Senate Subcommittee Superfund Hearing Highlights EPA'S Top-Ranking Superfund Official, Bodine, Undaunted by Large Number of Mega-Sites and the Diminishing Funds for Cleanup

October 17, 2007, the U.S. Senate Committee on Environment and Public Works Subcommittee on Superfund and Environmental Health, Chaired by Senator Clinton, held a hearing entitled "Oversight Hearing on the Federal Superfund Program's Activities to Protect Public Health." The event was webcast live and is archived online.

After watching the webcast and reviewing the prepared testimonies, I asked Alex Fidis, Federal Environmental Health Advocate and Staff Attorney, U.S. Public Interest Research Group (PIRG), to answer a few questions.

Brooke Singer: Why was the hearing important, if at all, and why now? Is the timing related to any specific event?

Alex Fidis: The Senate Subcommittee hearing represents an important first step to address long-ignored problems with Superfund. Over the past four years, Congress has neglected its responsibility to conduct Superfund oversight – hearings that are required to judge the progress of toxic waste cleanups and to identify potential problems. The hearing, although welcomed, comes at a dire time for the Superfund program. Since 2000, cleanup progress at Superfund sites has significantly slowed – from a high of approximately 88 per year at the end of the 1990s, to a near record low of 24 in 2007. This cleanup slowdown is directly due to severe funding shortfalls that deny toxic waste sites necessary cleanup money. Superfund has been shortchanged on cleanup funding since the polluter taxes that once funded cleanups expired in 1995.

BS: Was there anything new in the testimony that piqued your interest or is this pretty much rehashing old arguments and information?

AF: The hearing reiterated previously identified Superfund shortcomings, focusing on the three major problems with Superfund cleanups. First, we no longer tax polluters to fund toxic waste cleanups. Without this source of income, Congress has increasingly drawn on scarce taxpayer money in an attempt to maintain progress at Superfund sites. Unfortunately, there is still not enough money to fund all cleanups. Second, EPA is obfuscating Superfund’s problems by withholding from the public information about the funding and cleanups of specific Superfund sites. EPA’s opaque management of Superfund prevents the transparency necessary to ensure that all federal programs operate as intended. By not providing clear and accurate information on Superfund, EPA is basically attempting to sweep the problem under the rug. Finally, EPA has been derelict in its enforcement responsibilities – allowing major polluters to evade or reduce their legal obligation to cleanup toxic waste sites . Without the polluter taxes and with a decreased emphasis on enforcement, more and more polluters are NOT paying to cleanup their toxic waste sites.

The most interesting and new revelation from the Subcommittee hearings, involved EPA’s attempt to conceal Superfund’s financial problems. Bradley Campbell, a former Clinton EPA Administrator and head of New Jersey’s Department of Environmental Protect, revealed that EPA staff had been instructed to lie to the public about the reasons for not starting toxic waste cleanups. Internal emails showed that EPA staff was directed to find a technical basis to reject or delay a cleanup because funding was not available.

BS: The testimony of Susan Bodine, Assistant Administrator, Office of Solid Waste and Emergency United States Environmental Protection Agency, struck me as odd because she seemed to be saying that the financial status of Superfund is just fine and there is no need for more money. [Watch the webcast approximately 43 minutes into the proceedings to witness the back and forth between Bodine and Senator Boxer (D-CA) as they dispute the apparent health of the Superfund program.] How can she take this stance when the Trust Fund is broke? What I keep hearing at the sites I visit is that there is not enough money to move forward or to do proper cleanup. And Superfund is weakened politically without a robust Trust. So I am curious about this gap in perception and why it exists.

For me, the oddity was summed up most eloquently by Rena Steinzor, Jacob A. France Research Professor of Law, University of Mary land School of Law Scholar, Center for Progressive Reform, when she said: “It is difficult to complete cleanup at the biggest, most contaminated sites [that exist today]...But up until a few years ago, our government rolled up its sleeves and deployed the complicated technology and significant resources that are required to get difficult jobs done. Agencies in charge of such efforts did not come to Congress demanding fewer resources as these challenges became more daunting, as EPA now does.”

AF: Susan Bodine’s insistence that the Superfund program does not need additional money is an attempt to prevent the reauthorization of the Superfund polluter taxes. In stating that there is ample money to cleanup Superfund sites, Bodine and others vitiate arguments to reinstate the polluter taxes. However, the Superfund trust fund is bankrupt. As a result, Congress must appropriate approximately $1.2 billion in taxpayer money each year to keep Superfund afloat. This money, however, is not sufficient to cover the program’s annual costs, which is why we are witnessing cleanup delays and a precipitous decline in completed cleanups. The sleight of hand that allows Bodine to say that Superfund is financial stable when in fact the trust fund is bankrupt occurs when Congress shifts money from general revenues (i.e. taxpayer dollars) into the trust. At the end of each fiscal year, the trust is bankrupt and Congress again has to appropriate money.

BS: And is there ever talk about stopping the use of the typical chemicals and industrial processes that cause Superfund sites at hearings such as this? I know there is currently a bill being proposed to ban asbestos in the US (although it has been known for a long time now how damaging it is to human health!). One would think if the idea is to bring the number of Superfund sites down and ease both the health and financial burdens of toxic sites then the Superfund discussion would also focus upon altering practices and pushing for new, greener alternatives. I did not hear anything along those lines.

AF: Yes and no. Yes there is talk about phasing out the use of hazardous chemicals where safer replacements are available, but no real progress has been made on this front. The Superfund law works in conjunction with two other laws, the Resource Recovery and Conservation Act (RCRA) and the Toxic Substances Control Act (TSCA). RCRA regulates hazardous waste from cradle to grave and requires proper procedures for transporting, storing and disposing of dangerous waste. It is the law that made dumping toxic wastes illegal and has reduced the number of new Superfund sites created each year (EPA still estimates that 600 new sites are contaminated each month, but the majority of these sites are not likely to be Superfund-caliber). TSCA is a failed US law that was intended to prevent or limit the use of dangerous chemicals. Unfortunately, the law, as currently, written is weak and has never really been enforced due in large part to chemical industry opposition and a few bad court cases. Basically, the US does not require health and safety tests to prove that chemicals are safe before they are used in commerce. As a result, there is very little information on most of the chemicals we are exposed to. In the rare cases where EPA does identify a chemical as being toxic, it lacks the basic authority to restrict or ban the use of a chemical.

You cite asbestos, which is the tragic case. EPA attempted to restrict the use of asbestos in the 1980s and spent 10 years collecting evidence of the adverse health problems associated with exposure. When EPA acted to restrict the use of asbestos, the industry sued and won a horrible decision in the 5th Circuit (one of the aforementioned cases that emasculated TSCA). So asbestos continued to be used even though we KNEW it quickly caused lung cancer. Congress finally acted in the 1990s and restricted most uses of asbestos. The bill you refer to would eliminate the rest. However, Congressional action is rare and inefficient on a chemical-by-chemical basis (we have only banned/restricted four toxics PCBs, lead, asbestos and DDT).

To answer your question, momentum is building to reform TSCA to be more protective of human health. The simplified version of the reform is the adoption of the precautionary principle. Chemical companies must prove to EPA that what they use is safe before they use it. The reform would also give EPA stronger authority to ban harmful chemicals. Focusing on toxic chemical use reduction is arguably the most effective way to prevent future Superfund sites…ounce of prevention, pound of cure. BS: And finally, I am interested to know what you think this hearing will lead to, if anything.

AF: There is a concerted interest to reinstate the Superfund polluter taxes. Oversight hearings help to uncover and frame Superfund’s funding problems, laying the groundwork for legislation to reauthorize the taxes. I would expect to see more oversight hearings, with the next coming from the House Subcommittee on Environment and Hazardous Materials. Although bills to reauthorize the taxes have been introduced in this Congress, President Bush has long-promised to veto any such attempt. Consequently, the most likely scenario is that Congress will continue to conduct oversight and fact gathering and wait until a change in administration before any serious attempt to renew the Superfund taxes.

BS: Thanks Alex!

Related Links:

Kate Sheppard writing for Grist.org says: The EPA inspector general, the Government Accountability Office, and Congress have all issued reports on the Superfund collapse, but EPA officials in the Bush administration have done little to support the program. The top-ranking Superfund official, Susan Bodine, has a record of defunding the program she was appointed to head. In 1999, she helped author a bill that would have decreased the Superfund budget by $300 million (it failed), and just a month after her confirmation Bodine supported a $7 million decrease to the cleanup budget. She later stood beside the Bush administration's budget request for 2008, which reduces the budget by another $7 million.

From Chemical and Engineering News:
At a contentious hearing before the Senate Subcommittee on Superfund Waste Management on June 15, EPA was accused of withholding details of hazardous waste cleanups from the public. Sen. Barbara Boxer (D-Calif.) charged that, after waiting months for EPA to provide data on a number of Superfund sites, the information she finally received was classified "privileged" and she could not share it outside of the subcommittee. The documents include data on timing of cleanups, funding shortfalls, and human risk, Boxer said. "It's totally unacceptable for EPA to say that members of the community and members of Congress cannot know what is going on in these sites in terms of risk and funding," she said.
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