Superfund Cleanup Standards Reconsidered

95-1076 ENR

Superfund Cleanup

Standards Reconsidered

Lisa Gray

Fellow

Environment and Natural Resources Policy Division

October 25, 1995

Superfund Cleanup Standards Reconsidered

SUMMARY

The reauthorization of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA), commonly known as

Superfund, has focused on two major areas of reform: liability, and cleanup

standardslremedy selection. This report focuses on the latter. Within that

general topic, six issues that have received attention from a number of

stakeholders are discussed in this report: the role of risk assessment; costeffectiveness of treatment; complete or partial elimination of what are called

ARARs (the statutory requirement that Applicable or Relevant and Appropriate

Requirements from other laws be applied to Superfund site cleanups) and

elimination of the statute's preference for permanence and treatment: future

land use considerations; the role of the States; and community involvement in

the remedy selection process. The report contains brief summaries of the

pertinent provisions of the leading House and Senate bills late in the first

session of the 104th Congress.

To address the criticism that the Superfund program favors excessively

costly remedies, some critics call for changes to the Environmental Protection

Agency's (EPA's) risk assessment procedures and for an increased role of risk

assessment in the remedy selection process. Other recommended reforms

include establishing a single national risk criterion for cleanup decisions rather

than the current use of risk ranges. Some suggest elevating the importance of

cost in EPA's evaluation of alternative cleanup strategies. Cost is currently

considered in evaluating alternatives; however, critics claim that the statute's

defersrre tc AGi& and its preference for permanence and treatment have led

to high cleanup costs. The reliance on ARARs for determining site specific

cleanup standards has been cited as causing lengthy debates over which Federal

or State regulations (or combinations thereof) apply to a site, and selection of

more costly remedies than are necessary to protect human health and the

environment.

Stakeholders who advocate elevating the role of risk assessment in the

remedy selection decisionmaking process also urge increased consideration of a

Superfund site's future land and water use. Many of these stakeholders

advocate that State and local governments, rather than EPA, decide future land

and groundwater use. The current system of shared Federal and State

responsibility leads to delay, duplication of effort, confusion amongstakeholders;

and higher transaction costs, critics claim. Some States want full Superfund

authority; others want delegation of the Federal program. Some stakeholders

are in favor of full authority for the States, while others are concerned about

the burden on businesses that responding to as many as 50 programs would

create. Community involvement in decisionmaking is a further locus of

controversy.

Though often heavily criticized, since its passage, Superfund has improved

management of hazardous wastes to protect human health and the environment.

NOTE

Lisa Gray prepared this report as an American Society of Mechanical

Engineers1American Association for the Advancement of Sciences Congressional

Science Fellow, working within the Environment and Natural Resources Policy

Division of the Congressional Research Service during the summer of 1995.

CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

CLEANUP STANDARDS ..WHAT THE CURRENT LAW REQUIRES . . 5

THE ROLE O F RISK ASSESSMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

COST-EFFECTIVENESS O F TREATMENT . . . . . . . . . . . . . . . . . . . . . . 11

ARARs AND PREFERENCE FOR PERMANENCE AND TREATMENT . 13

FUTURE LAND, GROUNDWATER AND RESOURCE USE . . . . . . . . . . 1 7

THE ROLE O F STATES IN THE REMEDY SELECTION PROCESS . . . 19

COMMUNITY IPUT70LVEMENT IN REMEDY SELECTION PROCESS . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Superfund Cleanup Standards Reconsidered

INTRODUCTION

The Comprehensive Environmental Response, Compensation, and Liability

Act of 1980 (CERCLA)', also known as Superfund and administered by the

Environmental Protection Agency (EPA), provides for cleanup, and emergency

response for hazardous substances released into the environment, cleanup of

inactive hazardous waste disposal sites, and for retroactive, strict, joint and

several liability for potentially responsible parties (PRPs).

The Superfund Amendments and Reauthorization Act of 1986 (SARA)

revised and expanded CERCLA and introduced new cleanup standards into the

program in a n attempt by Congress to add statutory language which would

clarify for Federal officials and PRPs appropriate cleanup remedies t o be selected

for contaminated sites. The intent was t o improve the quality and pace of site

remediation.

I n 1995; t h e cleanup of hazardous waste sites is slow. Many believe t h a t

changes t o the program are needed t o speed up the pace. Changes to the

program can improve administrative aspects of cleanup; however, actual

progress will still be largely dependent on technological capabilities. The

current debate on the reauthorization of Superfund has focused on two major

areas of reform: liability, and cleanup standardslremedy election.^ This report

discusses existing cleanup standards, and recommendations and proposals for

change offered by stakeholders in this debate. This report relies primarily on

proceedings from congressional hearings of three subcommittees with

jurisdiction over Superfund authorization, namely: Senate Committee on

Environment and Public Works, Subcommittee on Superfund, Waste Control;

and Risk Assessment; House Committee on Commerce, Subcommittee on

Commerce, Trade, and Hazardous Materials; and House Committee on

Transportation and Infrastructure, Subcommittee on Water Resources and

Environment. The House Ways and Means and t h e Senate Finance Committees

have jurisdiction over Superfund's taxing and trust fund provisions, which are

not discussed in this report.

' 42 USC 9601-9675

This report does not discuss liability issues. See Congressional Research Service

Issue Brief IB95013, SuperJllnd Reauthorization Issues in the 104th Congress, latest

revision, for a discussion of liability and other issues.

While SARA has brought additional statutory requirements forth, further

defining the question of "How clean is clean?", it has also opened up a new

debate. Among the questions being asked during the debate are:

Should cleanup decisions be based more on risk assessment

considerations and less on fixed numerical criteria, such as drinking

water standards for ground water?

*

Is the statute's preference for treatment and permanent solutions

reasonable?

*

How much weight should the cost of a remediation be given in the

cleanup decision?

Should cleanup decisions be based on a single or a range of health risk

values? and

Do scientists have the capability to accurately predict health effects

from various levels of exposure for all who may come in direct or

indirect contact with a hazardous substance?

SARA'S cleanup standards provisions have been criticized since their

enactment in 1986. The law's current lack of a national uniform level of

cleanup has proved to be a major source of controversy for the Superfund

program. The 1995 reauthorization debate has provided a forum for

stakeholders to outline their recommendations and proposals for reform. The

following issues have arisen in the debate and are discussed in this report: the

role of risk assessment; cost-effectiveness of treatment; the role of the States;

elimination of applicable or relevant and appropriate requirements (ARARs) and

preference for treatment and permanence; future land, groundwater and other

resource use; and community involvement in the remedy selection process. The

following paragraphs outline some stakeholder concerns with the current

program and their suggestions for reform.

EPA and the States determine cleanup standards for each site based on

statutory requirements and preferences, and based on A m , which are State

and Federal laws and regulations determined to be applicable, or relevant and

appropriate. EPA uses risk assessments to set cleanup levels if no standards

have been established for the contaminants at the site.

The selection of applicable, relevant and appropriate laws and regulations

is highly discretionary because each site has its own set of unique conditions

which must be evaluated. Many have argued that this and other factors have

led to confusion about which cleanup levels are required, cleanup costs that are

often high, and sites that have been cleaned to different risk goals. One possible

solution, offered by a number of stakeholders, is placing more emphasis on risk

assessment (and eliminating the ARARs requirement) when determining how

clean a site should be rendered (hereinafter referred to as cleanup level). The

elimination of the statute's ARARs requirement would result in less costly site

remediations and savings to the Superfund program, critics claim. Some would

also like to see modification of EPA's risk assessment methods to reduce reliance

on what they see as overly protective assumptions and models.

The Superfund program has also been criticized as being too slow in

achieving its goal. Delays have been attributed to the statute's ambiguity

regarding cleanup levels, as well as other factors. To address this issue, some

participants in the Superfund reform debate advocate establishing a single,

national risk management goal which would also provide equal protection from

hazardous waste for all communities.

Potentially responsible parties have complained that EPA has little regard

for the cost-effectiveness of its selected remedies. CERCLA requires the

implementation of cost-effective remedial actions for contaminated sites;

however, it also requires that the degree of cleanup "at a minimum assures

One of the challenges of

protection of human health and the en~ironment."~

the current Superfund reauthorization effort is to calibrate these goals in

combination and produce workable solutions. Some reform proposals seek to

elevate the importance of cost considerations in the Superfund remedy selection

process. Others want to reduce costs by facilitating selection of remedies that

have historically been effective (often referred to as presumptive remedies).

Some have called for complete or partial elimination of the ARARs

requirement in order to streamline the process used to establish site cleanup

standards and to enable EPA to place heavier emphasis on risk assessment and

cost of a remedial action.

In addition to eliminating the ARARs requirement, critics call for the

elimination of the statutory preference for permanent treatment solutions.

Instead, they argue, cleanup decisions should be based on risk assessments and

cost considerations. Containment measures, institutional controls such as deed

restrictions, and treatment should be considered equally, they claim."ome

believe that a preference for treatment should be reserved for "hot spots" of

contamination.

There is broad consensus that future land use must be considered in

determining the appropriate cleanup standard on which to base a remedial

design. Appropriate consideration of land use is expected to lead to more costeffective cleanups at a reasonable pace. Land use is currently considered in the

remedy selection process. However, critics claim that States and local

governments should have more input into future land use determinations.

Others argue that if cleanup decisions are not based on conservative land use

CERCLA, Section 121(di(l).

See e.g., Chemical Manufacturer's Association. Testimony submitted to the House

Committee on Transportation and Infrastructure: Subcommittee on Water Resources and

the Environment. SuperfkndReauthorization. June 20, 1995. Hearing, 104th Congress,

1st Session. Washington, D.C.: Govt. Print. Off. [to be printed].

assumptions (i.e., residential or recreational, as opposed to industrial),

communities which are located near non-residential areas, for example industrial

sites, will be at greater health risk than those communities which are not

located near such sites.

Some stakeholders claim that the current system of shared Federal and

State responsibility is responsible for delay, duplication of effort and confusion

among stakeholders. The issue is whether States should be given full program

authority or whether States should be given program delegation. program. Full

program authority would enable States with such authority to implement their

own versions of a Superfund program, while program delegation would give

States the authority to implement the Federal program. Others oppose any

increase in State responsibility.

The success of Superfund is measured not only by the number of sites

cleaned and the costs associated with running the program, but also by public

acceptance of treatment decisions which affect their communities. SARA

recognized the importance of community involvement with the introduction of

the Technical Assistance Grants (TAG) program. This year, suggestions for

reform of the program include increased and earlier community involvement in

the decision-making process, simplification of application procedures for TAGS?

elimination of the matching funds requirement, and elimination of some time

restrictions.

On October 18, 1995: Rep. Michael G. Oxley introduced H.R. 2500, the

Reform of Superfund Act of 1995. The comprehensive reauthorization bill

would set general standards for Superfund cleanup remedies to "protect human

health and the environment from realistic and significant risks through costeffective and cost-reasonable means." Remedies would be required to prevent

human ingestion of drinking water containing hazardous substances above the

Safe Drinking Water Act's maximum contaminant levels; or above the level

needed to protect human health from other contaminants. Reasonably available

site-specific data are to be used.

The bill would eliminate ARARs and CERCLA's preference for permanence

and treatment, and direct EPA (or the administering State agency) to consider

all cleanup options without preference or bias for any method. Proposed

remedies will consider future uses of land, water, and other resources. Sitespecific risk assessments must also be conducted. A remedy would be selected

after consideration of its effectiveness, reliability, the risks it presents,

community acceptance, and reasonableness of its cost compared to other

remedies. Generic remedies and institutional controls may be employed where

appropriate.

Sen. Robert Smith, chair of the Environment and Public Works

Subcommittee on Superfund, Waste Control, and Risk Assessment: introduced

S. 1285, the Accelerated Cleanup and Environmental Restoration Act of 1995 on

September 29. The bill would base cleanup decisions on the "actual or plausible

risks to human health and the environment," and would choose the most cost-

effective remedy that accomplishes that goaL5 Remedial actions would be

selected according to site-specific conditions and risks based on the reasonably

anticipated future use of the site.

The Smith bill also would eliminate the requirement t h a t remedial actions

meet ARARs; and it removes the preference for permanence and treatment. It

proposes a higher level of protection for groundwater t h a t is currently

uncontaminated, it would allow the de-listing and reuse of the uncontaminated

portions of Superfund sites, and it provides for expedited de-listing of sites

where construction is completed, but operation and maintenance activities

continue.

CLEANUP STANDARDS -- WHAT THE CURRENT LAW REQUIRES

The original Superfund statute included little guidance for regulators or

PRPs when evaluating alternatives for Superfund site cleanups. "Section

104(c)(4) of CERCLA required selection of remedial actions t h a t were in

accordance with the National Contingency Plan 'to the extent practicable' and

t h a t provided for 'cost-effective response which provides a balance between the

need for protection of the public health and welfare ... and the availability of

cleanup requirements proved to be

amounts from t h e fund ...."'"ERCLA's

subject to interpretation, and cleanup decisions were often subject to delay and

challenge.

In 1986, SARA introduced new Superfund cleanup standards. The new

standards, which are in effect today, were Congress' attempt a t providing

statutory guidance on the question of "how clean is clean?" They required

compliance with ARARs, which are t h e "applicable or relevant and appropriate

requirements' which EPA and other agencies must comply with when

determining cleanup standards to be followed for wastes treated onsite.

CERCLA does not contain its own cleanup standards; rather, the statute relies

on ARARs to ensure that 1)response actions are protective of human health and

the environment, and 2) applicable State and Federal laws and regulations are

not violated during the cleanup procedure. Further, SARA required that

numerical standards derived from the Safe Drinking Water Act (SDWA:] and

water quality criteria established under the Federal Water Pollution Control Act

would be applicable to the cleanup process if determined relevant and

appropriate.

CERCLA, as amended, also states a strong preference for permanence and

treatment of wastes, and discourages off-site disposal options:

' Sen. Robert T. Smith. Title-by-Title Summary. Congressional Record, Sept. 29,

1995. p. S 14736.

%ayes, David J.>and Conrad B. MacKerron. Superfund IZ: A hTew Mandate. The

Bureau of National Affairs, v. 17; no. 42, February 13: 1987. p. 37.

Remedial actions in which treatment which permanently and

significantly reduces the volume, toxicity or mobility of the hazardous

substances, pollutants, and contaminants is a principal element are to

be preferred over remedial actions not involving such treatment.7

For cases in which no ARARs have been established, CERCLA requires

selecting remedial actions that assure protection of human health and the

environment and that are relevant and appropriate.' In practice, cleanup levels

are generally chosen to protect users or receptors from unacceptable cancer and

non-cancer health risks or adverse environmental effects.' Such levels are

generally chosen to protect people at least to a level within the range of

to

10-Vl in 10;000 to 1in 1,000,000) lifetime cancer risk or below a predetermined

index for non- carcinogen^.'^

It was hoped that SARA would increase the quality and pace of waste

cleanups. Some progress has been made since 1986; however, there is general

agreement that the cleanup of hazardous waste sites remains slow." Today,

the debate focuses more on questions of economy, though it is recognized that

improvements in the quality and pace of cleanups must be pursued.

THE ROLE OF RISK ASSESSMENT

The Superfund cleanup standards and remedy selection process have been

broadly criticized by groups including the manufacturing and insurance

industries, local and State governments, Federal agencies involved in Superfund

cleanups, environmental and community groups, and members of the

engineering and scientific community."

Many believe that the current

CERCLA $121(b).

' CERCLA Section 121 (d)(l)

' U.S. Environmental Protection Agency. Office of Solid Waste and Emergency

ksponse. Guidance for Eualuating the Technical Impracticability of Ground-Water

Restoration. EPA/j40-R-93-080. September 1993. p. 9.

"

See, e.g., U.S. Congress. House. Committee on Public Works and Transportation,

Subcommittee on Investigations and Oversight. Administration of the S u p e r f ~ n d

Program. House Report No. 103-35, 103d Congress; 1st Session. Washington, U.S.

Govt. Print. Off., 1993. p. 26.

See, e.g., Frank L. Parker, Ph.D.: Distinguished Professor of Environmental

Engineering, Vanderbilt University. Testimony submitted to the Senate Committee on

Environment and Public Works, Subcommittee on Superfund, Waste Control, and Risk

Assessment. Oversight Hearing Regarding the Comprehensive Environmental Response,

Compensuiion, and Liability Act. May 9, 1995. 104th Congress, 1st Session.

Washington, D.C., Govt. Print. Off. [to be printed].

Superfund program favors excessively costly remedies and is responsible for the

slow pace of cleanups.

To address these problems, some critics would like to see changes in EPA's

risk assessment procedures as well as a larger role for risk assessment in the

remedy selection process. Other critics believe that EPA's current use of risk

ranges is unacceptable; they advocate the establishment of a single national risk

criterion for cleanup decisions.

Risk assessment is defined broadly as the determination, through formal or

informal scientific procedures: of probable health and other effects from

exposure to a potential danger (the term is also applied to the field underlying

and establishing such determinations). For purposes of this report, risk

assessment refers to various EPA methods for evaluating and comparing risks

a t Superfund sites.13

EPA currently uses risk assessment at several points in the Superfund

program. It first conducts rough risk assessments a t each site to determine

whether contaminants pose a current or potential threat to human health or the

environment. If EPA determines that a site poses a significant threat, it is

added to the National Priorities List (NPL). These risk assessments adhere to

methods detailed in the National Contingency Plan (NCP; codified a t 40 CFR

300). AppendixA to the NCP describes the Hazard Ranking System (HRS) as:

the principle mechanism the U.S. Environmental Protection Agency

(EPA) uses to place sites on the National Priorities List (h4'L). The

HRS serves as a screening device to evaluate the potential for releases

of uncontrolled hazardous substances to cause human health or

environmental damage. The HRS provides a measure of relative

rather than absolute risk. It is designed so that it can be consistently

applied to a wide variety of sites.14

For NPL sites risk assessment is then used to determine the necessary level

of cleanup and to evaluate appropriate cleanup remedies. The remedial

investigation and feasibility study (RIDS) phase of EPA's Superfund program,

established under CERCIA section 120(e), uses risk assessment to characterize

the nature and extent of risks posed by uncontrolled hazardous waste sites and

for evaluatingpotential remedy options. The remedial investigation (RI) gathers

information suff~cientto support a risk management decision, including likely

current and future risk associated with human exposures to releases from the

site. The feasibility study (FS) develops, screens, and evaluates alternative

remedial actions. It is during the FS phase that cleanup goals aimed a t

protecting human health and the environment are determined. Preliminary

l3 For more information about risk assessment see U.S. Libraly of Con,mss.

Congressional Research Service. Risk Analysis and Cost-Benefit Analysis of

Encironmental Regulations. Report No. 94-961 ESR. Washington, 1994.

l4

40 C.F.R. Part 300; Appendix A. section 1.0.

remedial action objectives based on readily available information such as ARARs

and numerical criteria are developed first. The final remedial action objectives

are determined based on results of the baseline risk assessment and an

evaluation of expected exposures and associated risks for each alternative.

As described by EPA, the intent of the R I P S process is to provide a

"dynamic, flexible process that can and should be tailored to specific

circumstances at individual sites; it is not a rigid step-by-step approach that

must be conducted identically at every site."I5 Many have contended that in

practice, this flexibility is not applied and that costly remedies are more often

selected than cost-effective ones. It has been argued that the current risk

assessment process is responsible for selection of exceedingly costly remedies.

An EPA guidance document on the R I P S process addresses the challenges faced

by project managers:

The project manager's central responsibility is to determine how best

to use the flexibility built into the process to conduct an efficient and

effective R I P S that achieves high quality results in a timely and costeffective manner. A significant challenge project managers face in

effectively managing an R I P S is the inherent uncertainties associated

with the remediation of uncontrolled hazardous waste sites.'"

Some criticize EPA's cautious approach at exercising the flexibility built

into the statute; however, one reason EPA takes this approach is because

information to assess health risks completely is still not available, and it has

been shown that health effects are linked to exposure to toxic wastes. In

addressing the link between health effects and exposure to toxic substances,

Barry L. Johnson, Ph.D., Assistant Administrator of the Agency for Toxic

Substances and Disease Registry (ATSDR -- the Agency responsible for healthrelated authorities under CERCLA) testified about health effects from exposure

to hazardous substances." In summary, ATSDR found that proximity to

hazardous waste sites seems to be associated with a small to moderate increased

risk of some kinds of birth defects and, less well documented. some specific

cancers and health problems.

Those who support EPA's cautious approach (including some in the

scientific community! claim that scientists may have been too optimistic in

assessing health implications from exposure to toxics (that is, they may

underestimate risk). Because critical information about the link between

l5 U.S. Environmental Protection Agency. Guidance for Conducting Remedial

Inr;estigationsandFeasibility Studies Under CERCLA.EPAl5401G-891004,October 1988.

''

Barry L. Johnson, Ph.D., Assistant Surgeon General, Public Health Service, U.S.

Department of Health and Human Services. Testimony submitted to the House

Comn~itteeon Commerce, Subcommittee on Commerce; Trade, and Hazardous Materials.

May 23, 1995. 104th Congress, 1st Session. Washington, D.C.

hazardous waste and health effects is still lacking, it is necessary for EPA to use

adequate safety margins in their health assessments: they maintain. ATSDR

asked the National Research Council (KRC) to review current knowledge of

human health effects caused by exposure to hazardous waste sites. Their 1991

report maintained: "Until better evidence is developed, prudent public policy

demands that a margin of safety be provided regarding potential health risks

from exposures to substances from hazardous waste sites."18 It explained, "We

do no less in designing bridges and buildings. We do no less in establishing

criteria for scientific credibility. We must surely do no less when the health and

quality of life of Americans are at stake."lg

Critics of EPA's risk assessment me tho do log^. believe that such caution

precludes the choice of less costly remedies. For example, the Kational

Environmental Policy Institute has attacked EPA's method of estimating risk,

claiming that worst case scenarios are used when more moderate ones could

sufficiently protect human health and the environment?' In response, Elliott

Laws, Assistant Administrator for EPA's Office of Solid Waste and Emergency

Response testified that:

Prior to 1990, Superfund risk assessments relied heavily on the 'worst

case scenario.' Since then we have used a peer reviewed guidance for

risk assessments that employs site specific information on contaminant

concentrations, exposure pathways and land use, which make the risk

assessment more realistic. EPA's current risk assessment process

seeks to protect the majority of individuals near Superfund sites?'

It is also argued that the current risk assessment process is too flexible and

consequently responsible for differing cleanup goals, remedies, and costs site-bysite across the country. A number of stakeholders, including environmental

organizations, State and local governments, and environmental health

organizations call for the establishment of a single risk management goal.

'"ational

Academy of Sciences: National Research Council. Enuironmental

Epidemiology Public Health and Hazardous Wastes. Washington, D.C.; National

Academy Press, 1991. p. 21

lg Ibid. p. 270.

''

Steven J. Milloy, National Environmental Policy Institute. Testimony submitted

to the Senate Committee on Environment and Public Works, Subcommittee on

Superfund, Waste Control, and Risk Assessment. Oversight hearing regarding the

ComprehensiveEnvironmental Response, Compensation,and Liability Act. April 5,1995.

104th Congress, 1st Session. Washington, D.C.; U.S. Govt. Print. Off. [to be printedl.

Elliott P. Laws, Assistant Administrator; Environmental Protection Agency.

Testimony submitted to the Senate Committee on Environment and Public Works,

Subcommittee on Superfund, Waste Control, and Risk Assessment. Oversight hearing

regarding the Comprehensive Environmental Response, Compensation,and Liability Act.

April 5, 1995. 104th Congress, 1st Session. Washington, D.C., U.S. Govt. Print. Off. [to

be printed].

Environmental organizations and community groups have been opposed to

EPA's use of the risk range, described in the Cleanup Standards section of this

report, because it affords EPA the latitude to provide communities with a 100fold difference in protection without explanation." The National Governor's

Association (NGA) agreed by testifying that [eliminating use of the risk range]

"will greatly increase the pace of cleanup and ensure equal protection for all

citizens of this country."23 PRPs and communities have often been left

wondering how and why a particular cleanup remedy was selected. It has been

argued t h a t establishing a national risk protocol would avoid site-by-site debate

and confusion by requiring EPA to develop national cleanup models and

standards. Last year, the Administration's Superfund reauthorization bill

(H.R.3800iS.1834) included the establishment of national cleanup goals and

methodologies.

The House draft bill requires EPA to establish a national risk protocol.

Risk assessments performed under the Act "shall provide scientifically objective

and unbiased estimates and characterizations which neither minimize nor

exaggerate the nature and magnitude of risks."24 For drinking water, the bill

states t h a t Superfund cleanup remedies shall prevent ingestion of water t h a t

does not meet the Safe Drinking Water Act's maximum contaminant levels. For

"non-threshold carcinogens" (those with no known safe level of ingestion), a

remedy shall be considered protective of human health if it "limits cumulative,

lifetime additional cancer risk from exposure ... t o within the range of one in

10;000 t o one in 1,000~000for the affected population.'26

S. 1285 states t h a t remedies are t o be selected according to site-specific

conditions and risks based on future use. Like the House draft, a remedy would

be considered to protect health if it has a risk range for cancer resulting from

exposure a t the facility of from one in 10,000 t o one in 1,000;000 for the affected

population; and exposure to non-carcinogens does not pose an appreciable risk

of deleterious effects. Remedial actions would be selected according to exposure

pathways based on future use (industrial, commercial, residential; etc.1; sitespecific testing data; and where t h a t data is unavailable, an acceptable range of

realistic and plausible default assumptions regarding human exposure and site" Karen Florini, Senior Attorney, Environmental Defense Fund.

Testimony

submitted to the House T~ansportationand Infrastructure Committee, Subcommittee on

Infrastructure and Environment. Superfund Reauthorization: Environmental and

Community Groups. June 21, 1995. Hearings, 104th Congress, 1st Session.

Washington, D.C., U.S. God. Print. Off. p. 9.

23 Richard J. Gimello, National Governor's Association. Testimony submitted to the

Committee on Transportation and Infrastructure, Subcommitteeon Water Resources and

Environment. Superfund Reauthorization: State and Local Perspectives. June 13; 1995.

Hearings, 104th Congress. 1st Session. Washington, D.C.; God. Print. Off. [to be

printed].

24

Section 101, adding new section 127(a)(l)

" Section 102, in amended CERCLA section 121(b)(3)

specific conditions, instead of worst case assumptions. The following balancing

factors are to be considered in selecting a remedy: effectiveness in protecting

health; long-term reliability; short-term risks during cleanup; acceptance by the

community; and technical practicability.

COST-EFFECTIVENESS OF TREATMENT

CERCLA's lack of national standard cleanup levels, its reliance on ARARs,

and its preference for permanent cleanups and use of treatment technologies

have been attributed to cleanup remedies which are more stringent and more

costly than necessary to protect human health. The existing statutory

requirements for remedial actions specifically call for consideration of the costeffectiveness of the selected remedy. Cost is one of nine evaluation criteria

which EPA uses when analyzing alternatives for a remedial action.z6 However.

EPA recognizes that in practice, cleanup costs are often high due to the

statute's deference to ARARs and its preference for permanence and

treatment.27

A number of stakeholders have offered proposals which would instruct the

EPA to consider the cost-effectiveness of a cleanup solution as a major factor in

its evaluation of alternates.

One suggestion to reduce program costs is to permit use of "presumptive

remedies" or remedies that EPA has historically used at particular categories of

sites which could be preapproved in order to avoid costs of extensive analysis

currently required.

The Department of Defense (DOD), which has about 125 KPL sites? has

proposed reforms intended to cut costs and speed the cleanup of contaminated

sites. At a House Committee on Transportation and Infrastructure hearing,

DOD recommended modifications to the remedy selection process, one of which

was:

Elevate the role of cost when considering other factors in remedy

selection. Currently; cost-effectiveness is one of nine considerations

regulators use in making a cleanup decision. By elevating the

26 U.S. Environmental Protection Agency. Office of Emergency and Remedial

Response. Guidance for Conducting Remedial In~estigatiueand Feasibility Studies

Under CERCLA. October 1988. p. 6-3.

''

Carol M. Browner, Administrator, U.S. Environmental Pmtection Agency.

Testimony submitted to the House Committee on Transportation and Infrastructure,

Subcommittee on Water Resources and Environment. Superfund Reauthorization:

Federal Agency Perspecti~es. June 27, 1995. Hearing, 104th Congress: 1st Session.

Washington. D.C., U.S. Government Print. Off. [to be printed].

importance of cost, we can provide a more prudent use of our

resource~.~~

House-passed H.R. 9, The Job Creation and Wage Enhancement Act, part

of the Republican Contract with America package, addresses this topic by

requiring in Division D that a cost-benefit analysis be conducted on any

Superfund remediation remedy selected by EPA which is expected to cost over

$5 million. This means that such a remedy must be cost-effective and the

incremental costs of t h e remedy must be reasonably related t o the incremental

benefit^.'^ Since the average cost of cleanup is $25-30 million; virtually all

NPL sites would be subject to this provision. This provision has caused concern

for some environmental groups, including the Environmental Health Network,

t h a t fewer cleanups will be accomplished regardless of human health

considerations. Another concern is that all cleanups will be slowed down t o

accommodate the additional cost-benefit analysis. S. 343; The Comprehensive

Regulatory Reform Bill of 1995, is similar to H.R. 9; has been debated on the

floor: and is still pending.

Rep. Oxley's H.R. 2500 rewrites CERCLA's section 121 on remedy selection,

and sets out the general standard that remedies selected "shall be those

necessary t o protect human health and the environment from realistic and

significant risks through cost-effective and cost-reasonable means." Cost is one

of five factors to be considered in selecting the remedy.30 The preferred remedy

is the one that "adequately protects human health and the environment from

realistic and significant risks a t the lowest total cost." Other provisions

encouraging economy are the use of generic remedies where they would be costeffective and appropriate; a review of new procedures for conducting RI/FSs in

a n efficient: cost-effective, and timely manner; use of institutional controls (such

as restrictions on t h e use of the land or surface water, or restrictions on drilling

wells or the use of groundwater); and eliminating any procedural requirements,

including local permitting when the response action is carried out on-site.

The selected remedy is to be the one which provides protection of health

and t h e environment in the most cost-effective manner. If achieving the cleanup

goals a t a site is technically impracticable or unreasonably costly, a technically

28 Shem W. Goodman, Deputy Under Secretary of Defense. Testimony submitted to

the Committee on Transportation and Infrastructure, Subcon~mitteeon Water Re-UOUIC~S

and Infrastructure. Superfund Reautt~onzahon:Fedeml Agency Perspectiues. June 27,

1995. Hearing, 104th Congress: 1st Session. Washington, D.C., Govt. Print. Off. [to be

printed].

29 This provision was originally passed in the House as H.R. 1022 and was

subsequently included in H.R. 9, The Job Creation and Wage Enhancement .4ct, as

Division D; the Risk Assessment and Cost-Benefit .4ct of 1995.

30 The other four factors are the remedy's technical effectiveness; its long- and shortterm reliability; risks to the community, cleanup workem, and the environment; and

acceptability to the conlnlunity, as represented by local elected officials.

practicable remedy is to be chosen that minimizes risk to health and the

environment by cost-effective means. Also, EPA is directed to establish

presumptive remedies for commonly encountered types of contaminated

facilities; presumptive remedies are not limited to treatment, but may include

institutional and standard engineering controls, such as restrictions on the

permissible uses of land, prohibitions on specified activities upon the property,

restrictions on the drilling of wells or other use of ground water: or restrictions

on the use of surface water.

ARARs AND PREFERENCE FOR PERMANENCE AND TREATMENT

There is broad support for the elimination of the statute's ARARs

requirement and preference for permanence and treatment. Critics argue that

they have artificially tilted the remedy selection process towards more costly

remedies than are necessary to protect human health and the environment.

According to the General Accounting Office, cleanup levels established by

standards, such as ARARs, are generally more stringent than cleanup levels

established by risk assessment^.'^ This supports the common assertion that

cleanups based on standards are generally more costly than cleanups based on

risk assessments. Debate over which Federal or State regulations (or

combinations thereof) are relevant and appropriate at a given site has often

been cited as time consuming. PRPs have an obvious interest in favoring the

standard which is easiest and most economical to attain. EPA and State

regulators frequently disagree on which regulations should apply. These

negotiations can add months to the process.

CERCLA section 121(d)(2)(A) requires that selected remedial actions for

hazardous wastes left on site attain legally Applicable or Relevant and

Appropriate standards, Requirements, criteria, or limitations. State ARARs

must be met if they are more stringent than the Federal requirements. Federal

environmental laws cited in CERCLA include: the Toxic Substances Control Act,

the Safe Drinking Water Act, the Clean Air Act, the Clean Water Act, the

Marine Protection, Research and Sanctuaries Act, and the Solid Waste Disposal

Act. CERCLA also requires that the remedial action "shall require a level or

standard of control which at least attains Maximum Contaminant Level Goals

established under the Safe Drinking Water Act and water quality criteria

established under section 304 or 303 of the Clean Water Act, where such goals

or criteria are relevant and appropriate under the circumstances of the release

or threatened release".32

31 Lawrence J. Dyckman, Associate Director, U.S.

General Accounting Office.

Testimony submitted to the Committee on Transportation and Infrastructure,

Subcommittee on Water Resources and Environment. Superfund Reauthorization:

Members of Congress, Miscellaneous Issues. June 22, 1995. Heanng, 104th Congress.

1st Session. Washington, D.C., U.S. Govt. Print. Off. [to be printed].

32 CERCLA § 121(d)(2)(A).For carcinogens; EPA sets Maximum Contaminant Level

Goals at Zero.

The Natural Resources Defense Council (KRDC) endorses replacement of

Federal ARARs with a formula for setting standards and an explicit process for

selecting treatment. They do not, however, endorse elimination of State ARARs

requirements. State requirements which are more prescriptive than Federal

ones should not be preempted, they argue.3"

While some stakeholders in the debate call for eliminating the ARARs

requirement, others call for eliminating only the relevant and appropriate

requirements (RARs). This approach would keep the substantive demands

found in Federal and State law that specifically address hazardous substances

at a site ("applicable"); but drop those requirements that appear sufficiently

similar that some EPA or State regulators might consider their use well suited

to the particular site ("relevant and appropriate"). By reducing the number of

regulations that can be argued over: presumably; the debate would be speeded

up. If the ARARs requirement is eliminated, some advocate establishment of a

national cleanup standard which could be used for all Superfund sites.

The House draft bill eliminates ARARs. As noted earlier, it directs EPA or

the State administering agency to consider all options for addressing

contamination at a site, includingcontainment, treatment, institutional controls,

natural attenuation, or a combination of these alternatives.

S. 1285 eliminates the requirement that remedial actions meet ARARS,

although it notes that if the cleanup remedy requires hazardous materials to be

removed from the site, they must be taken to a facility that is permitted to treat,

store, or dispose of them. Institutional and engineering controls are to be

considered on an equal basis with all other remedial action alternatives.

Section 121(b) of CERCLA requires a remedial action "that utilizes

permanent solutions and alternative treatment technologies or resource recovery

technologies to the maximum extent practicable." As noted above, many

advocate eliminating this preference. Some advocate total elimination of this

provision, while others advocate retaining the preference for permanent

remedies and treatment at 'hot spots' only. Superfund Reform '95 (a broad

coalition of the insurance industry, small and large businesses, and some local

governments), calls for the elimination of the ARARs requirement and the

preference for permanence and treatment. Instead, they call for "final decisions

on remedy selection to be made by comparing the costs and net human health

and environmental benefits of the alternatives, with priority for funding directed

33 Linda E. Greer; Ph.D. for Natural Resources Defense Council, Submitted

Testimony. Senate Committee on Environment and Public Works, Subcommittee on

Superfund, Waste Control, and Risk Assessment. Oversight hearing regarding the

ComprehensiveEnvironmental Response, Compensation, and Liability Act. April 5, 1995.

104th Congress, 1st Session. Washington, D.C.; U.S. Govt. Print. Off. [to be printed].

a t real and sienificant

risks t o human health".34 The Department of Enerw's

Assistant Secretary for Environmental Management, Thomas P. Grumbly, before

the Committee on Transportation and Infrastructure. Subcommittee on Water

Resources and the Environment testified: "The current law's preference for

treatmentlpermanence should be narrowed and replaced with the concept of

long-term reliability and a preference for the treatment of 'hot spot^'."^' There

appears t o be consensus among stakeholders seeking these reforms t h a t

containment measures and institutional controls should be required for sites

where permanent treatment is not achieved.

A

&

The House draft bill would eliminate CERCLA's preference for permanence

and treatment. I n lieu of permanence, the bill says that the reliability of the

remedy over the short and long term is one of five factors to be considered and

balanced in selecting the remedy.36 Regarding treatment, the bill says t h a t

remediation may be accomplished through the use of one or more of the

following: treatment, stabilization, source control, natural attenuation,

containment, institutional controls: or other methods. "No preference or bias

shall apply t o any method of remediation," it states.

S. 1285 also eliminates the preference for permanence and treatment. And,

like the House draft, it replaces permanence with the requirement that

protectiveness over the long r u n be one of the balancing factors.

The "TechnicalImpracticability"Waiver

CERCLA identifies six circumstances which if met allow for the waiver of

ARARs.~' One of these waivers, the technical impracticability (TI) waiver, may

be granted if "compliance with such requirements [ARARsl is technically

impracticable from a n engineering perspective".38 EPA has issued a guidance

document for evaluating the technical impracticability of ground-water

34 John F. Spisak, for Superfund Reform '95. Testimony submitted to the House

Committee on Transportation and Infrastructure; Subcommittee on Water Resources and

Environment. Hearings, 104th Congress. 1st Session. Washington, D.C., U.S. Govt.

Print. Off. [to be printed].

S5 Thomas P. Grumbly, Assistant Secretary for Environmental Management,

Department of Energy. Testimony submitted to the Committee on Transportation and

Infrastructure, Subcommittee on Water Resources and Environment. Hearing on

Superfund Reauthorization: Federal Agency Perspeetiues. June 27, 1995. 104th

Congress, 1st Session. Washington, D.C., U.S. Govt. Print. Off. [to be printed].

"h'e

other four factors are the remedy's technical effectiveness; risks to the

community; cleanup workers, and the environment; acceptability to the community, as

represented by local elected officials; and the reasonableness of the remedy's cost.

37 See CERCLA Section 121(d)(4j

r e s t ~ r a t i o n . ~ 'The guidance is intended to promote "the careful and realistic

assessment of the technical capabilities a t hand to manage risks posed by

ground-water contamination." Since issuing the guidance in 1993, EPA has

promoted its implementation by establishing headquarters and regional contact

personnel for transfer of T I related information, and by outlining a basic process

for evaluation of TI decision documents. However, some critics in government

and industry claim t h a t EPA's approach to using this waiver authority greatly

diminishes opportunities for cost savings. I n practice, the implementation of "TI

waivers" is often stymied by political issues such a s some States' reluctance t o

accept the "TI waiver" option.

The most important application of the TI waiver is for the case of certain

groundwater restorations. For example, the presence of dense nonaqueousphase liquids; commonly known as DNAPLs4', a t hazardous waste sites has

complicated many groundwater cleanups. Based on current technology, t h e

attainment of drinking water standards (an ARAR) a t sites contaminated with

DNAPLS is impracticable.

A National Research Council (NRC) report discusses EPA's practical

implementation of t h e TI waiver. EPA has issued a technical policy to address

sites contaminated with DNAPLS which is "supported to a great extent by the

committee's [NRC committee on Ground Water Cleanup Alternatives] technical

review."41 However: the NRC committee and other stakeholders are concerned

with EPA's general practice of granting a TI waiver only after the cleanup

remedy fails in attaining the initial goals. The NRC committee concluded.

"Although the committee sees value in ensuring that best possible efforts are

employed to address DNAPL contamination, a requirement t h a t a remedial

action be designed t o achieve the impossible (based on current technology) is

c o u n t e r p r o d ~ c t i v e . ~ Mr. Robert Frantz, Manager of General Electric's

Remedial Program testified a t a Senate Environment and Public Works

Committee hearing that, "EPA gives little regard for cost or technical

practicability" and t h a t "For cases where ground water treatment has been

shown to be incapable of meeting standards, an 'up-front' TI waiver should be

granted."4'

39 U.S. Environmental Protection Agency. Guidance for Eualuating the Technical

Impracticability of Ground-Water Restoration. 1993.

40 Some examples of compounds likely to exist as DNAPLs are chlorinated solvents,

coal tars, and transformer oil.

41 NAS, National Research Council. Alternatiues for Ground Water Cleanup.

Washington, D.C., National Academy Press, 1994. p. 258

42 National Research Council p. 259.

4%obert W. Frantz, Manager Remedial Program, General Electric Company.

Testimony submitted to the Senate Committee on Environment and Public Works,

Subcommittee on Superfund, Waste Control and Risk Assessment. Oversight hearing

(continued...I

The House draft bill allows for a finding of technical impracticability from

an engineering perspective when considering the effectiveness of various

remedies. The finding can be made on the basis of projections, modeling, or

other site-specific analysis, and without first constructing or installing the

remedy under consideration.

S. 1285 also allows EPA to make a finding that achieving the cleanup goals

is technically impracticable; it would do so by determining that there is no

known reliable means of achieving the cleanup goals at a reasonable cost? and

that it has not been shown that such a means is likely to be developed in a

reasonable period of time.

FUTURE LAND, GROUNDWATER AND RESOURCE USE

Many believe that to accomplish cleanups cost-effectively and at apace that

is conducive to the protection of human health and the environment, the future

use of land, groundwater and other resources must be considered in determining

the appropriate cleanup standard and the remedial design. Future uses are

currently considered in the remedial investigation/feasibility study; however,

critics argue that the statute encourages overly conservative risk assessments

based on unrealistic exposure pathways. Stakeholders favoring these risk

assessment reforms include the chemical industry, small and large businesses,

the National Governor's Association, Local Governments for Superfund Reform,

the Department of Energy, and the Department of Defense.

Three land use reforms frequently proposed are: use of actual or planned

future land and other resource use during the remedial investigation/feasibility

study; use of institutional controls such as deed restrictions to protect human

health; and contaminated groundwater remedy selection based on future use and

exposure, with treatment designated only for aquifers that are currently

supplying drinking water or are reasonably expected to supply drinking water

in the future.

Some environmental groups are cautious about any provisions that would

make land use considerations central to the remedy selection decision-making

process. Others, such as Friends of the Earth, go further and urge rejection of

a preference for institutional controls and advocate the goal of restoration of all

sites to a full range of uses44. The Natural Resources Defense Council (IiRDC)

43(...continued:)

regarding the Comprehensive Environmental Response, Compensation, and Liability Act.

April 5, 1995. 104th Congress, 1st Session. Washington, D.C., U.S. God. Print. Off. [to

be printed].

44 Velma M. Smith, for Friends of the Earth. Testimony submitted to the House

Committee on Transportation and Infrastructure, Subcommittee on Water Resources

and the Environment. Hearing on Superfund Reauthorization: Enuironmental and

(continued...I

explains: "The reliance on land use to provide long-term protection to

communities has long been difficult for the environmental community to accept.

given the difficulties associated with both accurately predicting future needs for

the land and limitations in our institutional capabilities to control for

inappropriate future uses."46 However; the KRDC also recognizes that "land

can in some cwes not be fully restored yet used productively for industrial

purposes"?"he

NRDC does not hold the position that future land use must

not be considered in remedy selection. They do: however. recommend that

remedy selection decisions be agreed on by adjacent communities.

Organizations and groups active in the environmental justice movement are

concerned that if more emphasis is placed on future land use considerations,

communities located near areas considered to be less worthy of a high standard

for cleanup will be at greater health risk than communities which are not

located near such sites. Environmental justice pursues fair and equitable

protection against any environmental hazard. including exposure to hazardous

wastes, of all people regardless of race or socioeconom.ic status. The

incorporation of a single national risk goal combined with consideration of a

community's anticipated future land use and institutional controls: if necessary.

might resolve this concern. Advocates for increased consideration of land use

counter these arguments by claiming that risk management goals would not be

lowered, and therefore human health protection would not be lowered.

The House draft bill would require that remedy selection take into account

reasonably anticipated future uses of land, water. and other resources at a

facility, as well as the timing of such uses. Future uses should have a

"substantial probability" of occurring. and should consider: recommendations of

the community; historical and current uses, as well as recent development

patterns and population projections; Federal and State land uses such as parks:

and groundwater recharge areas; local government zoning and land use plans;

the potential for economic development; the property owners' plans; and

alternative sources of drinking water.

S. 1285 states that the risk evaluation at each facility shall consider

planned or reasonably anticipated future use of land and water resources.

Future land use is a use determined by zoning, or a use with a "substantial

44(...continued)

Community Groups. June 21, 1995. 104th Congress, 1st Session. Washington, D.C.,

U.S. Govt. Print. Off. [to be printed].

46 Linda E. Greer, Ph.D. for Natural Resources Defense Council, Submitted

Testimony. Senate Committee on Environment and Public Works Subcommittee on

Superfund, Waste Control and Risk Assessment. Oversight hearing regarding the

Comprehensive Environmental Response, Compensation,and Liabi1itg.lct. April 5, 1995.

Hearings, 104th Congress. 1st Session. Washington, D.C.; U.S. Government Print. Off.

[to be printed].

probability" of occurring based on recent developnient patterns and population

projections. With regard to water, future use is that reasonably anticipated by

a local government or by an authority that regulates groundwater use or

planning in the vicinity. The bill would establish a higher level of protection for

groundwater that is uncontaminated. Input is to be sought from the new

Community Response Organizations proposed by the bill, local officials, planning

and zoning authorities, facility owners, and PRPs.

THE ROLE OF STATES IN THE REMEDY SELECTION PROCESS

The current system of shared EPA and State responsibility for

implementing and funding the Superfund program has led to significant delay

and duplication of effort, and confusion among stakeholders, critics claim.

States are better equipped to tailor remedies to sites within their borders in

cost-effective fashion, and an expanded State role would result in faster cleanups

with lower transaction costs, they say. Accordingly, a number of States want

full Superfund authority.

The law does not provide for delegation of Superfund program authority to

the States as it has for other environmental laws such as the Clean Water Act

and RCRA. At present, EPA and States can enter into cooperative agreements

on a site-by-site basis that authorize the States to undertake most of the

cleanup activities the Agency would perform, excluding remedy selection. Fullprogram authority would enable States with such authority to implement their

own versions of a Superfund program, while program delegation would give

States the authority to implement the Federal program.

The Federal government has primary responsibility for implementing the

Superfund program, though States play important roles in remedy selection and

funding of Superfund site cleanups. Their standards and regulations are

recognized by the ARARs requirement. Under current law! States carry a

financial responsibility of 10 percent of Fund-financed cleanup costs, and the

full cost of operation and maintenance of the selected remediation. In addition,

the State must make off-site disposal facilities available if necessary and it must

provide 20 years of hazardous waste treatment or disposal capacity for all

hazardous waste reasonably expected to be generated within the State. A State

is required to pay for 50 percent of all response costs if the State or a locality

operated the site. If a State cannot fulfill these requirements, EPA cannot

obligate trust fund money for the cleanup.

The National Governor's Association proposed:

...that all capable states interested in administering cleanups be

authorized or delegated full or partial management of the remedial and

emergency removal programs at hTL sites -- including federal

facilities. This will accelerate cleanup, avoid duplication of effort,

increase efficiency for government and the private sector, reduce

transaction costs, provide greater certainty in the program, and

maximize the effectiveness of limited state and federal resources.... It

is important that such a program be voluntary and we recommend

that EPA maintain a federal program in states that are unable to or

[are] uninterested in pursuing authorization. Also critical to the

success of state authorization is adequate funding and flexibility for

the states.47

The Association of State and Territorial Solid Waste Management Officials

(ASTSWMO) also supports the position that State delegation should be strictly

voluntary and that delegation should be either full or partial depending on the

abilities of the State.

Other stakeholders interested in increasing the role of the States include

some local governments, PRPs including the DOD and the DOE, the insurance

and manufacturing industries, and some not-for-profit organizations interested

in Superfund reauthorization. Part of the problem with the current remedy

selection process, these stakeholders claim, is that EPA has the authority to

preempt a State-selected remedy. Further, the threat of EPA preemption causes

participation in voluntary cleanup actions to be a risky venture: some witnesses

say. A business that participates in voluntary cleanups may face CERCLA

liability even after liability under State law is resolved. If States had full

Superfund authority this risk would disappear, it is claimed. At least 21 States

have voluntary cleanup programs for less serious hazardous waste sites.

Some community groups are apprehensive about the proposed State

delegation and advocate judicious oversight by EPA if delegation o~curred.~'

One concern is that some States will not be as conservative in their cleanup

decisions as the Federal program, which would necessarily lead to less protection

of human health and the environment: they claim. Some also believe that State

public participation programs have not measured up to the Federal program.

A community activist, Florence Robinson, urged in testimony before the House

Commerce Committee: "Any state authorization, be it site-specific or statewide,

should expressly require that a state provide the public with at least as much

opportunity to participate as would occur under the federal program."4g

Title V of the House draft would give States the power they have lobbied

for, authorizing EPA to delegate authority to conduct virtually all cleanup

activities, including remedy selection. It also would give them the ability to

47 R.

Gimello testimony.

48 Florence Robinson, North Baton Rouge Environmental Association, and the

Communities at Risk Network. Testimony submitted to the House Committee on

Commerce. Subcommittee on Trade, Commerce, and Hazardous Material. Hearing on

the Reauthorization of the Super,+Lnd Program focusing on State RoleNoluntary

Cleanup. June 15, 1995 104th Congress, 1st Session. Washington, D.C.; U.S. Govt

Print. Off. [to be printed]

delist a facility from the National Priorities List when a State finds that no

further action is needed to protect health and the environment. In addition; the

bill would rewrite the existing remedy selection language in CERCLA section

121 to provide "substantial and meaningful involvement by each State in

initiation, development: and selection of remedial actions." However, it would

give no independent authority to States that have not been delegated it under

Title Vt but does give them the opportunity to participate in virtually every

aspect of the remedy selection process.

S. 1285 empowers States to veto the listing of new NPL sites, and to de-list

existing NPL sites. States may request delegation of all or a portion of

Superfund authorities, including remedy selection. The bill designates the State

as the sole regulator and allows the State to use its own remedy selection

process at those sites where the State accepts all authority. The Fund continues

to pay its share of cleanup costs at delegated sites, as long as the selected

remedy is protective of human health and the environment, and is no more

costly than the one that would have been selected under the Federal program.

The bill provides for funding to delegated States, some of which is on a facilityspecific basis, and some of which is not.

COMMUNITY INVOLVEMENT IN REMEDY SELECTION PROCESS

There is general agreement that the current process for involving

communities in the decisionmaking process does little to speed up Superfund

cleanups, and that it often makes people feel alienated and powerless regarding

their community's future. In some cases, it has led communities to take legal

action to halt the cleanup.

The importance of community participation was recognized after CERCW

had been in existence for only 5 years, and as a result section 117 was added by

SARA. However, section 117 only requires that a site's remedial action plan be

made available to the public, that the public have an opportunity to make

comments on the plan and any changes to it, and that EPA answer those

comments and explain any significant differences in the final plan. To assist the

community in interpreting and commenting on the plan, technical assistance

grants (TAGS) were authorized (see box on the following page). But although

section 117 provided the public some access, for the most part it has not

engendered active involvement of a community in the decision making process.

Industry witnesses testified to the importance of having the local populace

involved. A manager of Dupont who spoke on behalf of the Chemical

Manufacturers Association (CMA) said, "The experience of CMA's member

companies is that when the local community has meaningful input in the

remedy selection process, the result is better decisions and faster cleanups." An

official of the second largest waste management company in the U.S. testified

that better and more efficient cleanups resulted from active and early

consultation with the local community:

At BFI [Browning Ferris Industries], as a matter of policy, we

actively involve communities in virtually all of our activities, whether

involving Superfund sites or the siting of new landfills. The absence

of a n involved and informed community makes for more expensive,

more contentious, and more time-consuming projects, in our view,"

T h e Technical Assistance Grants (TAG) Program

To ensure that con~munitiesaffected by Superfund mtes are adequatelx

involved in the decision-making process, Section 117 of SARA added the

Technical Assistance Grants (TAG) program Up to $50.000 ma! be provided

to a community "to obtain technical assistance in mterpretlng information

with regard to the nature of the hazard, remedlal lnvestlgatwn and feasibilitx

study, record of decision, remedial design, selection and construction of

remedial action, operation and maintenanw, or removal actlon at such

facilib-." Recipients of grants are requred to contribute 20 percent of the

total cost of assistance for which the grant is made, though this may be

waived in cases of financial hardship The TAG program has been criticized

as being less successful than originally hoped Some community groups have

recommended that Technical ilssffitance Grants be granted befoze a site is

listed on the NPL One such group, the Concerned Citizens of Triumph

(Triumph, Idaho) has actively opposed the listing of a mill tailings site located

in their community to the NPL (without benefit of a TAG grant)

Ennronmental communitygroups such as North Baton Rouge Environmental

Association and the Communities a t Risk Network have proposed other

refomis to the TAG program such as: simplification of the application process;

elimnation of the matchng funds requirement; and removal of the three year

restriction

T h e same point was made by a Federal official; as well. Thomas P.

Grumbly, Assistant Secretary for Environmental Management, Department of

Energy testified:

Superfund should be reformed to incorporate community

involvement earlier in the remedy selection process. We have often

been criticized for not adequately addressing local circumstances when

we evaluate the risks associated with a site or determining t h e method

or level of cleanup. For too long community groups have felt s h u t out

of the process of site remediation decisionmaking, discussions of future

land use options, and the risk evaluation process. Community

involvement should be a n integral part of the remedy selection process

Philip Angell, vice president, Browning Ferris Industries. U.S. Senate.

Committee on Environment and Public Works. Superfund R e f o n Act of 1994. S. Hrg.

103-559. Washington, U.S. Govt. Print. Off.: 1994. p. 249

t h a t will; in the long run: make the risk assessment and management

process more open, and more dem~cratic.'~

To facilitate community involvement in the remedy selection process a t

DOE, the Department has created a n Office of Public Accountability in its

Environmental Management Program. It is monitoring progress in increasing

stakeholders' trust and confidence levels: and improvement has been indicated.

EPA has awarded TAG grants to 165 communities (about 13 percent) of the

communities located adjacent to Superfund sites. The U.S. General Accounting

Office (GAO) has found that EPA's limited emphasis on TAG program outreach

efforts a t headquarters and regional levels has contributed to low participation

in the program.

Without significant community support, a hazardous waste cleanup project

faces potential problems such as remedy selection challenges, delays, public

displays of opposition, citizen suits. A House Public Works Committee report

from the last Congress found that constructive and early community

involvement in the remedy selection process improves the likelihood that a

successful as well as cost-effective solution will be attained.52

The House draft bill would require consultation on cleanup decisions with

Community Assistance Groups (CAGs - newly established by the bill): but states

that CAG decisions are not binding. The TAG program is continued, and grants

may exceed the current $50,000 limit if warranted by the complexity of the site;

the needs, size, and diversity of the population; and the ability of the communiv

to raise funds from other sources. The bill requires that information presented

to the community be "unbiased and informative;" that it explain significant

assumptions and value judgments used; and, among other things, that it

compare site risks to other risks that are familiar and routinely encountered by

the general

S. 1285 authorizes the newly established Community Response

Organizations to serve as an information conduit to EPA, the States, and PRPs.

TAGS are made renewable for up to $100,000 total, doubling the current limit

of $50;000; no matching funds from the community are required.

" T. Grumbly testimony.

" U.S. Congress. House. Committee on Public Works and Transportation,

Subcommittee on Investigations and Oversight. Adnzinistration of the Superfund

Progrant. House Report No. 103-35, 103d Congress, 1st Session. Washington; U.S. Govt.

Print. Off.; 1993. p. 61.

j3 For further discussion, see U.S. Libra7 of Congress. Congressional Research

Service. Risk Analysis and Cost-BenefitAnalysis of Environntental Regulations. CRS

Report for Congress 94-961 ENR; by LindaJo Schiemw. Washington, 1994. 55 p.

CONCLUSION

This report has outlined cleanup standards issues, presented a t

congressional hearings during 1995: that are central to the Superfund

reauthorization debate. The viewpoints presented in this report are those most

frequently delivered on the subject of cleanup standards and remedy selection.

Proposed reforms such as repealing the requirement t o meet "relevant and

appropriate" requirements, or ensuring t h a t risk assessment plays a larger role

in the remedy selection process confront formidable questions: What should be

the goal of the Superfund program? Should sites be cleaned for environmental

cleanliness' sake (as some ARARs do) or should sites be cleaned for protection

of human health? The distinction between the two is significant -- the former

takes a more expansive approach t o environmental protection, while the latter

takes one t h a t may better accommodate economic considerations. If the goal

should be protection of human health, how protective and complete should the

cleanup be? And who decides? If the goal is to achieve a certain level of

cleanliness, should national standards be established to define the level of

cleanliness required? Though there is little consensus on the answers, most

involved in Superfund seek t o alleviate the confusion over the program. To

lessen this confusion, Congress is attempting to further define Superfund's

cleanup goals and the methods used t o attain these goals.