Superfund Cleanup Standards Reconsidered
CRS Report for Congress
Superfund Cleanup
Standards Reconsidered
October 2, 1997
Mark Reisch
Analyst in Environmental Policy
David M. Bearden
Environmental Information Analyst
Environment and Natural Resources Policy Division
Congressional Research Service ˜ The Library of Congress
Superfund Cleanup Standards Reconsidered
Summary
For Congress, the reauthorization of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), commonly known
as Superfund, has particularly focused on two major areas of reform: liability and the
selection of cleanup standards/remedies. This report addresses the latter, and within
that general topic, discusses six issues that have received attention from a number of
stakeholders: the role of risk assessment; cost-effectiveness of treatment; complete
or partial elimination of what are called ARARs (the statutory requirement that
Applicable or Relevant and Appropriate Requirements from federal and state
environmental and facility-siting 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 Senate bill, S. 8, as it appears in the "draft chairman's mark" of August
To address the criticism that the Superfund program favors excessively costly
remedies, some critics argue that the Environmental Protection Agency (EPA) should
change its risk assessment procedures and increase the role of risk assessment in
selecting remedies. Other recommended reforms include establishing a single
national risk criterion for cleanup decisions rather than the current use of risk ranges.
Some stakeholders 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 deference to ARARs and its preference for
permanence and treatment (as opposed to containing waste and controlling land use)
have resulted in high cleanup costs. Some stakeholders cite Superfund's reliance on
ARARs for determining site specific cleanup standards as the cause for lengthy
debates over which federal or state regulations (or combinations thereof) apply to a
site and for the 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 selecting
remedies 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 ground water use. Some critics of Superfund
claim that the current system of shared federal and state responsibility leads to delay,
duplication of effort, confusion among stakeholders, and higher transaction costs.
Some states want full Superfund authority, and others only 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 state programs could create. The degree of community involvement in the
process of selecting cleanup remedies is an additional topic of debate.
Though often heavily criticized since its passage, the goals of Superfund are
widely supported. Since 1980, the program has improved practices in the
management of hazardous wastes to protect human health and the environment, and
is an evolving instrument.
Contents
Introduction ......................................................1
Administrative Reforms to the Superfund Program...................3
Stakeholder Views.............................................4
Cleanup Standards: What the Current Law Requires......................6
The Role of Risk Assessment........................................7
Cost-Effectiveness of Treatment.....................................12
ARARs and Preference for Permanence and Treatment...................15
ARARs .....................................................15
The Preference for Permanence and Treatment......................17
The “Technical Impracticability” Waiver..........................19
Future Land, Ground Water, and Resource Use.........................21
The Role of States in the Remedy Selection Process.....................23
Community Involvement in the Remedy Selection Process................25
Conclusion ......................................................28
Superfund Cleanup
Standards Reconsidered
Introduction
A key issue in the 105th Congress is reforming the Superfund program, which
cleans up the nation's most hazardous waste sites. While the program has improved
the practices in managing hazardous wastes to protect human health and the
environment, there appears to be consensus between the public and private sectors
that reform is necessary to increase the pace of cleanups and lower remedial costs,
although there is disagreement over how to accomplish this objective. The
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA), P.L. 96-510, established the Superfund program, and the Environmental
Protection Agency (EPA) administers it and is responsible for adding hazardous
waste sites to the National Priorities List (NPL). The law provides for cleanup and
emergency response for hazardous substances released into the environment, cleanup
of inactive hazardous waste disposal sites, and retroactive, strict, joint, and several
liability for potentially responsible parties (PRPs). The Superfund Amendments and
Reauthorization Act of 1986 (SARA), P.L. 99-499, revised and expanded CERCLA
and introduced new cleanup standards into the program in an attempt by Congress
to add statutory language which would clarify for federal officials and PRPs
appropriate cleanup remedies to be selected for contaminated sites. While SARA's
intent was to improve the quality and pace of site remediation, critics maintain that
Superfund's problems have not been solved.
The current debate in Congress on the reauthorization of Superfund has focused
particularly on two major areas: liability reform and remedy selection/cleanup
standards. This is not to say that there is total agreement in other areas. Allowing
the states to assume as much of the Superfund program as they are able and willing
to do appears to have fairly wide acceptance, but a subject of serious debate is under
what conditions (if any) EPA can re-assert its jurisdiction over a facility. CERCLA's
natural resource damage provisions are also contentious as business interests seek
to place limits on the amounts they could be assessed to restore or replace lost or
devalued resources. There appears to be fairly broad agreement on other topics, such
as allowing communities a greater voice in the decision-making process, recognizing
and expanding the brownfields program for cleaning up less serious sites, and
assisting states with their voluntary cleanup programs.
Three committees have a primary role in reauthorizing the program:
Environment and Public Works in the Senate; and Commerce, and Transportation
and Infrastructure in the House. (The taxes that feed the Superfund trust fund are
under the jurisdiction of the House Ways and Means, and Senate Finance
Committees.1) All three have held hearings in the present Congress,2 as well as inrdth
the 103 and 104.
Senator Bob Smith, chairman of the Environment Subcommittee on Superfund,
Waste Control, and Risk Analysis introduced S. 8 on January 21, 1997, one of 10
bills put forth as the Senate Republican Agenda for the 105th Congress. In late
August the subcommittee released a "draft chairman's mark" of S. 8 that was the3
result of negotiations with the administration and Democratic senators. A hearing
on the revised bill was held September 4. The markup scheduled for September 11
was postponed to allow further discussions.
In the House, an effort reportedly is being made to achieve consensus between
the majority and minority before a bill is introduced. The Commerce and
Transportation Committees are working independently of each other. According to
news reports, majority and minority staff in both committees have exchanged draft
language on several titles of a bill, including one on remedy selection and cleanup
standards. The Transportation staffs reportedly are meeting and negotiating virtually
daily, and expect to have a bill out before the end of October. EPA is providing
technical assistance but is not currently participating in the exchange of views.4
Stakeholders with an interest in Superfund include PRPs, attorneys, the
insurance industry, medical health professionals, citizen and environmental
organizations, federal agencies involved in Superfund cleanups, state and local
governments, the remediation technology industry, and land development firms.
Many of these stakeholders have broadly criticized Superfund and argue that the
statute's cleanup standards are partly responsible for the slow place of cleanups due
to the extensive process required to select remedies and have led to cleanup costs that
are higher than necessary to protect human health and the environment. Superfund's
critics believe that the statute's cleanup standards must be changed to improve the
1For a discussion of Superfund’s taxing and trust fund provisions, please refer to CRS
Report 96-774 E, Taxes to Finance Superfund, by Salvatore Lazzari.
2Senate Environment and Public Works held hearings on March 4, 1997 (oversight of
brownfields cleanup), March 5 (stakeholder views of S. 8), and September 4 (stakeholder
views of the chairman's mark of S. 8). House Transportation and Infrastructure held hearings
on March 5, 1997 (lessons from the states), March 12 (views of EPA Administrator Carol
Browner), and April 10 (stakeholder views on EPA's management of the program,
administrative changes, and proposals for legislation). House Commerce held hearings on
February 14 and March 7 (field hearings in New York City and Columbus, Ohio, on federal
barriers to common sense cleanups), and September 4 (views of members on operation of
the program).
3The text of the draft chairman's mark, as well as a CRS summary of the draft are
available at the committee's website:
http://www.senate.gov/~epw/
4Telephone communications with committee staff, September 1-12, 1997, and press
reports, e.g., "Bipartisan Agreement Not Yet Reached in Transportation Committee, Aide
Says," Daily Environment Report, September 26, 1997, p. A-5; "Democrats Offer Eight
Reform Goals in Attempt to Prod House Subcommittee," Environment Reporter, September
Superfund Report, August 20, 1997, p. 5-7.
program's pace and lower cleanup costs. To address these concerns while protecting
public health, Congress is attempting further to define Superfund’s cleanup goals and
the methods used to attain these goals.
To assist Congress in its consideration of proposals to revise Superfund's
cleanup standards, this report discusses the existing standards under current law and
recommendations for revising them offered by stakeholders in the debate. The report
relies primarily on information provided in congressional hearings, including the one
held on September 4, 1997, by Senate Environment and Public Works. Among the
questions being asked about reforming Superfund's cleanup standards are:
!Should cleanup decisions be based more on risk assessment considerations
and less on fixed numerical criteria?
!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 health risk value or on a range
of them?
!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 the hazardous substances involved?
The law’s lack of a national uniform level of cleanup has been a major source
of controversy for the Superfund program. The reauthorization debate in the 104th
and 105th Congress has provided a forum for stakeholders to outline their
recommendations and proposals for reforming Superfund's cleanup standards. This
report discusses the following issues that have arisen in the debate:
!the role of risk assessment;
!cost-effectiveness of treatment;
!elimination of applicable or relevant and appropriate requirements (ARARs)
and preference for treatment and permanence;
!future land, ground water, and other resource use;
!the role of the states; and
!community involvement in the remedy selection process.
Administrative Reforms to the Superfund Program
In response to the debate over Superfund's problems, EPA began to implement
a series of administrative reforms in 1993 to increase the pace of cleanups and lower
cleanup costs while maintaining the same standards of protection for human health
and the environment. While the revisions have not altered Superfund's cleanup
standards, they have simplified the process of selecting remedial actions at certain
sites through the use of presumptive remedies, which are cleanup solutions that EPA
has successfully used at particular categories of sites. The advantage of using them
is that they are preapproved and not subject to the time and costs of extensive
analysis required for other remedies. So far, EPA claims the use of presumptive
remedies has resulted in faster cleanups and that, overall, its reforms have reduced
the average cleanup time by more than one year.5 At a hearing held in April 1997,
the Superfund Settlements Project (a business organization with ten corporate
members) testified that EPA's administrative changes have helped to improve
Superfund, but alone are not sufficient to solve the program’s problems.6 The
Project's members argued that comprehensive legislation is necessary to revise the
current cleanup standards and process of selecting remedies if the pace of cleanups
is to increase and remedial costs are to decrease.
Stakeholder Views
EPA and the states determine cleanup standards for each site based on statutory
requirements and preferences, and based on ARARs, 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 such 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 stakeholders have argued that ARARs and other factors
have led to confusion about which cleanup levels are required, cleanup costs that are
unnecessarily high, and sites that have been cleaned to different risk goals. One
proposal for reform is to place more emphasis on risk assessment (eliminating the
ARARs requirement) when determining how clean a site should be rendered.
Supporters of this proposal claim that the elimination of the statute’s ARARs
requirement would result in less costly site remediations and savings to the
Superfund program. Some stakeholders also would 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 in cleanup 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.
PRPs have complained that EPA has little regard for the cost-effectiveness of
its selected remedies. CERCLA requires the implementation of cost-effective
5Carol M. Browner, Administrator, Environmental Protection Agency. Testimony
submitted to the Senate Committee on Environment and Public Works, Subcommittee on
Superfund, Waste Control, and Risk Assessment. March 5, 1997. Superfund Cleanupthst
Acceleration Act of 1997. S. Hrg. 105-60. 105 Congress, 1 Session. p. 345.
6Superfund Settlements Project. Testimony submitted to the House Committee on
Transportation and Infrastructure, Subcommittee on Water Resources and Environment.
April 10, 1997. Superfund Reauthorization: EPA's Management of the Superfund Program,thst
Administrative Changes, and Proposals for Legislation. H. Hrg. 105-8. 105 Congress, 1
Session. p. 500.
remedial actions for contaminated sites; however, it also requires that the degree of7
cleanup “at a minimum assures protection of human health and the environment.”
One of the challenges of 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 stakeholders 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, some critics
call for the elimination of the statutory preference for permanent treatment solutions.
At a hearing held in April 1997, the Chemical Manufacturers Association testified
that the selection of remedies should be based on realistic assessments of risk and
considerations of technical practicability, reliability, cost, and community acceptance8
not by artificial preferences and standards. Some critics also claim that containment
measures, institutional controls such as deed restrictions, and treatment should be
considered equally among remedies and argue 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 cost-effective 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 assumptions (i.e., residential or recreational, as opposed to
industrial), communities that 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 has caused 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. 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. Notably, however, some others oppose any increase in state
responsibility.
The success of Superfund is measured not only by the number of sites cleaned
and reasonable costs associated with running the program, but also by public
7CERCLA, as amended, Section 121(d)(1).
8Chemical Manufacturers Association. Testimony submitted to the House Committee
on Transportation and Infrastructure, Subcommittee on Water Resources and Environment.
April 10, 1997. Superfund Reauthorization: EPA's Management of the Superfund Program,thst
Administrative Changes, and Proposals for Legislation. H. Hrg. 105-8. 105 Congress, 1
Session. p. 491.
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, which provides citizens with information on the
selection and implementation of cleanup remedies at sites adjacent to their
communities. Current suggestions for reform include increasing earlier community
involvement in the decision making process and expanding the TAG program to
increase public understanding of cleanup decisions.
In response to some of the stakeholder concerns discussed above, S. 8 would
establish a general rule requiring the selection of a cost-effective remedy that
protects human health and the environment, and attains or complies with applicable
federal and state laws. Remedial actions would be selected according to site-specific
conditions and risks based on the reasonably anticipated future use of the site.
Regarding ARARs, S. 8 would retain the applicable requirements of federal and state
law but would require states to re-examine other “relevant and appropriate”
requirements (although they are not called that in the bill). The bill would require
a remedy, if technically practicable, to protect uncontaminated ground water and to
restore contaminated ground water. The bill would remove the preference for
permanence and treatment; it would allow the de-listing and reuse of the
uncontaminated portions of Superfund sites; and it would provide for expedited de-
listing of sites where construction to perform a remedial action is complete but
activities to operate and maintain it continue.
Cleanup Standards:
What the Current Law Requires
In 1980, the original Superfund statute included little guidance for regulators
or PRPs when evaluating alternatives for cleaning up sites.
Section 104(c)(4) of CERCLA required selection of remedial actions that were
in accordance with the National Contingency Plan ‘to the extent practicable’ and
that provided for ‘cost-effective response which provides a balance between the
need for protection of the public health and welfare ... and the availability of9
amounts from the fund....’
CERCLA’s original cleanup requirements proved to be subject to interpretation, and
cleanup decisions were often subject to delay and challenge. In 1986, SARA
amended CERCLA to introduce new cleanup standards. The new standards, which
are in effect today, were Congress’s attempt at providing statutory guidance on the
question of “how clean is clean?”
Current law requires EPA and other federal agencies to comply with federal and
state ARARs when determining cleanup standards to be followed for wastes treated
on-site. The statute does not contain its own cleanup standards; rather, it relies on
ARARs to ensure that 1) response actions are protective of human health and the
9Hayes, David J., and Conrad B. MacKerron. Superfund II: A New Mandate; A BNA
Special Report [Environment Reporter, v. 17, no. 42, Part II, February 13, 1987].
Washington, The Bureau of National Affairs. p. 37.
environment, and 2) applicable state and federal laws and regulations are not violated
during the cleanup procedure. The statute also requires that numerical standards
derived from the Safe Drinking Water Act and water quality criteria established
under the Federal Water Pollution Control Act would be applicable to the cleanup
process if determined relevant and appropriate by federal and state regulators. In
addition, the law states a strong preference for permanence and treatment of wastes
instead of containment and discourages off-site disposal options, but does not
address land use requirements:
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 not10
involving such treatment.
For cases in which there are no federal or state ARARs, the law requires EPA
to select remedial actions that assure protection of human health and the environment11
and that are relevant and appropriate. In practice, EPA's guidance documents call
for a level of remediation that will protect the public from unacceptable cancer and
non-cancer health risks or adverse environmental effects.12 Such remediation
generally provides a level of protection within the range of 1 in 10,000 to 1 in
carcinogens.13
The Role of Risk Assessment
Some critics of Superfund claim that EPA’s risk assessment procedure should
be changed because it is responsible for the slow pace of remediation and that it
leads to excessive cleanup costs by assuming unrealistic dangers to human health and
the environment. Some stakeholders recommend that "more realistic" assumptions
of pathways through which exposure could occur are necessary and support a larger
role for risk assessment in the remedy selection process. Other critics, pursuing more
stringent policies, believe that EPA’s current use of risk ranges is unacceptable.
Instead, they advocate the establishment of a single, national risk criterion for
cleanup decisions.
Risk assessment is 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
10CERCLA, as amended, Section 121(b)(1).
11CERCLA, as amended, Section 121(d)(1).
12Environmental Protection Agency. Office of Solid Waste and Emergency Response.
Guidance for Evaluating the Technical Impracticability of Ground Water Restoration.
EPA/540-R-93-080. September 1993. p. 9.
13 Ibid.
determinations). For purposes of this report, risk assessment refers to various EPA14
methods for evaluating and comparing risks at Superfund sites.
EPA currently uses risk assessment at several points in the Superfund program.
It first conducts rough risk assessments at 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, the agency adds it to the
NPL. These risk assessments adhere to methods detailed in the National
Contingency Plan (NCP, codified at 40 CFR 300). Appendix A to the NCP describes
the Hazard Ranking System (HRS) as:
the principle mechanism the Environmental Protection Agency (EPA) uses to
place sites on the National Priorities List (NPL). 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 consistently15
applied to a wide variety of sites.
For NPL sites, EPA then uses risk assessment to determine the necessary level
of cleanup and to evaluate appropriate cleanup remedies. The remedial investigation
and feasibility study (RI/FS) phase of the Superfund program uses risk assessment
to characterize the nature and extent of risks posed by uncontrolled hazardous waste16
sites and for evaluating remedial options. The remedial investigation (RI) gathers
information sufficient to 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. During the FS phase, EPA determines the cleanup goals necessary for
protecting human health and the environment. First, EPA develops preliminary
objectives for performing remedial actions based on readily available information
such as ARARs and numerical criteria. Then, EPA bases the final objectives 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 RI/FS 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.”17 Some critics have claimed that, in practice, EPA does not
apply this flexibility and that the agency selects excessively costly remedies more
often than cost-effective ones. Many stakeholders have argued that the current risk
assessment process is responsible for the selection of exceedingly costly remedies.
14For more information about risk assessment, please refer to CRS Issue Brief 94036,
The Role of Risk Analysis and Risk Management in Environmental Protection, by Linda-Jo
Schierow.
1540 C.F.R. Part 300, Appendix A, section 1.0.
16CERCLA, as amended, Section 120(e).
17Environmental Protection Agency. Office of Emergency and Remedial Response.
Guidance for Conducting Remedial Investigations and Feasibility Studies Under CERCLA.
EPA/540/G-89/004. October 1988. p. 1-3.
An EPA guidance document on the RI/FS 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 RI/FS that
achieves high quality results in a timely and cost-effective manner. A significant
challenge project managers face in effectively managing an RI/FS is the inherent
uncertainties associated with the remediation of uncontrolled hazardous waste18
sites.
Some stakeholders criticize EPA’s cautious approach in exercising the
flexibility built into the statute. However, one reason that EPA takes this approach
is because considerable information to assess health risks is still not available, and
medical research has shown that health effects are linked to exposure to toxic wastes,
though levels of effect are often unclear. 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 federal agency responsible for health-related authorities under CERCLA),
testified at a hearing held in May 1995 about health effects from exposure to19
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 health20
problems. At a hearing held in April 1997, Bailus Walker, Ph.D., represented the
American Public Health Association and provided a public health perspective on
dealing with toxic substances that can affect human health:
The underlying purpose of Superfund is to prevent disease and disability due to
toxic exposures. Human exposures to toxic substances have many potential
adverse health outcomes, including neurological damage, birth defects, and
cancer. Preventing the exposure of entire communities to potentially devastating
health consequences is no less important than protecting people from infectious
diseases such as polio or diphtheria, or protecting them from food poisoning.
Identifying potential health hazards and cleaning up hazardous waste sites are just
as important in protecting public health as vaccinating children or requiring safe21
food processing.
18 Ibid.
19Barry L. Johnson, Ph.D., Assistant Surgeon General, Public Health Service,
Department of Health and Human Services. Testimony submitted to the House Committee
on Commerce, Subcommittee on Commerce, Trade, and Hazardous Materials. May 23,
1995. Superfund Reauthorization: Remedy Selection. H. Hrg. 104-30. 104th Congress, 1st
Session. p. 51.
20ATSDR partially funded a study released in June 1997 by the California Department
of Health Service’s Birth Defects Monitoring Program, which concluded that women living
within 1/4 mile of a Superfund site during the first trimester of pregnancy were between two
and four times as likely to have children with certain birth defects.
21Bailus Walker, Ph.D., American Public Health Association. Testimony submitted
to the House Committee on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment. April 10, 1997. Superfund Reauthorization: EPA's
Management of the Superfund Program, Administrative Changes, and Proposals for
(continued...)
Those who support EPA’s expansive public health 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). They maintain that it is necessary for EPA to use adequate
safety margins in their health assessments because critical information about the link
between hazardous waste and health effects is still lacking. ATSDR asked the
National Research Council (NRC) 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 from22
hazardous waste sites.” 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.”23
Critics of EPA’s risk assessment methodology believe that the agency's caution
has become excessive to the point of precluding reasonable choices of less costly
remedies. For example, the National 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.24
In response, Elliott Laws, Assistant Administrator for EPA’s Office of Solid Waste
and Emergency Response testified:
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 near25
Superfund sites.
At a hearing held in April 1997, the Chemical Manufacturers Association
(CMA) disagreed and claimed that EPA’s current risk assessments continue to be
based on unrealistic exposure pathways and improbable assumptions about
individual vulnerability to health effects. Further, CMA stated that EPA has not yet
implemented certain administrative reforms to address this problem:
21(...continued)
Legislation. H. Hrg. 105-8. 105th Congress, 1st Session. p. 519-520.
22National Academy of Sciences, National Research Council. Environmental
Epidemiology Public Health and Hazardous Wastes. National Academy Press, Washington,
D.C., 1991. p. 21
23Ibid. p. 270.
24Steven 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. April 5, 1995. Superfund Reassessment and
Reauthorization: Risk Assessment. S. Hrg. 104-279. 104th Congress, 1st Session. p. 504.
25Elliott P. Laws, Assistant Administrator, Office of Solid Waste and Emergency
Response, Environmental Protection Agency. Testimony submitted to the Senate Committee
on Environment and Public Works, Subcommittee on Superfund, Waste Control, and Risk
Assessment. April 5, 1995. Superfund Reassessment and Reauthorization: Risk Assessment.
S. Hrg. 104-279. 104th Congress, 1st Session. p. 533.
With regard to procedure, EPA reports that it has granted 28 requests from PRPs
to perform risk assessments and denied only two in FY1996 and the first quarter
of FY1997. Again, there may be disagreement over the precise numbers. But
there is no question that EPA is now approving PRP requests to conduct risk
assessments in cases where they would have denied requests before this reform
was put in place. CMA welcomes this change, and applauds the agency’s efforts.
With regard to substance, on the other hand, EPA’s initiative to focus risk
assessments on more realistic exposure scenarios is not in place yet and thus
cannot be implemented at the sites. According to EPA, moreover, this reform can
be expected no sooner than 1998. In the meantime, there is still concern that26
many risk assessments will continue to include unrealistic exposure scenarios.
Other critics, pursuing more rigorous regulation, complain that the current risk
assessment process is too flexible and consequently responsible for differing cleanup
goals, remedies, and costs site-by-site 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. 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
differing levels of protection without explanation. The Environmental Defense Fund
supports a national uniform cleanup goal that would assure communities around the
country a baseline with a high level of protection and require the evaluation of risks
to groups with higher susceptibility to exposure than the average individual, such as
children, chronically ill persons, and subsistence farmers.27 PRPs and communities
have often been left wondering how and why a particular cleanup remedy was
selected. Some have argued that establishing a national risk protocol would avoid
site-by-site debate and confusion by requiring EPA to develop national cleanup
models and standards. In the 103rd Congress, the Administration’s unsuccessful
Superfund reauthorization bill (H.R.3800/S.1834) included the establishment of
national cleanup goals and methodologies. In the 104th and 105th Congresses,
legislation to reform Superfund has not proposed national cleanup goals or
methodologies.
EPA also uses risk assessments to develop priorities for funding cleanup
projects. As part of its administrative reforms to Superfund, EPA established a
National Risk-Based Priority Panel in August 1995.28 The panel ranks the priority
26Chemical Manufacturers Association. Testimony submitted to the House Committee
on Transportation and Infrastructure, Subcommittee on Water Resources and Environment.
April 10, 1997. Superfund Reauthorization: EPA's Management of the Superfund Program,thst
Administrative Changes, and Proposals for Legislation. H. Hrg. 105-8. 105 Congress, 1
Session. p. 486.
27Karen Florini, Senior Attorney, Environmental Defense Fund. Testimony submitted
to the Senate Committee on Environment and Public Works, Subcommittee on Superfund,
Waste Control, and Risk Assessment. March 5, 1997. Superfund Cleanup Acceleration Act
of 1997. S. Hrg. 105-60. 105th Congress, 1st Session. p. 387.
28Carol M. Browner, Administrator, Environmental Protection Agency. Testimony
submitted to the House Committee on Transportation and Infrastructure, Subcommittee on
Water Resources and Environment. March 12, 1997. Superfund Reauthorization: Views of
(continued...)
of cleanup projects based on risk rather than ranking sites simply on a first-come,
first-served basis as in previous years. The panel ranks projects according to the
principle of addressing the worst problems first. The panel’s evaluation of a site
includes the following factors: risks to human health and the environment, stability
and characteristics of the contaminants, and economic, social, and program
management considerations. Generally, cleanup projects are funded in the order of
priority as recommended by the panel. EPA reports that by early 1997 the panel had
ranked projects totaling nearly $1 billion in cleanup costs.
S. 8 addresses the role of risk assessment in cleanup decisions by requiring
remedies to be not only cost-effective but also to be selected on the basis of a
facility-specific risk evaluation and future use. A remedy would be considered to
protect human health if it has a risk range for cancer resulting from exposure at the
facility of 1 in 10,000 to 1 in 1,000,000 for the affected population and if exposure
to non-carcinogens does not pose an appreciable risk of deleterious effects. In
selecting a remedy, EPA must take into account exposure pathways based on
anticipated future use (industrial, commercial, residential, etc.). The risk evaluation
must use chemical- and site-specific testing data, and where that data is unavailable,
an acceptable range of realistic and scientifically supportable default assumptions
regarding human exposure and site-specific conditions, instead of worst case
assumptions; must ensure that the exposed populations and all pathways are
accurately evaluated; must consider current and anticipated future use of land and
water resources in estimating exposure; and must consider the use of institutional
controls. The following balancing factors are to be considered in selecting a remedy:
effectiveness in protecting health and the environment, long-term reliability, short-
term risks during cleanup, acceptance by the community, technical feasibility from
an engineering perspective, and reasonableness of cost.
Cost-Effectiveness of Treatment
According to some critics of Superfund, CERCLA’s lack of national cleanup
standards, its reliance on ARARs, and its preference for permanent cleanups and use
of treatment technologies have resulted in cleanup remedies that are more stringent
and more costly than necessary to protect human health and the environment. The
existing statutory requirements for remedial actions specifically call for
consideration of the cost-effectiveness of the selected remedy. Cost is one of nine29
criteria that EPA uses when analyzing alternatives for a remedial action. 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.30 A number
28(...continued)
EPA Administrator Carol Browner. H. Hrg. 105-8. 105th Congress, 1st Session. p. 269.
29Environmental Protection Agency. Office of Emergency and Remedial Response.
Guidance for Conducting Remedial Investigations and Feasibility Studies Under CERCLA.
EPA/540/G-89/004. October 1988. p. 6-3.
30Carol M. Browner, Administrator, Environmental Protection Agency. Testimony
submitted to the House Committee on Transportation and Infrastructure, Subcommittee on
(continued...)
of stakeholders have offered proposals which would require EPA to consider the
cost-effectiveness of a cleanup solution as a more prominent factor in its evaluation
of alternatives to a remedial action.
One suggestion to reduce program costs is to permit the 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. However, some critics oppose using presumptive remedies because they
essentially offer generic solutions that may not be able to address specific problems
with contamination sufficiently, which could lower the level of protection for human
health and the environment. Steven A. Herman, Assistant Administrator of EPA’s
Office of Enforcement and Compliance and Timothy Fields, Jr., Acting Assistant
Administrator of EPA’s Office of Solid Waste and Emergency Response, testified
at a hearing held in April 1997 that EPA has begun to use presumptive remedies
successfully at certain types of sites:
Presumptive remedies are based on scientific and engineering analyses performed
at similar Superfund sites and are used to eliminate duplication of effort, facilitate
site characterization, and simplify analysis of cleanup options. EPA issued
presumptive remedy guidances for the following: municipal landfill sites, sites
with volatile organic compounds in soil, wood treater sites (with an update two
years later), and a ground water presumptive response strategy. Regions are
reporting significant reductions in costs and time required to complete remedies.
A recent Office of Inspector General report focused on an independent review of
the use of a presumptive remedy and concluded that ‘Use of a presumptive
remedy increased consistency in decision making by taking advantage of lessons31
learned at similar sites, and allowed speedup of the Feasibility Study process.’
Some advocates believe that accomplishments in state hazardous waste cleanup
programs can suggest effective ways to reform Superfund. The state of Michigan
revised the cleanup standards for its program after examining certain elements that
it considered to be overly conservative. Russell J. Harding, Director of the Michigan
Department of Environmental Quality, testified that costs have significantly declined
as a result of revising the state’s cleanup standards:
These changes [in cleanup standards] resulted in a 50% reduction in our cleanup
costs. The principal reasons for these astounding cost savings were adopting
land-use-based cleanups, allowing no-action ground water cleanups, eliminating
a previous presumption that a useable aquifer was always a viable migration
30(...continued)
Water Resources and Environment. June 27, 1995. Superfund Reauthorization: Federal
Agency Perspectives. H. Hrg. 104-22. 104th Congress, 1st Session. p. 861.
31Steven A. Herman, Assistant Administrator, Office of Enforcement and Compliance
Assurance and Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste
and Emergency Response, Environmental Protection Agency. Testimony submitted to the
House Committee on Transportation and Infrastructure, Subcommittee on Water Resources
and Environment. April 10, 1997. Superfund Reauthorization: EPA's Management of the
Superfund Program, Administrative Changes, and Proposals for Legislation. H. Hrg. 105-8.thst
pathway for contaminants leaching from soil, and changing the acceptable cancer32
risk level from 1 in 1,000,000 to 1 in 100,000.
The Department of Defense (DOD) currently has 123 hazardous waste sites on
the NPL. In the 104th Congress, the department proposed reforms intended to cut
costs and speed the cleanup of contaminated sites. At a hearing held on June 27,
1995, DOD's Deputy Under Secretary of Defense for Environmental Security, Sherri
W. Goodman, 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 importance of cost, we can provide33
a more prudent use of our resources.
To date, DOD has not stated its current position on Superfund reform at hearings
during the 105th Congress.
Senator Smith’s bill would require that EPA select a cost-effective remedy that
protects human health and the environment and complies with other federal and state
laws. It elevates the role of cost when selecting remedies by defining "technically
impracticable" to mean impracticable due to engineering infeasibility or unreliability,
or inordinate costs (emphasis added). Also, reasonableness of cost is one of six
factors that must be balanced when selecting a remedy. (The other five are:
effectiveness in protecting health and the environment, reliability in protection over
the long-term, the short-term risk posed by implementing the remedy, acceptability
to the community, and implementability).
The bill would direct EPA to establish presumptive remedies for commonly
encountered types of contaminated facilities; presumptive remedies would not be
limited to treatment, but may include institutional and standard engineering controls.
The bill also would require EPA to establish remedy review boards to determine
whether a cleanup plan is consistent with cleanup standards under section 121 of
CERCLA, and to consider the reasonableness of the cost and other factors. This
provides an opportunity for the PRPs to argue for an alternative treatment that would
be less costly.
32Russell J. Harding, Director, Michigan Department of Environmental Quality.
Testimony submitted to the House Committee on Transportation and Infrastructure,
Subcommittee on Water Resources and Environment. March 5, 1997. Superfundthst
Reauthorization: Lessons from the States. H. Hrg. 105-8. 105 Congress, 1 Session. p.
33Sherri W. Goodman, Deputy Under Secretary of Defense for Environmental Security,
Department of Defense. Testimony submitted to the Committee on Transportation and
Infrastructure, Subcommittee on Water Resources and Environment. June 27, 1995.
Superfund Reauthorization: Federal Agency Perspectives. H. Hrg. 104-22. 104th Congress,
ARARs and Preference
for Permanence and Treatment
ARARs
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 the34
circumstances of the release or threatened release.
There is broad support for eliminating the statute’s ARARs requirement and its
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 GAO, cleanup levels
established by standards, such as ARARs, are generally more stringent than cleanup35
levels established by risk assessments. This supports the common assertion that
cleanups based on standards are generally more costly than cleanups based on risk
assessments. The Chemical Manufacturers Association argues that ARARs also can
diminish the effectiveness of the risk assessment process because they possibly may
overturn risk-based decisions.36 If the ARARs requirement is eliminated, some
advocate establishment of a national cleanup standard which could be used for all
Superfund sites.
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.
34CERCLA, as amended, Section 121(d)(2)(A). For carcinogens, EPA sets Maximum
Contaminant Level Goals at zero.
35Lawrence J. Dyckman, Associate Director, General Accounting Office. Testimony
submitted to the House Committee on Transportation and Infrastructure, Subcommittee on
Water Resources and Environment. June 22, 1995. Superfund Reauthorization: CBO, GAO,
and Superfund "Think Tanks". H. Hrg. 104-22. 104th Congress, 1st Session. p. 733.
36Chemical Manufacturers Association. Testimony submitted to the House Committee
on Transportation and Infrastructure, Subcommittee on Water Resources and Environment.
April 10, 1997. Superfund Reauthorization: EPA's Management of the Superfund Program,thst
Administrative Changes, and Proposals for Legislation. H. Hrg. 105-8. 105 Congress, 1
Session. p. 486-487.
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.
Despite these criticisms, the National Governors Association (NGA) opposes the
elimination of state applicable standards and promulgated state relevant and
appropriate requirements at NPL sites.37 In addition to NGA’s opposition, Jay J.
Manning, Senior Assistant Attorney General for the state of Washington, testified
that retaining applicable state standards is essential to ensuring a consistent level of
cleanup throughout a state at both its NPL and non-NPL sites:
For the federal program to have any credibility at all, applicable state standards
must be met.... [T]he public will not believe that cleanups conducted under
CERCLA are adequately protective of human health and the environment if they
are not required to meet state standards. Finally, if CERCLA sites are not
required to meet state standards, the result will be the anomalous situation of
neighboring contaminated sites, one on the National Priorities List and the other
subject to state law, being cleaned up to different standards. It is obvious that this
should be avoided, and it can be by requiring that CERCLA cleanups meet
applicable state standards.38
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”).Presumably, the debate could be speeded up by
reducing the number of regulations over which EPA and states could argue.
S. 8 states that a remedy must comply with the substantive requirements of
federal and state environmental and facility-siting laws applicable to the conduct of
the remedial action or to the determination of the cleanup level. More stringent state
requirements may be applied at NPL sites if the state demonstrates that they are
generally applicable and consistently applied to remedial actions, and the state
publishes and identifies the applicable requirements to the President.
Federal hazardous waste management provisions of the Solid Waste Disposal
Act would not apply to the return of "contaminated media into the same media in ...
then-existing areas of contamination at the facility." Federal and state procedural
requirements, including permitting requirements, would not apply to response actions
conducted on site at the facility. Waivers from the substantive requirements of
federal and state environmental and facility siting laws are authorized for specified
37Richard Gimello, National Governors Association. Testimony submitted to the
Senate Committee on Environment and Public Works, Subcommittee on Superfund, Waste
Control, and Risk Assessment. March 5, 1997. Superfund Cleanup Acceleration Act ofthst
38Jay J. Manning, Senior Assistant Attorney General of Washington. Testimony
submitted to the House Committee on Transportation and Infrastructure, Subcommittee on
Water Resources and Environment. March 5, 1997. Superfund Reauthorization: Lessonsthst
from the States. H. Hrg. 105-8. 105 Congress, 1 Session. p. 143-144.
reasons; however, the President must publish findings, including documentation and
an explanation of how the remedial action meets the cleanup requirements of section
121. If no applicable federal or state standard exists for a contaminant, a remedial
action must meet a standard that the President determines to be protective.
The Preference for Permanence and Treatment
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. The American Petroleum Institute supports the elimination of
CERCLA’s preference for permanence and treatment and claims that this preference
is a major factor in delaying cleanup.39 Superfund Reform ‘95 (a broad coalition of
the insurance industry, small and large businesses, and some local governments)
called for eliminating both the ARARs requirement and the preference for
permanence and treatment. In its place, they recommended that:
final decisions on remedy selection issues should be made by comparing the costs
and net human health and environmental benefits of the alternatives, with priority
for funding directed at real and significant risks to human health. No remedy40
should be selected for which benefits are not reasonably related to the costs.
At a hearing held in June 1995, the Department of Energy’s Assistant Secretary for
Environmental Management, Thomas P. Grumbly, testified, “The current law’s
preference for treatment/permanence should be narrowed and replaced with the
concept of long-term reliability and a preference for the treatment of ‘hot spots’ [of41
contamination].” There appears to be consensus among stakeholders seeking these
reforms that containment measures and institutional controls should be required for
sites where permanent treatment is not achieved. However, institutional controls,
such as restricting land uses, can be difficult to maintain over the long-term if
interest in developing the land heightens in future years.
Opposing those who seek to eliminate the preference for permanent treatment
solutions, Tom Udall, Attorney General of New Mexico, and representing the
39Larry L. Lockner, American Petroleum Institute. Testimony submitted to the Senate
Committee on Environment and Public Works, Subcommittee on Superfund, Waste Control,
and Risk Assessment. March 5, 1997. Superfund Cleanup Acceleration Act of 1997. S.thst
Hrg. 105-60. 105 Congress, 1 Session. p. 424.
40John F. Spisak, Superfund Reform ‘95. Testimony submitted to the House
Committee on Transportation and Infrastructure, Subcommittee on Water Resources and
Environment. June 20, 1995. Superfund Reauthorization: Business, Insurers, and
Contractor Perspectives. H. Hrg. 104-22. 104th Congress, 1st Session. p. 369.
41Thomas 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. June 27, 1995.
Superfund Reauthorization: Federal Agency Perspectives. H. Hrg. 104-22. 104th Congress,
National Association of Attorneys General, claims that retaining CERCLA’s
preference for permanence and treatment can provide greater health, environmental,
and economic benefits than containment offers. He argued this viewpoint in the
following testimony at a hearing held in March 1997:
We believe it would be inappropriate to place remedies that merely contain
hazardous substances, or that limit access to hazardous substances with a fence
or a deed restriction, on equal footing with remedies that actually clean up
hazardous substances. Clearly, total and permanent elimination or
immobilization of hazardous substances is of far greater benefit to the local
community and to society at large. The environment is restored, future health
threats are eliminated, and property is opened up for development or other useful
purposes.... Furthermore, containment remedies require greater expenditures for
long-term monitoring and operation and maintenance than do treatment remedies.
Containment remedies are much more prone to failure than treatment remedies,42
as Congress recognized in 1986.
S. 8 would eliminate CERCLA’s preference for permanence. In its place the
bill would require that the reliability of the remedy over the long-term be one of six
factors to be considered and balanced in selecting the remedy. As noted previously,
the other five factors are the remedy’s effectiveness in protecting human health and
the environment, short-term risks posed by implementing the remedy, acceptability
to the community, technical feasibility from an engineering perspective, and
reasonableness of the remedy’s cost.
The bill also abolishes the preference for treatment except at "hot spots,"
discrete areas containing a hazardous substance that cannot be reliably contained and
that present a substantial risk to human health and the environment. However,
containment may be used instead of treatment for a relatively small hot spot at a
landfill or mining site in specified circumstances. Also, in conducting remedial
action reviews, EPA should give priority consideration to RODs that were issued
before October 1, 1993, and that involve primarily ground water treatment for dense,
nonaquaeous phase liquids.
The “Technical Impracticability” Waiver
CERCLA identifies six circumstances that, if met, allow for the waiver of43
ARARs. One of these waivers, the technical impracticability (TI) waiver, may be
granted if “compliance with such requirements [ARARs] is technically impracticable
from an engineering perspective.”44 EPA has issued a guidance document for
evaluating the technical impracticability of ground water restoration to promote “the
careful and realistic assessment of the technical capabilities at hand to manage risks
42Tom Udall, Attorney General of New Mexico and representative of the National
Association of Attorneys General. Testimony submitted to the Senate Committee on
Environment and Public Works, Subcommittee on Superfund, Waste Control, and Risk
Assessment. March 5, 1997. Superfund Cleanup Acceleration Act of 1997. S. Hrg. 105-60.thst
43CERCLA, as amended, Section 121(d)(4).
44 Ibid.
posed by ground water contamination.”45 Since issuing the guidance in 1993, EPA
has promoted its implementation by establishing headquarters and regional contact
personnel for transfer of TI related information, and by outlining a basic process for
evaluation of TI decision documents. However, some critics in government and
industry claim that EPA’s approach to using this waiver authority greatly diminishes
opportunities for cost savings. In practice, the implementation of “TI waivers” is
often stymied by political issues such as some states’ reluctance to accept the “TI
waiver” option.
The most important application of the TI waiver is for the case of certain ground
water restorations. For example, the presence of dense nonaqueous-phase liquids,
commonly known as DNAPLs, at hazardous waste sites has complicated many
ground water cleanups.46 DNAPLs are organic compounds that will not dissolve in
water, which poses significant technological barriers to removing them from
contaminated ground water. Based on current technology, the attainment of drinking
water standards (an ARAR) at sites contaminated with DNAPLs is impracticable.
A National Research Council (NRC) report discussed EPA’s implementation
of the TI waiver. EPA has issued a technical policy to address sites contaminated
with DNAPLs, which the NRC’s Committee on Ground Water Cleanup Alternatives47
supported in its report. However, the committee and other stakeholders were
concerned with EPA’s general practice of granting a TI waiver only after the cleanup
remedy fails in attaining the initial goals. The committee concluded, “Although the
committee sees value in ensuring that best possible efforts are employed to address
DNAPL contamination, a requirement that a remedial action be designed to achieve
the impossible (based on current technology) is counterproductive.”48
In a followup report, the NRC’s Committee on Innovative Remediation
Technologies reiterated that technological problems with cleaning up certain types
of ground water contaminants, such as DNAPLs, have not been resolved. The
committee concluded that more information and experimentation is necessary to
develop new cleanup technologies that are capable of addressing problematic types
of contaminants:
[I]mproving the availability of technologies for cleaning up contaminated sites
and the ability to compare these technologies based on rational scientific
evaluation will require research, field work, and improved data collection and
technology transfer. The development of new remediation approaches will
require close links between laboratory and field studies and access to field
demonstration sites with the freedom to change process operations during testing.
Parallel activities involving field investigations in concert with laboratory and
45Environmental Protection Agency. Office of Solid Waste and Emergency Response.
Guidance for Evaluating the Technical Impracticability of Ground Water Restoration.
EPA/540-R-93-080. September 1993.
46Some examples of compounds likely to exist as DNAPLs are chlorinated solvents,
coal tars, and transformer oil.
47National Academy of Science, National Research Council. Alternatives for Ground
Water Cleanup. National Academy Press, Washington, D.C. 1994. p. 258
48Ibid., p. 259.
theoretical work will help identify key issues and thus focus scientific and49
engineering activities on the most critical topics related to remediation.
Further, the committee argued that the current regulatory structure can impede
the development of innovative treatment solutions and examined the use of market
incentives to spur new cleanup technologies:
The principal change necessary to move to a market-oriented approach to
remediation technology development is to take advantage of the power of
financial self interest rather than relying on the force of regulation alone. The
objective is to develop a market that is quantifiable, with reasonably well-defined
risks and a commensurate opportunity to create financial returns from solving
problems. That is, both the vendor and the customer must perceive financial
benefit from improved remediation of contaminated properties, while still
protecting the interest of the affected public in ensuring that sites are cleaned up.
Capital will flow to the remediation technology market when it becomes evident50
that new technologies can create real value for customers.
As noted on page 14, S. 8 specifically includes cost in the definition of
"technically impracticable": the term "means impracticable due to engineering51
infeasibility or unreliability or inordinate costs." The bill states that a remedy shall
seek to protect uncontaminated ground water unless it is technically impracticable.
And, a remedy shall seek to restore for beneficial use contaminated ground water
that is potentially suitable for drinking water, unless it is technically impracticable.
If contaminated ground water is not potentially suitable for drinking water, the
remedy shall attain a standard protective of whatever its current or future use is.
Ground water shall not be considered suitable for drinking water if naturally
occurring conditions prevent it, or if it is so contaminated by broad-scale human
activity (unrelated to a facility release) that restoration is technically impracticable,
or if it is physically incapable of yielding 150 gallons a day to a well or spring
(unless it is currently used as drinking water). If achieving the cleanup goals at a site
is technically impracticable, a technically practicable remedy is to be chosen that
minimizes risk to health and the environment by cost-effective means.
Future Land, Ground Water, and Resource Use
Many believe that, to accomplish cleanups cost-effectively and at a pace that
is conducive to the protection of human health and the environment, the future use
of land, ground water, 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
pathways through which exposure can occur. In response to this criticism, EPA
49National Academy of Science, National Research Council. Innovations in Ground
Water and Soil Cleanup. National Academy Press, Washington, D.C. 1997. p. 141.
50Ibid., p. 60-61.
51S.8 (draft chairman's mark of August 26, 1997), section 401. As printed, there is no
comma in the definition.
reports that it is working to incorporate reasonable assumptions about future land use
when conducting site investigations. Steven A. Herman, Assistant Administrator of
EPA’s Office of Enforcement and Compliance Assurance and Timothy Fields, Jr.,
Acting Assistant Administrator of EPA’s Office of Solid Waste and Emergency
Response, testified:
EPA has improved its cleanup decisions by consistently using reasonable
assumptions about current and future land use. Recognizing that land may be
appropriate for uses other than residential use can yield a more realistic risk
assessment and less expensive remedy. EPA is working with local land use
planning authorities, other government officials and the public as early as
possible during site investigation to develop reasonable land use assumptions to
use in the decision making process.... Currently, about 60% of EPA’s Records
of Decision include a land use scenario other than residential land use, typically52
where there is no residential land use on-site or adjacent to the site.
Stakeholders favoring greater consideration of future land uses include the
chemical industry, small and large businesses, the National Governors Association,
local government organizations such as the U.S. Conference of Mayors, National
League of Cities, and National Association of Counties, the Department of Energy,
and the Department of Defense. The National Realty Committee, a business
organization representing real estate companies, believes that future land uses should
play a significant role in determining the extent to which a site is cleaned up:
We also need to see more progress in resolving a problem sometimes referred to
as ‘how clean is clean.’ It is critical to obtain more standardization in this area
as well as appropriate tiering of cleanup levels so they track anticipated land uses.
An industrial project is not going to be a children’s playground any time soon.
To require cleanups that assume such a land use will only result in the permanent53
idling of many properties.
Three land use reforms frequently proposed are: consideration 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 ground water 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.
52Steven A. Herman, Assistant Administrator, Office of Enforcement and Compliance
Assurance and Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste
and Emergency Response, Environmental Protection Agency. Testimony submitted to the
House Committee on Transportation and Infrastructure, Subcommittee on Water Resources
and Environment. April 10, 1997. Superfund Reauthorization: EPA's Management of the
Superfund Program, Administrative Changes, and Proposals for Legislation. H. Hrg. 105-8.thst
53John Gates, National Realty Committee. Testimony submitted to the House
Committee on Transportation and Infrastructure, Subcommittee on Water Resources and
Environment. April 10, 1997. Superfund Reauthorization: EPA's Management of the
Superfund Program, Administrative Changes, and Proposals for Legislation. H. Hrg. 105-8.thst
Some environmental groups are cautious about any provisions that would make
land use considerations central to the process of selecting remedies. While the
Environmental Defense Fund (EDF) believes that the consideration of future land use
at a site is appropriate when choosing a remedy, it cautions against focusing solely
on the future use of a site and ignoring the uses of neighboring areas. Karen Florini,
a Senior Attorney with EDF, urged that:
Superfund must protect the health of site neighbors, not just individuals who will
be present on the site itself, given the well-documented ability of contaminants54
to migrate off-site (e.g., as wind-blown contaminated dust or as vapors).
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 socioeconomic 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, protection of human health
would not be compromised.
S. 8 would require that the risk evaluation at each facility consider reasonably
anticipated future use of land and water resources. In developing assumptions
regarding reasonably anticipated future land uses, the President must consider the
views of local officials and community members and consider specified factors,
including current zoning, the future plans of the land use regulatory authority, recent
land use history, development patterns, population projections, federal and state land
use designations, and the plans of the owner or operator of the facility. In
developing assumptions regarding reasonably anticipated future ground water and
surface water uses, the President must give substantial deference to classifications
in a state comprehensive ground water protection program and consider other
designations or plans adopted by the governmental unit that regulates surface or
ground water use planning in the area. Future use must also be taken into account
for contaminated ground water that is not suitable for drinking water, to protect it
(and any connected surface water) if technically practicable, for whatever its
anticipated use is.
The Role of States in the Remedy Selection Process
A substantial number of critics find that the current system of shared EPA and
state responsibility for implementing and funding the Superfund program has caused
54Karen Florini, Senior Attorney, Environmental Defense Fund. Testimony submitted
to the Senate Committee on Environment and Public Works, Subcommittee on Superfund,
Waste Control, and Risk Assessment. March 5, 1997. Superfund Cleanup Acceleration Act
of 1997. S. Hrg. 105-60. 105th Congress, 1st Session. p. 387.
excessive delays in cleanup, duplication of effort, and confusion among stakeholders.
They argue that states are better equipped to tailor remedies to sites within their
borders cost-effectively and that an expanded state role would result in faster
cleanups with lower transaction costs. Accordingly, a number of states seek 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. 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.
The federal government is primarily responsible for implementing the
Superfund program, though states play important roles in selecting remedies and
funding Superfund site cleanups. The statute’s ARARs requirement recognizes state
standards and regulations. Under current law, a state is financially responsible for
10% of the cleanup costs covered by the Superfund trust fund and for the full cost
of operating and maintaining the selected remedy. In addition, a state must make
off-site disposal facilities available if necessary and must provide 20 years of
hazardous waste treatment or disposal capacity for all hazardous waste reasonably
expected to be generated within its borders. A state is required to pay for 50% of all
response costs if it or a locality within its borders operated the site. If a state cannot
fulfill these requirements, EPA cannot obligate money from the trust fund for the
cleanup.
The National Association of Attorneys General supports delegating federal
authority to qualified states and also endorses granting full program authority to
states with existing cleanup programs:
Other federal environmental statutes, such as RCRA, allow EPA to authorize
qualified states to implement their own program in lieu of the federal program.
Authorization would allow states with successful, effective cleanup programs to
implement those programs at all sites, including NPL sites within their borders....
[S]tate cleanup programs have succeeded based upon remedy selection and
liability provisions chosen by the states to meet the needs and desires of their
citizens for adequate protection of health, safety and the environment — areas in
which states have traditionally exercised significant authority. These programs55
are fully capable, as currently implemented, to take over cleanup of NPL sites.
The Association of State and Territorial Solid Waste Management Officials
(ASTSWMO) supports the position that states with adequate experience and
essential resources to manage hazardous waste cleanups should have the flexibility
55Tom Udall, Attorney General of New Mexico and representative of the National
Association of Attorneys General. Testimony submitted to the Senate Committee on
Environment and Public Works, Subcommittee on Superfund, Waste Control, and Risk
Assessment. March 5, 1997. Superfund Cleanup Acceleration Act of 1997. S. Hrg. 105-60.thst
to decide whether to implement the federal program. James C. Colman, Assistant
Commissioner for the Massachusetts Bureau of Waste Site Cleanups and
spokesperson for ASTSWMO, testified that a state role is essential in cleaning up all
sites subject to liability under CERCLA to the same level of protection across an
entire state:
Where state goals and standards have been established, they should be applied
consistently at all sites subject to CERCLA liability in that state regardless of the
lead agency. This includes not only NPL sites but brownfield/voluntary cleanup
sites and federal facilities. A uniformly applicable cleanup process in a state will
eliminate the often paradoxical inconsistency found where similar sites in close
proximity are cleaned up to different levels for reasons which have little to do
with the actual risk posed. It provides an expectation of consistency to
responsible parties, nearby residents and other stakeholders involved in the56
cleanup process.
Other stakeholders interested in increasing the role of the states include some
local governments, PRPs, the insurance and manufacturing industries, and some
nonprofit organizations interested in Superfund reauthorization. These stakeholders
claim that part of the problem with the current remedy selection process is that EPA
has the authority to preempt a state-selected remedy. Further, some believe that the
threat of EPA preemption causes participation in voluntary cleanup actions to be a
risky venture. A business that participates in voluntary cleanups may face CERCLA
liability even after liability under state law is resolved. Some claim that if states had
full Superfund authority this risk would disappear. At least 35 states have voluntary
cleanup programs for less serious hazardous waste sites.
Some community groups are apprehensive about the proposed delegation of
Superfund authority to states and advocate judicious oversight by EPA if delegation
occurred. One concern is that some states will not be as rigorous in their cleanup
decisions as the federal program, which would necessarily lead to less protection of
human health and the environment. Some also believe that state public participation
programs have not measured up to the federal program. Ohio Citizen Action (a
consumer and environmental activist organization) opposes full delegation of federal
authority to states and does not support allowing states to implement their own
programs in place of the federal one. Jane Forrest, Environmental Projects Director
for Ohio Citizen Action, testified:
We object strongly to the idea of allowing NPL sites to be cleaned up through
state programs with little or no EPA, local government, or citizen involvement57
or oversight. In Ohio’s case, that program would be a disaster.
56James C. Colman, Assistant Commissioner for the Massachusetts Bureau of Waste
Site Cleanups and spokesperson for the Association of State and Territorial Solid Waste
Management Officials. Testimony submitted to the House Committee on Transportation and
Infrastructure, Subcommittee on Water Resources and Environment. April 10, 1997.
Superfund Reauthorization: EPA's Management of the Superfund Program, Administrativethst
Changes, and Proposals for Legislation. H. Hrg. 105-8. 105 Congress, 1 Session. p. 367.
57Jane Forrest, Environmental Projects Director, Ohio Citizen Action. Testimony
submitted to the House Committee on Transportation and Infrastructure, Subcommittee on
(continued...)
S. 8 offers a flexible approach that is largely consistent with the
recommendations of the National Association of Attorneys General and the
ASTSWMO in that it would allow a state either (1) to be authorized to implement
its own cleanup program, in lieu of CERCLA, at any non-federal facility listed on
the NPL, or (2) to be delegated as much of the federal cleanup program as it is
willing and capable of administering at the NPL sites of its own choosing. States
would be able to request delegation of all or a portion of Superfund authorities,
including remedy selection. The bill would designate the state as the sole authority
to perform the transferred responsibility(ies). EPA may not perform a removal or
take an administrative or judicial action at a transferred site without the state's
permission, unless there is an emergency, or EPA obtains a declaratory judgment in
U.S. district court. States would be able to request EPA to remove all or part of a
transferred facility from the NPL, which the agency shall do if it is not inconsistent
with CERCLA. The trust fund would continue to pay its share of cleanup costs at
delegated sites. The 50% state cost-share requirement at state-operated facilities
would be repealed. The state cost share would be the lower of 10%, or a percentage
determined by the Office of Management and Budget. The bill would provide
funding to authorized and delegated states, some of which would be on a facility-
specific basis.
Community Involvement
in the Remedy Selection Process
There is general agreement that the current process for involving communities
in the decision making process does not speed up Superfund cleanups and that it
often makes individuals feel alienated and powerless regarding their community’s
future. Without significant community support, a hazardous waste cleanup project
can face problems such as challenges to selected remedies, delays in cleanup, and
active public opposition. In some cases, a lack of involvement has led communities
to take legal action to halt the cleanup. In other cases, community involvement has
not proven helpful and has delayed needed decisions without notable benefit.
After CERCLA had been in existence for 5 years, many stakeholders
recognized the importance of involving communities in the process of selecting
remedies. As a result, SARA added section 117 to the statute with the intent of
increasing the level of community involvement. 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.
57(...continued)
Water Resources and Environment. April 10, 1997. Superfund Reauthorization: EPA's
Management of the Superfund Program, Administrative Changes, and Proposals forthst
Legislation. H. Hrg. 105-8. 105 Congress, 1 Session. p. 386.
SARA authorized technical assistance grants (TAGs) to assist communities in
understanding and commenting on the plan. (See box below.) As of July 1997, EPA
has awarded TAGs to communities at 193 Superfund sites, about 14% of the total
number of sites currently on and deleted from the NPL.58 Although section 117
provided the public some access, for the most part it has not engendered active
involvement of communities in the decision making process.
The Technical Assistance Grants (TAG) Program
To ensure that communities affected by Superfund sites are informed
about the selection and implementation of cleanup remedies, Section 117 of
SARA created the Technical Assistance Grants (TAG) program. Up to $50,000
may be provided to a community “to obtain technical assistance in interpreting
information with regard to the nature of the hazard, remedial investigation and
feasibility study, record of decision, remedial design, selection and construction
of remedial action, operation and maintenance, or removal action at such
facility.” Recipients of grants are required to contribute 20% 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 critics have recommended that a
Technical Assistance Grant be awarded before a site is listed on the NPL.
Environmental community groups such as the North Baton Rouge Environmental
Association and the Communities at Risk Network have proposed other reforms
to the TAG program such as: simplification of the application process;
elimination of the matching funds requirement; and removal of the 3-year
restriction.
At a hearing held in June 1995, the Department of Energy’s Assistant Secretary
for Environmental Management, Thomas P. Grumbly, made the following argument
in support of involving affected communities:
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 the method or level of cleanup. For too long, community groups
have felt shut out of the process of site remediation decision making, discussions
of future land use options, and the risk evaluation process. Community
involvement should be an integral part of the remedy selection process that will,
in the long run, make the risk assessment and management process more open,59
and more democratic.
58Telephone conversation with Suzanne Wells, Director, Community Involvement and
Outreach Center, Office of Emergency and Remedial Response, Environmental Protection
Agency. August 13, 1997.
59Thomas P. Grumbly, Assistant Secretary for Environmental Management,
Department of Energy. Testimony submitted to the House Committee on Transportation and
Infrastructure, Subcommittee on Water Resources and Environment. June 27, 1995.th
Superfund Reauthorization: Federal Agency Perspectives. H. Hrg. 104-22. 104 Congress,
(continued...)
To facilitate community involvement in the remedy selection process at DOE,
the department created an 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.
The Chemical Manufacturers Association supports increased levels of
community involvement in cleaning up NPL sites, proposes the expansion of the
TAG program, and recommends coordination with formal community groups to
ensure that citizens have an organized mechanism through which they can participate
in the cleanup process:
Communities need to have adequate input into the remedy selection and
implementation process at Superfund sites.... By providing local citizens with
opportunities for early and active participation in the evaluation of remedial
options, the entire procedure becomes more transparent, resulting in greater
credibility in, and commitment to, the selected remedy. Informed communities
are more likely to support reasoned Agency decisions.... CMA supports
establishing formal community groups to improve communication between EPA,
PRPs, and the communities that live around Superfund sites.... Furthermore, the
existing Technical Assistance Grants (“TAGs”) [program] could be increased to
help community groups obtain full access to information and an early and on-
going voice throughout the remedy selection process. Formal community groups
should be supported, where they exist, by making them the only eligible group60
for a TAG.
S. 8 would require EPA to inform and consult with the affected community and
to consider their views in developing and implementing the remedial action plan. It
also directs EPA to assist in establishing Community Advisory Groups (CAGs) that
would serve as information conduits to and from EPA, the states, and PRPs. In
addition, the bill continues the TAG program grants of $50,000, but allows a waiver
of that limit. The bill eliminates the current law fund-matching requirement, and
authorizes early disbursement to the TAG recipient in advance of the recipient's
making expenditures to be covered by the grant; up to $5,000 may be advanced at
a time.
Conclusion
This report has outlined issues in the debate on reforming Superfund’s cleanup
standards. These issues reflect criticisms and proposals which have been presented
at congressional hearings during the 104th and 105th Congress and which are central
to the Superfund reauthorization debate. The views summarized in this report are
59(...continued)
60Chemical Manufacturers Association. Testimony submitted to the House Committee
on Transportation and Infrastructure, Subcommittee on Water Resources and Environment.
April 10, 1997. Superfund Reauthorization: EPA's Management of the Superfund Program,thst
Administrative Changes, and Proposals for Legislation. H. Hrg. 105-8. 105 Congress, 1
Session. p. 494-495.
those most frequently delivered on the subject of cleanup standards and remedy
selection.
Proponents and opponents of proposed reforms, such as repealing the statute’s
requirement to meet “relevant and appropriate” requirements or ensuring that 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 to eliminate all remnants of waste and pollutants, or should sites be cleaned
to a level that is simply sufficient to protect human health? The distinction between
the two is significant — the former takes a more expansive approach to
environmental protection, while the latter takes an approach that may better
accommodate economic considerations. If the goal should be the 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 environmental cleanliness, should
national standards be established to define the level of cleanliness required? Though
there is little consensus on the answers, Superfund’s stakeholders seek to alleviate
the confusion over the program. To lessen this confusion, Congress is attempting to
further define Superfund’s cleanup goals and the methods used to attain these goals.