▶ 0:16:47Chair Capito: Good morning, everybody. We need to have all of our republican members here before we vote but we have a chance to start, so we will give our opening statements. If senator whitehouse doesn't mind, as soon as we get to the point where we can vote, we will suspend and vote and then we can move forward. I know a lot of people have different committee meetings today.
▶ 0:17:14Chair Capito: After the vote, we will be talking -- we will be having a hearing on the super fund which we are looking forward to. I want to thank my colleagues for attending the business meeting to vote on the nominations of the greater general brian nesvik to be a director of fish and wildlife, jessica kramer, sean donahue to be assistant administrators at the epa.
▶ 0:17:36Chair Capito: General nesvik has served with a wyoming game and fish department, retiring from the agency after serving his last five years as a director. Simultaneously with his service in game and fish, general knows vic had 30 years of decorated military service in the wyoming guard. Commander of the wyoming national guard. I would note, he did both of these jobs at the same time.
▶ 0:18:09Chair Capito: He will make a great fish and wildlife director. Jessica kramer began working in environmental enforcement roles at the wisconsin department of natural resources and the wisconsin department of justice. From there, she joined the first trump administration cpa, rising to the senior policy council. She then joined my step to help negotiate the infrastructure and jobs act, and did a great job.
▶ 0:18:35Chair Capito: She then went into private practice advocating on behalf of water systems to continue infrastructure investments and smart and achievable regulation. Before joining the trump administration in january as a senior advisor, she was a deputy secretary for regulatory programs at the florida department of environmental protection. With 13 years of experience advocating for clean water at the state and federal level, jess is exceptionally qualified to now lead the epa's office of water.
▶ 0:19:03Chair Capito: Sean donahue began his career in the field of finance but pivoted to environmental issues in 2018 when he joined the epa. In two and a half years, he worked in both the executive secretariat and office of land emergency management, gaining insight into the broader issues -- broad range of issues before the agency. After leaving the epa in 2021 cup he practiced law in new york, working at a private firm and that a solar farm.
▶ 0:19:30Chair Capito: He rejoined epa in january, office of general counsel coming out as a senior advisor to the administrator. Through his prior service at the epa and his private sector legal experience, his qualifications lead him to the office of general counsel. At their recent nomination hearing, we heard the passion that each nominee had for pursuing these positions and the experiences that have shaped the unique qualifications for these roles. Importantly, each nominee pledged to faithfully follow the laws congress has enacted to carry out their duties.
▶ 0:20:01Chair Capito: Based on their testimonies, I'm confident these nominees will focus their efforts to bring their respective agencies back to achieving their core missions and away from pushing extreme regulations that threaten the reliability of our grid and american competitiveness. Our urge my colleagues to support these nominations. With that, I will turn to the ranking member. It appears that we are all here. The ranking member is going to give his opening statement.
▶ 0:20:31Sen. Whitehouse: Then we will go to the vote. The chairman told me this morning that she is determined to be in a good mood today, so I will start out with some good news, which is that I intend to vote in favor of Ms. kramer on paper and in her hearing, she demonstrated she is qualified for the roles to which she is nominated. Has a clear understanding of the clean water act and other relevant laws and regulations.
▶ 0:20:58Sen. Whitehouse: She seems willingly faithfully to execute the duties of the epa office of water and therefore I can vote in favor of her nomination. Concerning Mr. nesbitt, I will vote no. I liked him, impressed by his military service, but his clear prioritization of agricultural and fossil fuel interests over fish and wildlife protection is in my view contrary to the very purpose of the fish and wildlife service.
▶ 0:21:28Sen. Whitehouse: As to sean donahue, as general counsel of epa, he may be the most unfit nominee ever for the role of any federal agency general counsel. He would have trouble getting an entry-level legal position in any of our offices. Article two section two clause two of the constitution provides the senate with advise and consent power. This constitutional power should carry some meaning. Advice and consent should not be empty words. There is no argument that Mr.
▶ 0:21:57Sen. Whitehouse: Donahue should survive any advise and consent process based on his qualifications. The epa general counsel is the chief legal advisor to the epa and provide legal advice on environmental laws including clearing air act, saved drink of water act, and superfund act among others. Mr. donahue has no apparent experience with any of them. He has never tried a case to verdict, never taken a deposition, never signed a pleading, and never argued a motion.
▶ 0:22:25Sen. Whitehouse: At best, maybe he has supervised two or three attorneys. He practiced law for a year and I have as a junior associate at a law form before being fired. By comparison, here are the previous tenant senate confirmed epa general counsel's approved across republican and democratic administrations. Jeffrey. Matthew leopold from president trump's first term, 14 years as an environmental lawyer, state agency general counsel.
▶ 0:22:58Sen. Whitehouse: 21 years practicing environmental law in the public and private sectors. Scott fulton, there leadership roles over 22 years at epa which followed eight years at doj's environment and natural resources division. Law clerk for the court of appeals, seven years with the natural resources section of doj and time spent as acting epa general counsel. Chief counsel for this committee for five years, senior counselor to the secretary of the interior.
▶ 0:23:27Sen. Whitehouse: Roger, two years in private practice, five years as chief counsel to the new jersey governor chris teton whitman. Mr. donahue, one .5 years in general law in upstate new york, then fired, now expected to oversee 200 lawyers and 300 total staff in the office of general counsel.
▶ 0:23:45Sen. Whitehouse: He cannot even keep track in response to q fis, he stated he would faithfully implement the law, but in the same breath, stated exquisitely the administration's current grant freeze was legal despite two federal court orders to the contrary. So what law does he think he will be implementing? Why is he here? Mr. donahue's significant other is a deputy director for personnel at the white house.
▶ 0:24:14Sen. Whitehouse: I will vote no despite the fact that his manifest incompetence will probably work to our advantage.
▶ 0:24:22Chair Capito: Thank you, ranking member whitehouse. How do you really feel about that?
▶ 0:24:28Sen. Whitehouse: I think this is an astonishing low point for us, I have to say that.
▶ 0:24:33Chair Capito: At this time, I will as senators to hold their remarks on the nominees until after the roll call votes. I will call the president will nomination 20 5-11, sean donahue, of florida, to be assistant and ministry of the environmental protection agency. Is there a second? Thank you. The clerk will call the roll.
▶ 0:25:55Chair Capito: The click reports for yeas and the days. With that, the nominee is favorably reported. I will nomination 25-28, jessica kramer, wisconsin, to be an assistant administrator of the environmental protection agency. I moved to approve and report a nomination favorably. Is there a second? Clerk will call the roll.
▶ 0:27:16Chair Capito: The clerk will report to yeas and nays. With that, the nominee is favorably reported. I will now call a president will nomination 25-35, brian nesbitt, of wyoming, to be director of the united states fish and wildlife service. I moved to report and improve the nomination favorably. Is there a second? The clerk will call the roll.
▶ 0:28:26Chair Capito: The clerk will report to yeas and nays. Thank you. With that, the nominee is favorably reported and I will notice the presence of a quorum. I want to thank all the members for being here this morning. I don't know if any members want to speak on anomalies before we go into our hearing. The senator from wyoming. >> thank you, madam chairman. The U.S.
▶ 0:28:55Chair Capito: Fish and wildlife service has, by all standards, and this meets a letter of the law and the intent of the endangered species act, knowing that the grizzly bear in the greater yellowstone area has been fully recovered and then some for 20 years. The grizzly bear numbers have had an objective. The grizzly bear numbers for ratios between males and females have met numbers.
▶ 0:29:28Chair Capito: The expansion of the area has occurred. The number of, the diverse population necessary to sustain a population has been met. For 20 years, we have been trying to get the grizzly bear delisted, pursuant to the letter of the law of the endangered species act and the intent of the endangered species act.
▶ 0:29:52Chair Capito: Yet, the agency itself has fought it because groups, nongovernment groups that review the grizzly bear as charismatic, that they can use to raise money for their groups, is good contribution bait for them and will not let them off the list.
▶ 0:30:18Chair Capito: It is important that when we have a win in recovering a species the way the grizzly bear has recovered in the greater yellowstone area, that we take the win and celebrate it. I am hopeful that brian nesvik will pursue this course of action, and I am hopeful that as he takes the reins of the U.S.
▶ 0:30:42Chair Capito: Fish and wildlife service, when there are other species that we know have met the objectives, rules and regs, intent of the law, letter of the law, that they, too, can be delisted and celebrated, and we can move our attention to species that actually need it and serve to be nurtured under the provisions of the esa. Thank you, madam chairman. I yield back.
▶ 0:31:10Chair Capito: >> appreciate the opportunity to take a moment to discuss my no vote on the confirmation of Mr. nesvik to serve as director of the fish and wildlife service.
▶ 0:31:25Chair Capito: While I generally appreciate his candor during his confirmation hearing, in particular his willingness to roll up his sleeves, work with me on the gritty, complex details that is california water management, certainly, to recognize his willingness to engage with a number of stakeholders in california, I just need to cite the approaches and the action
▶ 0:31:55Chair Capito: That the administration has taken, continues to take, demonstrating their hostility to the state of california, that until that changes, it will be hard to support nominees for these key positions.
▶ 0:32:11Chair Capito: Appreciate the nominee's willingness to work with us, work with stakeholders, visit california, and even look at opportunities for bipartisan agreement like wildlife corridors where we have been laying the foundation. One individual at the top of the organizational chart will be limited by the hostility coming from the top. Thank you.
▶ 0:32:34Chair Capito: Does anybody else wish to make comments? I would invite our witnesses to come to the stand please.
▶ 0:33:06Chair Capito: Thank you all for being patient with us. We are starting this hearing. I know there are several other committees that have votes going on, one of which is one of my committees, commerce. I want to make my opening statement and then go over quickly. Senator whitehouse has kindly stepped up to the plate here to move the hearing forward. Good morning. I will be in a good mood all day. Hold me to that.
▶ 0:33:34Chair Capito: Today we will discuss challenges discussing the epa superfund program and solutions to ensure it can live up to its full potential. Since I become chairman, I stressed epa must refocus the agency's work on the core environmental issues -- missions to deliver the cleanups and environmental solutions that must benefit the environment and america's health and welfare. Superfund program as an act it is one of the best examples of the epa executing that core mission.
▶ 0:34:02Chair Capito: Cleaning up our nation's most contaminated sites directly improves public health and can revitalize struggling communities. I've certainly seen that in my own state. Congress established superfund in 1980 in response to several high-profile environmental disasters. The law was designed to properly clean up heavily contaminated sites and make the polluters responsible for the cleanup. These are important goals but the epa's management of the superfund program has not delivered as intended.
▶ 0:34:34Chair Capito: Communities not expected superfund cleanup to take more than a decade. We heard that from our witnesses in our informal conversations. That prolonged timeline sends comforting messages to communities with a site nearby. You live near one of the most hazardous places in the country but epa will let it sit there for years before they allowed to be fully cleaned up. Despite the lengthy cleanup timeline, the superfund program has achieved some critical environmental and public health victories and restored thousands of contaminated sites across the country.
▶ 0:35:04Chair Capito: The reason for delays that rob superfund of its full potential is that epa's implementation of the law prioritizes process over results. The complexity of the law has made it one of the most difficult environmental programs to administer. In practice, the main winners in managing superfund cleanups are the lawyers who profit from endless litigation while communities wait for promised relief.
▶ 0:35:28Chair Capito: To manage a law this complex, the epa has built in a tangled web of bureaucracy, workgroups, task force, and committees that too often slow progress instead of delivering results. Leaving -- cleaning up superfund sites is naturally a costly endeavor but the problem with superfund cannot be blamed on funding alone. To better help communities get the most out of limited taxpayer funding, congress and epa must identify efficiencies to accelerate the cleanups.
▶ 0:35:56Chair Capito: This is particularly important when considering the overall cost of superfund cleanups. Superfund price tag is not just about the complexity of environmental cleanup. This is what I call the superfund premium. A concept where the same environmental cleanup becomes more expensive and time-consuming under superfund compared to a state-led or voluntary cleanup program.
▶ 0:36:19Chair Capito: With a managed under superfund authority or through a state program, remediation is likely to involve the same core work, removing contaminated soil, treating groundwater, and restoring the land. Yet because of the superfund premium, we see cost balloon and timelines of stretch once a site is listed. It is not because the environmental standards are higher, but rather because the programs process has replaced the law's cleanup mission.
▶ 0:36:48Chair Capito: The program's complex bureaucracy generates an enormous transaction costs that have nothing to do with actual environmental cleanup. Instead of removing contaminants, limited time and financial resources are squandered on endless meetings, redundant studies and excessive overhead costs completely unrelated to remediation. There is no shortage of responsible parties that are ready and willing to remediate the site.
▶ 0:37:13Chair Capito: Even good samaritans, well-intentioned individuals and organizations, are often deterred from cleaning up site because of liability risks and financial barriers. Our laws should encourage, not prevent, volunteer efforts to address legacy pollution. Accelerating the pace of superfund cleanups does not mean cutting corners or sacrificing health protections. It means defining an angle with a clear plan that gets into a safe, productive, and state as efficiently as possible.
▶ 0:37:42Chair Capito: The ensuing cleanup is driven by that goal to the benefit of communities and the environment. Right now, the priority is enforcement first, cleanup second, and leaving communities to wait far too long. That needs to change. I look forward to hearing from today's expert panel on how to improve the superfund's programs efficiency and accountability. I now recognize senator whitehouse for his opening statement.
▶ 0:38:05Sen. Whitehouse: Let me start by thanking chair capito for her statement and for the witnesses for appearing. We are here to address the superfund program promoting the best tools to hold polluters accountable for contamination at our nation's most polluted sites. These sites exist in every state of our nation and they are complex. Cleanups can be laborious and long to complete. Long island has a long history with this program.
▶ 0:38:34Sen. Whitehouse: Senator john chafee, former chairman of this committee, offered the superfund program in 1980. His son and my predecessor lincoln chafee champion to support the program including authorization of the brownfields program. I'm happy here today to continue that support and undress bottlenecks to the cleanup process. However, speed must not come at the cost of efficacy.
▶ 0:39:03Sen. Whitehouse: Scientists, engineers, and project managers ensure cleanups are done right. Investigators and lawyers identify responsible parties and hold them accountable. Epa employees in these roles often have specialized experience with specific sites and communities, institutional knowledge and relationships that once lost are hard to rebuild. Budget, staff, and speed are interrelated. As we will hear from Mr.
▶ 0:39:26Sen. Whitehouse: Gomez, when annual appropriations declined from roughly $2 billion to 1.1 billion dollars, spending on remediation fell unsurprisingly by roughly half. The average project completion time increase from 2.6 to four years. Significant delays affected one third of long-term projects. Budgets are cut, work often slows down. At his confirmation hearing before this committee, administrator zeldin committed to following the law.
▶ 0:39:59Sen. Whitehouse: But slashing 65 percent of epa's appropriated budget and pushing out agency staff until there is no one left to execute the law violates those promises that administrators olden made, and it will do damage to american families. He said he would defer to the scientists at epa and then turn around and plans to remove the independent scientific researchers office. Without such expertise, how do we make sure that our country's most polluted sites are safe?
▶ 0:40:29Sen. Whitehouse: For superfund, this mess will delay cleanups and prolonged exposure. The winners from slashing epa's budget and staffing and the capping the superfund program are the planet's biggest polluters. They are behind this. Administrators olden sat in the room and said climate change is real and must be addressed with urgency. Now he mockingly refers to the climate change religion and applauds himself or driving a dagger straight into its heart.
▶ 0:41:01Sen. Whitehouse: But climate change will compromise the safety of superfund sites. According to gao, 60% of epa superfund sites are located in areas prone to flooding, storm surge or wildfire. Epa has therefore been integrating climate change resilience into its superfund efforts. We need to plan for severe storms occurring more frequently , coastal communities flooding more severely, and wildfires scorching areas they have not before.
▶ 0:41:31Sen. Whitehouse: Superfund staff looks ahead at all of that when conducting a five-year reviews to see what the amelioration or containment efforts need adjusting. To be good stewards of taxpayer dollars, we must ensure climate risk remains a part of the superfund site evaluation process. Otherwise, severe weather events will wreak havoc on sites that were previously considered safe. There are changes that can be made to improve the superfund program and I'm glad we are here today to discuss them.
▶ 0:41:59Sen. Whitehouse: However, if the trump-musk administration/and burn approach continues, it will not matter what improvements we propose here today. With that, I turn to our witnesses for the opening remarks. Our first witness is Mr. robert fox, senior partner at the law firm manko gold katcher fox.
▶ 0:42:22Sen. Whitehouse: He is a national superfund expert known for litigating high-profile cases, advising on compliance, liability, brownfields redevelopment. Mr. fox has previously testified before this committee on the superfund program. Welcome back to the committee, Mr. fox. I recognize you for your opening statement. Your full statement will be made a matter of record.
▶ 0:42:43Mr. Fox: Chairwoman capito, ranking member whitehouse, members of the environmental and public works committee, thank you for the opportunity to testify. My name is robert fox. After graduating from harvard law school, I practice law for 40 years. I taught superfund as an adjunct professor at penn carry law school. My clients on superfund matters range across all industry sectors and municipalities including the city of new york. My testimony identifies common sense approaches to achieve superfund primary schools.
▶ 0:43:14Mr. Fox: For the past 45 years, courts and superfund legislative history made clear superfund has two primary goals. First, incentivizing the prompt voluntary cleanup of the nation's most contaminated sites, and second, ensuring that polluters pay for those cleanups. Undoubtedly, there have been significant accomplishments under superfund. It is equally clear the superfund program is not meeting those goals.
▶ 0:43:40Mr. Fox: However, solutions exist within the statutory language, existing policies, and with minor regulatory adjustments to be a lot superfund with his primary goals. First, let's start with promptness. Superfund cleanups take too long and that increases costs. I'm aware of superfund sites listed on the national priorities list in the early to thousands with no remedy selected to date.
▶ 0:44:02Mr. Fox: I'm also aware of superfund sites where private parties submitted remedial investigation report to epa and did not receive comments for years and years. Here is a proposed solution. Epa requires that private parties adhere to strict deadlines for submitting required cleanup reports with penalties for noncompliance. Yet, epa has no time for its own report reviews. Many states administer cleanup programs that, for years, experience similar cleanup delays but then adopted mandatory agency review times.
▶ 0:44:33Mr. Fox: That clear the backlog. Epa should adopt a policy to do the same. Second, incentivizing private parties to perform the cleanup and making the polluter pay are two sides of the same coin. To create proper incentives for private parties to perform cleanups, their share of cleanup cost must be fair. Otherwise, you look at polluter pays come you get polluter over pays.
▶ 0:44:56Mr. Fox: Epa has relied on joint and several liability under superfund to require the same deep-pocketed parties at site after site to pay for 100% of the cleanup costs, leaving those parties to pursue tens and often hundreds of other responsible parties through costly and time-consuming litigation. That approach is both unfair and inefficient and this wages parties from cleanup. The solution to this cleanup already exists within the superfund statute and epa policy. Epa just has to use them.
▶ 0:45:27Mr. Fox: For example, section 122 b describe what is called mixed funding for cleanups. This takes the form of either epa pre-authorizing superfund to reimburse the parties for a portion of those costs not attributable to those parties, or epa agreeing to perform a portion of the cleanup itself with the remainder performed by the private parties. In either case, epa pursues other parties to reap other costs. That saves tremendous transaction because for the party performing the cleanup.
▶ 0:45:58Mr. Fox: Epa acknowledges mixed funding promotes expeditious cleanups rather than protracted litigation. Despite this clear statutory authority, the superfund program really uses mixed funding. That should change. Similarly, epa has an orphan share policy. Pursuant to this policy, epa can settle with private parties who desire to perform the cleanup and compromise a portion of epa's past and future costs attributable to liable parties who are either insolvent or default.
▶ 0:46:26Mr. Fox: Epa's orphan share policy expressly share their stated aim to provide incentives to but voluntarily perform cleanups and keep transaction costs low. Once again, the superfund program uses this policy to sparingly. By the policy's own terms, epa compromises limited to the lesser of 25% of the cleanup cost for the total amount of epa's unreimbursed cost. The statute contains no such limitations on orphan share or past cost forgiveness. One final suggestion.
▶ 0:46:55Mr. Fox: When private parties perform a cleanup, epa charges those parties with epa's oversight cost, a term not defined in the statute. Oversight cost include cost for epa contractors. But oversight cost also includes costs attributable to the time spent by epa personnel with no limitation on how many people work on a matter or how many hours they spend. In other words, private parties are required to reimburse epa for work performed by internal epa employees on that matter.
▶ 0:47:23Mr. Fox: On top of those direct costs, epa also pursues reimbursement of indirect and indirect cost premium for its overhead expenses throughout the entire regional offices including rent, utilities, computers, etc. This indirect cost premium can sometimes exceed 100%. Personal cause in the premium for overhead are not appropriately reimbursable, foster inefficiency, and create a disincentive for parties to perform the cleanup.
▶ 0:47:50Mr. Fox: In conclusion, a superfund program has proven accompaniments. Going forward, the program needs these commonsense solutions to ensure that the program returns to meeting his primary goals.
▶ 0:47:59Sen. Whitehouse: Our next witness is steven radel, president of industrial development advantage. Mr. radel has extensive experience managing hazardous cleanups including superfund sites. His company specializes in acquiring contaminated properties and remediating them so they can be safely redeveloped. I recognize Mr. radel for his opening statement.
▶ 0:48:23Mr. Radel: Chairwoman capito, ranking member white house, members of the environment and public works committee, thank you for the opportunity to testify today. My name is steven radel. I graduated from allegheny college with a degree in environmental studies, earned a masters in business administration from the university of pittsburgh and a law degree from duquesne university.
▶ 0:48:46Mr. Radel: I work for over 40 years in the environmental industry as a consultant, corporate environmental manager, founder and principal in industrial development advantage, and environmental liability assumption company. Ida acquires contaminated sites and assumes the underlying liabilities which we then resolved through remediation and redevelopment.
▶ 0:49:08Mr. Radel: Our transaction typically involve environmental insurance that includes pollution legal liability insurance in excess of indemnity coverage can often be obtained by ida for the benefit of the seller. By way of example, ida acquire the east chicago superfund site in 2022. Ida negotiated a liability assumption agreement with the participating prp's to finish operable unit soil remediation.
▶ 0:49:36Mr. Radel: Our focus at this site is on remediation, repositioning the site, and integrating development design with remediation to ensure the work performed in a manner that is protective of human health and the environment and also promotes productive reuse of the site. East chicago is a prime example of parties motivated to complete a transaction to accelerate the cleanup process including the participation prp is, epa region five and the state and local governments. I will know the epa region five folks worked very hard to make this happen.
▶ 0:50:06Mr. Radel: There are a couple of takeaways from this example that reinforce my hope and believe that it is absolutely possible to redevelop a superfund site quickly, efficiently, and protectively, if the right motivations are in place. First, without question, the default process, superfund process is cumbersome and prioritizes form and process over the ultimate goal of remediating and returning a contaminated site to productive reuse.
▶ 0:50:31Mr. Radel: When we approach a site, we use the general approach, what is the last chapter in the story and work back from that. Ida and our consultants can look at any contaminated site and look at what the likely remediation approach should be and we look at it in the context of the end-user or best development use for that property. There may be some data gaps to complete a conceptual site model of environmental conditions at the site, but for the most part, we can cost-effectively figure out the best remedial approach once we identify that last chapter or reuse of the site.
▶ 0:51:02Mr. Radel: This can be stopped done without the need to complete a number of reports and plans are typically required by the circle process. In short, we can take a site from a streamlined but still conference a remedial investigation strict remedial action without the unnecessary time and expense of feasibility studies or alternatives that are irrelevant to the fund.
▶ 0:51:24Mr. Radel: Our focus is on completing a risk-based cleanup based on the planned development by identifying potential exposure pathways and making sure they are eliminated as part of the remediation while also integrating development integration into the overall remedial design. This significantly reduces the timeline to redevelopment. Second, the basic tools needed to make the circle process more efficient are already being used widely in other parts of the environmental industry.
▶ 0:51:51Mr. Radel: For example, voluntary cleanup programs that encourage the cleanup and reuse of sites with prospective purchaser agreements, covenants not to sue an appropriate institutional controls are already in place. Third, private parties like ida can be incentivized to bid on and acquire contaminated sites through the expected cost of remediation with assurances like the tools mentioned a moment ago to ensure we do not inadvertently become prp's while at same time holding us to our commitment to complete the remediation on schedule and on budget.
▶ 0:52:22Mr. Radel: These deals also include environmental insurance which is a motivation for prp's.as well fourth, in lamenting our approach to timely and efficient cleanups can be so facilitated and accelerated by empowering more state led circle cleanups that place incentives on more of the voluntary program risk-based approach that gets to the final chapter efficiently and by encouraging epa to provide comfort letters and ready for use of terminations on the front end of cleanups subject to approve remedy and of limitation.
▶ 0:52:50Mr. Radel: We know states have authority to lead superfund cleanup through cooperative agreements. In our view, experience, few states have done so because they lack clear. Epa fit, superfund lanes present difficult challenges for superfund cleanups especially environmental liability transfer deals. This discourages innocent parties from stepping into facility cleanup.
▶ 0:53:16Mr. Radel: Epa already has a tool to address this challenge by negotiating the release or settlement of lanes in exchange for completion of an agreed-upon cleanup plan. Lien waivers do not affect epa's ability to go after this bonsall party separately but clear up title for remediation redevelopment. That is an excellent tool that can be used. Finally, making the delisting process more efficient can help achieve last chapter more quickly and efficiently. A prolonged delisting can delay investment and development.
▶ 0:53:48Mr. Radel: Presently there are only two times a year when parties can request a delisting in the process is extremely burdensome. We view this as an opportunity for reform. In summary, in my opinion, the circle program can be improved to incentivize the cleanup and redevelopment of sites, avoiding unnecessary transaction costs and cost of remediation approaches. This will allow superfund dollars to be used on more sites and will significantly reduce the time frame to clean up a site and make it available again for development, shortening the timeline by years.
▶ 0:54:19Mr. Radel: Communities with these black holes sites are significantly and negatively impacted by the prolonged lack of progress which often has a negative ripple effect around the community. This is a real negative opportunity cost in these communities. A clear path to success requires a last chapter focus, risk-based cleanup designed to address the underlying contamination, restore sites to their post remediation condition and use. This will speed up the time to get these sites back into productive use and reduce the transactional cost associated with the traditional superfund. Thank you.
▶ 0:54:50Sen. Whitehouse: Thank you. Our final witness this morning is j. Alfredo gomez, director of the national resources and environment team at the U.S. government accountability, gao. Mr. gomez leaves the gao's work on environmental protection including hazardous waste cleanups, texas -- hazardous chemicals, I recognize Mr. gomez for your opening statement.
▶ 0:55:16Mr. Gomez: Chairwoman capito, ranking member whitehouse, members of the committee, good morning. Thank you for the opportunity to discuss gao's past work on the superfund program. Environmental protection agency administer the superfund program to cleanup sites contaminated by hazardous substances. Some of the nation's most seriously contaminated sites are listed on the national priorities list.
▶ 0:55:42Mr. Gomez: Superfund sites can include mining sites, landfills, and former manufacturing sites. Has been noted already, cleanup of these sites is often expensive and lengthy. My statement today is based on several issued reports, as well as an updated appropriations data.
▶ 0:56:01Mr. Gomez: Specifically, my testimony discusses superfund and trend appropriations, numbers of npl sites and reasons for changes, and factors identified as affecting the timeliness of npl site cleanups. Appropriations for the superfund program have generally declined since fiscal year. 1999 in 1999, the program received about $2.6 billion.
▶ 0:56:29Mr. Gomez: In fiscal year 2024, it received 530 $7 million. Since the infrastructure investment and jobs act and the inflation reduction act, recently reinstated some superfund taxes, and additional 1.40 $4 billion was also made available to the program in fy 2024. The superfund program also received supplemental appropriations in some years.
▶ 0:56:56Mr. Gomez: For example, in 2009, the recovery act provided $600 million and the iija provided and additional 3.4 billion dollars in fiscal year 2022.
▶ 0:57:10Mr. Gomez: Regarding full-time equivalents, the superfund program had 2585 employees in 2023, a decrease of 200 74 positions over the prior 10 years.regarding a number of npl sites, as of march of this year, there were 1340 active sites, 459 sites deleted from the list.
▶ 0:57:34Mr. Gomez: When we last reviewed the npl site cleanups, we found the number of nonfederal sites added to and deleted from the npl generally declined from 1999 through 2013. According to epa, there are several reasons for the decline in the number of nonfederal sites added to the npl.
▶ 0:57:55Mr. Gomez: For example, some states may have been managing the cleanup of sites with their own state programs, especially if a potentially responsible party was identified to pay for the cleanup. The declining the number of nonfederal sites deleted from the npl was because of declines in annual appropriations and the fact that sites remaining on the npl were more complex and took more time and money to clean up.
▶ 0:58:23Mr. Gomez: From our prior work, we have identified many factors that can affect epa's ability to cleanup npl sites in a timely manner. One is that some states are -- some sites are more technically complex to cleanup because of site characteristics.
▶ 0:58:42Mr. Gomez: For example, complicating factors at sediment size include their large size, location, tidal influences, multiple sources of contamination, and difficulties related to sampling and modeling at the site. Another is challenges with stakeholder involvement, which can take epa time and resources to address.
▶ 0:59:07Mr. Gomez: For example, stakeholders such as surrounding communities, local governments, and industry may have different opinions and competing interests, and their levels of knowledge of the superfund program may vary. A third is decreases in agency resources can cost cleanup delays.
▶ 0:59:27Mr. Gomez: For example, shortages in epa regional staffing levels and a decline in state environmental agency personnel can cause delays throughout the superfund program from site assessments to completion of remedial action. In summary, epa's superfund program has faced declining annual appropriations with influxes of supplemental appropriations in some years.
▶ 0:59:54Mr. Gomez: In addition, the superfund taxes are now providing additional funding. Our previous work shows the numbers of new sites added to and removed from the npl have generally declined from fiscal year 1999 through fy 2013. And there are several factors that can affect the timeliness of npl's site cleanups.
▶ 1:00:19Mr. Gomez: Gal has ongoing work for a house majority that is reviewing funding and expenditures of the program, as well as planned work to examine npl site cleanup status. Chairman o, ranking member whitehouse, this completes my statement and I would be pleased to respond to questions.
▶ 1:00:38Sen. Whitehouse: Thanks very much. I guess I will begin until the chair can return. Let me start with you, Mr. gomez. Is there any doubt in your mind that flooding of a superfund site, whether from storm surge or river, in-flooding, or a wildfire burning through a superfund site can create
▶ 1:01:12Sen. Whitehouse: Contamination issues and, if not properly managed, can interfere with the remediation process?
▶ 1:01:19Mr. Gomez: Certainly there is no doubt in our past work where we looked at this question of the superfund sites and the potential of fact's from flooding wildfire storm surge. There are many sites across the country that are located in places where these things are happening. In fact, we traveled to several sites.
▶ 1:01:42Mr. Gomez: We visited a site in houston, texas where because of unprecedented rainfall from hurricane harvey, it actually disbursed the contamination on the river. And so, it is happening at sites across the country.
▶ 1:01:58Mr. Gomez: I think the purpose of our work was to show how many sites are located in places where these things are happening, and it is important then for epa to ensure that the remedy in place is going to be protected during -- protected.
▶ 1:02:17Sen. Whitehouse: I would argue that recent experience that you have described in texas, also florida, shows this is not a potential. It is happening and we have to be prepared. I would add my own editorial comment that the flagrant errors in fema flood mapping create an additional burden for people managing superfund sites, because they have to figure out what the real flooding risk is, not what fema's phony baloney
▶ 1:02:47Sen. Whitehouse: Flooding risk is based on incompetent mapping. I've got a specific question, because we have a bradford finishing site in rhode island. It is the american wild and scenic river. There is significant risk of flooding and release of contamination there.
▶ 1:03:07Sen. Whitehouse: While we are going through the process of remediation there is significant danger of contamination out of lagoons that have been prepared to -- sort of as a catchment area. What are the interim measures during the period of a remediation that epa could require for a site like this while the listing package is being prepared?
▶ 1:03:36Mr. Gomez: So, in this case epa can explore other options. It sounds like this is contaminated sediment, which complicates what the agency can do. Just because of the various things that are happening in place. In other places perhaps you could do a removal, right? Where you could do a removal, perhaps, of the contaminants present. As the continuing work takes place to figure out how you're going to remediate it.
▶ 1:04:09Mr. Gomez: In those cases it is important for epa to have the expertise, right? To be able to figure out, what are the steps they can take in that very site-specific place? And to make sure it has the expertise. And if it doesn't, that it can go outside to get it.
▶ 1:04:26Sen. Whitehouse: Mr. radel, another site-specific question here. In the navy property in newport, rhode island there is an abandoned hospital which is on extremely valuable property. Could be put to valuable reuse. It is within the boundaries of a superfund site, although it appears to have itself very minor contamination.
▶ 1:04:55Sen. Whitehouse: In your experience, what would be the appropriate vehicles for trying to assist with the development and reuse of that hospital? Even though it is within the superfund boundary, if it can be shown that the contamination specific to the property is minor?
▶ 1:05:15Mr. Radel: In my experience, you know, if we could separate that hospital location from the overall superfund site through some kind of communal, segregation, you know, modifying the parcel lots, I think that a competitive bid process for folks to come in and evaluate it, I think the market would take care of that one.
▶ 1:05:43Mr. Radel: My suspicion would be there is probably asbestos contamination in the building.
▶ 1:05:47Sen. Whitehouse: In the building itself, yeah.
▶ 1:05:50Mr. Radel: That can be significant, so I think an rfp for folks to come in and look, first this pestis evaluation and then bring folks in to look at it and get a sense for who would put an investment in to take on that risk would be worth wild, because I could see that being a motivating factor for folks to get involved and clean that up.
▶ 1:06:11Sen. Whitehouse: Waterfront property, no less. >> epa does have a policy called redefinition of superfund sites where you can redefine the site boundaries and segregate that property.
▶ 1:06:24Chair Capito: I'm going to go to senator who stated, since I'm just getting back into the committee.
▶ 1:06:32Sen. Husted: . Thanks for joining us today. Ohio is a state that has traditionally been part of our nation's manufacturing heritage, and over time has had the legacy of some of the challenges of those industrial sites. We have had 38 superfund sites, 31 of them have been addressed, but we have some that have been pending since 1993.
▶ 1:07:04Sen. Husted: One that has been pending since 1993. Many of these have been pending over 15 years or are over major aquifers, which citizens in our communities get that our water. And whether it be a storm, hurricane, or the constant fact that we get rain a lot and there is drainage and all kinds of things that happen to these sites over time and how it can affect people's quality of life,
▶ 1:07:38Sen. Husted: Health, what can we do? Speed this up? I'm interested in learning from all of you today, what action can we take -- what action can the government take, what action can states take -- and I want your best thoughts on how a state like ohio can do a better job on cleaning up these last seven that are hanging out there. We'll start with you, Mr. fox.
▶ 1:08:04Mr. Fox: I worked on the painesville superfund site, so I'm well aware of what is going on in ohio. I really think the superfund remedy selection process is completely broken. And I will tell you why. I have done work on superfund cleanups, stay voluntary cleanups, and there is really three issues. It goes to what Mr. radel said. It is, who is exposed? Meaning, who are the receptors? Contaminants are they exposed to?
▶ 1:08:33Mr. Fox: And how do we cut off those exposure pathways? Those are the three things. We have gotten bogged down in making the perfect the enemy of the good. And the good is for the remedy to be protected. It is always that, to make the minute -- the remedy protective. But the process is so burdensome and takes so long and is so costly that we don't serve the cleanup --
▶ 1:08:56Sen. Husted: Is that a law or regulator problem?
▶ 1:09:00Mr. Fox: That is the way the national contingency plan, which is the process for selecting the remedy, is implement it. It is not the law, it is the way it is being and plummeted. You cannot have these being a science project. We want them to be technically sound. But you cannot have a process where you do not get a remedy selected for 20 years. That has to change. Also just to give you one example of this, I mentioned I worked at the qantas canal.
▶ 1:09:32Mr. Fox: When a remedy was selected and they looked at the cost of implementing two cso tanks, they thought the remedy for that was going to cost $77 million for the city of new york. The current estimate for that is over $2 billion. So, that has to change too. A realistic cost of what the remedy is to achieve the cleanup goals has to be incorporated into this process.
▶ 1:09:57Sen. Husted: Mr. radel: Mr. radel? I think robert hit the key points we have talked about in our summaries, but I would say communal, not knowing anything about these seven sites, but the fact that they have been looked at in the superfund process for 20-plus years, I recommendation would be bring in a new team and audit all seven, and just see where they are at and how we can get to -- I will use a football analogy.
▶ 1:10:25Sen. Husted: It's got to be so much data on the sites that you can almost come up with, you know, what is the hurdles here? What are we waiting on? I think sometimes there's issues on the community side where maybe there is hesitancy to move things forward. But the flipside is the community has been winning for 20-plus years for something to happen. That is why they are upset. And who can blame them? I think a fresh set of eyes to audit these projects, and hopefully can clear the way that this is not a 30 year project, as rob said.
▶ 1:10:57Sen. Husted: Let's get to the end chapter. Let's get to that end zone and look at it. My inclination would be that there is so much data out there that if there is some data gaps, if there aren't any gaps that have to be completed they are minor and there is things that should be able to be done in relatively short order, just in my opinion, because of the fact these sites have been ping-pong around. >> I think a new set of eyes would help audit that process.
▶ 1:11:24Sen. Husted: >> senator, I would say because it is that the epa regions where the work is taking place, so you want to make sure that for ohio in region five they have the people they need to do the work. So, I do agree that the remedy selection process takes a long time. It takes a long time sometimes to list sites, but also get them cleaned up.
▶ 1:11:46Sen. Husted: But you want to make sure you have got the staff, the regional staff who are doing the work, like the remedial project manager, for example, for each of those sites.
▶ 1:11:57Sen. Husted: Thank you. Chairman o? >> thank you, madam chairman. When I was first elected in the senate congressman bloom and howard took me out on the cumbia -- excuse me, one meant river for a 10 mile stretch. He said, this has been going on for 10 years. This has to be resolved before I retire. He retired last january.
▶ 1:12:28Sen. Husted: I watched this split enormous frustration. Essentially the projects involved, testing of the soils along this 10-mile stretch, deciding what to excavate, what to cap, and in doing that, during those two things. And what to leave to natural erosion. So, finally, 17 years after it was listed there was a record of decision about what to do. Still, basically, nothing has happened for cleanup.
▶ 1:12:58Sen. Husted: It appears to me that the process is stalled, waiting for a resolution about who among the potentially-responsible partners will pay what. Which means all kinds of lawyers being hired every which direction. All sorts of subgroups being formed to challenge the epa's decision in court. I think it has gone through three rounds of testing the river, because every seven or eight years it is like, maybe the river has changed.
▶ 1:13:30Sen. Husted: We need to re-examine where the contaminants are. How do we stop this eternal process of planning and actually do the cleanup? Do we need to dive into the cleanup after the decision and not wait for the responsible, potentially responsible, partners to sort out who will pay for it? How do we pay for this now that we are 25 years now into this project? I think this is emblematic of what has happened in many superfund sites.
▶ 1:14:03Sen. Husted: Whoever feels like they have the best insight on how to fix this.
▶ 1:14:07Mr. Fox: I'm involved a lot of that litigation, so I will speak about interest. Those transaction costs should never slow down the cleanup. Epa has many tools. I mentioned a couple, but they have other enforcement tools to bring the parties forward to do the work. They have to create the incentives for those parties to do it.
▶ 1:14:29Mr. Fox: So, you cannot go to the same companies, deep-pocket accompanies every time and say, you have to pay 100% of the costs and you figure out how to sue the other 100 parties and spend 10 years in litigation doing that. That is inefficient. I agree with you. I know the portland harborside. Contaminated settlement sites are more complex than your typical site.
▶ 1:14:52Mr. Fox: There are examples where they have been -- there has been a remedy selected in two or three years and the work started and partially completed. So, that remedy selection process is the obstacle. It is not private parties suing. That can happen -- happen completely separately from the actual remedy selection and cleanup.
▶ 1:15:13Sen. Merkley: So the remedy in this case, the record of decision was made. Should the federal government be paying for the work until the responsible partners sort out who pays for it?
▶ 1:15:23Sen. Merkley: There is many options they have. One is, they could do the work themselves and seek to recover it later. Two, they could have the private parties come forward and do that, in order to incentivize the private parties to do that those parties want to know that they are not going to be in years of litigation to recover. And if there is 100 parties at the site and the federal government says, you four do it and spend the rest of your time going against those other 96, that is inefficient.
▶ 1:15:52Sen. Merkley: Ok, well it is massively complex than I have watched as personal have changed in terms of trying to drive the process forward. I think there is probably several dozen very well-intentioned employees of epa who have burned out over the process of trying to drive this forward in the context of lawsuits and resistance and re-examining.
▶ 1:16:19Sen. Merkley: I would like to see the work done and get on with other challenges as opposed to spending endless years and amounts of money planning, replanning, replanning, trying to figure this out. If it requires major changes in how the law is designed want to understand those and see if we can make this process work effectively. I'm externally concerned now about the cuts to epa's staff. On how that may reverberate in terms of people continuing to drive the process forward.
▶ 1:16:50Sen. Merkley: My whole impression has been that the potentially responsible parties understand every strategy for delay and are pursuing those, because they don't want to pay out. This is going to be a billion-dollar cleanup. They don't want to pay for a billion-dollar cleanup. So, they have been very effective at working that angle, and having epa competent staff are essential to keep the project moving forward.
▶ 1:17:18Sen. Merkley: With reductions in those staff we may see the problem just get worse.
▶ 1:17:23Chair Capito: Thank you. We are hearing a lot about what is driving the costs. I talked about the superfund premium. I think from the testimony we may not have the same name for it, but it is falling under the same umbrella of what I was talking about. Let me dig deeper on this remediation plan Mr. fox, that you have talked about. Is it a matter of the best strategy to clean up a site?
▶ 1:17:57Chair Capito: Is it arguing over the best way to do it? We have heard it is not really arguing over who is going to pay for it, or is that the hold up or is it the science has not been done, or I don't know. .21 or two or three things in this process that we could change that would make this go faster.
▶ 1:18:13Mr. Fox: First of all, I don't want -- I want to say it is not who is responsible for. That is not the hold up in my mind. Going to echo what Mr. o'dell said. That is, there are very known ways to evaluate what the risk is at the site. And how to clean them up.
▶ 1:18:33Mr. Fox: Some sites are more complicated than others, but those general principles I mentioned about knowing who is exposed, knowing what they're exposed to, and eliminating those pathways, I don't want to use the wrong term, but it is not rocket science. We have been doing this for a long time. What happens is, the process is so cumbersome, the reports, the back-and-forth on scientific stuff, it is not a science project you have to study every molecule.
▶ 1:19:01Mr. Fox: You can get there must -- much faster, get a remedy selected and, by the way, superfund contains a sale that shall failsafe because the statute requires that every five years the remedy that is selected and implement it is reviewed to see whether it is protective of the environment. So, let's get it done through a much more streamlined remedy selection process. That is the major hold up, as I see it.
▶ 1:19:27Chair Capito: Mr. o'dell, I'm going to ask you, I'm assuming that you have done cleanups for superfund sites and cleanups for private or estate-level cleanups? Ok. So, I want to contrast those. When you do a cleanup for a state or maybe for a private entity and you don't have this cumbersome process, would you agree with Mr.
▶ 1:19:52Chair Capito: Fox that some of the things thrown into the superfund process -- so, how does that work in a different, when you are doing it for the state or a private entity? You mentioned a site in west virginia that is a superfund site you are getting ready to do at the mcelroy mind, is that correct?
▶ 1:20:08Mr. Radel: That is not a superfund site, but have a better example. The site we closed on in 2022 in indiana was a superfund site. If we had done that cleanup under the voluntary program of indiana versus how we did it under the superfund program just my consulting costs alone and to some extent my legal costs probably two times more, doing it on the superfund site than if we were in that same work under
▶ 1:20:39Mr. Radel: A voluntary program. As rob said, it is almost like when you have you little kid anxious to go out and play. When we have a site we want to clean it up. You want to get started with the remedial investigation and get to the allright and superfund have to stop, you have to do so many of the plans you have to do. By way of example, quality assurance project plan where you go through basically a real thorough analysis of the laboratories you are going to use, to test the groundwater, the dirt, and things.
▶ 1:21:12Mr. Radel: And it is a very detailed process. It is an expensive process. There is smart people involved. The reason epa certified labs
▶ 1:21:22Chair Capito: They are already certified?
▶ 1:21:23Mr. Radel: I have to do this extra level of detail to satisfy the superfund requirements. That is one small example, but it compounds. Instead of getting focused on, what are the issues, how do we do with them and clean them up? To be protective of human health and environment and an integrated development we are still in this process.
▶ 1:21:41Chair Capito: It begs the question, if you are using an epa-certified lab what you have to keep going back and research?
▶ 1:21:49Mr. Radel: Chair capito: my question, for sure. Mr. fox, just from the folks that live in and around superfund sites, they have great economic development promise, in my view, because they are clean. It is much easier for a developer in some cases to come in because the work has already been done. What do you see when you go into different communities about the restlessness of, why is it taking so long?
▶ 1:22:17Mr. Radel: Not adding the economics onto the health issues that are sometimes associated with these sites? I think what we are doing is stymieing communities from being able to have confidence that they can redevelop or be living in a healthy community.
▶ 1:22:30Mr. Fox: I agree with you 100%. I see it over and over again. Communities are frustrated because the potential exists for a win-win-win. The development of the side, protective of their human health and environment. In the longer it goes on they become distrustful. They become distrustful of epa. They become distrustful of the private parties doing the work. And it feeds upon itself.
▶ 1:22:57Mr. Fox: Speeding up the process will get this back to productive use and eliminate the exposure of these communities, and they will eliminate that distrust.
▶ 1:23:03Chair Capito: Thank you. >> thank you. And thank you to the witnesses, as you can hear from the questions being asked I think this is an issue that cuts across party line. It cuts across rural, wherever you are. We know that the superfund program is vital. It ensures our lands is clean.
▶ 1:23:36Chair Capito: It is important for economic of element issues and protects the health of americans even after the original polluters are gone. By cleaning up these industrial pollutants we can decrease the risk of cancer, heart disease, and respiratory illness. Mr. gomez, your testimony and extensive research on the superfund program highlights issues related to site complexity as a factor in delays.
▶ 1:24:02Chair Capito: Can you further discuss how site complexity leads to delays and how to -- how a project may utilize funding to clean these types of sites?
▶ 1:24:12Mr. Gomez: Sure. We have also been talking about the sediment sites. I think everyone has had examples. Senator merkley talked about on in his state. In those sites where the sentiment is contaminated, it could be miles along the river. So, those are areas that, you know, take a lot of work and resources for epa to figure out the contamination, where it is spreading.
▶ 1:24:38Mr. Gomez: There are other site characteristics that can become located in terms of title movements. So, pigging out in those cases where the contamination is, what is it, is it migrating? How to contain it, how to treat it. That acquires a lot of time and resources. Those are the biggest sites. They take over a decade to work on. I think senator merkley talked about over 20 years in his case. I know that in your state there are some as well better sediment sites.
▶ 1:25:09Mr. Gomez: There is a lot of knowledge and information already on treating and dealing with sediment sites. Even though each superfund site is different, right? But there is a lot of knowledge and expertise already there that the agency needs to make sure that it is using as it moves forward.
▶ 1:25:24Sen. Blunt Rochester: I would say, you know, we know that this takes reliable and robust funding to really deal with the cleanup of these contaminants. It is why the bipartisan infrastructure law was so important. Someone mentioned the ira as well. In delaware we have standard chlorine, a site that is known as an orphan side, because the original polluter has since gone bankrupt.
▶ 1:25:54Sen. Blunt Rochester: So, again, back to how that impacts communities. This has left the site in the hands of the state and epa to clean up and protect the community's health and safety. Mr. gomez, the standard chlorine site is a complex site. What factors should be considered before a cleanup takes place or is completed?
▶ 1:26:20Mr. Gomez: This is one of the orphan sites you were talking about? Also, the orphan site is an area the epa has to figure out. If it tries to find a responsible party, otherwise it has to do it itself, right? And try to recoup those funds. That is where appropriations do come into play, right?
▶ 1:26:41Mr. Gomez: Because you want to make sure that funding is available to start new projects in that case, because epa historically focuses appropriations on ongoing remedial action. So, we have learned from our work is that in the past epa doesn't start new, remedial actions, because it doesn't have the funds.
▶ 1:27:02Mr. Gomez: Because it is prioritizing the funds it has continued the cleanup on those that are already taking place, because it is less-expensive to continue that, whereas if you stop them you have to re-mobilize all of the equipment that you are working on. So, yes, for orphan sites it is a challenge, but when there have been supplemental appropriations the agency has been able to focus on those. You mentioned the infrastructure act.
▶ 1:27:33Mr. Gomez: That allowed epa -- in fact, I think their latest report to congress from last year, over 100 sites were able to start remedial actions, so have been using those funds for that purpose.
▶ 1:27:44Sen. Blunt Rochester: And I know we can all speak to the health aspects of this. But could you speak specifically to it for complex sites? For example, does the epa need to consider contamination migration? Can you talk a little bit about that as well?
▶ 1:28:02Mr. Gomez: Sure. For these sites, you know, there is a lot of sampling that has to take place and modeling. The sampling a sort of getting out what you are talking about. Thinking about, first trying to characterize what the contaminants at the site are, if they are migrating, where they are going the modeling aspect is, again, trying to figure out the inputs from the data that you are collecting in the sampling to figure out, again, how the contaminations might
▶ 1:28:33Mr. Gomez: Migrate, but also how it might affect the risk that is there. And so, those are things that take a lot of resources and take a lot of time from the agency. There is also uncertainty in the model, so that you have to spend enough resources to make sure that the models are predictive of what might actually be taking place.
▶ 1:28:53Sen. Blunt Rochester: I have run out of time. So, I will submit more questions for the record, but thank you so much to the witnesses and I will also submit some questions for the other witnesses as well guarding complex sites. Thank you and I yield back.
▶ 1:29:08Chair Capito: Thank you. Senator schiff.
▶ 1:29:10Sen. Schiff: . Congratulations on your staff might report and the confirmation process. You have the best training process -- possible, really. I think you all for coming in to testify. Mr. fox, good to see you again. We are law school classmates. Somehow you must be in a much less stressful line of work. You still have much more hair than I do. Mr.
▶ 1:29:37Sen. Schiff: Fox, you testified about one idea to improve the timeliness of cleanup, and that was mandatory agency review times. I guess I have a couple of related questions. One is in the states that have adopted those kind of time periods, what is the repercussion of the agency? If it doesn't get the work done in time? Is it an automatic approval of the remediation plan?
▶ 1:30:04Sen. Schiff: A related question is, if we are -- I mean, it is an attractive idea I've thought about in another context, but if we don't have the staffing at epa we further reduce staffing, if the reason for the delays by the agency is just there are not the personnel, and does that work or does that just result in remediation being approved without any review?
▶ 1:30:31Sen. Schiff: So, how much of the issue of the current delays is simply lack of capacity at epa? And does your proposal work if we do not address that?
▶ 1:30:43Mr. Fox: That is a fair question. I don't think it is lack of staffing. I could say new jersey is a deemed approval. If you do not respond within different time frames -- and there is different time frames different reports in the regulations. Then it is a deemed approval. You don't want to deem the approval, to be honest with you. Goal is not to get something approved because the agency has not reviewed it. The goal is to make the agency review it. It has worked.
▶ 1:31:15Mr. Fox: It has speeded things up tremendously, and I would say we certainly have not over-funded our state agency in pennsylvania. So, I think that is a real issue, but I don't think that is the heart of the problem. It is the time it takes to review. It can go on for years before you get a response. That just can't happen.
▶ 1:31:36Sen. Schiff: We have seen that in california. If it is not staffing, what do you think that it is that accounts for such delays?
▶ 1:31:44Mr. Fox: I think it is the overly-prescriptive nature of the superfund remedial selection process. Which has too many bells and whistles that are unnecessary. Steve gave one example. There is a number of different examples. It is just overly-prescriptive and unnecessary to get to a protective remedy.
▶ 1:32:04Sen. Schiff: Mr. gomez, do you have a similar or contrary view on that?
▶ 1:32:11Mr. Gomez: There is something to be said for that. What we have learned, that it is important to have the staffing that is there, I think the superfund program has been in place for a very long time. So, I think there is an opportunity, right? Especially as congress is considering changes, to look at the process and perhaps look to see where most of the time is spent. We have some new work we are starting.
▶ 1:32:37Mr. Gomez: We are going to be looking at the funding and then some planned work to just look at the overall superfund process. In those places perhaps where there are the longest times, try to figure out why and what can be done to change it.
▶ 1:32:52Sen. Schiff: The jojo website -- the doge website intends to shut down the office in los angeles. Can you describe what those regional offices do and what that will mean in terms of superfund sites around lh?
▶ 1:33:07Mr. Gomez: Sure. In the program the work takes place at the regional offices, right? So if you're going to make changes, any kind of changes, you have to keep in mind how those regional resources might be affected. Because those are the folks that are doing the work. So, I think we are also in our work waiting to see if there are going to be any proposed changes. What that may mean for how the program is carried out.
▶ 1:33:34Sen. Schiff: If that office closes than they would have to deploy epa personnel from further away, is that?
▶ 1:33:43Mr. Gomez: I think that is one of the comments out there. Is that people might be given additional responsibilities, and so how that may affect their work is yet to be seen, if that takes place.
▶ 1:33:57Sen. Schiff: Among others you are probably familiar with the acid pits in riverside county that was added to the national priority list, and apparently it has been on that list your after year. Appreciate your testimony, and the suggestions you have made, and thank you, madam chair, for holding the hearing. Will follow-up with additional
▶ 1:34:19Questions Chair Capito: For the record.
▶ 1:34:20Chair Capito: Thank you. I believe senator kelly is on his way. While we wait I would like to ask an additional question. On the train derailment in ohio several years ago we had testimony in this committee about epa's role. We also heard again, delays in cleaning it up.
▶ 1:34:45Chair Capito: And part of the problem from my understanding was that certain states decided, even though they had certified probably epa certified toxic folks that could take the toxic material into their businesses, that is their business. That certain states said, we don't want that in our state. I believe michigan was one of the states that said this.
▶ 1:35:13Chair Capito: Have you run into this type of issue as you are remediating in -- either you Mr. fox, or Mr. radel, where you have had a fuse of -- a refusal to accept toxic materials that you are taking? I'm assuming you do this, take it to an epa-certified site? Is this an issue?
▶ 1:35:34Mr. Radel: My experiences we have not run into that. If you're going to an off-site location that is permitted to accept those hazardous wastes and they have a permanent facility that is either a landfill, incinerator, or whatever it might be. So, you know they have the permit, you have the right permits and the right transported. I have not seen macron instance in my experience for anything has been denied because we are using all the proper protocol.
▶ 1:36:01Chair Capito: That's what I thought. Mr. fox, do you recall that?
▶ 1:36:05Mr. Fox: There's two issues. One is, there is a limited number of hazardous waste disposal sites. So, you don't have this great selection. I suspect that a lot of that was community opposition.
▶ 1:36:17Chair Capito: It was.
▶ 1:36:21Mr. Fox: The facility is properly permitted but the committee says, I don't want that waste. You are putting an end to my community. I'm assuming that probably what was behind it.
▶ 1:36:31Chair Capito: Any kind of blows up into --
▶ 1:36:34Mr. Fox: A political issue as opposed to a regulatory issue.
▶ 1:36:38Chair Capito: These are professionals that are, you know, going to the letter of the law to be able to dispose of this and actually creating a business model tt can help you and help all of these other sites. It was rather -- I'm shocking not just to me, but to them, that this was going on. When the sites have been there forever, the cleanup sites.
▶ 1:36:59Mr. Fox: Trust me, to get a permit for hazardous waste disposal facility is a rigorous process.
▶ 1:37:06Chair Capito: My understanding as well. Senator kelly?
▶ 1:37:10Sen. Kelly: Mr. gomez, good morning. Want to ask you about, or your perspectives about a group of superfund sites. The more than 500 abandoned uranium mines on the navajo nation. I have discussed these frequently before this committee. Want to get your perspective on how we address this issue. First off, as you may know, the navajo nation is spread across three states. Actually four now, with a little purchase in colorado.
▶ 1:37:41Sen. Kelly: The majority of the nation, it is in arizona. It is about the size of west virginia, the navajo nation. But it stretches into both utah and new mexico, as well as and there are abandoned mines in all three states. Worthen 500 of them. And as you may also know, those three states are all served by different epa regional offices. Arizona -- arizona is region nine. New mexico is region six.
▶ 1:38:12Sen. Kelly: While region nine is the lead offer all issues on the navajo nation, we have run into issues because of the split jurisdiction. For example, minds just off of tribal land or coordinated through other regional offices. And often it is other epa regional offices in new mexico or utah that have relationships with hazardous waste landfills and contractors, and responsible parties to carry out this cleanup.
▶ 1:38:42Sen. Kelly: As to gomez, are you aware of other similar instances where a group of superfund sites stretch across epa regions?
▶ 1:38:54Mr. Gomez: That is a really good question, and I'm not aware that that is the case, but we can look to see if other tribal nations are spanning across multiple epa regions. But at this point I cannot recall of one, but we will double check.
▶ 1:39:15Sen. Kelly: Congress has periodically established geographic offices at epa to help carry out programs within a region that faces similar issues by virtue of geography, including the great lakes the chesapeake bay office. When it comes to superfund cleanups, what role have these offices played in helping to coordinate efforts in a more streamlined fashion?
▶ 1:39:43Mr. Gomez: We can look at that. I am very familiar with the great lakes office, as you noted. That is a separate office as well. We can look to see, to the extent they have worked with the epa region five in this case for the midwest, to see whether they go back and forth in -- in sharing information. That is a good question.
▶ 1:40:08Sen. Kelly: My sense is that they probably do. Another challenge that has been faced in cleaning up the navajo nation minds is that the remedial actions identified for mine sites are extremely costly and it is technically challenging. In many instances the preferred solution would require digging up hazardous waste and transporting it hundreds of miles to waste repository.
▶ 1:40:34Sen. Kelly: And this seems like a classic case of needing to find a new and different technological solution to address this kind of cleanup. So, Mr. gomez, what tools and authorities exist within the superfund program to accelerate research and development efforts to find new and more cost-effective site cleanup methods?
▶ 1:40:56Mr. Gomez: Sure. The office of research and develop men at epa is the one that does a lot of that research. That the superfund program relies on. For example, toxicity studies. Research on new technologies to make sure that the remedies are working as intended. So, there are those opportunities there that are currently taking place. And you can go back and forth. You are right that mining sites are the sites that are very costly.
▶ 1:41:26Mr. Gomez: In our past work when we have looked at the cost to remediate sites mining sites are pretty high. Because of the things you talked about in terms of having to dig it out, transporting the -- the waist, moving it off-site, and then treating it. Those are challenges for epa.
▶ 1:41:42Sen. Kelly: It is good at epa, epa has research and develop men efforts underway to solve challenging problems like this. I will note that a lot of the west faces very similar issues what we are seeing on the navajo nation. And I think the entire region could benefit from the expertise of geographic office, like the great lakes office.
▶ 1:42:08Sen. Kelly: That is why senator lummis and I introduced legislation called the legacy mind cleanup act, which would authorize an office of mountains, deserts, and planes at epa to address issues unique to the western united states. Madam chair, I know we have had a good conversation with your staff and I hope to find a path forward for this legislation through the committee process here in the coming weeks.
▶ 1:42:32Chair Capito: I will take a look at it, thanks. I think senator whitehouse has a final question.
▶ 1:42:37Sen. Whitehouse: If you don't mind, chairman. Think you very much. This is for Mr. fox. Have had a lot of experience in this space. There is a phenomenon I think is real that I would like you to react to, which is that when there is a focus on a particular superfund site and there is a particular potentially-responsible party who has the deep pockets to do the necessary funding to clean up the site and they become kind
▶ 1:43:10Sen. Whitehouse: Of a primary actor in that superfund cleanup, they can have motives of their own. They can wish for control over how the remediation is done and argue, hey, I'm going to end up paying for this. I'm entitled to a voice in how it gets done.
▶ 1:43:33Sen. Whitehouse: They can have a desire for control over what happens with other potentially-responsible parties. And there have been cases in which the primary target, if you will, the primary funder stalls things to push epa to look for a greater contribution from other responsible parties.
▶ 1:44:02Sen. Whitehouse: And then they can have a third concern, which is that if they can put a fixed expenditure on their books year after year for this cleanup so that it just doesn't affect the bottom line particularly, then they have a sudden incentive to draw out the remediation as long as they can, both to keep the annual number under what they have internally allocated to the problem and
▶ 1:44:34Sen. Whitehouse: Because, who knows? Somebody might come out and throughout the whole epa superfund team, and now they can come in and say, we've got all sorts of new opportunities here to shut down our own responsibility. So, it strikes me that the prp is not necessarily the victim entirely of your credit delay but in particular circumstances can actually be a cause and protagonist in the question of delay of the cleanup of the
▶ 1:45:04Sen. Whitehouse: Site. And I would be happy to have you respond to that now, and I would also be happy to have you come you know, write out a more thoughtful and complete answer, if you would like to. I see circumstances in which prp has been problem -- part of the problem and not the solution. I think that is a fair question. It is a complex question, which I will probably have to write, but I will give you a couple of quick dots. The first one is on the control over the remedy.
▶ 1:45:33Sen. Whitehouse: I think it is correct that private parties would like to control the remedy, but understand that the way the statute is written ultimately the decision on the remedy is always the agencies. Even if a private party is under an order to suggest what the remedy should be. The selection of the remedy is done by the agency and the statute does not allow for pre-enforcement review of that selection. So, there is only a certain amount of control you can get on remedy selection. The second point you made with respect to going against other parties is undeniably correct.
▶ 1:46:07Sen. Whitehouse: A central prp is always looking to spread those costs among other parties, whether they do it through their own litigation or encourage epa to pursue those parties. That is clearly a dynamic that happens at site after site. I would quibble with you a little bit on wanting to spread out the costs over time. And the reason I would quibble with that is because time, the cost expands to fill the time.
▶ 1:46:34Sen. Whitehouse: The longer these go on the costs increase. Not just the transaction costs to get to the remedy selection, but the cost of the remedy increases as well. I'm not sure that in all cases it is in the economic interest of the private party to say, let's string this out over time. It may be better to have a more cost-effective remedy done quickly, and then try to spread those costs among other parties. I'm happy to expound upon that in writing.
▶ 1:47:02Sen. Whitehouse: I think on that last point, while the argument you have made may be the case in certain circumstances I don't get obviates the prospect that there are times in a large corporation wind, to put something under cap so you know what is going to be and you have money working in your favor because it is your expense you are moving it out to, when the financial logic of the prp's role becomes one that
▶ 1:47:33Sen. Whitehouse: Incentivizes delays.
▶ 1:47:33Mr. Fox: I can't say that never happens. I'm just saying it doesn't always happen that way.
▶ 1:47:40Chair Capito: Good. I would like to think the witnesses and all of my colleagues for participation. Senators who wish to submit questions have until 5:00 p.m. On wednesday, april 23rd two do so. The witness's responses are due back to the committee no later than close of business wednesday, may the seventh. I would like to say just in closing that I think -- first of all, this has been an excellent hearing because you are also knowledgeable on the issue, having lived it.
▶ 1:48:08Chair Capito: I think we have good bipartisan agreement here that the system is broken. We put our money into this recently, and we want to see it resolved and the completions of these projects as much as you do. It's work together to find a solution and hopefully we can ameliorate some of the problems that have been identified today. Thanks very much.
▶ 1:48:28Sen. Whitehouse: I will second that.
▶ 1:48:30Chair Capito: Thank you. This hearing is adjourned.