The theme that I bring to you today is that the real problem with victim compensation and hazardous waste exposure is being driven by a public hysteria over the larger issue of hazardous substances in the environment. The atmosphere is driven by a great deal of distrust of the Environmental Protection Agency, federal and state governments, and the industries. People are wondering whom they should trust or believe.

I have attended public hearings where 600 to 1000 people show up, at places like Times Beach or near Stringfellow, and scream, demand the resignations of state officials, and urge that the Congressmen holding the hearing leave the room because they cannot help them. It is my honest feeling and criticism that from the confines of an office or a courtroom, attorneys involved with these cases do not appreciate this urgency and hysteria. The hysteria is there and it is real, and that is what I would like to share with you.

Instead of discussing the progress of the Superfund — and I do think the program is making progress — I would like to highlight the problems and delays of the Superfund cleanup efforts. I think these are the paramount issues. It is clear that the public demands that delay be eliminated.

My first point concerns the limitations of Superfund and of the cleanup technology and available dumpsites. With all due respect to the legislators who moved the Superfund legislation through the Congress, there was a clear lack of perception of the magnitude of the problem. As I review the legislative history on Superfund, I do not see discussions about dioxin-contaminated soils in Missouri or asbestos-contaminated soils in Arizona or lead contamination in Dallas or the host of other soil contaminations around the country. The title itself, Superfund, connotes a panacea, yet our ability to deal with these problems is quite limited. We are just beginning to sense the breadth of this problem. When I took the job to head Superfund a year and a half ago, we had a national inventory of 11,000 dumpsites. This week that inventory peaked at 16,000. It is growing every week and we do not have the money to clean each of these sites.

Of the 419 proposed priority dumpsites, 328 present a threat of groundwater contamination. This problem illustrates another limitation. Through my experience with the Superfund program, I am convinced that the contamination detection and cleanup technology is lacking, although it is beginning to be developed. For instance, at one site in New England we are building a slurry wall into the ground that is 90 to 120 feet deep. I do not know whether this slurry wall is going to contain the contaminated groundwater plume. Even if it does so now, the chemicals may eventually erode the wall and escape, since it is only constructed to contain the contamination long enough to treat the water behind it. Yet, there remains the unsolved problem of who will pay for the operation and maintenance of the treatment device for five or ten or twenty years after it is installed. If there is a stalemate the ability of the slurry wall to contain the contamination over a protracted period may very well become a [14 ELR 10117] significant consideration.

Not surprisingly, the so-called NIMBY (not in my back yard) syndrome has emerged to confound cleanup efforts. States with licensed disposal facilities are now refusing wastes from other states. Louisiana has just refused wastes from a Superfund cleanup site in Texas. Meanwhile, other state administrative bodies and legislatures have been unwilling to bite the political bullet to license hazardous waste facilities in their own states. We are rapidly approaching a point at which there will be no place to take hazardous and toxic wastes and related contaminated material. Compounding this problem is the state of current treatment technology, which is not advanced enough to deal with many of these sites.

The situation in Missouri provides a telling example of this predicament. At one site involving dioxin, the estimated cost of removing 5,000 to 8,000 cubic yards of contaminated soil ranges from $5 to $88 million, depending on the remedy. The $5 million remedy envisions a disposal site to take the soil, but there is no licensed disposal facility in Missouri, and other states will not accept it because of the volume involved. Another remedy requires building a giant cement crypt in the middle of the neighborhood in which the contaminated soil is located in order to dispose temporarily of the waste. We could, as Rita Lavelle has indicated, pursue a promising technology of treating the soil with chemicals. That promising technology requires about 11 more years of research and, at the present time, if employed, creates a residue more toxic than dioxin. Or we could pursue incineration which, for this one site, would cost about $60 million and would tie up all of the kilns in the state for two and a half years. That is the magnitude of the problem we are confronting at just one site. Bear in mind that in Missouri there are some 215 sites now under investigation for dioxin contamination.

The next issue concerns the Superfund requirement that the states pay ten percent of the costs of cleanup. Forty-two of the fifty states do not have enough money to match the Superfund in order to get the process moving. The current EPA policy is that the states contribute ten percent to the initial investigations and feasibility studies. That sum ranges roughly from $20,000 to $30,000. Some states are not able to raise even that amount of money to initiate these studies. The policy is currently under review and will be examined by Administrator Ruckelshaus. The question is whether that policy should be waived so that we can at least proceed with investigating the problem at the sites, studying alternative remedies and formulating options that can be pursued with the fund or with the responsible parties.

There is a good chance that the policy will be waived and that EPA will finance all of the initial investigations and feasibility studies. This option, however, only delays the inevitable. Today, most states simply do not have the ten percent for the actual construction of the cleanup work, which in many cases may be $1 million to $3 million or more.

Another contentious issue is the degree of cleanup that must be achieved at a site — often referred to as the "how clean is clean" issue. The judgment of the Administrator in writing the National Contingency Plan was that the Plan should be flexible; therefore it did not mandate strict adherence to existing environmental standards. No doubt this issue will be revisited. The problem is not only that, if these standards exist, should they be applied in designing a remedy, but also that for many substances there are no standards and that where there are standards, the standard may bear no relationship to the facts of the particular site.

Finally, a series of practical factors tends to lead to delay. For instance, EPA possesses no direct authority to gain access to the Superfund sites. I was told by the Justice Department that this would be no problem. There is a site, however, in Pennsylvania at which we are ready to get the contractor on-site to begin cleanup. We thought it would be simple to obtain an order from a federal judge for access, yet the judge refused us. Therefore, in some instances, we are encountering difficulty getting the contractor on-site to clean up because neither the owner nor the Court will give us access.

As a related problem, EPA does not have condemnation authority. In Times Beach, Missouri eleven or twelve families do not want to move out. How do we clean up a town, working around the families that stay behind?

Another delaying factor is the weather. Most of the sites on the national priority list are in the northeastern and north central parts of the country. Four to five months a year are lost in cleaning up the sites because of poor weather conditions.

In conclusion, each of these issues and others can exacerbate the controversy and public intolerance for the situation. The public must be continually informed and involved. In my personal judgment, no remedy that we pursue has any chance of success unless it has the acceptance of the affected public. My major personal criticism of the direction of the cleanup under Superfund — through settlements and through litigation — is the failure to come to grips with the issue of public participation. The public simply is not going to tolerate being excluded from the process and the challenge. It is imperative to keep the public not only informed of what is going on, but also involved, so that they are comfortable with what emerges in the end. I believe this is the only logical way to stem the current hysteria and to enable everyone to respond collectively to this problem.