under a ``brownfield'' project are
authorized under section 104, they would be appropriate for a section
104(d)(1) contract or cooperative agreement, and may be funded by the
Superfund.
Section 104 Authorities
Section 104(a) grants the President \3\ broad authority to take
response actions whenever there is a release or substantial threat of a
release of hazardous substances. The Administrator may:
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\3\ The President has delegated these authorities to the
Administrator through Executive Order 12580, section 2(g), dated
January 23, 1987.
``remove or arrange for removal . . . provide for remedial action .
. . or take any other response measure consistent with the National
Contingency Plan [NCP] . . . deem[ed] necessary to protect the public
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health or welfare or the environment.'' (emphasis added)
Section 101(23) defines removal actions to include, without
limitation:
such actions as may be necessary to monitor, access, and evaluate
the release or threat of release of hazardous substances, disposal
of removed material . . . security fencing or other measures to
limit access, provision of alternative water supplies, temporary
evacuation and housing of threatened individuals not otherwise
provided for action taken under section 104(b) of this title, and
any emergency assistance which may be provided under the Disaster
Relief and Emergency Assistance Act [41 U.S.C.A. Sec. 5121 et seq.]
While section 101(24) defines remedial actions to include:
those actions consistent with permanent remedy taken instead of or
in addition to removal actions . . . such actions at the location
of the release as storage, confinement, perimeter protection using
dikes, trenches, or ditches, clay cover, neutralization, cleanup of
released hazardous substances and associated contaminated
materials, recycling or reuse, diversion, destruction, segregation
of reactive wastes, dredging or excavations, repair or replacement
of leaking containers, collection of leachate and runoff, onsite
treatment or incineration, provision of alternative water supplies,
and any monitoring reasonably required to assure that such actions
protect the public health and welfare and the environment. The term
includes the costs of permanent relocation of residents and
businesses and community facilities . . . offsite transport and
offsite storage, treatment, destruction, or secure disposition of
hazardous substances and associated contaminated materials.
Section 104(b) permits the Administrator to:
``undertake such investigations, monitoring, surveys, testing and
other information gathering as he any deem necessary or
appropriate. . . In addition the [Administrator] may undertake such
planning; legal, fiscal, economic, engineering, architectural, and
other studios or investigations as he may deem necessary and
appropriate to plan and direct response actions . . . .''
This authority is triggered where the Administrator is authorized
to act under section 104(a) or when the Administrator has reason to
believe that a release has occurred or is about to occur. \4\
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\4\ The authorities in section 104(b) relating to ``illness,
disease, or complaints thereof'' have delegated to the Secretary or
Health and Human Resources. E.O. 12580, section 2(a) (Jan. 23, 1987).
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``Brownfield'' project proposals submitted to the Agency cover a
broad spectrum of activities. One project proposes acquiring an
abandoned industrial and railway site, removing existing structures,
remediating any environmental hazards and developing a comprehensive
civic, municipal services and recreation complex in the center of the
community. Another pilot project proposes setting up a ``brownfields''
policy development forum, creating an electronic ``brownfields''
catalog, and conducting economic analysis of specific sites. Several
other projects propose educating stakeholders about the Superfund
process, developing a mechanisms to involve community leaders in the
site screening and selection process, and forming strategies to remove
environmental and financial barriers to development. These general
activities should be evaluated on a case by case basis to determine
whether they constitute response actions authorized under section 104.
Section 104(d) Cooperative Authorization Criteria
Section 104(d)(1) authorizes the award of contracts or cooperative
agreements to States, political subdivisions, or Indian tribes to carry
out actions authorized in section 104. Through cooperative agreements,
EPA would be authorizing a State, political subdivision, or Indian
tribe to undertake activities that EPA itself has the authority to
pursue under sections 104(a) or 104(b), thus satisfying the
requirements of section 104(d)(1).
However, before a contract or cooperative agreement is awarded, the
applicant must satisfy the eligibility criteria of section 104(d) and
40 CFR Part 35, Subpart O.
Use of Superfund to Support ``Brownfield'' Projects
Section 111 of CERCLA specifies the purposes for which the
Superfund any be used, and supports the use of the Superfund for the
section 104(d)(1) cooperative agreements. Section 111(a)(1) authorized
the ``[p]ayment of governmental response costs incurred pursuant to
section 104 of CERCLA. The proposed ``brownfield'' projects would
qualify for such funding where the activities involved, as described
above, constituted response actions.
We note that, under the NCP, the Superfund cannot be used to pay
for remedial actions at non-NPL sites. See 40 CFR Sec. 300.425. Thus,
the Agency must ensure that any Superfund money provided through any
cooperative agreement not be used for remedial action at non-NPL sites.
\5\ Since the ``brownfield'' project proposals cover a spectrum of
sites and activities, the Agency must be mindful of this limitation in
accepting applications, and entering into cooperative agreements for
those projects.
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\5\ This limitation on Superfund use does not apply to removal
actions (including pre-remedial actions, such as PA/SI RI/FSs, RD, and
other section 104(b) activities.
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Conclusion
Our analysis is limited to the authorities available to conduct,
under section 104, and fund, under section 111, proposed ``brownfield''
projects. We would be happy to provide you and your staff with more
specific advice on individual projects.
Please contact me at 202-260-7698, or Rich Albores of my staff, at
202-260-7981 should you have any, comments or additional questions.
______
U.S. Environmental Protection Agency,
Office of General Counsel,
Washington, DC 20460, April 25, 1997.
ATTORNEY-CLIENT PRIVILEGED
MEMORANDUM
SUBJECT: Legal Authority to Provide Financial Assistance to Capitalize
Brownfields Revolving Loan Fund Programs
FROM: Stephen G. Pressman, Assistant General Counsel, Finance and
Operations Division (2377)
TO: Linda Garczynski, Director, Outreach/Special Project Staff, Office
of Solid Waste and Emergency Response (5101)
You have asked whether CERCLA \1\ provides legal authority to award
cooperative agreements to assist States, political subdivisions, and
Indian Tribes (``CA recipients'') in cleaning up brownfields facilities
by capitalizing revolving loan funds (RLFs). It is our understanding
that the CA recipients will loan RLF moneys to public and private
parties, such as non-profit community development corporations, for-
profit companies, and similar organizations, to conduct environmental
response activities (specifically, removal actions) at brownfields
facilities.
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\1\ CERCLA is the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. 9601, et seq., as
amended.
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Under CERCLA Sec. 104(d)(1), EPA may enter into cooperative
agreements with States, political subdivisions, and Indian tribes to
carry out environmental response activities at brownfields facilities.
It is our opinion that CA recipients may carry out such response
activities by means of RLFs capitalized with CA funds, as described
below.
Use of Funds to Carry Out Removal Activities
CERCLA Sec. 104(d)(1) authorizes EPA to award cooperative
agreements to States, political subdivisions, or Indian tribes to carry
out actions authorized in Sec. 104. The July 7, 1994 Memo, ``Legal
Authorities to Conduct and Fund `Brownfield' Projects'' (Earl Salo to
Marjorie Buckholtz), provides a complete discussion of EPA's authority
under CERCLA to support environmental response activities at
brownfields sites.
As that memo explains, CERCLA Sec. 104(a) provides broad authority
to take response actions whenever there is a release, or substantial
threat of release, of a hazardous substance \2\, or pollutant or
contaminant \3\, including the authority to ``remove or arrange for
removal . . . [of] such hazardous substance, pollutant, or contaminant
. . . consistent with the National Contingency Plan . . . .''
``Removal'' is defined in CERCLA Sec. 101(23). This definition includes
actions taken pursuant to CERCLA Sec. 104(b)(1); if EPA is authorized
to act pursuant to CERCLA Sec. 104(a) or has reason to believe that a
release has occurred or is about to occur, EPA may, under
Sec. 104(b)(1), undertake ``investigations, monitoring, surveys,
testing, and other information gathering,'' and conduct ``such
planning, legal, fiscal, economic, engineering, architectural, and
other studies or investigations . . . necessary and appropriate to plan
and direct response actions .
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\2\ As defined in CERCLA Sec. 101(10) and identified in 40 C.F.R.
Sec. 302.4.
\3\ As defined in CERCLA Sec. 101(33). The release, or threat of
release, of a pollutant or contaminant triggers CERCLA response
authority only if it may present an imminent and substantial danger to
the public health or welfare. CERCLA Sec. 104(a)(1)(B).
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Thus, EPA may award cooperative agreements to States, political
subdivisions, and Indian tribes to carry out removal activities at
brownfields facilities.
Use of Funds to Capitalize Revolving Loan Fund Programs
The purpose of the RLF cooperative agreements is to carry out
removal activities at brownfields facilities, therefore the awards are
for an authorized purpose. At issue is whether EPA may award a
cooperative agreement to support the recipient's accomplishment of that
purpose by means of a revolving loan fund.
EPA could not establish its own revolving loan fund for brownfields
cleanups because the Agency is not authorized to do that under CERCLA.
CERCLA does not authorize EPA to make loans. Nor does it authorize EPA
to establish and implement its own revolving fund. Without specific
statutory authority, a Federal agency cannot operate a revolving fund,
i.e., a fund into which receipts may be credited and from which the
receipts may be expended by the Federal agency, without further
appropriation by Congress, to carry out the purposes of the fund. 44
Comp. Gen. 87 (1964). \4\
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\4\ In the absence of specific statutory authority, money collected
by a Federal agency ``for the Government'' generally must be deposited
in the Treasury as miscellaneous receipts under 31 U.S.C. Sec. 3302(b).
See 69 Comp. Gen. 260 (1990); 67 Comp. Gen. 443 (1988). If EPA could
make loans with money from Superfund appropriations, repayments might
go into the Superfund rather than into the general account of the
Treasury as miscellaneous receipts. See SARA Sec. 517(b), 26 U.S.C.
Sec. 9507(b)(1996). In any event, the repayments would not ``revolve,''
i.e., they would not be available to EPA for additional expenditure
without further appropriation by Congress.
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However, in this case, it is not EPA, but the CA recipients that
will be establishing and implementing revolving loan funds. There is no
general prohibition in Federal law on an assistance recipient using
assistance funds to make loans. \5\ It is well established that the
expenditure of assistance funds by a recipient of a Federal grant or
cooperative agreement for the purposes of the award is not subject to
the various restrictions of Federal law that apply to a Federal
agency's expenditure of appropriated funds, unless otherwise provided
in the program statute, regulations, or assistance agreement. See 44
Comp. Gen. 87 (1964); 43 Comp. Gen. 697, 699 (1964).
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\5\ In fact, EPA's general grant regulations, which are a
codification of an OMB common rule, contemplate recipients making
loans. See 40 C.F.R. Sec. 31.25(a).
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When a grant or cooperative agreement is awarded for a valid,
authorized purpose, the recipient has discretion in choosing the means
to implement the project, and is not necessarily subject to
restrictions that would apply to direct expenditures of the awarding
agency. For example, a recipient of a valid training grant may use the
grant funds to pay for the travel costs of persons attending a
conference, even though Federal agencies are prohibited under 31 U.S.C.
Sec. 1345 from paying the travel expenses of non-Federal personnel to
attend a meeting. 62 Comp. Gen. 531 (1983); 55 Comp. Gen. 750 (1976).
In a case similar to this one, the State Department awarded a grant
to the University of Hawaii for the establishment of the East-West
Center. The Center set up a publishing operation (``the Press'') which
was intended to operate on a revolving fund basis, i.e., the Press
would establish a revolving fund which would collect receipts from the
sale of publications and expend the receipts to finance additional
publications. The State Department informed its appropriations
committees of this intent in its budget justifications. GAO concluded
that, although the miscellaneous receipts statute would prohibit a
Federal agency from using a revolving fund, the grantee's revolving
fund was proper, because the grant agreement did not prohibit it and
because grant funds in the hands of the grantee are ``free from the
statutory restrictions generally applicable to the expenditure of
appropriated moneys by the . . . Government.'' 44 Comp. Gen. 87 (1964).
EPA's funding of brownfields RLFs is proper for the same reasons.
The cooperative agreements will not prohibit the recipients from
establishing revolving funds, but rather will explicitly approve that
use of the assistance funds. The Agency has informed its appropriations
committees of its intent to support brownfields RLFs in its budget
justifications. \6\ Congress's subsequent lump sum Superfund
appropriation is deemed to include funding for this program. \7\ Under
these circumstances, once the CA recipients take the funds, they may
use them without regard to the restrictions on EPA's use of the funds.
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\6\ In EPA's fiscal year 1997 ``Justification of Appropriation
Estimates for the Committees on Appropriations,'' p. 6-3, the Agency
stated that it would ``initiate followup cleanup grants of up to
$350,000 each to capitalize revolving loan funds for 29 pilot
recipients who completed the initial brownfield pilot stage.''
\7\ The Conference Report that accompanied EPA's fiscal year 1997
appropriation, H.R. Rep. No. 104-812, at 71 (Sept. 20, 1996), simply
stated that the appropriated amount for Superfund included the amount
requested in the Agency's budget request for brownfields activities.
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CERCLA Cooperative Agreements
Before a CERCLA cooperative agreement is awarded, the applicant
must satisfy the criteria of 40 C.F.R. Part 35, Subpart O. including
section 35.6200, which details the specific requirements for removal
response cooperative agreements. The cooperative agreement should
contain specific terms and conditions to ensure that the Federal
interests and objectives are carried out, including the requirement
that loans support removal activities authorized by CERCLA Sec. 104.
The cooperative agreements are also subject to the Agency's general
grant regulations at 40 C.F.R. Part 31. These include the requirement
that the Agency use payment methods that minimize the time elapsing
between transfer of funds to the recipient to capitalize the RLF and
subsequent disbursement from the RLF. 40 C.F.R. Sec. 31.21(b). Once the
funds have been loaned or otherwise applied to the purposes authorized
in the cooperative agreement, repayments of principal plus interest are
``program income'' to the recipient. 40 C.F.R Sec. 35.6290; 40 C.F.R.
Sec. 31.25(a). \8\ See also 71 Comp. Gen. 387, 388 (1992).
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\8\ Program income is ``gross income received by the grantee or
subgrantee directly generated by a grant supported activity, or earned
only as a result of the grant agreement during the grant period.'' 40
C.F.R. Sec. 31.25(b).
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Program income ordinarily is deducted from a recipient's allowable
costs and therefore reduces the amount due a recipient under a
cooperative agreement. \9\ 40 C.F.R. Sec. 31.25(g)(1). However, EPA may
include a term and condition in the cooperative agreement that
authorizes the CA recipient to retain and use program income to further
the purposes of the cooperative agreement. 40 C.F.R. Sec. 31.25(g)(2).
Such a provision should be included in the brownfields RLF cooperative
agreements so that program income in the form of principal and interest
repayments can be used for additional loans for removal activities at
brownfields facilities. The Agency will have to consider how that
provision should address repayments of principal and interest after the
project period has expired.
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\9\ Allowable costs for tribes, State, and local governments are
determined in accordance with OMB Circular A-87, ``Cost Principles for
State and Local Governments'' and the terms of the cooperative
agreement.
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Program income does not include interest earned by the recipient on
cooperative agreement funds prior to their disbursement or expenditure
for purposes of the cooperative agreement. 40 C.F.R. Sec. 31.25(a).
Such interest is governed by 40 C.F.R. Sec. 31.21(i), under which the
recipient must, under certain circumstances, remit to the Federal
grantor agency interest earned on advances of funds.
Care must be taken to ensure that the Agency does not use financial
assistance to undertake indirectly an activity that it cannot carry out
directly. Consistent with the Federal Grant and Cooperative Agreement
Act, 31 U.S.C. S6305, EPA can be substantially involved in the
activities supported by a cooperative agreement (in contrast to the
Agency's more limited role under a grant agreement). Nonetheless,
assistance--whether in the form of a cooperative agreement or a grant--
can be awarded only if the principal purpose is to support activities
that CA recipients carry out for their own purposes. See EPA Order
5700.1, ``Policy on Distinguishing Between Acquisition and
Assistance,'' p. 7 (March 24, 1994). Consequently, although EPA can be
substantially involved, the Agency cannot use the cooperative
agreements to indirectly establish Federal revolving loan funds by
dictating the priorities of CA recipients for RLF supported removal
actions.
Individual brownfields RLF programs may raise additional legal
issues, including how to address program income in the close-out of
cooperative agreements. We will be glad to provide advice on them as
needed. Please contact Jim Drummond (260-6316) or me (260-7725) if you
have any questions.
______
U.S. Environmental Protection Agency,
Office of General Counsel,
Washington, DC 20460, May 29, 1997.
MEMORANDUM
ATTORNEY-CLIENT PRIVILEGED
SUBJECT: CERCLA Sec. 311(b)(9)(A) Training Grants
FROM: Leslie Darman, Finance and Operations Division
TO: Linda Garczynski, Director, Outreach/Special Projects Office of
Solid Waste and Emergency Response
This memorandum responds to your question as to the scope of
training activities authorized under Sec. 311(b)(9)(A) of the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), which provides:
The Administrator is authorized and directed to carry out, through
the Office of Technology Demonstration, a program of training and
an evaluation of training needs for each of the following:
(A) Training in the procedures for the handling and removal of
hazardous substances for employees who handle hazardous substances.
(B) Training in the management of facilities at which hazardous
substances are located and in the evaluation of the hazards to
human health presented by such facilities for State and local
health and environment agency personnel.
Specifically, you asked whether a Sec. 311(b)(9)(A) training
program would have to train workers in alternative and innovative
treatment technologies since subsection (b) of Sec. 311 is entitled
``Alternative or innovative treatment technology research and
demonstration program,'' and the majority of subsection (b)'s
provisions are devoted to that program.
For the reasons discussed below, I conclude that Sec. 311(b)(9)
authorizes EPA to conduct a training program not limited to training in
alternative and innovative technologies. This authority is separate and
distinct from that provided to the Department of Heath and Human
Services (HHS) under other subsections of Sec. 311.
Scope of training activities authorized by Sec. 311(b)(9)
Although other interpretations are conceivable, the better reading
of Sec. 311(b)(9) is that the training programs authorized by it are
not limited to training in alternative or innovative treatment
technologies. An examination of subsections (b)(1), (9) and (10)
together warrants this conclusion. Subsection (b)(10) provides such a
narrow definition of alternative or innovative treatment technologies
that if it applied to the training programs under (b)(9) it would give
rise to an inconsistency between the plain language of the two
subsections. \1\ Training in ``the procedures for the handling and
removal of hazardous substances'' or in the ``management of facilities
at which hazardous substances are located and in the evaluation of the
hazards to human health presented by such facilities'' as provided by
(b)(9) contemplates training in a wider range of activities than those
contemplated by (b)(10). Most significantly, however, the plain
language of subsection (b)(9) does not indicate that the training
authorization is limited only to training in alternative and innovative
treatment technologies. Thus, the training activities authorized under
subsection (b)(9)--``in the procedures for the handling and removal of
hazardous substances'' and ``in the management of facilities at which
hazardous substances are located'' are not limited to training in
alternative and innovative treatment technologies.
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\1\ ``Alternative or innovative treatment technologies'' is defined
in Sec. 311(b)(10):
For the purposes of this subsection, the term ``alternative or
innovative treatment technologies'' means those technologies, including
proprietary or patented methods, which permanently alter the
composition of hazardous waste through chemical, biological, or
physical means so as to significantly reduce the toxicity, mobility, or
volume (or any combination thereof) of the hazardous waste or
contaminated materials being treated. The term also includes
technologies that characterize or assess the extent of contamination,
the chemical and physical character of the contaminants, and the
stresses imposed by the contaminants on complex ecosystems at sites.
---------------------------------------------------------------------------
This reading of Sec. 311(b)(9) is corroborated by the language of
Sec. ill(n) which specifies authorized uses of appropriations from the
Hazardous Substance Superfund. Section 111(n)(1) specifies a limit on
the amount available ``for the purposes of carrying out the applied
research, development and demonstration program for alternative or
innovative technologies and training program authorized under section
[311(b)] of this title . . .'' (emphasis added). By referring to two
programs under the authorization of appropriations for Sec. 311(b),
Congress acknowledges both a relationship and a distinction between the
training program described in Sec. 311(b)(9) and the alternative or
innovative treatment technology program described in other subsections
of 311(b).
Role of EPA in Sec. 311 training programs
Both the statute itself and the legislative history indicate that
Congress intentionally gave similar training authority to both EPA and
HHS. First, Sec. 311(b)(9) expressly provides that the Administrator of
EPA is authorized and directed to carry out a training program whereas
HHS, through the National Institute for Environmental Health Sciences
(NIEHS) is also given authority to conduct a training program under
Sec. 311(a) and 42 U.S.C. Sec. 9660a. Similarly, two separate
subsections of Sec. 111 (Uses of the Fund) cover the two training
programs, affirming that Congress intended HHS to have training
authority under Sec. 311(a) and EPA to have training authority under
Sec. 311(b). Section 111(n)(1) authorizes using the Fund for the
purpose of Sec. 311(b), including the ``training program authorized
under section [311](b)'' whereas Sec. 111(n)(2) provides a separate
authorization for training activities under Sec. 311(a).
The legislative history, although sparse on this point, leads to
the same conclusion. Senator Stafford, who first introduced a research
and training amendment to CERCLA remarked that the amendment is
designed to ``provided research and training authority to both EPA and
HHS . . . . [since they] have the broad range of experience necessary
to plan and implement the variety of activities that are needed to
strengthen current research efforts and to increase . . . the cadre of
appropriately trained personnel.'' Congressional Record, September 16,
1985; reprinted in Congressional Research Service, A Legislative
History of the Superfund Amendments and Reauthorization Act of 1986, at
1118 (1990) (emphasis added) [hereinafter Legis. History]. Furthermore,
in commenting on the language of the amendment, Senator Stafford
explained that it ``acknowledges the important health-related research
and training expertise that reside within [NIEHS] and the National
Institute for Occupational Safety and Health [NIOSH], but in no way
does the amendment imply that these two institutes are or should be the
only sources of awards.'' Id.
Limitations and Requirements of Training Programs under Sec. 311(b)(9)
The following list sets forth some of the limitations and
requirements of a training program authorized by Sec. 311(b)(9) and
funded by a grant under the authority of Sec. 311(b)(3): \2\
---------------------------------------------------------------------------
\2\ The requirements of Sec. 311(b)(3) apply because that is the
source of EPA's authority to award training grants under
Sec. 311(b)(9); subsection (b)(9) does not itself authorize EPA to
award grants. The Agency has long interpreted Sec. 311(b)(3) to provide
EPA with authority to award grants and enter into contracts to carry
out all of the activities authorized under Sec. 311(b), including
(b)(9). The Agency views the training program under subsection (b)(9)
as a program within the larger program described in Sec. 311(b). This
interpretation is consistent with one of the stated purposes of
Sec. 311: ``[t]o establish a comprehensive and coordinated Federal
program of research, development, demonstration, and training for the
purpose of promoting the development of alternative and innovative
treatment technologies . . .'' Pub. L. No. 99-499, Sec. 209(a)(1), 100
Stat. 1613, 1708 (1986). It also comports with Sec. 111(n)(1), which
provides a single authorization of appropriations for all of the
activities authorized under Sec. 311(b), including training. The broad
authority in Sec. 311(b)(9) to carry out a training program is
complementary to--but not limited by--the more narrow alternative and
innovative treatment technology program also established under
Sec. 311(b). To be sure, the statute is ambiguous as to whether the
grant authority in Sec. 311(b)(3) applies to the training program in
Sec. 311(b)(9). While the legislative history does not completely
clarify the ambiguity, it indicates that it is reasonable for the
Agency to interpret Sec. 311 as providing for one overarching program
to promote alternative and innovative treatment technologies that
includes within it a training program not limited to training in
alternative and innovative treatment technologies, and therefore the
grant authority in subsection (b)(3) extends to the training program in
(b)(9). In the conference report, the substitute for the House and
Senate versions of Sec. 311 is described as creating ``four new
programs'' identified as ``the hazardous substance research and
training program . . . the alternative and innovative treatment
technology research and demonstration program . . . the hazardous waste
research program . . . [and] a program for university hazardous
substances research.'' Legis. History at 5093-94. These programs
correspond to the four programs described in subsections (a) through
(d) of Sec. 311. If Congress intended the training program authorized
under Sec. 311(b)(9) to be completely separate from the alternative and
innovative treatment technology research and demonstration program
under Sec. 311(b), presumably it would have described a fifth program.
Furthermore, as noted above, in commenting on an earlier version of the
amendment, Senator Stafford explained that ``in no way does the
amendment imply that [NIEHS and NIOSH] are or should be the only
sources of awards'' for research and training activities. Legis.
History at 1118. Because the Agency's interpretation is reasonable and
otherwise permissible, it is entitled to deference under Chevron USA v.
NRDC, 467 U.S. 837 (1984). Nonetheless, it would be helpful if the
Agency's authority to award grants under subsection (b)(9) could be
clarified during the reauthorization of CERCLA.
---------------------------------------------------------------------------
1. The program must train participants in ``the procedures for the
handling and removal of hazardous substances,'' which includes training
for jobs in sampling, analysis, and site remediation, for example. \3\
Sec. 311(b)(9)(A).
---------------------------------------------------------------------------
\3\ In addition, section 311(b)(9)(B) authorizes training in ``the
management of facilities at which hazardous substances are located and
in the evaluation of the hazards to human health presented by such
facilities for State and local health and environment agency
personnel.'' These training activities are not discussed here based on
your description of the proposed training program.
---------------------------------------------------------------------------
2. The recipients of grants, cooperative agreements, or contracts
must be ``persons, public entities, and nonprofit private entities
which are exempt from tax under section 501(c)(3)'' of the Internal
Revenue Code. Sec. 311(b)(3).
3. ``To the maximum extent possible,'' the Agency is to enter into
``appropriate cost share arrangements.'' Sec. 311(b)(3).
4. The Administrator has delegated the authority to carry out the
training program under Sec. 311(b) to the Assistant Administrator for
Research and Development, to be exercised in accordance with plans and
priorities developed in consultation with the Assistant Administrator
for Solid Waste and Emergency Response or designee. Delegations Manual,
14-18-A, 1200 TN 168 (September 13, 1987).
If you have any further questions, please feel free to contact me.
______
U.S. Environmental Protection Agency,
Office of Administration and Resource Management,
Washington, DC 20460, July 8, 1998.
MEMORANDUM
SUBJECT: Response to OIG's Draft Audit Report on Statutory Authority
for EPA Assistance Agreements, Draft Audit Report No. E3AMF8-11-0008
FROM: Alvin M. Pesachowitz, Acting Assistant Administrator for
Administration and Resources Management (3101)
TO: Elissa R. Karpf, Deputy Assistant Inspector General for External
Audits (2421)
Thank you for the opportunity to provide comments on the Draft
Audit Report on Statutory Authority for EPA Assistance Agreements E3
AMF8-11-0008. This audit raised some very important issues and we
appreciate the chance to respond to your findings, We also appreciate
your office's professional attitude and thoughtful approach in alerting
us to your concerns.
The Office of Grants and Debarment (OGD) has worked with the Office
of General Counsel (OGC), the Office of Prevention, Pesticides and
Toxic Substances (OPPTS), and the Outreach and Special Projects Staff
(OSPS) within the Office of Solid Waste and Emergency Response (OSWER)
to provide comments on the OIG's findings and recommendations. All of
the offices were very cooperative and helpful, and each reviewed ant
provided comments on the Draft Report. As indicated below, contrary to
many of the audit findings, the Agency believes that the activities
questioned in the Draft Report are authorized by EPA's statutes.
Although we disagree with many of the audit findings, we concur with
the audit recommendations. The actions recommended will help ensure
that our assistance programs continue to be administered properly and
that activities funded by EPA are within the Agency's assistance
authorities.
Set forth below are our comments an the scope of the Agency's grant
making authorities and the Agency's response to the recommendations
contained in the Draft Report. Attached are memoranda containing the
specific comments made by OPPTS and OSWER on the Draft Report.
I. STATUTORY AUTHORITIES
The Draft Report identifies 25 assistance agreements the OIG
believes are not authorized by the statutes cited in the respective
award documents. focusing in particular on the grant authorities
provided in CERCLA Sec. 311(c), TSCA Sec. 10(a), FIFRA Sec. 20, and
FIFRA Sec. 23. These statutes authorize grants for activities such as
``research,'' ``development,'' ``monitoring,'' ``enforcement,'' and
``training''. None of these terms are defined in their respective
statutes; nor, as the OIG acknowledges, do the legislative histories of
these provisions provide evidence as to how Congress intended these
terms to be interpreted. As a result, the OIG's interpretations are
based on its opinions and beliefs as to their meanings. As the Draft
Report indicates, the issues involved in the interpretation of these
provisions are not clear-cut, and reasonable people may have differing
opinions regarding the scope of these authorities.
When, as here, there are a range of permissible legal
interpretations, it is within the Agency's discretion to adopt the
interpretation that it believes will best enable it to meet statutory
goals and objectives. As discussed below, in the absence of statutory
definitions or clarifying legislative history, the Agency has adopted
what it believes are permissible interpretations of the terms that
further the goals and objectives of CERCLA, TSCA, and FIFRA. While the
Agency believes that the statutes permit these grants, we concur with
the recommendation that EPA should seek broader authority to clarify
that supported activities are authorized and to permit the Agency to
provide financial assistance for a wider range of activities.
Awards Made Under CERCLA
CERCLA Sec. 311(c)
The Draft Report concludes that nine assistance agreements were not
authorized by CERCLA Sec. 311(c), which provides for grants to
``support. . . research with respect to the detection, assessment, and
evaluation of the effects on and risks to human health of hazardous
substances and detection of hazardous substances in the environment.''
Based on the discussion in the Draft Report and the analysis provided
in Appendix A, it appears the OIG objects to these grants on two
grounds. The first is that the term ``research'' as used in CERCLA,
Sec. 311(c) cannot be interpreted to include socio-economic research.
The second is that improper methodologies were used to conduct the
research, e.g., the use of meetings, conferences, and newsletters.
This provision was added to CERCLA in 1986 as part of the Superfund
Amendments and Reauthorization Act of 1980 (SARA), but, as the OIG
indicates, the legislative history of the provision offers no insight
with regard to the scope of the term ``research.'' In the absence of
such guidance, the Draft Report Dates that the OIG bases its opinion
regarding the interpretation of the statute upon what it considers to
be the ``historical context in which CERCLA was passed, i.e., that
Congress was concerned about contamination from manufacturing,
municipal landfills, mining, and Federal defense and energy
activities.'' Based on this ``historical context,'' the OIG believes
CERCLA Sec. 311(c) authorizes research ``aimed at understanding and
mitigating the effects of pollutants on human health'' and objects to
awards to ``fund technical assistance to State and local government
officials, address environmental justice issues, study the effects of
and regulations on the economic redevelopment of brownfields sites, and
fund meetings and conferences.''
The Agency believes that the scope of CERCLA Sec. 311(c) research,
even as defined by the OIG, would encompass what is referred to in the
Draft Report as socio-economic research as this research is aimed at
understanding and mitigating the effects of pollutants on human health.
The types of research projects that the OIG question--projects
addressing environmental justice issues, studying the effects of law
and regulations on the economic redevelopment of brownfields sites, and
funding meetings and conferences--may very well be aimed at
``understanding and mitigating the effects of pollutants on human
health,'' depending on the specific activities involved. Thus, under
the OIG's standards those projects arguably would be authorized under
CERCLA Sec. 311(c). (We agree that technical assistance generally is
not research).
More importantly, the plain language of the statute does not limit
the term ``research'' to exclude the activities funded under these
agreements. EPA has interpreted ``research'' to include study that
extends to the social sciences, including socio-economic,
institutional, and public policy issues, as well as the ``natural''
sciences. CERCLA Sec. 311(c) includes two separate clauses modifying
the term ``research'': research with respect to the detection
assessment, and evaluation of the effects on and risks to human heals
of hazardous substances'' and research with respect to the ``detection
of hazardous substances in the environment.'' Nothing in either of
these clauses limits the research to the ``natural'' sciences.
Furthermore, limiting the definition to include only research on the
effects on ``human health'' would render superfluous a second phrase
that modifies the term ``research'' i.e., ``detection of hazardous
substances in the environment,'' Pursuant to principles of statutory
construction, the statute thus carries a broader meaning than the one
advanced by the OIG. This interpretation of ``research'' under CERCLA
Sec. 311(c) is consistent with Sec. 102(2)(A) of the National
Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4332(2)(A) (directing
agencies to use an interdisciplinary approach ensuring the integrated
use of the natural and social sciences),
The OIG's second objection to these awards is that research under
CERCLA Sec. 311(c) cannot include the funding of meetings, conferences,
and workshops. ``Research,'' however, can be carried out through a
range of activities, including not only ``bench'' science but also
other forms of information gathering and exchange, such as conferences
and newsletters. Among other things, conferences can be used to obtain
additional information, refine methodologies and findings, and
stimulate further research through dialogs with affected groups, as
well as to publicize or explain the results of a research project.
Research encompasses more than theoretical inquiries characteristic of
a laboratory or academic setting.
However, we agree with the OIG's assessment that the Agency could
do a better job of ensuring that recipients explain how funded
activities further the research objective of the agreement. As the OIG
notes, additional training and guidance for program offices would be
useful, and we will consider including a provision in the guidance
about linking conference funding with the research aims of the award.
Additionally, OSWER has begun requiring that CERCLA Sec. 311(c)
recipients agree to a term and condition, ensuring that their
activities remain focused on research authorized by the statute.
The Draft Report notes several instances in which OGC advised OSWER
that while CERCLA Sec. 311(c) could be interpreted to encompass a broad
range of research activities, because certain activities were not
explicitly authorized, they might be challenged if audited. OIG
interprets this advice as barring the awards. OGC, however, did not say
that the activities were not legally supportable. Given several legally
supportable positions, OSWER made a reasoned judgment, within its
discretion, to award the grants.
Finally, the OIG recommends that, in order to comply with CERCLA
Sec. 311(c), all awards must be coordinated with the Secretary of
Health and Human Services (HHS). While the statute requires the Agency
to coordinate its research with HAS to avoid duplication of effort, the
statute does not require that each award must be coordinated with HHS,
As indicated in the attached response from OSWER, they will undertake
additional efforts to better coordinate their CERCLA Sec. 311(c)
research with HHS.
CERCLA Sec. Sec. 311(b)(3) and (b)(9)(A)
In an addendum to the statutory authority report, the OIG
questioned whether CERCLA Sec. Sec. 311(b)(3) and (9) authorize grants
for Brownfields Job Training and Development Demonstration Pilots.
CERCLA Sec. 311(b)(3) provides:
In carrying out the program, the Administrator is authorized to
enter into contracts and cooperative agreements with, and make
grants to, persons, public entities, and nonprofit private entities
which are exempt from tax under section 501(c)(3) of Title 26. The
Administrator shall, to the extent possible, enter into appropriate
cost sharing arrangements under this subsection.
CERCLA Sec. 311(b)(9) provides:
The Administrator is authorized and directed to carry out, through
the Office of Technology Demonstration, a program of training and
an evaluation of training needs for each of the following:
(A) Training in the procedures for the handling and removal of
hazardous substances for employees who handle hazardous substances.
(B) Training in the management of facilities at which hazardous
substances are located and in the evaluation of the hazards to
human health presented by such facilities for State and local
health and environment agency personnel,
CERCLA Sec. 311(b)(10) provides:
For the purposes of this subsection, the term ``alternative or
innovative treatment technologies'' means those technologies,
including proprietary or patented methods, which permanently alter
the composition of hazardous chaste through chemical, biological,
or physical means so as to. significantly reduce the toxicity,
mobility, or volume (or any combination thereof) of the hazardous
waste or contaminated materials being treated. The term also
includes technologies that characterize or assess the extent of
contamination, the chemical and physical character of the
contaminants, and the stresses imposer by the contaminants on
complex ecosystems at sites.
The OIG considered an OGC memorandum of May 39, 1997, in which OGC
concluded that Sec. 311(b)(9) authorizes EPA to conduct a training
program not limited to training in alternative and innovative
technologies ant to make grants for that purpose under Sec. 311(b)(3).
The OIG disagreed with that conclusion, maintaining that the better
interpretation of CERCLA Sec. Sec. 311(b)(3) and (b)(9) is that they
authorize the Agency to make grants for training but only insofar as
the training is related to alternative or innovative treatment
technologies. The Brownfields Training and Development Pilots,
according to the OIG, ``have nothing to do with alternative or
innovative technologies and are not targeted at the audience (personnel
handling hazardous waste and/or managing hazardous waste facilities)
that Congress contemplated when it passed Sec. 311(b)(9).'' The OIG
believes that EPA is only authorized to make grants for training
``related to alternative or innovative treatment technologies, i.e.,
training intended to acquaint personnel handling hazardous waste and/or
managing hazardous waste facilities with changed procedures wrought by
alternative or innovative treatment technologies.'' Subsequently, In a
meeting attended by the OIG, OGC, and OSWER, it became clear that the
OIG also believes that the training programs funded by grants under
CERCLA Sec. Sec. 311(b)(3) and (9) can only be for individuals already
employed in handling hazardous substances at the time they receive the
training.
Eligible Training Activities
As a result of the OIG memo, OGC has reevaluated its interpretation
of CERCLA Sec. Sec. 311(b)(3) and (9) and has identified what it now
believes is a more defensible interpretation. OGC does not believe that
the following interpretation of the statute is the only one possible;
other broader interpretations could also be defended. Nonetheless, OGC
will, as a prudential matter, encourage programs to adhere to its new
interpretation.
The context in which alternative or innovative technologies are
implemented--hazardous waste site cleanups--is the same context in
which non-alternative or innovative treatment technologies are used.
Consequently, if the training authorized by Sec. 311(b)(9) were limited
to training in skills that are only used in the implementation of
alternative or innovative treatment technologies, then only a very
limited range of skills could be taught to trainees. Such a narrow
interpretation 311(b)(9) would be difficult to defend, particularly
because Sec. 311(b)(9) does not make any reference to a requirement
that authorized activities be limited to training in alternative or
innovative treatment technologies and the plain language of
Sec. 311(b)(9) authorizes training in a much broader range of
activities--``the handling and removal of hazardous substances.''
Moreover, there is nothing in the legislative history that suggests
that Congress intended the training to be limited to training in skills
that have an exclusive relationship to alternative or innovative
treatment technologies.
Therefore, OGC interprets CERCLA Sec. Sec. 311(b)(3) and (b)(9)(A)
to authorize grants for training in ``the handling and removal of
hazardous substances'' which bears a relationship to the use of
alternative or innovative treatment technologies in the context of a
cleanup, Under this interpretation, grantees could teach trainees
skills that would be applicable both to cleanups employing an
alternative or innovative treatment technology and to cleanups
employing non-alternative or innovative treatment technology For
example, training programs could teach the following skills that are
needed to carry out alternative/innovative bioremediation of
contaminants for either on- or offsite treatment of contaminated soils;
excavation skills for removing contaminated soils to the treatment
area, use of heavy equipment skills for fuming of contaminated soils to
ensure bioremediation occurs, and monitoring skills to determine levels
of toxic materials. These same skills would be useful in non-
alternative or innovative treatment technologies.
Accordingly, in awarding training grants under CERCLA
Sec. Sec. 311(b)(3) and (b)(9), the program office would have to
determine that the training activities could be usefully applied to a
cleanup employing an alternative or innovative technology. The
determination would be documented in the decision memorandum associated
with the assistance award. In addition, a term and condition would be
included in each assistance agreement so that the grantee would be
adequately informed of this limitation on the types of activities for
which training could be provided. Both the decision memorandum and the
assistance agreement would include a statement or condition such as:
The training provided by tile recipient must be training in the
handling and removal of hazardous substances related to the
implementation of alternative or innovative treatment technologies
as defined in section 311(b)(10) of CERCLA. The recipient may teach
trainees skills that are relevant to the implementation of both
alternative or innovative treatment technologies and non-
alternative or innovative treatment technologies.
Eligible Trainees
In its memorandum, the OIG does not discuss the issue of eligible
trainees. In a subsequent meeting, however, the OIG asserted that the
training authorized under Sec. 311(b)(9) may only be provided to
individuals already employed in the field at the time they receive the
training.
The Agency disagrees. CERCLA Sec. 311(b)(9) authorizes training
``for employees who handle hazardous substances.'' There is nothing in
Sec. 311(b)(9), however, that requires that trainees must be currently
employed in handling hazardous substances before they receive training
in the handling and removal of hazardous substances. The requirement
that the training be ``for employees'' is satisfied if the training is
provided for the purpose of training individuals to become employed in
the field of handling hazardous substances. This is consistent with one
of the goals Congress sought to accomplish by enacting Sec. 311 of
CERCLA: ``to increase . . the cadre of appropriately trained
personnel.'' Congressional Record, September 16, 1985; reprinted
Congressional Research Service, A Legislative History of the Superfund
Amendments and Reauthorizarion Act of 1986, at 1118 (1990)(emphasis
added).
Awards Made Under TSCA
TSCA Sec. 10(a)
The OIG objects to three awards made under TSCA Sec. 10(a) to
support training and public outreach activities, two of which involve
environmental justice initiatives TSCA Sec. 10(a) authorizes the award
of grants for ``research, development and monitoring'' as is necessary
to carry out the purposes of TSCA, The OIG objects that training and
public outreach are not research, development, or monitoring.
The Agency interprets the term ``development'' to include may
training and public outreach activities. In the absence of a statutory
definition or any legislative history regarding the term, the Agency
has adopted a permissible interpretation that is consistent with the
dictionary definition of the term. Included within that definition are
activities that expand the capability or capacity of an individual or
an organization. Training and outreach activities expand the capability
and capacity of individuals by broadening their knowledge base and thus
the Agency has determined that they are activities encompassed under
the term ``development.'' As under CERCLA Sec. 311(c), ``environmental
justice activities'' may or may not be eligible, depending on the
specific activities).
In support of its objection, the OIG states that the only training
authorized in TSCA Sec. 10 is the training for Federal laboratory and
technical personnel authorized by TSCA Sec. 10(f). This provision
requires EPA to train and facilitate the training of Federal workers,
an activity directly benefiting the Federal Government and one properly
funded through a contract. This is a separate, distinct requirement
that is unrelated to the Agency's grant-making authority under TSCA.
The requirement that the Agency train its own personnel does not limit
its authority to provide grants to support other types of development,
including training, under TSCA Sec. 10(a).
With regard to the TSCA Sec. 10(a) requirement for consultation
with RHS and other agencies, as indicated in the attached OPPTS
response, although some areas of activity have diminished, others have
expanded and OPPTS continues to consult and coordinate its activities
with HHS and other Federal agencies.
TSCA Sec. 28(a)
The OIG objected to two awards made under TSCA Sec. 28(a), which
authorizes grants to States for the ``establishment and operation of
programs to prevent or eliminate unreasonable risks within the States
to health or the environment which are associated with a chemical
substance or mixture and with respect to which the Administrator is
unable or is not likely to take action under [TSCA] for their
prevention or elimination.'' The OIG objects that the grantees' work
plans did not establish that the States mill address chemicals with
respect to which EPA is unable or unlikely to take action.
However, the plain language of the statute does not require a
grantee to affirmatively demonstrate in its work plan that the
Administrator is unable or unlikely to take action. In most cases, the
grantee cannot be expected to know whether the Agency is unable or
unlikely to address a particular risk. The Agency interprets the
statute as requiring the grant program to be administered in a manner
that complements, but avoids duplication of, Federal action. Under this
interpretation, EPA does not award grants to address risks that the
Agency expects to ``address itself. However, given the standard in the
statute--``not likely to take action''--there is a possibility that
changed conditions might result in a decision by the Agency to take an
action in the future with regard to a particular risk, even though at
the time of the award it did not appear likely. Furthermore, there is
no indication in the Draft Report that at the time of the questioned
awards or, subsequently, that the particular risks addressed in the
grants were or were likely to become the subject of Federal action, For
these reasons, we disagree with the OIG's position.
The Agency concurs that the proper authority for providing grants
to States to develop and implement CAA Sec. 112(r) programs is CAA
Sec. 122(l)(4).
Awards Made Under FIFRA
FIFRA Sec. 20(a)
The OIG objects to the funding of what it terms ``training'' and
the ``assessment of training programs'' under FIFRA Sec. 20 which
authorizes grants for research necessary to carry out the purposes of
FIFRA and for research into integrated pest management The Agency
concurs that the term ``research'' generally does not include training.
However, as discussed above with regard to CERCLA Sec. 311(c), the term
is not restricted to ``bench science'' and may be carried out through a
variety of methodologies, including workshops and conferences.
Furthermore, with regard to the specific activities questioned by the
OIG, the Agency believes that research on and the evaluation of a
training program are types of research and thus are within the scope of
the authority.
FIFRA 423(a)
The Draft Report questions five awards made under FIFRA Sec. 23(a)
because the OIG believes they are ``neither enforcement activities nor
applicator training,'' but, instead, research authorized under FIFRA
Sec. 20, FIFRA Sec. 23(a) authorizes cooperative agreements with States
and Tribes:
(1) to delegate to any State or Indian tribe the authority to
cooperate in the enforcement of this subchapter through the use of
its personnel or facilities, to train personnel of the State or
Indian tube to cooperate in the enforcement of this subchapter, and
to assist States and Indian tribes in implementing cooperative
enforcement programs through grants-in-aid; and
(2) to assist States in developing and administering State
programs, and Indian tribes that enter into cooperative agreements,
to train and certify applicators consistent with the standards the
Administrator prescribes.
This provision authorizes assistance awards for a comprehensive
enforcement program. The Agency has interpreted this broad authority
reasonably to include a wide variety of activities, including those
that when accomplished would preclude the need to take additional
enforcement actions. However, consistent with the OIG's recommendation,
the Agency has requested in the President's Fiscal Year 1999 Budget
Request enactment of the following clarifying language;
``Provided further, that beginning in fiscal year 1999 and
thereafter, pesticide program implementation grants under section
23(a)(1) of the Federal Insecticide, Fungicide and Rodenticide Act,
as amended, shall be available for pesticide program development
and implementation, including enforcement and compliance
activities.''
Awards Made Under CAA Sec. 103, CWA Sec. 104, and SWDA Sec. 8001
Although not addressed in the text of the Draft Report, Appendix A
indicates the OIG also objects to an award to the Global Environment
and Trade Study for research on environmental regulation and
competitiveness, eco-labeling, use of trade measures in environmental
treaties, and the environmental impacts of regional trade agreements.
The OIG objects on the grounds that the grant authorities cites, CAA
Sec. 103, CWA Sec. 104, and SWDA Sec. 8001, authorize only what the OIG
terms ``scientific'' research and not what it terms ``socio-economic''
research.
As discussed these statutory provisions do not require, and the
Agency does not interpret, the term ``research'' to be confined to the
``natural'' sciences. Furthermore, as the Draft Report acknowledges,
these three statutes are so broadly worded that they authorize many
types of activities, not just research, and certainly not just
``scientific'' research. For example, Sec. 104 of the Clean Water Act
authorizes grants to ``conduct and promote the coordination and
acceleration of, research, investigations, experiments, training,
demonstrations, surveys, and studies relating to the causes, effects,
extent, prevention, reduction, and elimination of pollution.'' Such
activities are not limited to the ``natural'' sciences, but may include
a variety of socio-economic, institutional, and public policy issues
that relate to the ``causes, effects, extent, prevention, reduction and
elimination of pollution.'' A similar enumeration of authorized
activities under CAA Sec. 103 includes the following phrase: ``. . .
studies relating to the causes, effects (including; health and welfare
effects), extent, prevention, and control of air pollution'' (emphasis
added), indicating that the activities include, but are not limited to,
``scientific,'' ``health effects'' research.
II. RESPONSE TO RECOMMENDATIONS
Recommendation 1 (to Assistant Administrator for OARM): Coordinate
with the Assistant Administrators for OSWER and OPPTS and the Associate
Administrator for Congressional and Intergovernmental Relations to
obtain clear statutory authority to fund assistance agreements for the
types of activities questioned in this report, i.e., technical
assistance, environmental justice, and economic redevelopment studies
under CERCLA, public outreach, training and environmental justice
activities under TSCA; and training and training assessments under
FIFRA.
OARM Response: OARM agrees with this recommendation. We will work
with the program offices and OGC to obtain the statutory changes
necessary to clarify and expand the existing grant authorities.
Beginning in 1994, OSWER requested that Administration proposals
for Superfund Reauthorization include a provision which would have
clarified the types of activities that could be funded under CERCLA
Sec. 311(c). OSWER has continued to seek this clarification through
successive rounds of proposed legislation, and they agree to continue
to work with OARM and OCIR toward this end.
In addition, as indicated previously, in the President's Fiscal
Year 1999 Budget Request EPA requested enactment of the following
clarifying language:
``Provided further, that, beginning in fiscal year 1999 ant
thereafter, pesticide program implementation grants under section
23(a)(i) of the Federal Insecticide, Fungicide and Rodenticide Act,
as amended, shall be available for pesticide program development
and implementation? including enforcement and compliance
activities.''
Recommendation 2 (to Assistant Administrator for OARM): Clarify
existing policies and guidance, EPA Order 5730.1 requires program
offices to designate the program element, statutory authority, and
delegation of authority in the decision memorandum. Rather than merely
citing a statute, the program offices should be required to briefly
explain how the proposed work relates to the authorizing statute.
Grants Management Offices should return any funding package missing
this information.
OARM Response: We agree with the OIG recommendation. We will modify
EPA Order 5730.1 to include language that specifically requires that
all future funding packages include an explanation of how the proposed
grant award relates to the authorizing statute. As a component of the
current assistance funding packages, the decision memorandum must cite
the statutory authority which authorizes proposed grant activities. The
Grants Specialist reviews the decision memorandum to ensure the
proposed project objectives are consistent with the intent of the
statutory authority In the fixture we will require the program offices
to provide written clarification of how the award relates to the
statutory authority and, if necessary, forward it to OGC for their
review and opinion.
OPPTS has already taken action to implement this recommendation. In
December 1997, they issued guidance to all their grants project
officers requiring detailed information in grant decision memoranda.
They have also established a single point of contact within each pace
to review all grants and ensure the proposed activities are authorized
under EPA's grant authorities.
Recommendation 3 (to Assistant Administrator for OARM): Work with
Senior Resource Officials [SRO] to issue interim guidance to clarify
the types of activities that their respective program offices will and
will not fund, including examples of the types of projects the Agency
should not fund.
OARM Response: OARM agrees with the recommendation and will work
with OSWER and OPPTS to develop guidance to clarify the types of
activities that the Agency will and will not fund under the grant
authorities.
In addition, working in close coordination with each of their
cooperative agreement recipients, OSPS will develop an additional term
and condition for all cooperative agreements, which will require
recipients to establish administrative controls to ensure that all
CERCLA Sec. 311(c) fields are spent only to conduct and disseminate
research ``including scientific, socioeconomic, institutional and
public policy research) relating to the effects and risks of hazardous
substances and detection of hazardous substances in the environment.
Recommendation 4 (to Assistant Administrator for OARM): Require the
Grants Administration Division, in coordination with Senior Resource
Officials, to incorporate into project officers and managers training,
information on the types of awards the Agency should, and should not,
fund.
OARM Response: We agree that grants training material should be
modified to incorporate specific information about grant authorities.
We will add these changes to the project officer training classes and
to the 1-day project officer refresher course which will begin next
year. We will also include the modified EPA Order 5730.1 as part of the
handout materials. OPPTS Ad OSWER training will also be tailored to
emphasize issues specific to their statutory authorities.
Recommendation to the Assistant Administrator for OSWER: We
recommend that the Assistant Administrator for OSWER coordinate all
CERCLA Sec. 311(c) assistance awards with the Secretary of HHS, as
required by the statute.
OSWER Response: OSWER has been unable to confirm the existence of
the ``advisory council'' referred to in CERCLA Sec. 311(c),
Nonetheless, in recognition of the importance of avoiding duplication
of effort in our research activities, OSPS will work with the SRO for
OSWER to establish better coordination of our CERCLA Sec. 311(c)
research efforts win HHS. This coordination may occur rough OSWER's
existing relationships untie the National Institute for Environmental
Health Sciences (NIEHS) and the Agency for Toxic Substances and Disease
Registry (ATSDR), whose activities we already evaluate through the
annual Superfund budget formulation process, or we may choose to
coordinate through other means.
Thank you again for providing us with the opportunity to comment on
the Draft Report. If you or your staff have any questions or need
additional information, please contact Bruce Feldman at 202-564-5325.
______
Question 3b. Your March 21 testimony states that environmental
protection and economic progress are inextricably linked. Can EPA
participate in economic development at Superfund sites under current
authority?
Response. CERCLA section 104(b) provides broad authority for the
Agency to conduct studies, ``undertake investigations [and] other
information gathering,'' as well as ``undertake planning'' and ``other
studies or investigations as he may deem necessary or appropriate to
plan and direct response actions. . . .'' In addition, CERCLA section
104(d) provides authority for the Agency to enter into contracts or
cooperative agreements with States and their political subdivisions, as
well as Indian tribes, ``to carry out actions authorized in this
section [104].'' We believe the current statutory authority to study
and investigate a site, combined with authority to enter into
cooperative agreements with State, local and tribal governments,
provides the basic underlying legal authority to achieve a better
understanding of local community plans and preferences for future land
use at Superfund sites.
One of the key factors in EPA's remedy selection decision process
is future land use considerations (See attached ``Land Use in the
CERCLA Remedy Selection Process,'' OSWER Directive No. 9355.7-04, which
elaborates other Agency statements made in the National Contingency
Plan, risk assessment guidance and RI/FS guidance). The potential for
redevelopment and reuse of a contaminated site after it has been
cleaned up under the Superfund program is relevant to future land use
considerations. As such, land reuse assessments and planning,
intergovernmental cooperation, public outreach (including support for
citizen advisory groups and third-party neutral facilitation services),
and other technical assistance can be key components in projecting
future uses of a Superfund site (especially where there are many
diverse stakeholders). Land use determinations and the development of
property are principally the domain of local government, citizens and
the private sector. The earlier EPA seeks the involvement of local
government and other stakeholders and takes into consideration
potential future uses of the land, and the more accurately we can
anticipate what the future use may be, the better our risk assessment
and remedy selections will be at sites.
EPA has identified 170 sites where protective remedies have led to
productive uses. These include all types of uses: commercial/
industrial, recreational, ecological, residential, and governmental.
Reuses at these sites have supported or will support over 14,000 jobs,
resulting in millions of dollars in income and taxes. Over 13,000 acres
have been or will be converted to open space for recreational and
ecological uses. Through the recently announced Superfund Redevelopment
Initiative, we hope to extend these successes to many more sites.
______
U.S. Environmental Protection Agency,
Office of Solid Waste and Emergency Response,
Washington, DC 20460, May 25, 1995.
OSWER DIRECTIVE NO. 9355.7-04
MEMORANDUM
SUBJECT: Land Use in the CERCLA Remedy Selection Process
FROM: Elliott P. Laws, Assistant Administrator
TO: Director, Waste Management Division Regions I, IV, V, VII
Director, Emergency and Remedial Response Division Region II
Director, Hazardous Waste Management Division Regions III, VI,
VIII, IX
Director, Hazardous Waste Division, Region X
Director, Environmental Services Division Regions I, VI, VII
Purpose.--This directive presents additional information for
considering land use in making remedy selection decisions under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) at National Priorities List (NPL) sites. The U.S.
Environmental Protection Agency (EPA) believes that early community
involvement, with a particular focus on the community's desired future
uses of property associated with the CERCLA site, should result in a
more democratic decisionmaking process; greater community support for
remedies selected as a result of this process; and more expedited,
cost-effective cleanups.
The major points of this directive are:
Discussions with local land use planning authorities,
appropriate officials, and the public, as appropriate, should be
conducted as early as possible in the scoping phase of the Remedial
Investigation/Feasibility Study (RI/FS). This will assist EPA in
understanding the reasonably anticipated future uses of the land on
which the Superfund site is located;
If the site is located in a community that is likely to
have environmental justice concerns, extra efforts should be made to
reach out to and consult with segments of the community that are not
necessarily reached by conventional communication vehicles or through
local officials and planning commissions;
Remedial action objectives developed during the RI/FS
should reflect the reasonably anticipated future land use or uses;
Future land use assumptions allow the baseline risk
assessment and the feasibility study to be focused on developing
practicable and cost effective remedial alternatives. These
alternatives should lead to site activities which are consistent with
the reasonably anticipated future land use. However, there may be
reasons to analyze implications associated with additional land uses;
Land uses that will be available following completion of
remedial action are determined as part of the remedy selection process.
During this process, the goal of realizing reasonably anticipated
future land uses is considered along with other factors. Any
combination of unrestricted uses, restricted uses, or use for long-term
waste management may result.
Discussions with local land use authorities and other locally
affected parties to make assumptions about future land use are also
appropriate in the RCRA context. EPA recognizes that RCRA facilities
typically are industrial properties that are actively managed, rather
than the abandoned sites that are often addressed under CERCLA.
Therefore, consideration of nonresidential uses is especially likely to
be appropriate for RCRA facility cleanups. Decisions regarding future
land use that are made as part of RCRA corrective actions raise
particular issues for RCRA (e.g., timing, property transfers, and the
viability of long-term permit or other controls) in ensuring protection
of human health and the environment. EPA intends to address the issue
of future land use as it relates specifically to RCRA facility cleanups
in subsequent guidance and/or rulemakings.
This guidance is also relevant for Federal Facility sites. Land use
assumptions at sites that are undergoing base closure may be different
than at sites where a Federal agency will be maintaining control of the
facility. Most land management agency sites will remain in Federal
ownership after remedial actions. In these cases, Forest Land
Management Plans and other resource management guidelines may help
develop reasonable assumptions about future uses of the land. At all
such sites, however, this document can focus the land use consideration
toward appropriate options. \1\
---------------------------------------------------------------------------
\1\ Federal agency responsibility under CERCLA 120(h)(3), which
relates to additional clean up which may be required to allow for
unrestricted use of the property, is not addressed in this guidance.
---------------------------------------------------------------------------
Background
Reasonably anticipated future use of the land at NPL sites is an
important consideration in determining the appropriate extent of
remediation. Future use of the land will affect the types of exposures
and the frequency of exposures that may occur to any residual
contamination remaining on the site, which in turn affects the nature
of the remedy chosen. On the other hand, the alternatives selected
through the National Oil and Hazardous Substance Contingency Plan (NCP)
[55 Fed. Reg. 8666, March 8, 1990] process for CERCLA remedy selection
determine the extent to which hazardous constituents remain at the
site, and therefore affect subsequent available land and ground water
uses.
The NCP preamble specifically discusses land use assumptions
regarding the baseline risk assessment. The baseline risk assessment
provides the basis for taking a remedial action at a Superfund site and
supports the development of remedial action objectives. Land use
assumptions affect the exposure pathways that are evaluated in the
baseline risk assessment. Current land use is critical in determining
whether there is a current risk associated with a Superfund site, and
future land use is important in estimating potential future threats.
The results of the risk assessment aid in determining the degree of
remediation necessary to ensure long-term protection at NPL sites.
EPA has been criticized for too often assuming that future use will
be residential. In many cases, residential use is the least restricted
land use and where human activities are associated with the greatest
potential for exposures This directive is intended to facilitate future
remedial decisions at NPL sites by outlining a public process and
sources of information which should be considered in developing
reasonable assumptions regarding future land use.
This directive expands on discussions provided in the preamble to
the National Oil and Hazardous Substance Contingency Plan (NCP); ``Risk
Assessment Guidance for Superfund Vol. I, Human Health Evaluation
Manual'' (Part A) (EPA/540/1-89/002, Dec. 1989); ``Guidance for
Conducting Remedial Investigations and Feasibility Studies Under
CERCLA'' (OSWER Directive 9355.3-01, Oct. 1988); and ``Role of the
Baseline Risk Assessment in Superfund Remedy Selection Decisions''
(OSWER Directive 9355.0-30, April 22, 1991).
This land use directive may have the most relevance in situations
where surface soil is the primary exposure pathway. Generally, where
soil contamination is impacting ground water, protection of the ground
water may drive soil cleanup levels. Consideration of future ground
water use for CERCLA sites is not addressed in this document. There are
separate expectations established for ground water in the NCP rule
section 300.430 (a)(1)(iii)(F) that ``EPA expects to return usable
ground waters to their beneficial uses wherever practicable, within a
timeframe that is reasonable given the particular circumstances of the
site.''
Objective
This directive has two primary objectives. First, this directive
promotes early discussions with local land use planning authorities,
local officials, and the public regarding reasonably anticipated future
uses of the property on which an NPL site is located. Second, this
directive promotes the use of that information to formulate realistic
assumptions regarding future land use and clarifies how these
assumptions fit in and influence the baseline risk assessment, the
development of alternatives, and the CERCLA remedy selection process.
Implementation
The approach in this guidance is meant to be considered at current
and future sites in the RI/FS pipeline, to the extent possible. This
directive is not intended to suggest that previous remedy selection
decisions should be re-opened.
Developing Assumptions About Future Land Use
In order to ensure use of realistic assumptions regarding future
land uses at a site, EPA should discuss reasonably anticipated future
uses of the site with local land use planning authorities, local
officials, and the public, as appropriate, as early as possible during
the scoring phase of the RI/FS. EPA should gain an understanding of the
reasonably anticipated future land uses at a particular Superfund site
to perform the risk assessment and select the appropriate remedy.
A visual inspection of the site and its surrounding area is a good
starting point in developing assumptions regarding future land use.
Discussions with the local land use authorities and appropriate
officials should follow. Discussions with the public can be
accomplished through a public meeting and/or other means. By developing
realistic assumptions based on information gathered from these sources
early in the RI/FS process, EPA may develop remedial alternatives that
are consistent with the anticipated future use.
The development of assumptions regarding the reasonably anticipated
future land use should not become an extensive, independent research
project. Site managers should use existing information to the extent
possible, much of which will be available from local land use planning
authorities. Sources and types of information that may aid EPA in
determining the reasonably anticipated future land use include, but are
not limited to:
Current land use
Zoning laws
Zoning maps
Comprehensive community master plans
Population growth patterns and projections (e.g., Bureau
of Census projections)
Accessibility of site to existing infrastructure (e.g.,
transportation and public utilities)
Institutional controls currently in place
Site location in relation to urban, residential,
commercial, industrial, agricultural and recreational areas
Federal/State land use designation (Federal/State control
over designated lands range from established uses for the general
public, such as national parks or State recreational areas, to
governmental facilities providing extensive site access restrictions,
such as Department of Defense facilities
Historical or recent development patterns
Cultural factors (e.g., historical sites, Native American
religious sites)
Natural resources information
Potential vulnerability of ground water to contaminants
that might migrate from soil
Environmental justice issues
Location of onsite or nearby wetlands
Proximity of site to a floodplain
Proximity of site to critical habitats of endangered or
threatened species
Geographic and geologic information
Location of Wellhead Protection areas, recharge areas,
and other areas identified in a State's Comprehensive Ground-water
Protection Program
These types of information should be considered when developing the
assumptions about future land use. Interaction with the public, which
includes all stakeholders affected by the site, should serve to
increase the certainty in the assumptions made regarding future land
use at an NPL site and increase the confidence expectations about
anticipated future land use are, in fact, reasonable.
For example, future industrial land use is likely to be a
reasonable assumption where a site is currently used for industrial
purposes, is located in an area where the surroundings are zoned for
industrial use, and the comprehensive plan predicts the site will
continue to be used for industrial purposes.
Community Involvement
NPL sites are located in diverse areas of the country, with great
variability in land use planning practices. For some NPL sites, the
future land-use of a site may have been carefully considered through
local, public, participatory, planning processes, such as zoning
hearings, master plan approvals or other vehicles. When this is the
case, local residents around the Superfund site are likely to
demonstrate substantial agreement with the local land use planning
authority on the future use of the property. Where there is substantial
agreement among local residents and land use planning agencies, owners
and developers, EPA can rely with a great deal of certainty on the
future land use already anticipated for the site. For other NPL sites,
however, the absence or nature of a local planning process may yield
considerably less certainty about what assumptions regarding future use
are reasonable. In some instances the local residents near the
Superfund site may feel disenfranchised from the local land use
planning and development process. This may be an especially important
issue where there are concerns regarding environmental justice in the
neighborhood around the NPL site. Consistent with the principle of
fairness, EPA should make an extra effort to reach out to the local
community to establish appropriate future land use assumptions at such
sites.
Land Use Assumptions in the Baseline Risk Assessment
Future land use assumptions allow the baseline risk assessment and
the feasibility study to focus on the development of Practicable and
cost-effective remedial alternatives. leading to site activities which
are consistent with the reasonably anticipated future land use.
The baseline risk assessment generally needs only to consider the
reasonably anticipated future land use; however, it may be valuable to
evaluate risks associated with other land uses. The NCP preamble (55
Fed. Reg. 8710) states that in the baseline risk assessment, more than
one future land use assumption may be considered when decisionmakers
wish to understand the implications of unexpected exposures. Especially
where there is some uncertainty regarding the anticipated future land
use, it may be useful to compare the potential risks associated with
several land use scenarios to estimate the impact on human health and
the environment should the land use unexpectedly change. The magnitude
of such potential impacts may be an important consideration in
determining whether and how institutional controls should be used to
restrict future uses. If the baseline risk assessment evaluates a
future use under which exposure is limited, it will not serve the
traditional role, evaluating a ``no action'' scenario. A remedy, i.e.
institutional controls to limit future exposure, will be required to
protect human health and the environment. In addition to analyzing
human health exposure scenarios associated with certain land uses,
ecological exposures may also need to be considered.
Developing Remedial Action Objectives
Remedial action objectives provide the foundation upon which
remedial cleanup alternatives are developed. In general, remedial
action objectives should be developed in order to develop alternatives
that would achieve cleanup levels associated with the reasonably
anticipated future land use over as much of the site as possible. EPA
recognizes, however, that achieving either the reasonably anticipated
land use, or the land use preferred by the community, may not be
practicable across the entire site, or in some cases, at all. For
example, as RI/FS data become available, they may indicate that the
remedial alternatives under consideration for achieving a level of
cleanup consistent with the reasonably anticipated future land use are
not cost-effective nor practicable. If this is the case, the remedial
action objective may be revised which may result in different, more
reasonable land use(s).
EPA's remedy selection expectations described in section
300.430(a)(1)(iii) of the NCP should also be considered when developing
remedial action objectives. Where practicable, EPA expects to treat
principal threats, to use engineering controls such as containment for
low-level threats, to use institutional controls to supplement
engineering controls, to consider the use of innovative technology, and
to return usable ground waters to beneficial uses to protect human
health and the environment. (Some types of applicable or relevant and
appropriate requirements (ARARs) define protective cleanup levels which
may, in turn, influence post-remediation land use potential.)
In cases where the future land use is relatively certain, the
remedial action objective generally should reflect this land use.
Generally, it need not include alternative land use scenarios unless,
as discussed above, it is impracticable to provide a protective remedy
that allows for that use. A landfill site is an example where it is
highly likely that the future land use will remain unchanged (i.e.,
long-term waste management area), given the NCP's expectation that
treatment of high volumes of waste generally will be impracticable and
the fact that EPA's presumptive remedy for landfills is containment. In
such a case, a remedial action objective could be established with a
very high degree of certainty to reflect the reasonably anticipated
future land use.
In cases where the reasonably anticipated future land use is highly
uncertain, a range of the reasonably likely future land uses should be
considered in developing remedial action objectives. These likely
future land uses can be reflected by developing a range of remedial
alternatives that will achieve different land use potentials. The
remedy selection process will determine which alternative is most
appropriate for the site and, consequently, the land use(s) available
following remediation.
As discussed in ``Role of the Baseline Risk Assessment in Superfund
Remedy Selection Decisions'' (OSWER Directive 9355.0-30, April 22,
1991), EPA has established a risk range for carcinogens within which
EPA strives to manage site risks. EPA recognizes that a specific
cleanup level within the acceptable risk range may be associated with
more than one land use (e.g., an industrial cleanup to 10-6
may also allow for residential use,at a 10-4 risk level.) It
is not EPA's intent that the risk range be partitioned into risk
standards based solely on categories of land use (e.g., with
residential cleanups at the 10-6 level and industrial
cleanups at the 10-4 risk level.) Rather, the risk range
provides the necessary flexibility to address the technical and cost
limitations, and the performance and risk uncertainties inherent in all
waste remediation efforts.
Land Use Considerations in Remedy Selection
As a result of the comparative analysis of alternatives with
respect to EPA's nine evaluation criteria, EPA selects a site-specific
remedy. The remedy determines the cleanup levels, the volume of
contaminated material to be treated, and the volume of contaminated
material to be contained. Consequently, the remedy selection decision
determines the size of the area that can be returned to productive use
and the particular types of uses that will be possible following
remediation.
The volume and concentration of contaminants left onsite, and thus
the degree of residual risk at a site, will affect future land use. For
example, a remedial alternative may include leaving in place
contaminants in soil at concentrations protective for industrial
exposures, but not protective for residential exposures. In this case,
institutional controls should be used to ensure that industrial use of
the land is maintained and to prevent risks from residential exposures.
Conversely, a remedial alternative may result in no waste left in place
and allow for unrestricted use (e.g., residential use).
Results of Remedy Selection Process
Several potential land use situations could result from EPA's
remedy selection decision. They are:
The remedy achieves cleanup levels that allow the entire
site to be available for the reasonably anticipated future land use in
the baseline risk assessment (or, where future land use is uncertain,
all uses that could reasonably be anticipated).
The remedy achieves cleanup levels that allow most, but
not all, of the site to be available for the reasonably anticipated
future land use. For example, in order to be cost effective and
practicable, the remedy may require creation of a long-term waste
management area for containment of treatment residuals or low-level
waste on a small portion of the site. The cleanup levels in this
portion of the site might allow for a more restricted land use.
The remedy achieves cleanup levels that require a more
restricted land use than the reasonably anticipated future land use for
the entire site. This situation occurs when no remedial alternative
that is cost-effective or practicable will achieve the cleanup levels
consistent with the reasonably anticipated future land use. The site
may still be used for productive purposes, but the use would be more
restricted than the reasonably anticipated future land use.
Furthermore, the more restricted use could be a long-term waste
management area over all or a portion of the site.
Institutional Controls
If any remedial alternative developed during the FS will require a
restricted land use in order to be protective, it is essential that the
alternative include components that will ensure that it remain
protective. In particular, institutional controls will generally have
to be included in the alternative to prevent an unanticipated change in
land use that could result in unacceptable exposures to residual
contamination, or, at a minimum, alert future users to the residual
risks and monitor for any changes in use. In such cases, institutional
controls will play a key role in ensuring long-term protectiveness and
should be evaluated and implemented with the same degree of care as is
given to other elements of the remedy. In developing remedial
alternatives that include institutional control to be used, the
existence of the authority to implement the institutional control, and
the appropriate entity's resolve and ability to implement the
institutional control. An alternative may anticipate two or more
options for establishing institutional controls, but should fully
evaluate all such options. A variety of institutional controls may be
used such as deed restrictions and deed notices, and adoption of land
use controls by a local government. These controls either prohibit
certain kinds of site uses or, at a minimum, notify potential owners or
land users of the presence of hazardous substances remaining onsite at
levels that are not protective for all uses. Where exposure must be
limited to assure protectiveness, a deed notice alone generally will
not provide a sufficiently protective remedy. While the ROD need not
always specify the precise type of control to be imposed, sufficient
analysis should be shown in the FS and ROD to support a conclusion that
effective implementation of institutional controls can reasonably be
expected.
Suppose, for example, that a selected remedy will be protective for
industrial land use and low levels of hazardous substances will remain
onsite. An industry may still be able to operate its business with the
selected remedy in place. Institutional controls, however, generally
will need to be established to ensure the land is not used for other,
less restricted purposes, such as residential use, or to alert
potential buyers of any remaining contamination.
Future Changes in Land Use
Where waste is left onsite at levels that would require limited use
and restricted exposure, EPA will conduct reviews at least every 5
years to monitor the site for any changes. Such reviews should analyze
the implementation and effectiveness of institutional controls with the
same degree of care as other parts of the remedy. Should land use
change, it will be necessary to evaluate the implications of that
change for the selected remedy, and whether the remedy remains
protective. EPA's role in any subsequent additional cleanup will be
determined on a site-specific basis. If landowners or others decide at
a future date to change the land use in such a way that makes further
cleanup necessary to ensure protectiveness, CERCLA does not prevent
them from conducting such a cleanup as long as protectiveness of the
remedy is not compromised. (EPA may invoke CERCLA section 122(e)(6), if
necessary, to prevent actions that are inconsistent with the original
remedy.) In general, EPA would not expect to become involved actively
in the conduct or oversight of such cleanups. EPA, however, retains its
authority to take further response action where necessary to ensure
protectiveness.
Further Information
If you have any questions concerning this directive, please call
Sherri Clark at 703-603-9043.
Notice.--The policies set out in this memorandum are intended
solely as guidance. They are not intended, nor can they be relied upon,
to create any rights enforceable by any party in litigation with the
United States. EPA officials may decide to follow the guidance provided
in this memorandum, or to act at variance with the guidance, based on
an analysis of specific site circumstances. Remedy selection decisions
are made and justified on a case-specific basis. The Agency also
reserves the right to change this guidance at any time without public
notice.
Question 3b. Your March 21 testimony states that environmental
protection and economic progress are inextricably linked. Can EPA
participate in economic development at Superfund sites under current
authority?
Response. CERCLA section 104(b) provides broad authority for the
Agency to conduct studies, ``undertake investigations [and] other
information gathering,'' as well as ``undertake planning'' and ``other
studies or investigations as he may deem necessary or appropriate to
plan and direct response actions. . . .'' In addition, CERCLA section
104(d) provides authority for the Agency to enter into contracts or
cooperative agreements with states and their political subdivisions, as
well as Indian tribes, ``to carry out actions authorized in this
section [104].'' We believe the current statutory authority to study
and investigate a site, combined with authority to enter into
cooperative agreements with state, local and tribal governments,
provides the basic underlying legal authority to achieve a better
understanding of local community plans and preferences for future land
use at Superfund sites.
One of the key factors in EPA's remedy selection decision process
is future land use considerations (See attached ``Land Use in the
CERCLA Remedy Selection Process,'' OSWER Directive No. 9355.7-04, which
elaborates other Agency statements made in the National Contingency
Plan, risk assessment guidance and RI/FS guidance). The potential for
redevelopment and reuse of a contaminated site after it has been
cleaned up under the Superfund program is relevant to future land use
considerations. As such, land reuse assessments and planning,
intergovernmental cooperation, public outreach (including support for
citizen advisory groups and third-party neutral facilitation services),
and other technical assistance can be key components in projecting
future uses of a Superfund site (especially where there are many
diverse stakeholders). Land use determinations and the development of
property are principally the domain of local government, citizens and
the private sector. The earlier EPA seeks the involvement of local
government and other stakeholders and takes into consideration
potential future uses of the land, and the more accurately we can
anticipate what the future use may be, the better our risk assessment
and remedy selections will be at sites.
EPA has identified 170 sites where protective remedies have led to
productive uses. These include all types of uses: commercial/
industrial, recreational, ecological, residential, and governmental.
Reuses at these sites have supported or will support over 14,000 jobs,
resulting in millions of dollars in income and taxes. Over 13,000 acres
have been or will be converted to open space for recreational and
ecological uses. Through the recently announced Superfund Redevelopment
Initiative, we hope to extend these successes to many more sites.
Question 4a. As part of the omnibus appropriations bill signed into
law last year, an effort was made by the National Association of Home
Builders (NAHB) and EPA to include a Superfund liability exemption for
developers of contaminated properties and certified State brownfields
programs. This bill was never introduced, drafted hastily, full of
errors, and circumvented the usual congressional process. Explain the
benefit to society of a piece of legislation that serves a narrow group
and was negotiated outside of the committee framework.
Response. The legislative proposal incorporates brownfields
provisions with widespread Congressional support, including Federal
grants and loans to encourage the assessment and cleanup of
brownfields, and liability protection for innocent landowners,
contiguous property owners, and prospective purchasers. Under the
proposal, this liability protection is available only to parties that-
did not cause or contribute to contamination at the site and clean ups
in accordance with State requirements. EPA does not limit any of its
enforcement authorities for parties that previously owned or operated a
site or generated or transported waste to a site. Further, EPA would
retain its enforcement authority when a site poses an imminent and
substantial endangerment.
Question 4b. Do you still support the language you negotiated with
NAHB?
Response.EPA continues to support the provisions of the proposal.
Question 4c. Environmentalists have criticized the Administration
for brokering deals without extensive public comment and discussion. In
the instance of the NAHB/EPA brownfields deal, minority and low-income
areas would have been particularly affected. Does the Administration
support making deals at the cost of cutting out public participation?
Response. As you know, EPA frequently is approached by Members of
Congress, their staff, or stakeholder groups to provide technical
assistance or enter into discussions about legislative matters. Last
year, the President of the NAHB asked to meet with the EPA
Administrator to discuss several issues of concern to the Association's
members, including the cleanup and development of brownfields. The
Administrator met with the President of the NAHB in September 1999.
NAHB had developed a brownfields legislative proposal, and the
Administrator agreed to have Agency staff review the proposal and
provide technical assistance. EPA long has supported efforts that would
encourage the cleanup and development of brownfield properties.
During October and November 1999, EPA staff met on a number of
occasions to provide technical assistance to NAHB. Over that period,
discussion drafts were shared with a representative of the
Environmental Defense Fund and a representative of U. S. PIRG to help
determine whether the preliminary discussions associated with EPA's
technical assistance could produce a proposal that would develop
stakeholder support. Prior to the discussions, a number of
Congressional staff were made aware that the Agency had offered to
provide technical assistance to NAHB. The technical assistance provided
to NAHB ultimately produced a draft proposal that EPA and the
Administration could support. The draft proposal was shared with House
and Senate majority and minority staff in November.
Question 5. The budget request for the Office of Solid Waste and
Emergency Response is $1.423 billion, of which $995.5 million is
apportioned for Superfund. The total request for Superfund is $1.45
billion. That makes the Superfund budget request $270,000 more than the
total budget request for OSWER. Every dollar committed to Superfund is
a dollar that cannot be committed to some other environmental priority.
Should some of the money Apportioned for Superfund be directed to RCRA
corrective action where money would go directly to cleanup costs
instead of administration and litigation costs?
Response. The Agency's fiscal year 2001 budget request includes a
redirection of $10.0 million from Superfund to RCRA corrective action.
This redirection supports implementation of the RCRA corrective action
reforms.
Question 6. Every year EPA requests less money for the National
Institute of Environmental Health Sciences (NIEHS) than Congress
provides in previous years. NIEHS's Superfund Basic Research Program
provides multi-disciplinary grants for scientists from the biomedical
sciences, engineering, ecology, and the geosciences to explore the
scope of Superfund problems and seek solutions. The program is well
aligned with the goals espoused in the EPA Budget of forming
partnerships and working with academia. Why does EPA continue to under
request for that portion of the budget?
Response. The National Institute of Environmental Health Sciences
conducts valuable basic research on the effects of hazardous waste on
human health. NIEHS's fiscal year 2001 budget request of $62.2 million
is higher than EPA's President's request of $48.5 million. The
President's request of $48.5 million for fiscal year 2001 is consistent
with past requests and supports basic research, worker safety training,
and minority worker programs. It reflects a focused research program to
meet the cleanup needs of the Superfund program.
Resources
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY1999 FY2000 FY2001
President's FY199 Enacted President's FY2000 Enacted President's
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total NIEHS........................................................ $48,500,000 $60,000,000 $48,500,000 $60,000,000 $48,500,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Question 7. The Superfund removal program is an area that has been
very successful--it achieves a great amount of risk reduction for a
minimal amount of dollars and involves less bureaucracy than the
remedial program. We have an important ongoing removal in New Hampshire
at the Surrette America Battery Site in Northfield. EPA has committed
an additional $750, 000 to the site; however it has been estimated that
an additional $900,000 will be needed to complete the cleanup. EPA
Region I is looking at ways to identify that fading This site is
located in close proximity to an elementary school, a playground,
athletic fields and the Winnipesaukee River and contamination lead and
asbestos has been found at the site. Will make a commitment to continue
work at this site and to make available sufficient resources to finish
the cleanup?
Response. EPA Region I estimates the total cost of the necessary
removal action at the Surrette America Battery Site to be approximately
$2,600,000. EPA Region I has committed additional resources to fund the
restart for the removal action this spring, and the EPA Headquarters
office recently approved a Region I request to reprogram resources to
fund the remainder of the work at the site. These reprogrammed funds
will be available to the Region later this fiscal year.
Question 8a. EPA management of Superfund cleanups is an integral
part of making the Superfund program work. The Agency has undertaken
administrative reforms in the past years to address outstanding issues
in the Superfund reform debate. One issue that is important to
recognize is that differences exist between the Regions of EPA in
negotiating and cleaning up Superfund sites. In September 1988, the
Inspector General for Audits of the Southern Division completed an
audit of Region IV's management of significant Superfund removal
actions and sent the Report to the Regional Administrator. Another
Inspector General Report was sent to the Regional Administrator in
1990. These Reports, taken together, conclude that Region IV has not
managed removals efficiently or effectively and has inadequately
implemented the management of removal cleanups. This inefficient or
inadequate implementation has resulted in prolonged cleanup actions,
limited State and community participation in cleanup decisions, and
unnecessary costs. Axel Johnson, Jr. has been involved with EPA Region
IV regarding two sites in North Carolina, the Old AT Refinery in
Wilmington and the Potter's Septic Tank Service Pits site in Sandy
Creek and has informed the committee that the management problems
originally reported continue. Has the Agency investigated the
allegations in the 1988 and 1990 Inspector General Reports within
Region IV?
Response. EPA Region IV responded to the Inspector General's 1988
investigation and subsequent 1990 report on large removal actions
undertaken at eight NPL sites. EPA Region IV agreed with some of the
IG's findings and recommendations, such as the need to develop guidance
and procedures for large removal actions that ensure cooperation and
coordination between remedial and removal program staffs. However, EPA
disagreed with other findings, such as the finding of questionable
response actions at sites. EPA stated that the IG failed to recognize
positive aspects of these removal actions, namely their achievement of
expediting cleanup through source removals at several NPL sites.
EPA believes it has improved both community and State involvement
procedures for its removal program. The removal program provides cost-
effective and timely responses to imminent threats posed by hazardous
waste sites. As Chairman Smith notes in question #7 above, the
Superfund removal program is very successful: ``The Superfund removal
program is an area that has been very successful--it achieves a great
amount of risk reduction for a minimal amount of dollars and involves
less bureaucracy than the remedial program.''
Question 8b. If not, does the Agency intend to investigate these
allegations?
Response. Please see the response to question 8(a) above.
Question 8c. Over the past years, EPA has initiated numerous
administrative reforms in administering the Superfund Program. Some of
these reforms have been targeted at ``getting the little guy out,'' as
it was stated in the Agency's Superfund Reforms, Annual Report fiscal
year 1998. EPA touts this reform as a Superfund Program Accomplishment
and has estimated that thousands of small waste contributors from the
Superfund liability scheme have been removed. However, this reform does
not seem to be utilized uniformly throughout the Regions. De minimis
contributors are generally defined as those parties who have
contributed 1 percent or less of the wastes at a site. Despite this
policy, EPA Region IV settled with the owner and operator of the
Potters Septic Tank Service Pits site in Sandy Creek, N. C. on
favorable terms. The Agency gave notice to Axel Johnson that it was
liable for 100 percent of the cleanup costs at the site. However, after
depositions were taken, it is clear that Axel had sent only one
shipment of waste to the Potter Site and that it had played a ``minor
role'' at the Potters Site. Axel believes that the shipment involved
was not sent to the site, and EPA bases its contention on information
from a former employee of the company, not on written documentation.
The amount of Axel Johnson oil that would have been addressed during
the Superfund removal and remedial actions at the Potter Site would
have been between 0.1 percent and 4. 4 percent of the total waste oil
removed remediated. Nevertheless, the Department of Justice has
demanded that Axel pay the majority of the more than $13 million in
cleanup costs that EPA has incurred at the site. Can you explain how a
party that might have contributed 0.1 percent-4. 4 percent of the total
waste at a site could be required to pay for the majority of the
cleanup costs incurred at the site?
Response. According to section 122(g)(1) of CERCLA, which governs
de minimis settlements, the volume of the waste sent to a site is not
the sole factor to be used in determining whether a party qualifies for
a de minimis settlement. In addition to the small volume requirement,
the waste must also have a low toxicity. In many cases, parties are
ineligible for de minimis settlements, even though they sent minute
amounts of waste, because of the toxic nature of that waste. These
parties would be held jointly and severally liable for the cost of
cleanup. Furthermore, at certain sites, even 1 percent of the volume
represents a very large volume in absolute terms. For example, at the
Tonolli Site in Pennsylvania, 1 percent of the volume would represent
over one million gallons of waste. Small percentages do not necessarily
equate with small volumes.
At the Potter's Septic Tank Service Pits Superfund Site in
Brunswick County, North Carolina, from the late 1960's through the mid-
1970's, several unlined pits were found on the Site property which were
used for the disposal of petroleum-related wastes, creosoting wastes
and septic tank wastes. Contamination at this site consists of soil
contaminated with heavy metals, chloroform, and phenolic compounds, all
of which are hazardous substances. Groundwater at the site is
contaminated with volatile organic compounds, including benzene,
xylene, phenols, and other hazardous substances. Excavation and
treatment of contaminated soils at the site were substantially
completed in 1996. The groundwater cleanup remedy for the site,
extraction and treatment of the contaminated water, has not yet been
initiated. Due to preliminary indications that the level of
contamination in the groundwater may be decreasing, additional studies
and sampling may be necessary. EPA will reevaluate the groundwater
remedy in light of any new information revealed through these
additional studies.
EPA has referred this matter to the Department of Justice to seek
recovery of costs from parties found to be responsible for sending
hazardous substances to the site. EPA's investigations have identified
Axel Johnson, Inc., as a potentially responsible party. Although the
matter has been referred to the Department of Justice, the United
States and Axel Johnson, Inc., are currently discussing means of
resolving these matters without resorting to formal litigation.
Question 9a. Last March EPA submitted a Report to Congress on
Wastes from the Combustion of Fossil Fuels. In the report, EPA
tentatively concluded that, ``co-managed wastes generated at coal-fired
utilities. . . generally do not present a risk to human health and the
environment,'' and that Subtitle C of RCRA is ``inappropriate to
address any problems associated with the disposal of these wastes.''
EPA is currently revisiting this issue and may be considering a
regulatory determination that would regulate these wastes under
Subtitle C of RCRA notwithstanding the Agency's findings in March 1999.
If this is true, it will have a significant effect on New Hampshire.
What is the status of EPA's regulatory determination?
Response. EPA issued a regulatory determination applicable to co-
managed coal combustion wastes on April 25, 2000. In that regulatory
determination, we announced our decision that we would retain the
hazardous waste exclusion for all fossil fuel combustion wastes,
including co-managed coal combustion wastes. We also announced that we
would develop regulations under Subtitle D (nonhazardous) authority for
management of coal combustion wastes in landfills and surface
impoundments and when used to fill surface or underground mines.
Question 9b. EPA staff has been working on the issue now for
several months. What information have they been reviewing and what is
the nature of their recommendations on this issue?
Response. EPA reviewed all available information, including new
information submitted on the March 1999 Report to Congress. Industry
commenters urged EPA to retain the hazardous waste exclusion. States
primarily commented that coal combustion waste is very effective in
reclaiming abandoned and existing mines. Public interest groups stated
that EPA should regulate coal combustion wastes as hazardous wastes and
described instances where these wastes were being deposited directly
into ground water at mine sites.
Staff presented a variety of options, ranging from retention of the
exemption from Subtitle C regulation with an active outreach program to
ensure that problems associated with management of coal combustion
wastes are corrected, retention of the exemption and development of
regulations under Subtitle D of RCRA, to elimination of the exemption
and regulation under Subtitle C authority (using an approach similar to
that used in the recently proposed regulations applicable to cement
kiln dust). In all instances, EPA envisioned an active governmental
role in ensuring improved management of fossil fuel combustion wastes.
Ultimately, we decided to announce that we would retain the exemption
from Subtitle C regulation and develop regulations under Subtitle D
authority.
Question 9c. Is there any information that the Agency now has that
it did not have in March 1999 to justify changing its direction with
respect to the management of combustion wastes?
Response. Commenters submitted additional information related to 59
possible damage cases involving coal combustion wastes, mostly at
utility landfills and surface impoundments. Additionally, we received a
substantial amount of new information on the use of coal combustion
wastes to fill surface and underground mines. Ultimately, we decided to
retain the exemption from regulation of coal combustion wastes under
Subtitle C authority.
Question 9d. If so, what is the information?
Response. Please see the answer to Question 9c above.
Question 10a. Many utilities and others recycle large quantities of
the combustion ash they generate. Public Services of New Hampshire, for
example, recycles over 75 percent of the waste it generates--over 75,
000 tons of ash--into grit and cement-based products. It still spends
over $1 million to manage its waste. There is a concern that if
combustion wastes are regulated under Subtitle C, recycling
opportunities will be lost or substantially limited and that disposal
costs could increase dramatically. Has the Agency looked at the
potential economic impact on the public utilities, universities, and
other users of industrial boilers of a hazardous waste determination?
Response. EPA was especially concerned about any possible spillover
effects of regulation of disposal and minefilling under Subtitle C
authority on beneficial uses and was committed to eliminating or
substantially reducing such spillover effects. This was a factor that
we took into account in making our regulatory determination. We also
estimated the costs associated with regulation of disposal of fossil
fuel combustion wastes and found that they would be considerable, but a
relatively small percentage of industry revenues. As stated above, on
April 25, 2000, EPA announced its decision to retain the exemption from
regulation under Subtitle C.
Question 10b. How will it effect the cost of disposal?
Response. As explained above, EPA decided to retain the exemption
for co-managed coal combustion wastes from regulation as hazardous
waste. Thus, disposal costs will not be affected by Subtitle C
regulation.
Question 10c. The committee has been informed of one estimate, that
suggests that it could increase disposal or management cost by a factor
of five. Would you agree with that estimate?
Response. In that EPA has decided to retain the exemption from
regulation for co-managed coal combustion wastes as a hazardous waste,
such estimated increases in the cost of management or disposal will not
occur.
Question 11. EPA has set the goal of addressing 172 high-priority
RC.RA corrective actionsites in fiscal year 2001. In fiscal year 2000,
EPA was to address 170 high-priority RCRA corrective actionsites.
However, the Agency has requested an increase of $3.4 million from last
year, yet it only intends to address two additional high-priority sites
than last year. Where will the $3.4 million be targeted in the RC.RA
Corrective Program?
Response. It will take between one and 2 years for the additional
$3.4 million requested in fiscal year 2000 to yield significant
increases in the number of facilities achieving environmental
indicators. Lead time is necessary to hire and train an additional FTE
per region that the new money allows, and then to have an impact on
efforts by facilities to reach program goals. Annual program
accomplishment are expected to increase beginning in 2003, when the
RCRA target for control of human exposure jumps from 172 to 257 sites
for each of the 3 years until 2005. Without the requested funding
increase, it is unlikely that this higher annual number can be
sustained. The annual target for control of groundwater contamination,
which remains constant at 172 for the years 2001-2005, reflects the
relative difficulty facilities will have in meeting this goal. The
requested funding increase is necessary for the program to sustain
current progress in meeting the groundwater contamination annual goal.
Question 12a. Congress has been working on removing MTBE from
gasoline and will continue to do so, however, it is time to look at the
problem of MTBE in groundwater. The first estimates of potential
drinking water contamination on a national scale were released last
week in the Environmental Science and Technology Journal. The study
estimated that about one-third of drinking water wells in 31 States
have the potential to be contaminated with MTBE (this figure does not
even include California or Texas) and does not include private wells.
This is an alarming figure. The committee is already working to address
the MTBE in gasoline issue, but should start looking ahead to
groundwater contamination. Has EPA done any independent work to
determine the scope of the MTBE groundwater contamination problem, and
the scale of possible remedial costs?
Response. To clarify, the article states that approximately 9,000
community water supply (CWS) wells in 31 States have a leaking
underground storage tank (UST) within 1 km. It points out that not all
leaking UST sites will be a significant source of MTBE to groundwater
and to CWS wells. In addition, the study referenced in the
Environmental Science and Technology Journal is based on 31 States
which contributed data to the U. S. Geological Service. EPA does not
currently have data for the remaining 19 States.
EPA is working to develop cost estimates for remediating releases
of MTBE from underground storage tanks. To date, from the limited
amount of data available, there is apparently very little experience
nationwide in addressing MTBE contamination. A little over half of
States are monitoring for MTBE at leaking UST sites. (Earlier this
year, EPA strongly recommended States immediately begin monitoring and
reporting of MTBE and other oxygenates in groundwater at all UST
release sites nationwide. In those cases where States detect MTBE or
other oxygenates, EPA strongly advised that States take immediate and
aggressive remedial action to address the contamination.) In almost all
of the cleanups at leaking UST sites, the available information on
remediation costs reflects those costs to address contamination from
benzene as well as other contaminants, such as MTBE. Cost data are
available for a relatively few sites at which only MTBE contamination
has been cleaned up.
Given the uncertainties, it would be premature to offer an estimate
on possible remediation costs. Numerous factors influence the cost of
cleaning up MTBE releases, including:
the number of sites contaminated with MTBE,
the concentration of those releases,
the effectiveness of cleanup technologies,
the level to which States will cleanup MTBE, and
whether States will re-open previously closed leaking UST
sites.
None of this information is currently available on a national
level, but EPA is working with our State and regional partners to
gather this type of information. Earlier this year, EPA recommended
that all States monitor for and report MTBE and other ethers in
groundwater at all leaking UST sites. At those sites where MTBE is
detected, as stated above, EPA strongly advised States to take
immediate and aggressive remedial action to address the contamination.
The New England Interstate Water Pollution Control Commission is
obtaining information from the States about their experiences with MTBE
releases. The American Society for Testing and Materials, EPA, and the
States recently formed a workgroup to develop a protocol to help States
decide if and when it is appropriate to re-open previously closed
leaking UST sites.
Anecdotal information indicates that the cost to remediate MTBE
contamination is significant. The reasons for the increased cost of
MTBE remediation include:
MTBE does not naturally attenuate as rapidly as BTEX,
site characterization is more difficult and expensive,
and the
MTBE plume separates from the rest of the petroleum plume
and travels more quickly through the subsurface, making it more likely
to reach a receptor (e.g., groundwater).
Question 12b. Can you comment on some of the outside reports on the
potential scope and costs of the problem?
Response. EPA is familiar with the Environmental Science and
Technology Journal article on MTBE referenced in question 12a above. As
EPA understands the article, it does not speculate on costs of the MTBE
problem, but does conclude that: ``Although the large number of MTBE
LUSTs in the immediate vicinities of community supply wells may
represent a significant threat to drinking water over at least the next
decade, the data to determine the magnitude of that threat are simply
not available at the present time''. EPA agrees with the article's
conclusion about the potential threat to drinking water from LUSTs;
however, the Agency is working to identify and collect the necessary
information so that EPA and the U.S. Geological Service (USGS) will be
better able to characterize the threat of MTBE contamination to
drinking water. EPA will work with USGS to supplement the analysis
described in the journal article and develop projections for the
future. As for other outside reports, EPA is not familiar with the
other outside reports to which you are referring.
Question 12c. How does the EPA plan to address MTBE in groundwater,
specifically what statutory authorities does it plan to use?
Response. The Toxic Substances Control Act (TSCA), section 6, 15
U.S.C. 2605, provides EPA with broad authority to issue rules to
regulate the manufacture, processing, distribution in commerce, use
and/or disposal of chemical substances in the United States where such
regulation is necessary to prevent unreasonable risks to health or the
environment. EPA has recently published in the Federal Register an
Advance Notice of Proposed Rulemaking, under TSCA, to initiate a
process to address the threat to the nation's drinking water resources
from contamination by MTBE. One of the options available to EPA
pursuant to the unreasonable risk provision under TSCA section 6 is to
eliminate or greatly reduce the use of MTBE as a gasoline additive. EPA
is interested in comments on a comprehensive approach to reducing MTBE
risk. The Agency will also consider whether action under another
statute administered by EPA, such as the Clean Air Act, the Resource
Conservation and Recovery Act, the Clean Water Act, or the Safe
Drinking Water Act, could effectively address the risks posed by MTBE
and, if so, whether it is in the public interest to regulate the risk
under TSCA instead of such other statute.
Question 12d. Does EPA see this as primarily a Superfund issue, or
an Underground Storage Tank remediation issue?
Response. Releases from underground storage tanks are a significant
source of MTBE contamination, and State and EPA UST programs are
working diligently and using the full range of authorities appropriate
and available to address the issue of MTBE contamination. As you know,
Congress created the Leaking Underground Storage Tank (LUST) Trust Fund
in 1986 to oversee cleanups by responsible parties and pay for cleanups
at sites where the owner or operator is unknown, unwilling or unable to
respond, or which require emergency action. EPA has been using and will
continue to use LUST Trust Fund resources--as well as other appropriate
mechanisms--to address MTBE contamination.
Question 12e. Does the Budget that you have presented to us take
into account any additional cleanup activity that will be needed due to
MTBE contamination?
Response. The Administration is very concerned about MTBE
contamination. The full nature and extent of MTBE contamination
nationwide is currently unknown. EPA is supporting efforts to obtain
additional information and to prevent and remediate MTBE contamination
expeditiously. The President's budget request for fiscal year 2001
reflects the need to balance environmental priorities and to stay
within budget targets. It should be noted that the bulk of the funding
for cleanup of leaking USTs is borne by responsible parties and State
underground storage tank cleanup funds, which raise over $1 billion
annually. EPA's Leaking Underground Storage Tank (LUST) funding is
primarily used by States to oversee and expedite these cleanups.
Question 12f. Will there be additional resources required in the
future?
Response. The President may need to request additional LUST funding
as more information becomes available about the nature and extent of
MTBE contamination in the future. Additionally, Federal and State
regulations may need to be strengthened, and enforcement activities
will require necessary encouragement and support.