Testimony of Velma M. Smith Friends of the Earth before the House Transportation and Infrastructure Committee Subcommittee on Water Resources & the Environment Superfund Reauthorization May 12, 1999 Good moming, Mr. Chairman, Members of the Committee. I am Velma Smith, Senior Policy Associate with Friends of the Earth. Friends of the Earth is a national, nonprofit organization that works -- in concert with affiliates in over 50 countries across the globe -- on environmental and energy issues. On their behalf, I thank you for this opportunity to testify. As a veteran of this long Superfund reauthorization debate, I want to first note the diligence and hard work of your staff. I know they have toiled long and hard, pouring over the countless legislative proposals that have been offered since the early 90s. They have listened to those promoting various versions and listened to those aggrieved by suggested changes in the law. From those efforts, they have created a sparer version than those offered before, and H.R. 1300 has been characterized as one which removes items that environmentalists fourd most objectionable. Indeed the sections on natural resource damages that caused great concern to many of my colleagues and to Friends of the Earth have been omitted. Save for a study on the cost of the law's natural resource damage provisions, H.R. 1300 wisely opts for silence on that issue. For that we breathe a sigh of relief and thank you. But as important as the law's current provisions aimed at restoration of serious ecosystem damage are to the future of a number of Superfund communities, those provisions are not the sum and substance of the law. They do not govern the basic approach to determining how clean a site should be before the government declares its task complete. And they do not go to the fundamental tenet of the law's "polluter pays" system, which accomplishes two very important things: one, keeping the program funded sufficiently to address all the sites with defunct, insolvent or recalcitrant parties and two, maintaining a compelling incentive for businesses to exercise a high standard of care in ongoing environmental management operations. On these points, other titles of the law are critical, and H.R. 1300 changes those critical provisions in ways that do great harm. Thus my appreciation for your staff's diligent effort and your own admirable record on many environmental issues cannot overcome my reading of the bill. We cannot in any way endorse this legislation. In fact, we - can't even do as they say in many negotiations -- simply stifle a distaste for a few objectionable items and choose to quietly "swallow" the bill. We must vigorously and loudly oppose it. On this point, I speak not only for Friends of the Earth but also for my colleagues at the Environmental Defense Fund and the U.S. Public Interest Research Group. H.R. 1300 is a bad Superfund reauthorization. It will disrupt the pace of the cleanup program; it will invite more not less legal wrangling; it will place the financial interests of polluting companies above the future options of contaminated communities; it will stifle rather than nurture the advances in groundwater science and remediation technology that the Superfund program has so far fostered. Those are harsh criticism, I know. But I do not make them lightly. To explain a bit about why I feel compelled to be so blunt, let me take us back for just a minute. Bold and ambitious, Superfund was born of a crisis and controversy. It was crafted at a time when people thought that pollution messes with contaminated soil and polluted groundwater were aberrations, when the failure to clean up these problems seemed to be due solely to lack of will and shortage of funds. With hindsight, we can now say that some naivete created expectations that were unreasonable. The framers of the law created a ground-breaking market incentive -- known as strict, joint and several liability -- that has affected industrial operations all across the country for the better. Nonetheless, most people focused not on how the specter of liability compelled a new level of vigilance in environmental management but on the list of sites slated for cleanup. People expected speedy cleanups and some ten years into the program, they just didn't seem to be happening. So we came to the time for reauthorization amidst harsh criticism. The Competitive Enterprise Institute called the program an "utter failure;" others weren't much kinder in their pronouncements on the pace of cleanup. By 1993, Superfund site neighbors had grown wildly impatient with a lack of progress in restoring their neighborhoods, and major corporations affected by Superfund had done a remarkable job of discrediting the program. Using -- or I should say abusing -- the law's provision for contribution suits, major companies had lawyers knocking on the doors of local governments, neighborhood pizza parlors and girl scout troops, threatening legal action to "recover" liability shares associated with sites where municipal garbage had been mixed with industrial waste. A good deal of the criticism at that time consisted of hyperbole and exaggeration of grand proportions: EPA was not requiring return of all old railyards to "pristine" conditions, implementation of costly "pump and treat" remedies at all groundwater-contaminated sites or treatment of every ounce of soil to a level that would allow children to dine off of abandoned mine sites. Still the program was not living up to expectations, it needed new attentions and energies. It needed repair. Those needs fueled major lobbying and PR efforts but they also brought together people with different views on environmental matters. Business leaders and environmentalists engaged in lengthy dialogue sessions; local government representatives sat down with the Sierra Club, Friends of the Earth and others; people in the business of selling scrap for recycling sought out environmental activists and environmentalists made overtures to small businesses. A variety of compromise proposals evolved, some of which drew wide but not universal support. It seems clear to me that you and your staff have reviewed those various legislative proposals, and you've continued working to try and wring out of them a broader base of support. Ultimately, each member of Congress has to make his or her own judgement about the breadth and diversity of support that any legislation enjoys, but I must report that this bill has been the subject of considerable discussion in the environmental community and I know of no major national environmental organization that feels this is the way we should go. So what do I suggest? What I ask today is that you step back, gain some perspective on the years' of wordsmithing and consider a fundamental question. Is the Superfund program that your bill seeks to address the Superfund program of today? Or does the bill primarily address the image of the program that existed in the early 90s? Haven't changes in the program and changes on the ground at Superfund sites moved faster than the legislative debate over Superfund? Yes, the Superfund cleanup effort has a long way to go but consider this: By early in 1998, the Superfund program had provided nearly 340,000 people with alternatives to contaminated water supplies. Approximately 1,200 waste removals had been completed at 600 NPL sites and nearly 3,000 removals had occurred at more than 2,500 non-NPL sites. Cleanup activities had fully cleaned over 300 areas of land contamination, more than 40 areas of surface water contamination and nearly 40 areas of groundwater contamination. As of April of this year, 184 sites had been deleted from the National Priorities List (NPL). Nearly 600 had reached the point where remedy construction had been completed. EPA has removed over 30,000 sites from the CERCLIS listing and has provided more than 225 grants to communities working on brownfields redevelopment. EPA's Superfund reforms have also addressed a variety of issues and controversies with the program. Since early in 1996, the National Remedy Review Board has provided peer review on remedy selection, with reported cost savings at 33 sites exceeding $43 million. From Fiscal Year 1996 through Fiscal Year 1998, over 200 remedies have been "updated," for an estimated future cost savings of over $1 billion. To ensure a smoother running program and more consistency across EPA regions, a whole host of guidance documents and materials have been created since the debate on reauthorization began, including EPA's Directive on Land Use in Remedy Selection, Guidance on the Role of Cost in Remedy Selection and Guidance on Agreements with Prospective Purchasers of Contaminated Property. The Agency has finalized soil screening guidelines and completed a rulemaking that provides for special treatment of remediation wastes. It has increased orphan share allotments, dramatically increased the number of prospective purchaser agreements and issued nearly 300 comfort or status letters in an effort to address concerns of those interested in redevelopment of brownfield properties. To deal with the difficult issue of lead contamination, it has convened its Technical Review Workgroup for Lead and reviewed a half dozen lead risk assessments. The Agency has revised its settlement policy to allow for the existence of orphan share to be considered in settlement cost recovery cases, changed its policy to provide for partial deletions to make portions of NPL sites available for return to productive use, and worked to discourage third-party contribution lawsuits by issuing de micromis guidance and acting to resolve the liability of small parties more quickly than in the past. To speed remedy selection, EPA has issued presumptive remedy guidance for municipal solid waste landfills, volatile organic contaminants in soils, wood treatment sites and groundwater sites. EPA, other federal agencies and the private sector have also made great advances in groundwater cleanup technologies in the intervening years. For example, a 1999 article in Pollution Engineering magazine reports on a new technology called dynamic underground stripping, which heats soil and groundwater to remove and destroy contamination. The technology developed in part by Lawrence Livermore National Laboratory was used by Southern California Edison at a site that had been used to treat utility poles, According to the report on the first nine months of effort with this technology at the site, cleanup of the Dense Non-Aqueous Phase Liquids or DNAPLs exceeded what might have been expected with standard pump and treat in a thousand year period. Remediation by pump and treat would have been expected to remove 275 pounds of contaminant. The new method removed 540,000 pounds of contaminant. Elsewhere a promising photocatalytic process is being evaluated by EPA's Superfund Innovative Technology Evaluation program. That process has been used to treat trichloroethene groundwater contamination at a textile mill, and early results indicate a better than 99.9 percent reduction of the troublesome compound. Another technique dubbed the "lasagna" technology, uses electrical current to deal with underground treatment zones. At the Paducah, Kentucky Gaseous Diffusion Plant that technology reportedly reduced trichloroethylene levels to lower concentrations than had been hoped for. With contamination as high as 300 ppm prior to treatment, the State had called for reductions to 5 ppm. Cleanup levels following treatment were reportedly as low as .2 ppm. A spokesperson for Monsanto, one of the researchers working on the technology, is quoted as saying, "the technology...can be cost-effective and has the potential for wide application." A 1996 article in Chemical Engineering, "Beyond Pump and Treat'," notes that "a growing number of innovative cleanup and containment technologies are already starting to prove that they can slash both the costs and the time required for site cleanups." A 1997 article suggests that promising techniques include air sparging, bioremediation, phytoremediation, in-well vapor stripping, treatment walls, the use of cosolvents and surfactants and UV oxidation. At least some of these were available when Congress began its reauthorization deliberations, but the literature seems to suggest that more of these have moved from the laboratory to the field, and EPA and other federal agencies have shown strong interest in moving the Superfund program along with the evolving cutting-edge of groundwater science. I do not mean to imply, of course, that these emerging technologies have given us the magic bullet that will do away with all Superfund ills quickly and cheaply. We have had enough of false expectations, and I'm sure there is not painless, easy technology panacea around the corner. But I implore you not to write Superfund legislation that assumes cleanup difficulties are intractable and that freezes innovation at this important time by grossly lowering cleanup standards. As a long-time member of the House Science Committee, Mr. Chairman, you no doubt understand that regulatory requirements or, in this case legal obligations, can compel important research and development investments. This is precisely what Superfund has done when it comes to groundwater. We know much more about the movement of contaminants through groundwater than we did when this program began. And now, it appears, we are on the verge of having a much enlarged and improved toolbox for cleaning up groundwater. - - If Superfund reauthorization deletes the preference for treatment overall as your bill does -- and takes away the push for permanent solutions - as your bill does, what will happen to these fledgling efforts? If costs are elevated in the remedial decision-making hierarchy -- as they are in your bill -- then aren't we likely to nip this innovation in the bud? To move the program backwards into a stage of heavy reliance on institutional controls and long-term management rather than final cleanups that restore a wide range of options to future generations? If treatment remedies today are being used in less than 40% of the sites, what message does your bill send to communities, to PRPs and to the courts about how that would be expected to change after reauthorization? Will treatment become the rarely used option for modest "hot spots" and the evolving |