Business meeting to consider the nominations of Sean Donahue, of Florida, and Jessica Kramer, of Wisconsin, both to be an Assistant Administrator of the Environmental Protection Agency, and Brian Nesvik, of Wyoming, to be Director of the United States Fish and Wildlife Service; to be immediately followed by hearings to examine improving future management of the Superfund Program.
Meeting•Senate Environment and Public Works•Apr 9, 2025 · 9:45 AM
Summary
Senate Environment and Public Works held a meeting on Apr 9, 2025 at 9:45 AM in Dirksen Senate Office Building, Room 406.
Record
The meeting has its transcript on the record.
Transcript
The transcript runs to 1,446 lines and 75,837 characters, as the Government Publishing Office printed it.
1[Senate Hearing 119-291]2[From the U.S. Government Publishing Office]34 S. Hrg. 119-29156 IMPROVING FUTURE MANAGEMENT OF THE7 SUPERFUND PROGRAM89=======================================================================1011 HEARING1213 before the1415 COMMITTEE ON16 ENVIRONMENT AND PUBLIC WORKS1718 UNITED STATES SENATE1920 ONE HUNDRED NINETEENTH CONGRESS2122 FIRST SESSION2324 __________2526 APRIL 9, 202527 __________2829 Printed for the use of the Committee on Environment and Public Works3031 [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]3233 Available via the World Wide Web: http://www.govinfo.gov34 ______3536 U.S. GOVERNMENT PUBLISHING OFFICE373862-808 WASHINGTON : 20263940 COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS4142 ONE HUNDRED NINETEENTH CONGRESS4344 FIRST SESSION4546 SHELLEY MOORE CAPITO, West Virginia, Chairman47 SHELDON WHITEHOUSE, Rhode Island, Ranking Member4849KEVIN CRAMER, North Dakota BERNARD SANDERS, Vermont50CYNTHIA M. LUMMIS, Wyoming JEFF MERKLEY, Oregon51JOHN R. CURTIS, Utah EDWARD J. MARKEY, Massachusetts52LINDSEY O. GRAHAM, South Carolina MARK KELLY, Arizona53DAN SULLIVAN, Alaska ALEX PADILLA, California54PETE RICKETTS, Nebraska ADAM B. SCHIFF, California55ROGER F. WICKER, Mississippi LISA BLUNT ROCHESTER, Delaware56JOHN BOOZMAN, Arkansas ANGELA D. ALSOBROOKS, Maryland57JON HUSTED, Ohio5859 Adam Tomlinson, Republican Staff Director60 Dan Dudis, Democratic Staff Director6162 C O N T E N T S6364 ----------65 Page6667 APRIL 9, 20256869 OPENING STATEMENTS7071Capito, Hon. Shelley Moore, U.S. Senator from the State of West72 Virginia....................................................... 173Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode74 Island......................................................... 37576 WITNESSES7778Fox, Robert, Esq., Senior Partner, Manko Gold Katcher Fox, LLP... 479 Prepared statement........................................... 780 Responses to additional questions from:81 Senator Whitehouse....................................... 1182Radel, Steven B., President, Industrial Development Advantage,83 LLC............................................................ 1684 Prepared statement........................................... 1985Gomez, J. Alfredo, Director, Natural Resources and Environment86 Team, U.S. Government Accountability Office.................... 2387 Prepared statement........................................... 258889 ADDITIONAL MATERIAL9091Possible CERCLA Improvements--Suggested Topics for a Planned92 Legislative Hearing, Walter Mugdan............................. 529394 IMPROVING FUTURE MANAGEMENT OF THE95 SUPERFUND PROGRAM9697 ----------9899 WEDNESDAY, APRIL 9, 2025100101 U.S. Senate,102 Committee on Environment and Public Works,103 Washington, DC.104 The committee met, pursuant to notice, at 10:03 a.m. in105room 406, Dirksen Senate Office Building, Hon. Shelley Moore106Capito (chairman of the committee) presiding.107 Present: Senators Capito, Whitehouse, Lummis, Boozman,108Husted, Merkley, Kelly, Schiff, Blunt Rochester.109110 OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO,111 U.S. SENATOR FROM THE STATE OF WEST VIRGINIA112113 Senator Capito. Thank you all for being patient with us. We114are starting this hearing; I note that there are several other115committees that have votes going on, one of which is one of my116committees, which is Commerce. I am going to make my opening117statement and go over there quickly. Senator Whitehouse has118very kindly stepped up to the plate here to move the hearing119forward.120 Good morning. I am going to be in a good mood all day, all121day. Hold me to that.122 Today we will discuss challenges facing the EPA's Superfund123program and solutions to ensure it can live up to its full124potential. Since I have become chairman, I have stressed that125EPA must refocus the agency's work on the core environmental126missions to deliver the cleanups and environmental solutions127that most benefit the environment and America's health and128welfare.129 The Superfund program, as enacted, is one of the best130examples of the EPA executing that core mission. Cleaning up131our Nation's most contaminated sites directly improves public132health and can revitalize struggling communities. I have133certainly seen that in my own State.134 Congress established Superfund in 1980 in response to135several high profile environmental disasters. The law was136designed to promptly cleanup heavily contaminated sites and to137make polluters responsible for the cleanup. These are important138goals, but the EPA's management of the Superfund program has139not delivered as intended. Communities now expect the Superfund140cleanup to take more than a decade, I have already heard that141from our witnesses in our informal conversations. That142prolonged timeline sends conflicting messages to communities143with a site nearby. You live near one of the most hazardous144places in the Country, but EPA will let it sit there for years145before they allow it to be fully cleaned up.146 Despite the lengthy cleanup timeline, the Superfund program147has achieved some critical environmental and public health148victories and restored thousands of contaminated sites across149the Country. The reason for delays that robbed Superfund of its150full potential is that EPA's implementation of the law151prioritizes process over results.152 The complexity of the law has made it one of the most153difficult environmental programs to administer. In practice,154the main winners in managing Superfund cleanups are the lawyers155who profit from endless litigation while communities wait for156promised relief.157 To manage a law this complex, the EPA has built an158entangled web of bureaucracy, workgroups, task forces and159committees that too often slow progress instead of delivering160results. Cleaning up Superfund sites is naturally a costly161endeavor.162 The problems with Superfund cannot be blamed on funding163alone. To better help communities get the most out of limited164taxpayer funding, Congress and the EPA must identify165efficiencies to accelerate the cleanups. This is particularly166important when considering the overall costs of Superfund167cleanups.168 Superfund price tag is not just about the complexity of169environmental cleanup. This is what I call the Superfund170premium, the concept where the same environmental cleanup171becomes more expensive and time consuming under Superfund172compared to a State-led or a voluntary cleanup program.173 Whether managed under Superfund authority or through a174State program, remediation is likely to involve the same core175work, removing contaminated soil, treating groundwater, and176restoring the land. Yet because of the Superfund premium, we177often see costs just balloon and timelines stretch once a site178is listed. It is not because the environmental standards are179higher, but rather because the program's process has replaced180the law's cleanup mission.181 The program's complex bureaucracy generates enormous182transaction costs that have nothing to do with actual183environmental cleanup. Instead of removing contaminants,184limited time and financial resources are squandered on endless185meetings, redundant studies, and excessive overhead costs186completely unrelated to remediation. There is no shortage of187responsible parties that are ready and willing to remediate the188site. Even good Samaritans, well-intentioned individuals and189organizations, are often deterred from cleaning up sites190because of liability risks and financial barriers.191 Our laws should encourage, not prevent, volunteer efforts192to address legacy pollution. Accelerating the pace of Superfund193cleanups does not mean cutting corners or sacrificing health194protections. It means defining an end goal with a clear plan195that gets it to a safe, productive end State as efficiently as196possible.197 The ensuing cleanup is driven by that goal, to the benefit198of communities and the environment. Right now, the priority is199enforcement first, cleanup second, and leaving communities to200wait far too long. That needs to change.201 I look forward to hearing from today's expert panel on how202to improve the Superfund program's efficiency and203accountability.204 I now recognize Senator Whitehouse for his opening205statement.206207 OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,208 U.S. SENATOR FROM THE STATE OF RHODE ISLAND209210 Senator Whitehouse. [Presiding.] Let me start by thanking211Chair Capito for this hearing, and our witnesses for appearing.212We are here today to talk about improving the EPA's Superfund213program, which is one of the best tools for holding polluters214accountable for contamination at our Country's most polluted215sites.216 These sites exist in every State in our Nation. They are217complex. Cleanups can be laborious and long to complete. Rhode218Island has a long history with this program. Senator John219Chaffee, former chairman of this committee, authored the220Superfund program in 1980. His son and my predecessor, Lincoln221Chaffee, chaired the Superfund subcommittee and championed222bipartisan legislation to support the program, including223authorization of the Brownfields program.224 I am happy here today to continue that support and address225bottlenecks to the cleanup process. However, speed must not226come at the cost of efficacy. Scientists, engineers and project227managers ensure that cleanups are done right. Investigators and228lawyers identify responsible parties and hold them accountable.229EPA employees in these roles often have specialized experience230with specific sites and communities, institutional knowledge231and relationships that, once lost, are hard to rebuild.232 Budget, staff, and speed are interrelated. As we will hear233from Mr. Gomez, when annual appropriations declined from234roughly $2 billion to $1.1 billion, spending on remediation235fell, unsurprisingly, by roughly half.236 The average project completion time increased from 2.6 to 4237years. Significant delays affected one-third of long-term238projects. When budgets are cut, work often slows down.239 At his confirmation hearing before this committee,240Administrator Zeldin appeared before us and committed to241following the law. Slashing 65 percent of EPA's appropriated242budget and pushing out agency staff until there is no one left243to execute the law violates those promises that Administrator244Zeldin made. It will do immeasurable damage to American245families.246 He said he would defer to the professional scientists at247EPA, then turned around and plans to remove EPA's independent248scientific research office. Without such expertise, how do we249make sure our Country's most polluted sites are safe?250 For Superfund, this mess will delay cleanups and prolong251communities' exposure to harmful pollution. Let's be clear: the252winners from slashing EPA's budget and staffing and kneecapping253the Superfund program are the planet's biggest polluters. They254are behind this.255 Administrator Zeldin sat in this room and said climate256change was real and must be addressed with urgency. Now he257mockingly refers to the climate change ``religion'' and258applauds himself for ``driving a dagger'' straight into its259heart.260 Climate change will compromise the safety of Superfund261sites. According to GAO, 60 percent of EPA's Superfund sites262are located in areas prone to flooding, storm surge and/or263wildfire. EPA has therefore been integrating climate change264resilience into its Superfund efforts.265 We need to plan for severe storms occurring more266frequently, coastal communities flooding more severely, and267wildfires scorching areas they have not before. Superfund staff268looked ahead at all that when conducting 5-year reviews to see269what amelioration or containment efforts need adjusting.270 To be good stewards of taxpayer dollars, we must ensure271that climate risk remains part of the Superfund site evaluation272process. Otherwise, severe weather events will wreak havoc273onsites that were previously considered safe.274 There are changes that can be made to improve the Superfund275program, and I am glad we are here today to discuss them.276However, if the Trump-Musk administration slash and burn277approach continues, it would not matter what improvements we278propose here today.279 Senator Whitehouse. [Presiding.] With that, let me turn to280our witnesses for their opening remarks. Our first witness is281Mr. Robert Fox, Senior Partner at the law firm Manko Gold282Katcher Fox. He is a national Superfund expert known for283litigating high profile cases like Gowanus Canal, and advising284on CERCLA compliance liability and brownfields redevelopment.285 Mr. Fox has previously testified before this committee on286the Superfund program. Welcome back to the committee, Mr. Fox,287and I recognize you for your opening statement. You have 5288minutes. Your full statement will be made a matter of record.289290STATEMENT OF ROBERT D. FOX, ESQUIRE, SENIOR PARTNER, MANKO GOLD291 KATCHER FOX, LLP292293 Mr. Fox. Thank you. Chairman Capito, Ranking Member294Whitehouse and members of the Environment and Public Works295Committee, thank you for the opportunity to testify.296 My name is Robert Fox. After graduating from Harvard Law297School, I have practiced environmental law for 40 years. I have298taught Superfund as an adjunct professor for 27 years at Penn299Carey Law School.300 My clients on Superfund matters range across all industry301sectors and municipalities, including the city of New York. My302testimony identifies common sense approaches to achieve303Superfund's primary goals. For the past 45 years, courts and304Superfund's legislative history make clear that Superfund has305two primary goals. First, incentivizing the prompt, voluntary306cleanup of the Nation's most contaminated sites; and second,307ensuring that polluters pay for those cleanups.308 Undoubtedly, there have been significant accomplishments309under Superfund. It is equally clear that the Superfund program310has strayed from meeting those goals. However, solutions exist311within Superfund's existing statutory language, its existing312policies and with minor regulatory adjustments to realign313Superfund with its primary goals.314 First, let's start with promptness. Superfund cleanups take315too long and that increases costs. I am aware of Superfund316sites listed on the National Priorities List in the early3172000's with no remedy selected to date. I am also aware of318Superfund sites where private parties submitted remedial319investigation reports to EPA and did not receive comments for320years and years.321 Here is a proposed solution. EPA requires that private322parties adhere to strict deadlines for submitting required323cleanup reports, with penalties for non-compliance. Yet, EPA324has no timeframe for its own report reviews.325 Many States administered cleanup programs that for years326experienced similar cleanup delays, but then adopted mandatory327agency review times. That cleared the backlog. EPA should adopt328a policy to do the same.329 Second, incentivizing private parties to perform the330cleanup and making the polluter pay are two sides of the same331coin. To create proper incentives for private parties to332perform cleanups, their share of cleanup costs must be fair.333Otherwise, you do not get polluter pays, you get polluter334overpays.335 EPA has relied upon joint and several liability under336Superfund to require the same deep pocketed parties at site337after site to pay for 100 percent of the cleanup costs, leaving338those parties to pursue tens and often hundreds of other339responsible parties through costly and time consuming340litigation. That approach is both unfair and inefficient and341dissuades private parties from coming forward to perform342cleanups.343 The solutions to this problem already exist within the344Superfund statute and EPA's policies. EPA just has to use them.345For example, section 122(b)(1) of Superfund describes what is346known as ``mixed funding'' for cleanups. This takes the form of347either EPA pre-authorizing the Superfund to reimburse parties348performing the cleanup for a portion of the costs not349attributable to those parties, or EPA agreeing to perform a350portion of the cleanup itself, with the remainder performed by351the private parties.352 In either case, EPA pursues other parties to recover EPA's353costs. That saves tremendous transaction costs for the parties354performing the cleanup.355 EPA acknowledges that mixed funding promotes expeditious356cleanups rather than protracted litigation. Despite this clear357statutory authority, the Superfund program rarely uses mixed358funding. That should change.359 Similarly, EPA has an ``orphan share'' policy. Pursuant to360this policy, EPA can settle with private parties who desire to361perform the cleanup, and compromise a portion of EPA's past and362future costs attributable to liable parties who are either363insolvent or defunct.364 EPA's orphan share policy expressly states that it aims to365provide incentives to voluntarily perform cleanups and to keep366transaction costs low. Once again, the Superfund program uses367this policy too sparingly.368 By the policy's own terms, EPA's compromise is limited to369the lesser of 25 percent of the cleanup costs or the total370amount of EPA's unreimbursed costs. The statute contains no371such limitation on an orphan share or past cost forgiveness.372 One final suggestion. When private parties perform a373cleanup, EPA charges those parties with EPA's oversight costs,374a term not defined in the statute. Oversight costs include375costs for EPA's contractors.376 Oversight costs also include costs attributable to the time377spent by EPA's personnel, with no limitation on how many people378work on a matter, or how many hours they spend. In other words,379private parties are required to reimburse EPA for work380performed by internal EPA employees on that matter.381 Then, on top of these direct costs, EPA also pursues382reimbursement of an ``indirect cost'' premium for its overhead383expenses throughout a regional office, including rent,384utilities, computers, et cetera. This indirect cost premium can385sometimes exceed 100 percent. Personnel costs and a premium for386overhead are not appropriately reimbursable, foster387inefficiency and create a disincentive for parties to perform a388cleanup.389 In conclusion, the Superfund program has proven390accomplishments. Going forward, the program needs these common391sense solutions to ensure that the program returns to meeting392its primary goals.393 [The prepared statement of Mr. Fox follows:]394395[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]396397 Senator Whitehouse. Our next witness is Steven Radel,398President of Industrial Development Advantage. Mr. Radel has399extensive experience in managing successful hazardous waste400cleanups, including Superfund sites. His company specializes in401acquiring contaminated properties and remediating them so they402can be safely redeveloped.403 I will now recognize Mr. Radel for his opening statement.404405STATEMENT OF STEVEN B. RADEL, PRESIDENT, INDUSTRIAL DEVELOPMENT406 ADVANTAGE, LLC407408 Mr. Radel. Chairman Capito, Ranking Member Whitehouse and409members of the Environment and Public Works Committee, thank410you for the opportunity to testify today.411 My name is Steve Radel. By way of background, I graduated412from Allegheny College with a degree in Environmental Studies,413and while working earned a master's in business administration414from the University of Pittsburgh and a law degree from415Duquesne University.416 I have worked for over 40 years in the environmental417industry as an environmental consultant, a corporate418environmental manager, and a founder and principal in419Industrial Development Advantage, (IDA), an environmental420liability assumption company. Industrial Development Advantage421acquires contaminated sites and assumes the underlying422environmental liabilities, which we then resolve through423remediation and redevelopment.424 Our transactions typically involve environmental insurance425that includes pollution legal liability insurance and excess of426indemnity coverage that can often be obtained by IDA for the427benefit of the seller. By way of example, IDA acquired the East428Chicago, Indiana Superfund site in 2022. IDA negotiated a429liability assumption agreement with the participating PRPs430(potentially responsible parties) and a prospective purchaser431agreement with the EPA to finish the operable unit soil432remediation.433 Our focus at this site is on remediation, repositioning the434site and integrating development design with remediation to435ensure the work is performed in a manner that is protective of436human health and the environment and also promotes productive437reuse of the site.438 East Chicago is a prime example of parties motivated to439complete a transaction to accelerate the cleanup process,440including the participating PRPs, EPA Region 5, and the State441and local governments. I will note that the EPA Region 5 folks442worked very hard to help make this happen.443 There are a couple of takeaways from this example that444reinforce my hope and belief that it is absolutely possible to445redevelop a Superfund site quickly, efficiently and446protectively if the right motivations are in place.447 First, without question, the default Superfund process is448cumbersome and prioritizes form and process over the ultimate449goal of remediating and returning a contaminated site to450productive reuse. When we approach a site we use the general451approach, what is the last chapter of this story, and we work452back from that.453 IDA and our consultants can look at any contaminated site454and figure out what the likely remediation approach should be455and we look at it in the context of the end use or best456development option for that property, the last chapter. There457may be some data gaps to complete a conceptual site model of458the environmental conditions at the site, but for the most part459we can cost effectively figure out the best remedial approach460once we identify that last chapter or reuse of the site.461 This can be done without the need to complete a number of462reports and plans that are typically required by the CERCLA463process. In short, we can take a site from a streamlined but464still comprehensive remedial investigation straight to remedial465action without the unnecessary time and expense of feasibility466studies or alternatives evaluations that are irrelevant to the467final chapter.468 Our focus is on completing a risk-based cleanup based on469the planned development by identifying potential exposure470pathways and making sure they are eliminated as part of the471remediation while also integrating development considerations472into the overall remedial design. This significantly reduces473the timeline to redevelopment.474 Second, the basic tools needed to make the CERCLA process475more efficient are already being widely used in other parts of476the environmental industry, for example, voluntary cleanup477programs that encourage the cleanup and reuse of sites with478prospective purchaser agreements, covenants not to sue and479appropriate institutional controls are already in place.480 Third, private parties like IDA can be incentivized to bid481on and acquire contaminated sites for the expected costs of482remediation with assurances like the tools mentioned a moment483ago to ensure that we do not inadvertently become PRPs, while484at the same time holding us to our commitment to complete the485remediation on schedule and on budget. These deals also include486environmental insurance, which is a motivation for PRPs as487well, or can be.488 Fourth, implementing our approach to more timely and489efficient cleanups can be facilitated and accelerated by490empowering more State-led CERCLA cleanups that place incentives491on more of a voluntary program risk-based approach that gets to492the final chapter efficiently, and by encouraging EPA to493provide comfort letters and ``ready for use'' determinations on494the front end of cleanups subject to approved remedy495implementation.496 We note that States already have authority to lead497Superfund cleanups through cooperative agreements but in our498view or experience, few States have done so because they lack499clear direction from EPA.500 Fifth, Superfund liens present difficult challenges for501Superfund cleanups, especially for environmental liability502transfer deals. These liens basically discourage innocent503parties from stepping in to facilitate cleanup. EPA already has504the tools to address this challenge by negotiating the release505or settlement of liens in exchange for completion of an agreed-506upon cleanup plan. Lien waivers do not affect EPA's ability to507go after responsible parties separately, but do help clear up508title for remediation and redevelopment. That is an excellent509tool that can be used.510 Finally, making the de-listing process more efficient can511help achieve the last chapter more quickly and efficiently. A512prolonged delisting can delay investment and development.513Presently there are only two times a year when parties can514request a delisting, and the process is extremely burdensome.515We view this as an opportunity for reform.516 In summary, in my opinion, the CERCLA program can be517improved to incentivize the cleanup and redevelopment of sites518avoiding unnecessary transaction costs and costly remediation519approaches. This will allow Superfund dollars to be used on520more sites and it will significantly reduce the timeframe to521clean up a site and make it available again for development,522shortening the timeline by years.523 Communities with these black hole sites are significantly524and negatively impacted by the prolonged lack of progress,525which often has a negative ripple effect throughout the larger526community. This is a real negative opportunity cost in these527communities.528 A clear path to success requires a ``last chapter''529focused, risk-based cleanup design to address the underlying530contamination and restore sites to their post-remediation531condition and use. This will speed up the time to get these532sites back into productive use and reduce the transactional533costs associated with the traditional Superfund process.534 Thank you.535 [The prepared statement of Mr. Radel follows:]536537[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]538539 Senator Whitehouse. Thank you, Mr. Radel.540 Our final witness this morning is J. Alfredo Gomez,541Director in the Natural Resources and Environment Team at the542U.S. Government Accountability Office, GAO. Mr. Gomez leads the543GAO's work on environmental protection, including hazardous544waste cleanups, toxic chemicals and agency management.545 Welcome. I will now recognize Mr. Gomez for his opening546statement.547548STATEMENT OF J. ALFREDO GOMEZ, DIRECTOR, NATURAL RESOURCES AND549 ENVIRONMENT TEAM, U.S. GOVERNMENT ACCOUNTABILITY OFFICE550551 Mr. Gomez. Chairman Capito, Ranking Member Whitehouse, and552members of the committee, good morning. Thank you for the553opportunity to discuss GAO's past work on the Superfund554program.555 The Environmental Protection Agency administers the556Superfund program to clean up sites contaminated by hazardous557substances. Some of the Nation's most seriously contaminated558sites are listed on the National Priorities List, (NPL).559Superfund sites can include mining sites, landfills, and former560manufacturing sites. As has been noted already, cleanups of561these sites are often expensive and lengthy.562 My statement today is based on several issued reports as563well as on updated appropriations data. Specifically, my564statement discusses trends in Superfund program appropriations,565numbers of NPL sites and reasons for changes, and factors566identified as affecting the timeliness of NPL site cleanups.567 Appropriations for the Superfund program have generally568declined since Fiscal Year 1999. In 1999, the program received569about $2.6 billion. In Fiscal Year 2024, it received $537570million. Since the Infrastructure Investment and Jobs Act and571the Inflation Reduction Act recently reinstated some Superfund572taxes, an additional $1.44 billion was also made available to573the program in Fiscal Year 2024.574 The Superfund program also receives supplemental575appropriations in some years. For example, in 2009, the576Recovery Act provided $600 million, and the IIJA provided an577additional $3.5 billion in Fiscal Year 2022.578 Regarding full-time equivalents, the Superfund program had5792,585 employees in 2023, a decrease of 274 positions over the580prior 10 years.581 Regarding the number of NPL sites, as of March of this582year, there were 1,340 active sites, 459 sites that had been583deleted from the list. When we last reviewed the NPL site584cleanups, we found that the number of non-Federal sites added585to and deleted from the NPL generally declined from 1999586through 2013.587 According to EPA, there are several reasons for the decline588in the number of non-Federal sites added to the NPL. For589example, some States may have been managing the cleanup of590sites with their own State programs, especially if a591potentially responsible party was identified to pay for the592cleanup.593 The decline in the number of non-Federal sites deleted from594the NPL was because of the decline in annual appropriations and595the fact that sites remaining on the NPL were more complex and596took more time and money to clean up.597 From our prior work, we have identified many factors that598can affect EPA's ability to clean up NPL sites in a timely599manner. One is that some sites are more technically complex to600clean up, because of site characteristics. For example,601complicating factors at sediment sites include their large602size, the location, tidal influences, multiple sources of603contamination, and difficulties related to sampling and604modeling at the site.605 Another is challenges with stakeholder involvement, which606can take EPA time and resources to address. For example,607stakeholders such as surrounding communities, local government,608and industry may have different opinions and competing609interests. Their levels of knowledge of the Superfund program610may vary.611 A third is decreases in agency resources can cause cleanup612delays. For example, shortages in EPA regional staffing levels613and a decline in State environmental agency personnel can cause614delays throughout the Superfund program from site assessments615to completion of remedial action projects.616 In summary, EPA's Superfund program has generally faced617declining annual appropriations with influxes of supplemental618appropriations in some years. In addition, the Superfund taxes619are now providing additional funding.620 Our previous work shows that the numbers of new sites added621to and removed from the NPL have generally declined from Fiscal622Year 1999 through Fiscal Year 2013. There are several factors623that can affect the timeliness of NPL site cleanups.624 GAO has ongoing work for the House Majority that is625reviewing funding and expenditures of the program, as well as626planned work to examine NPL site cleanup status.627 Chairman Capito, Ranking Member Whitehouse, this completes628my statement. I would be pleased to respond to questions.629 [The prepared statement of Mr. Gomez follows:]630631[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]632633 Senator Whitehouse. Thanks very much.634 I guess I will begin, until the Chair can return. Let me635start with you, Mr. Gomez. Is there any doubt in your mind that636flooding of a Superfund site, whether from storm surge or637riparian flooding, or a wildfire burning through a Superfund638site, can create contamination issues and if not properly639managed, can interfere with the remediation process?640 Mr. Gomez. Certainly, there is no doubt. In our past work641where we looked at this question, of the Superfund sites, and642then the potential effects from flooding, wildfires, storm643surge, there are many sites across the Country that are located644in places where these things are happening.645 In fact, we traveled to several sites. We visited a site in646Houston, Texas, the San Jacinto River site, where because of647unprecedented rainfall from Hurricane Harvey, it actually648dispersed the contamination on the river. It is happening at649sites across the Country. I think the purpose of our work was650to show how many sites are located in places where these things651are happening. It is important, then, for EPA to ensure that652the remedy that is in place is going to be protective.653 Senator Whitehouse. I would argue that recent experience654that you described in Texas, also in Florida, shows that this655is not a potential, it is actually happening, and we have to be656prepared. I would add my own editorial comment that the657flagrant errors in FEMA flood mapping create an additional658burden for people managing Superfund sites, because they have659to figure out what the real flooding risk is, not what FEMA's660phony baloney flooding risk is based on incompetent or661inaccurate mapping.662 I have a specific question, because we have a Bradford Dye663and Finishing site on the Pawcatuck River in Rhode Island. It664is an American wild and scenic river. There is significant risk665of flooding and release of contamination there.666 While we are going through the process of remediation,667there is significant danger of contamination out of lagoons668that have been prepared as sort of a catchment area.669 What are the interim measures during the period of a670remediation that EPA could require for a site like this, while671the listing package is being prepared?672 Mr. Gomez. In this case, EPA can explore other options. It673sounds like this is contaminated sediment, which really674complicates in terms of what the agency can do, just because of675the various things that are happening in place. In other676places, perhaps you could do a removal, where you could do a677removal, perhaps of the contaminations that are present, as the678continuing work takes place to figure out how you are going to679remediate it.680 Really, I think in those cases, it is important for EPA to681have the expertise, to be able to figure out what are the steps682that they can take in that very site-specific place, and to683make sure that it has the expertise, and if it does not, that684it can go outside to get it.685 Senator Whitehouse. Mr. Radel, another site-specific686question here. In the Navy property in Newport, Rhode Island,687there is an abandoned hospital, which is on extremely valuable688property, could be put to valuable reuse. It is within the689boundaries of a Superfund site, although it appears to have690itself very minor contamination.691 In your experience, what would be the appropriate vehicles692for trying to assist with the development and reuse of that693hospital, even though it is within the Superfund boundary, if694it can be shown that the contamination specific to the property695is minor?696 Mr. Radel. In my experience, if we could separate that697hospital location from the overall Superfund site through some698kind of segregation, modifying the parcel lots, I think that a699competitive bid process for folks to come in and evaluate it, I700think the market would take care of that one.701 My suspicion would be, there is probably asbestos, ACM702contamination in the building.703 Senator Whitehouse. In the building itself, yes.704 Mr. Radel. That could be pretty significant. I think an RFP705for folks to come in and look, first an asbestos evaluation,706and then bring folks in to look at it, and kind of get a sense707for who would put an investment in to take on that risk would708be worthwhile. I could see that being a motivating factor for709folks to get involved in cleaning that up.710 Senator Whitehouse. Waterfront property, no less.711 Mr. Fox. EPA does have a policy called redefinition of712Superfund sites, where you can go through a process and713redefine the site boundaries and segregate that property.714 Senator Capito. [Presiding.] I am going to go to Senator715Husted from Ohio, since I am just getting back into the716committee.717 Senator Husted. Thank you, Chairwoman Capito. Welcome,718thanks for joining us today.719 Ohio is a State that has traditionally been part of our720Nation's manufacturing heritage. Over time, it has had the721legacy of some of the challenges of those industrial sites. We722have had 38 Superfund sites, 31 of them have been addressed. We723have some that have been pending since 1993, one that has been724pending since 1993. Many of these that have been pending over72515 years are over major aquifers, which citizens in our726communities get their water.727 Whether it be storm or hurricane or just the constant fact728that we get rain a lot, and there is drainage and there is all729kinds of things that happen to these sites over time and how it730can affect people's quality of life and health, what can we do731to speed this up? I am interested in learning from all of you732today what action can we take, what action can the government733take, what action can States take? I want your best thoughts on734how a State like Ohio can do a better job on cleaning up these735last seven that are hanging out there.736 We will start with you, Mr. Fox.737 Mr. Fox. Sure. First of all, I worked on the Painesville738Superfund site, so I am aware of what is going on in Ohio.739 I really think that the Superfund remedy selection process740is completely broken. I will tell you why. I have done work on741the Superfund cleanups, RCRA cleanups, State voluntary742cleanups, and there are really three issues that really go to743what Mr. Radel said. It is who is exposed, meaning who are the744receptors, what contaminants are they exposed to, and how do we745cutoff those exposure pathways. Those are the three things.746 We have gotten bogged down in making the perfect the enemy747of the good. The good is for the remedy to be protective. It is748always that, to make the remedy protective. The process is so749burdensome and cumbersome, and takes so long and is so costly750that we do not serve the cleanup----751 Senator Husted. Is that a law or a regulator problem?752 Mr. Fox. That is the way that the National Contingency753Plan, which is the process for selecting the remedy, is754actually implemented. It is not the law; it is the way it is755being implemented.756 We can not have these be a science project. We want them to757be technically sound. That is everybody's goal. You can not758have a process where you do not get a remedy selected, as you759said, for 20 years. That has to change.760 Also, just to give you one example of this, I mentioned I761worked on the Gowanus Canal, when a remedy was selected and762they looked at the cost of implementing two CSO, combined sewer763overflow, tanks, they thought that the remedy for that was764going to cost $77 million for the city of New York. The current765estimate for that is over $2 billion.766 That has to change, too. A realistic cost of what the767remedy is to achieve the cleanup goals has to be incorporated768into this process.769 Senator Husted. Mr. Radel?770 Mr. Radel. I think Robert hit the key points. We have771talked about them in our summaries.772 I would say, not knowing anything about these seven sites,773but the fact that they have been looked at and in the Superfund774process for 20-plus years. My recommendation would be bring in775a new team and audit all seven and just see where they are and776how we can get to, I will use a football analogy, how we can777get to the end zone. There has to be so much data on these778sites that you can almost come up with what are the hurdles779here, what are we waiting on.780 I think sometimes there are issues on the community side781where maybe there is hesitancy to move things forward. The flip782side of that is the community has been waiting for 20-plus783years for something to happen, so that is why they are upset,784and who can blame them.785 I think a fresh set of eyes to look and audit these786projects, and hopefully could clear the way that this is not a78730-year project, as Rob said. Let's get to the end chapter,788let's get to that end zone and let's look at it.789 My inclination would be that there is so much data out790there that if there are some data gaps that have to be791completed, they are minor and there are things that should be792able to done in relatively short order, just in my opinion,793just because of the fact that these sites have been ping-ponged794around for 30 some years. I think a new set of eyes would help795audit that process.796 Senator Husted. Mr. Gomez?797 Mr. Gomez. Senator, I would say, because it is at the EPA798regions where the work is taking place, so that you want to799make sure that for Ohio, and Region Five, that they have the800people they need to do the work. I do agree that the remedy801selection process takes a long time. It takes a long time802sometimes to list sites on the NPL but then also to get them803cleaned up.804 You want to make sure that you have the staff, the regional805staff who are doing the work, like the remedial project806manager, for example, for each of those sites.807 Senator Husted. Thank you, Chairman Capito.808 Senator Capito. Senator Merkley.809 Senator Merkley. Thank you, Madam Chairman.810 Back when I was first elected to the Senate, Congressman811Blumenauer took me out on the Willamette River for a 10-mile812stretch, Portland Harbor Superfund site. He said, this has been813going on for 10 years. This has to be resolved before I retire.814 Well, he retired last January, and I have watched this with815enormous frustration. Essentially, the project involves testing816the soils along this 10-mile stretch, deciding what to817excavate, what to cap, and then doing that, doing those two818things, and what to leave to natural erosion, the natural819process.820 Finally, 17 years after it was listed, there was a record821of decision about what to do. Still basically nothing has822happened for cleanup. It appears to me that the process is823stalled, waiting for resolution about who among the potentially824responsible partners will pay what, which means all kinds of825lawyering, lawyers being hired every which direction, all sorts826of subgroups being formed to challenge the EPA's decision in827court.828 I think it has gone now through three rounds of testing the829river, because every seven or 8 years, it is like, oh, well,830maybe the river has changed, maybe we need to reexamine where831the contaminants are.832 How do we stop this eternal process of planning and833actually do the damned cleanup? Do we need to dive into the834cleanup after the record of decision and not wait for the835potentially responsible partners to sort out who will pay for836it? How do we avoid this, now that we are 25 years into this837project? I think this is emblematic of what has happened to838many Superfund sites.839 Whoever feels like they have the best insight on how to fix840this.841 Mr. Fox. I am involved in a lot of that litigation that you842talked about. I will speak against interest here. That should843never, those transaction costs should never slow down the844cleanup.845 EPA has many tools, I mentioned a couple, but they have846other enforcement tools to bring the parties forward to do the847work. They had to create the incentives for those parties to do848it, so that you can not go to the same companies, deep-pocketed849companies, every time and say, you have to pay 100 percent of850the cost, and you figure out how to sue the other 100 parties851and spend 10 years in litigation doing that. That is852inefficient,.853 I agree with you, I know the Portland Harbor site.854Contaminated sediment sites are more complex than your typical855site. There are examples where there have been remedies856selected in two or 3 years and the work started and partially857completed.858 That remedy selection process is the obstacle, it is not859private parties suing. That can happen separately, completely860separately from the actual remedy selection and the cleanup.861 Senator Merkley. The remedy in this case was, the record of862decision was made. Should the Federal Government be paying for863the work until the responsible, potentially responsible864partners sort out who pays for it?865 Mr. Fox. There are many options that they have. One is they866could do the work themselves and seek to recover it later. Two,867they could have the private parties come forward and do that.868In order to incentivize the private parties to do that, those869private parties want to know that they are not going to be in870years and years of litigation to recover.871 If there are 100 parties at the site, and the Federal872Government says, you four do it, and then spend the rest of873your time going against those other 96, that is inefficient.874 Senator Merkley. Okay. Well, it is massively complex, and I875have watched as personnel have changed in terms of trying to876drive the process forward. I think there are probably several877dozen very well-intentioned employees of EPA who have burned878out over the process of trying to drive this forward in the879context of the lawsuits and resistance and reexamining.880 I would like to see the work done and get on with other881challenges as opposed to spending endless years and endless882amounts of money planning, replanning, replanning, trying to883figure this out. If it requires major changes in how the law is884designed, I want to understand those and see if we can make885this process work more effectively.886 I am extremely concerned now about the cuts to EPA's staff887and how that may reverberate in terms of people continuing to888drive the process forward. My whole impression has been that889the potentially responsible parties understand every strategy890for delay and are intent on pursuing those. They do not want to891pay out, and this is going to be a billion dollar cleanup. They892do not want to pay for a billion dollar cleanup.893 They have been very effective at working at that angle and894having EPA competent staff are essential to keep the project895moving forward. I am afraid with reductions in those staff we896may see the problem just get worse.897 Senator Capito. Thank you.898 I would like to, we are hearing a lot about what is driving899the costs. I talked about the Superfund premium. I think from900the testimony we may not have the same name for it, but it is901falling under the same umbrella of what I was talking about.902 Let me just kind of dig deeper on this remediation plan903holdup, Mr. Fox, that you have talked about. Is it a matter of904the best strategy to clean up a particular site? Is it arguing905over the best way to do it? We have heard it is not really906arguing over who is going to pay for it. Or is that the holdup?907Or is it, the science has not been done? I do not know. Point908to one or two or three things in this process that we could909change that would make this go faster.910 Mr. Fox. First of all, I want to say I do not think the911holdup is who is responsible for it. That is not the holdup in912my mind.913 Senator Capito. Okay.914 Mr. Fox. I am going to echo what Mr. Radel said, and that915is, there are very known ways to evaluate what the risk is at916the site, and how to clean them up. Some sites are more917complicated than others, but those general principles that I918mentioned about knowing who is exposed, knowing what they are919exposed to, and eliminating those pathways. I do not want to920use the wrong term, but it is not rocket science. We have been921doing this for a long time.922 What happens it the process is so cumbersome, the reports,923and back and forth on scientific stuff. It is not a science924project where you have to study every molecule. You can get925there much faster, get a remedy selected.926 By the way, Superfund contains a failsafe. The statute927requires that every 5 years, the remedy that is selected and928implemented is reviewed to see whether it is protective of the929environment. Let's get it done through a much more streamlined930remedy selection process. That is the major holdup as I see it.931 Senator Capito. Mr. Radel, I am going to ask you, I am932assuming that you have done cleanups for Superfund sites and933cleanups for private or State level cleanups.934 Mr. Radel. Correct.935 Senator Capito. Okay. I want to contrast those. When you do936a cleanup, say, for a State or maybe for a private entity and937you do not have this cumbersome process, would you agree with938Mr. Fox that some of the things that are thrown into the939Superfund process--so how does that work in a different, when940you are doing it for the State or for a private entity? You941mentioned a site in West Virginia that is a Superfund site you942are getting ready to do, the McElroy Mine, is that correct?943 Mr. Radel. That is not a Superfund site, but I have a944better example. The site we closed on in 2022 in Indiana was a945Superfund site. If we had done that cleanup under the voluntary946program of Indiana versus how we did it under the Superfund947program, just my consulting costs alone and to some extent my948legal cost probably two times more doing it on the Superfund949site than if we were doing that same work under a voluntary950program.951 As Rob said, it is almost like when you have your little952kid anxious to go out and play, when we have a site, we want to953clean it up, we want to get started with a remedial954investigation and get to the RA. Superfund, you have to stop,955you have to do your QAPP, you have so many extra plans that you956have to do.957 A QAPP, by way of example, Quality Assurance Project Plan,958where you go through basically a really thorough analysis of959the laboratories that you are going to use, the laboratory that960you are going to use to test the groundwater, the dirt, and961things. It is a very detailed process, it is an expensive962process, there are smart people involved.963 We are using EPA certified labs----964 Senator Capito. They're already certified?965 Mr. Radel. We are already using an EPA certified lab. I966have to do this extra level of detail to satisfy the Superfund967requirements. That is one small example.968 It just compounds, it compounds. Instead of getting focused969on what are the issues, how do we deal with them and how do we970clean them up to be protective of human health and environment971and then integrated development, we are still in this process972of this plan, that plan, this plan.973 Senator Capito. Right. I mean it would, it begs the974question, if you are using an EPA certified lab, why do you975have to keep going back and recertifying----976 Mr. Radel. Begs my questions, for sure.977 Senator Capito. Mr. Fox, let me ask you, just from the978folks that live in and around Superfund sites, they have great979economic development promise, in my view, because they are980clean, it is much easier for a developer in some cases to come981in, because the work has already been done. What do you see982when you go into different communities about the restlessness983of, why is it taking so long, not adding the economics onto the984health issues that are sometimes associated with these sites?985 I think what we are doing is we are stymieing communities986from being able to have confidence that they can redevelop, or987be living in a healthy community.988 Mr. Fox. I agree with you 100 percent. I see it over and989over again. Communities are frustrated because the potential990exists for a win-win-win. Redevelopment of the site, protective991of their human health and the environment. The longer it goes992on, they become distrustful.993 Senator Capito. Right.994 Mr. Fox. They become distrustful of EPA, they become995distrustful of the private parties who are doing the work, and996it feeds upon itself. Speeding up the process will get this997back to productive use and eliminate the exposure of these998communities, and they will eliminate that distrust.999 Senator Capito. Thank you.1000 Senator Blunt Rochester?1001 Senator Blunt Rochester. Thank you, Chairwoman Capito and1002Ranking Member Whitehouse. Thank you to the witnesses. As you1003can hear from the questions that are being asked, I think this1004is an issue that cuts across party lines, it cuts across rural,1005urban, wherever you are.1006 We know that the Superfund program is vital to communities1007across the Country. It ensures that our lands are clean. It is1008important for economic development issues. It helps protect the1009health of Americans, even after the original polluters are1010gone.1011 By cleaning up these industrial pollutants, we can decrease1012the risk of cancer, heart disease, and respiratory illness.1013 Mr. Gomez, your testimony and extensive research on the1014Superfund program highlights issues related to site complexity1015as a factor in delays. Can you further discuss how site1016complexity leads to delays, and how a project may utilize1017funding to clean these types of sites?1018 Mr. Gomez. Sure. We have also been talking about the1019sediment sites; I think everyone has had examples. Senator1020Merkley talked about one in his State. Those sediment sites,1021where the sediment is contaminated, it could be miles of1022contamination along a river.1023 Those are areas that take a lot of work and resources for1024EPA to sort of figure out the contamination, where it is1025spreading. There are other site characteristics also that can1026be complicated in terms of tidal movements.1027 Figuring out in those cases where the contamination is,1028what is it, is it migrating, how to contain it, how to treat1029it, that requires a lot of time and resources. Those are the1030biggest sites. They take over a decade to work on. I think1031Senator Merkley talked about over 20 years in his case. I know1032that in your State there are some as well that are sediment1033sites.1034 There is a lot of knowledge and information already on1035treating and dealing with sediment sites, even though each1036Superfund site is different. There is a lot of knowledge and1037expertise already there that the agency needs to make sure that1038it is using as it moves forward.1039 Senator Blunt Rochester. Yes, I would say we know that this1040takes reliable and robust funding to really deal with the1041cleanup of these contaminants. It is why the Bipartisan1042Infrastructure Law was so important. Someone mentioned the IRA1043as well.1044 In Delaware, we have Standard Chlorine, a site that is1045known as an orphan site, because the original polluter has1046since gone bankrupt. Again, back to how that impacts1047communities, this has left the site in the hands of the State1048and EPA to clean up and protect the community's health and1049safety.1050 Mr. Gomez, the Standard Chlorine site is a complex site.1051What factors should be considered before a cleanup takes place1052or is completed?1053 Mr. Gomez. This is one of the orphan sites you were talking1054about as well?1055 Senator Blunt Rochester. Yes.1056 Mr. Gomez. Right. The orphan sites is an area that EPA has1057to figure out, if it tries to find a responsible party,1058otherwise it has to do it itself and then try to recoup those1059funds.1060 That is where appropriations do come into play, because you1061want to make sure that funding is available to start new1062projects in that case. EPA historically focuses appropriations1063on ongoing remedial action.1064 What we have learned from our work is in the past, EPA does1065not start new remedial actions, because it does not have the1066funds to do it, because it is prioritizing the funds that it1067has to continue the cleanup on those that are already taking1068place. It is less expensive to just continue that. Whereas if1069you stop them, you have to remobilize all of the equipment that1070you are working on.1071 Yes, for orphan sites, that is a challenge. When there have1072been supplemental appropriations, the agency has been able to1073focus on those. You had mentioned the Infrastructure Act. That1074allowed EPA, in fact I think their latest report to Congress1075from last year, over 100 sites were able to start remedial1076actions. They have been using those funds for that purpose.1077 Senator Blunt Rochester. I know we can all speak to the1078health aspects of this. Could you speak specifically to it for1079a complex site? For example, does the EPA need to consider1080contamination migration? Can you talk a little bit about that1081as well?1082 Mr. Gomez. Sure. For these sites, there is a lot of1083sampling that has to take place and modeling. The sampling is1084sort of getting at what you are talking about, figuring out,1085first trying to characterize what the contaminants at the site1086are, if they are migrating, where they are going.1087 The modeling aspect is again trying to sort of figure out1088the inputs from the data that you are collecting in the1089sampling to figure out again how the contaminations might1090migrate, but also how it might affect the risk that is there.1091 Those are things that take a lot of resources and take a1092lot of time from the agency. There is also uncertainty in the1093model so that you have to spend enough resources to make sure1094that the models are predictive of what might actually be taking1095place.1096 Senator Blunt Rochester. I have run out of time. I will1097submit more questions for the record.1098 Thank you so much to the witnesses, and I will also submit1099some questions for the other witnesses as well regarding1100complex sites.1101 Thank you, and I yield back.1102 Senator Capito. Thank you.1103 Senator Schiff?1104 Senator Schiff. Thank you, Madam Chair. Congratulations on1105your former staff who moved forward in the confirmation1106process.1107 Senator Capito. Yes, thank you.1108 Senator Schiff. She had the best training possible,1109clearly.1110 Thank you all for coming in to testify. Mr. Fox, it is good1111to see you again. In the interest of full disclosure, we are1112law school classmates. Somehow you must be in a much less1113stressful line of work; you still have much more hair than I1114do.1115 Mr. Fox, you testified about one idea to improve the1116timeliness of cleanup. That was mandatory agency review times.1117I guess I have a couple related questions. One is, in the1118States that have adopted those kinds of time periods, what is1119the repercussion if the agency does not get the work done in1120time? Is it an automatic approval of the remediation plan?1121 Then a related question is, if we are, and it is an1122attractive idea that I have thought about in other contexts,1123but if we do not have the staffing at EPA, if we further reduce1124staffing at EPA, if the reason for the delays by the agencies1125is there just are not the personnel, then does that work? Or1126does that just result in remediation plans being approved1127without any review?1128 How much of the issue of the current delays is simply lack1129of capacity at EPA? Does your proposal work if we do not1130address that?1131 Mr. Fox. That is a fair question. I do not think the1132primary issue is the lack of staffing. I can relate1133Pennsylvania and New Jersey examples of deemed approvals. It is1134a deemed approval.1135 If you do not respond within specific timeframes, and there1136are different timeframes for different reports, that is written1137into the regulations, then it is a deemed approval.1138 You do not want a deemed approval, to be honest with you.1139The goal is not to get something approved because the agency1140has not reviewed it. The goal is to make the agency review it.1141 It has worked, it has speeded things up tremendously. I1142would say we certainly have not overfunded our State agency in1143Pennsylvania.1144 I think that is a real issue, but I do not think that is1145the heart of the problem. It is the time it takes to review. It1146can go on for years before you get a response. That just can1147not happen.1148 Senator Schiff. We have seen that in California, where it1149has gone on for years and years.1150 If it is not staffing, then what do you think it is that1151accounts for such delays?1152 Mr. Fox. I think it is the overly prescriptive nature of1153the Superfund remedial selection process, which has too many1154bells and whistles that are unnecessary.1155 Steve gave one example of a QAPP. There are a number of1156different examples. It is just overly prescriptive and1157unnecessary to get to a protective remedy.1158 Senator Schiff. Mr. Gomez, do you have a similar or1159contrary view on that?1160 Mr. Gomez. I think there is something to be said for that.1161What we have learned from the work, that it is important to1162have the staffing that is there. I think that the Superfund1163program has been in place for a very long time. I think there1164is an opportunity, especially as Congress is considering1165changes, to look at the process and perhaps look to see where1166most of the time is spent. We have some new work that we are1167starting. We are going to be looking at the funding, and then1168some planned work, to just look at the overall Superfund1169process.1170 In those places, perhaps, where there are the longest1171times, try to figure out why and what can be done to change it.1172 Senator Schiff. The DOGE website announced a few weeks ago1173that it intends to shut down the EPA regional office in Los1174Angeles. Can you describe, Mr. Gomez, a bit about what those1175regional offices do and what will that mean in terms of1176Superfund sites around L.A.?1177 Mr. Gomez. Sure. In the Superfund program, the work takes1178places at the regional offices. You have to, if you are going1179to make changes, any kind of changes, you have to keep in mind1180how those regional resources might be affected, because those1181are the folks that are doing the work.1182 Yes, I think we are also, in our work, waiting to see if1183there are going to be any proposed changes, what that may mean1184for how the program is carried out.1185 Senator Schiff. If that office closes, then they would just1186have to deploy EPA personnel from farther away?1187 Mr. Gomez. I think that is one of the comments that is out1188there, is that people might be given additional1189responsibilities how that may affect their work is yet to be1190seen, if that takes place.1191 Senator Schiff. Yes. Among others, you are probably1192familiar with the Stringfellow Acid Pits in Riverside County,1193that was added to the National Priority List. Apparently it has1194been on that list year after year after year.1195 I appreciate your testimony and suggestions you have made.1196Thank you, Madam Chair, for holding the hearing. We will1197followup with some additional questions for the record.1198 Senator Capito. Thank you.1199 I believe Senator Kelly is on his way, so we will wait just1200a few minutes, and while we wait, I want to ask an additional1201question.1202 On the train derailment in Ohio several years ago, we had1203testimony in this committee about EPA's role. We also heard1204again, delays in cleaning it up. Part of the problem, from my1205understanding, was that certain States decided, even though1206they had certified, probably, EPA certified toxic, folks that1207could take toxic material into their businesses, that is their1208business, that certain States said, we do not want that in our1209State. I believe Michigan, if I am recalling correctly, was one1210of the States that said this.1211 Have you run into this type of issue as you are1212remediating, either you, Mr. Fox, or Mr. Radel, where you have1213had a refusal to accept toxic materials that you are taking? I1214am assuming you do this, take it an EPA certified site. Is this1215an issue?1216 Mr. Radel. My experience is that I have not run into that.1217If we are going to an offsite location in whatever State it is,1218that location is permitted to accept those hazardous wastes,1219and they have a permitted facility that is either a landfill,1220an incinerator, or whatever it might be.1221 They have the permit, you have the right DOT permits and1222you have the right transporter, I have not seen an instance in1223my experience where anything has been denied. We are using all1224the proper protocol.1225 Senator Capito. Right. That is what I thought. Mr. Fox, do1226you recall that?1227 Mr. Fox. There are two issues. One is, there is a limited1228number of hazardous waste disposal sites. You do not have this1229great selection.1230 I suspect that a lot of that was community opposition.1231 Senator Capito. It was.1232 Mr. Fox. Yes. That was, we do not want that. The facility1233is properly permitted to accept it.1234 Senator Capito. Right.1235 Mr. Fox. The community says, I do not want that waste. You1236are taking it off of there and putting it into my community.1237 I am assuming that was probably what was behind it.1238 Senator Capito. Yes, and it kind of blows up into a----1239 Mr. Fox. A political issue, as opposed to a regulatory1240issue.1241 Senator Capito. Yes. I just hope--these are professionals1242that are going to the letter of the law to be able to dispose1243of this, and actually creating a business model that can help1244you and help all these other sites. It was rather, I think kind1245of shocking, not just to me but to them, that this was going1246on, when these sites have been there forever, the cleanup1247sites.1248 Mr. Fox. Trust me, to get a RCRA permit for a hazardous1249waste disposal facility is a rigorous process.1250 Senator Capito. Right. My understanding as well.1251 All right, Senator Kelly.1252 Senator Kelly. Thank you, Madam Chair.1253 Mr. Gomez, good morning. I want to ask you for your1254perspectives about a group of Superfund sites, the more than1255500 abandoned uranium minds on the Navajo Nation. I have1256discussed these frequently before this committee. I want to get1257your perspective on how we address this issue.1258 First off, as you may know, the Navajo Nation is spread1259across three States, actually four now with a little purchase1260in Colorado. The majority of the Nation is in Arizona; it is1261about the size of West Virginia, the Navajo Nation, in Arizona,1262but it stretches into both Utah and New Mexico, and there are1263abandoned mines in all three States, more than 500 of them.1264 As you may also know, those three States are all served by1265different EPA regional offices. Arizona is Region 9, Utah is 8,1266New Mexico is Region 6. While Region 9 is the lead office for1267all issues on the Navajo Nation, we have run into issues1268because of the split jurisdiction.1269 For example, mines just off of tribal land are coordinated1270through other regional offices. Often it is other EPA regional1271offices in New Mexico or Utah that have relationships with1272hazardous waste landfills, contractors, and responsible parties1273to carry out this mine cleanup.1274 Mr. Gomez, are you aware of other similar instances where a1275group of Superfund sites stretch across EPA regions?1276 Mr. Gomez. That is a really good question, and I am not1277aware that that is the case. We can look to see if other tribal1278nations are sort of spanning across multiple EPA regions. At1279this point, I can not recall one, but we will double check.1280 Senator Kelly. Okay. Congress has periodically established1281geographic offices at EPA to help carry out programs within a1282region that faces similar issues by virtue of geography,1283including the Great Lakes Office or the Chesapeake Bay Office.1284When it comes to Superfund cleanups, what role have these1285offices played in helping to coordinate CERCLA efforts in a1286more streamlined fashion?1287 Mr. Gomez. I am not sure that we have done work on that,1288but we can look at that. I am obviously very familiar with the1289Great Lakes Office, as you noted, that is a separate office as1290well. We can look to see, to the extent that they have worked1291with the EPA Region 5 in this case, for the Midwest, to see1292whether they go back and forth and share information. That is a1293good question.1294 Senator Kelly. Yes, I think, my sense is that they probably1295do.1296 Mr. Gomez. Okay.1297 Senator Kelly. Another challenge that has been facing1298cleaning up the Navajo Nation mines is that the remedial1299actions identified for mine sites are extremely costly, and it1300is technically challenging. In many instances, the preferred1301solution would require digging up hazardous waste rock and1302transporting it hundreds of miles to a waste repository.1303 This seems like a classic case of needing to find a new and1304different technological solution to address this kind of1305cleanup.1306 Mr. Gomez, what tools and authorities exist within the1307Superfund program to help accelerate research and development1308efforts to find new and more efficient and more cost effective1309site cleanup methods?1310 Mr. Gomez. Currently, the Office of Research and1311Development at EPA is the one that does a lot of that research1312that the Superfund program relies on. For example, in toxicity1313studies, on research on new technologies to make sure that the1314remedies are working as intended.1315 There are those opportunities there that are currently1316taking place, and go back and forth. You are right, that mining1317sites are the sites that are very costly. In our past work,1318when we have looked at the cost to remediate sites, mining1319sites are pretty high, because of the things that you talked1320about in terms of having to dig it out, transporting the waste,1321removing it offsite, then treating it.1322 Those are challenges for EPA.1323 Senator Kelly. It is good that EPA has research and1324development efforts underway to solve challenging problems like1325this.1326 I will note that a lot of the west faces very similar1327issues to what we are seeing on the Navajo Nation. I think the1328entire region could benefit from the expertise of a geographic1329office like the Great Lakes Office.1330 That is why Senator Lummis and I introduced legislation1331called the Legacy Mine Cleanup Act, which would authorize an1332Office of Mountains, Deserts, and Plains at EPA to address1333issues unique to the western United States.1334 Madam Chair, I know we have had a good conversation with1335your staff, and I hope to find a path forward for this1336legislation through the committee process here in the coming1337weeks.1338 Senator Capito. We will take a look at it. Thanks.1339 Senator Kelly. Thank you.1340 Senator Capito. I think Senator Whitehouse has a final1341question.1342 Senator Whitehouse. If you do not mind, Chairman. Thank you1343very much.1344 This is for Mr. Fox. You have obviously had a lot of1345experience in this space. There is a phenomenon that I think is1346real that I would like you to react to, which is that when1347there is a focus on a particular Superfund site and there is a1348particular potentially responsible party who has the deep1349pockets to do the necessary funding to clean up the site, and1350they become kind of a primary actor in that Superfund cleanup,1351they can have motives of their own.1352 They can wish for control over how the remediation is done1353and argue, hey, I am going to end up paying for this, I am1354entitled to a voice in how it gets done. They can have the1355desire for control over what happens with other potentially1356responsible parties, and there have been cases in which the1357primary target, if you will, the primary funder, stalls things1358up to push EPA to look for a greater contribution from other1359responsible parties.1360 Then they can have a third concern, which is that if they1361can put a fixed expenditure on their books year after year1362after year after year for this cleanup, so that it just does1363not affect the bottom line particularly, then they have a1364sudden incentive to draw out the remediation as long as they1365can, both to keep the annual number under what they have1366internally allocated as a problem, and because who knows?1367Somebody might come along and throw out the whole EPA Superfund1368team, and now they can come in and say, hey, we have all sorts1369of new opportunities here to shut down our own responsibility.1370 It strikes me that the PRP is not necessarily the victim1371entirely of bureaucratic delay, but in particular circumstances1372can actually be a cause and protagonist in the question of1373delay of the cleanup of the site. I would be happy to have you1374respond to that now and I would also be happy to have you write1375out a more thoughtful and complete answer, if you would like1376to.1377 I see circumstances in which PRPs become part of the1378problem and not part of the solution.1379 Mr. Fox. I think that is a fair question. It is a very1380complex question, which I probably will have to write, but I1381will just give you a couple of quick thoughts, if you do not1382mind.1383 The first one is on the control over the remedy. I think it1384is correct that private parties would like to control the1385remedy.1386 Understand that the way the statute is written, ultimately1387the decision on the remedy is always the agency's. Even if a1388private party is under an order to suggest what the remedy1389should be, the selection of the remedy is done by the agency1390and the statute does not allow for pre-enforcement review of1391that remedy selection.1392 There is only a certain amount of control you can get on1393remedy selection.1394 The second point you made with respect to going against1395other parties is undeniably correct. A central PRP is always1396looking to spread those costs among other parties who are1397liable, whether they do it through their own litigation or they1398encourage EPA to pursue those parties. That is clearly a1399dynamic that happens at site after site.1400 I would quibble with you a little bit on wanting to spread1401out the costs over time. The reason I would quibble with that1402is because the cost expands to fill the time. The longer these1403go on, the costs increase, not just the transaction costs to1404get to the remedy selection, but the cost of the remedy1405increases as well.1406 I am not sure that in all cases it is actually in the1407economic interests of the private party to say, let's string1408this out over time. It may be better to have a more cost1409effective remedy done quickly, and then try to spread those1410costs among other parties.1411 I am happy to expound upon that in writing.1412 Senator Whitehouse. I think on that last point, while the1413argument you have made may be the case in certain1414circumstances, I do not think it obviates the prospect that1415there are times in a large corporation when, to put something1416under a cap so you know it is going to be forever, and you have1417time value of money working in your favor because it is an out1418year expenses that you are moving it out to, when the financial1419object of the PRP's role becomes one that incentivizes delays.1420 Mr. Fox. I can not say that that never happens. I am just1421saying it does not always happen that way.1422 Senator Capito. Okay, good. With no further questions, I1423would like to thank the witnesses and all my colleagues for1424participation.1425 Senators who wish to submit written questions for the1426record have until 5 p.m. on Wednesday, April 23d, to do so. The1427witnesses' responses to those questions are due back to the1428committee no later than close of business Wednesday, May 7th,1429and will be submitted for the record.1430 I would like to say just in closing that I think, first of1431all, this has been an excellent hearing, because you are all so1432knowledgeable on the issue, having lived it. I think we have1433good bipartisan agreement here that the system is broken. We1434have put more money into this recently. We want to see it1435result in completions of these projects as much as you do.1436 Let's work together to try to find a solution, and1437hopefully we can ameliorate some of the problems that have been1438identified today.1439 Thank you very much.1440 Senator Whitehouse. I will second that emotion.1441 Senator Capito. Thank you. This hearing is adjourned.1442 [Whereupon, at 11:18 a.m., the hearing was adjourned.]14431444[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]14451446 [all]