oversight

Superfund: State Voluntary Programs Provide Incentives to Encourage Cleanups

Published by the Government Accountability Office on 1997-04-09.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                 United States General Accounting Office

GAO              Report to Congressional Requesters




April 1997
                 SUPERFUND
                 State Voluntary
                 Programs Provide
                 Incentives to
                 Encourage Cleanups




GAO/RCED-97-66
      United States
GAO   General Accounting Office
      Washington, D.C. 20548




      B-276549

      April 9, 1997

      The Honorable John Chafee
      Chairman, Committee on Environment
        and Public Works
      United States Senate

      The Honorable Robert Smith
      Chairman, Subcommittee on Superfund,
        Waste Control, and Risk Assessment
      Committee on Environment and
        Public Works
      United States Senate

      As requested, we are reporting on voluntary cleanup programs that states have created to
      facilitate privately initiated cleanups. Our report contains recommendations to the
      Administrator, Environmental Protection Agency (EPA), designed to promote effective voluntary
      cleanups while lowering barriers caused by liability provisions within the Comprehensive
      Environmental Response, Compensation, and Liability Act of 1980.

      As arranged with your offices, unless you publicly announce its contents earlier, we will make
      no further distribution of this report until 30 days after the date of this letter. At that time, we
      will send copies to the appropriate congressional committees; the Administrator, EPA; and the
      Director, Office of Management and Budget. We will also make copies available to others upon
      request.

      Please call me at (202) 512-4907 if you or your staff have any questions. Other major
      contributors to this report are listed in appendix V.




      Peter F. Guerrero
      Director, Environmental
        Protection Issues
Executive Summary


             After nearly two decades and billions of dollars in federal, state, and
Purpose      private expenditures for cleanups, the nation still has thousands of
             hazardous waste sites to address. The federal Superfund program and
             state enforcement programs have compelled cleanups at many of the most
             hazardous sites, but thousands of other sites await discovery, evaluation,
             and cleanup. To reduce this backlog, many states have created voluntary
             cleanup programs, which rely on incentives rather than enforcement
             orders to accomplish cleanups.

             Because of these programs’ potential for advancing the nation’s cleanup
             goals, the Chairmen of the Senate Committee on Environment and Public
             Works and its Subcommittee on Superfund, Waste Control, and Risk
             Assessment asked GAO to (1) identify voluntary cleanup programs’
             accomplishments; (2) describe these programs’ organization, funding and
             major characteristics; and (3) determine the effects of federal hazardous
             waste policies on voluntary cleanups and the types of federal assistance
             that could further support voluntary programs. To respond to these
             objectives, GAO obtained information, through telephone surveys and
             visits, on 17 voluntary programs in 15 states. These programs were chosen
             because their locations are geographically diverse.


             The Comprehensive Environmental Response, Compensation, and
Background   Liability Act of 1980 (CERCLA or Superfund) authorizes cleanups of
             hazardous waste sites and, to fund these cleanups, holds the parties
             responsible for the contamination liable for the cleanup costs. The act also
             gives EPA broad authority to enforce this liability. Many states passed laws
             with similar liability and enforcement provisions. The state enforcement
             programs implementing these laws generally address the thousands of
             sites that are not currently risky enough to qualify for federal cleanup,
             although the state programs may also handle highly contaminated sites.
             The federal Superfund program and the state enforcement programs
             establish stringent procedures for cleanups, which can add to their time
             and costs.

             Significant numbers of sites remain to be cleaned up. Because of limited
             resources, EPA and the states have targeted their enforcement and cleanup
             efforts to the worst sites they have identified. Concerns about liability
             under both federal and state law have hindered cleanups at some sites.
             Also, lenders and prospective purchasers have hesitated to become
             involved at sites where they may be held liable for contamination and
             required to pay for costly cleanups. To alleviate these problems, in the late



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                   Executive Summary




                   1980s, some states began to establish voluntary cleanup programs that
                   allow private parties to identify and clean up sites, use less extensive
                   administrative procedures, and obtain some relief from future state
                   liability for past contamination.


                   Voluntary programs’ accomplishments include identifying, evaluating, and
Results in Brief   cleaning up many contaminated sites that would not have been addressed
                   under other federal or state cleanup programs for some time, if at all,
                   according to the state managers GAO surveyed. Because of these programs’
                   cooperative nature and reduced cleanup procedures, voluntary cleanups
                   are also less costly for the states and participants and take less time. As a
                   result, many of these sites—including former industrial sites, known as
                   brownfields, where contamination has hindered redevelopment—are
                   being restored for productive use.

                   The voluntary cleanup programs GAO surveyed varied significantly in their
                   organization, funding, and characteristics. Most of the 17 programs are
                   organized to supplement their state’s enforcement program, but a few are
                   responsible for nearly all of the cleanups in their state. All of the programs
                   allowed volunteers, such as site owners and developers, to come forward
                   on their own, saving their state from having to take time-consuming and
                   costly enforcement actions. All of the programs received funding through
                   the fees paid by volunteers to participate, but most also relied on some
                   federal and state funds. Nearly all of the programs admitted any type of
                   site, including highly contaminated sites that could qualify for the federal
                   program. As an incentive to encourage cleanups, all of the programs gave
                   volunteers some assurance of relief from future state liability at a
                   completed site, but the legal strength of this assurance varied
                   considerably. Some of the programs further encouraged participation by
                   allowing for less comprehensive cleanups or for cleanups that did not
                   permanently treat the waste but prevented exposure to it through barriers
                   or restrictions on a site’s use. In addition, to cut cleanup time and costs, all
                   of the programs reduced the requirements they imposed on voluntary
                   cleanups. Three of the programs made no provision either for monitoring
                   nonpermanent cleanups, apart from approving them, or for overseeing
                   their accomplishment. About half of the programs required no public
                   participation in the cleanup process, other than filing a notice in a local
                   newspaper. Several programs balanced the requirements they
                   implemented with incentives to attract volunteers by tailoring the
                   stringency of the requirements to the risks and conditions at individual
                   sites.



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                          Executive Summary




                          EPA’s authority under Superfund to ensure that any cleanup is protective of
                          public health and the environment and the federal law’s stringent liability
                          provisions deter participation in voluntary programs because potential
                          volunteers fear they could face expensive and indefinite cleanup liability.
                          As a result, EPA, the states, and volunteers want clarification of the federal
                          role in voluntary cleanups. In particular, they would like to enter into an
                          agreement with EPA that would limit the federal government’s future
                          interests at sites where voluntary cleanups have been completed. To date,
                          the Congress and EPA have supported voluntary programs by allowing the
                          states to use a portion of the funds they receive through the federal
                          Superfund program to develop and implement the voluntary programs. To
                          address liability issues, EPA has been working with the states over the past
                          year to develop final guidance for negotiating agreements between EPA and
                          the states. Under these agreements, EPA assures volunteers that, except in
                          limited circumstances, it generally will not plan to take further action at
                          sites in a voluntary program that meets the agency’s criteria for ensuring
                          effective and protective cleanups. In the meantime, EPA has issued an
                          interim memorandum outlining six criteria for voluntary programs that
                          EPA’s regions can use to enter into agreements with the states. These
                          criteria, while flexible, are very general and do not clearly establish EPA’s
                          basis for determining whether a voluntary program will qualify for an
                          agreement in the future.



Principal Findings

Voluntary Programs        The voluntary programs GAO surveyed have encouraged cleanups at
Facilitate Cleanups and   thousands of hazardous waste sites, resulting in economic redevelopment
Redevelopment             at many of these properties. For example, according to managers of the
                          programs with the highest numbers of cleanups, the Minnesota program
                          has addressed over 500 sites, and the Massachusetts programs over 5,000
                          sites. Some voluntary programs have also allowed the owners of sites
                          where contamination was perceived but not real to certify the sites as
                          clean, thereby removing a stigma hindering their redevelopment. Illinois
                          program managers reported taking such action for half of the sites in their
                          program.

                          These accomplishments reflect states efforts’ to design voluntary
                          programs that make cleanups easier and less expensive to perform.
                          Managers in all of the states verified that their voluntary programs allow




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                          Executive Summary




                          the states and participants to save cleanup time and money, although they
                          could not provide data to quantify the savings. Because volunteers can
                          better control cleanup time and costs, more sites become economically
                          attractive investments for redevelopment. The economic advantage of
                          voluntary cleanups is especially important for brownfields because
                          restoring these former industrial sites for productive use creates new
                          employment and tax revenue for communities and states. For example, at
                          the first site to complete Wisconsin’s voluntary program, the Cellular One
                          corporation is planning to build a new warehouse and office building. The
                          property, located in New Berlin, Wisconsin, was contaminated before its
                          cleanup by chemical spills and leaks from underground storage tanks.


State Voluntary Cleanup   Our review of state voluntary cleanup programs showed that 35 states had
Programs Have Varying     created these programs and that most of them were less than 5 years old.
Characteristics           Of the 17 programs that GAO surveyed, 15 were created either as part of
                          their state’s Superfund program or as an alternative to it, and 10 were
                          administered by the staff responsible for the enforcement cleanup
                          program in their state. The remaining two states now rely primarily on
                          their voluntary programs to achieve cleanups. The voluntary programs GAO
                          surveyed relied on fees and charges, which varied substantially in amount.
                          The fees that volunteers paid initially to participate, for example, ranged
                          from $200 to $5,000 per volunteer. Three of the programs were financially
                          self-sufficient through fees collected from volunteers, and 15 partially
                          depended on state and federal funds to operate. Fifteen programs
                          admitted sites that were contaminated enough to qualify for the federal
                          Superfund program, while the remaining programs excluded such sites,
                          assigning them to the Superfund program or their state’s enforcement
                          program for cleanup. Similarly, 15 programs allowed parties that had
                          caused contamination to participate fully in the program, while 2
                          restricted their participation.

                          To attract participants and promote property transfers, all of the programs
                          GAO reviewed incorporated incentives but implemented them differently.
                          In particular, all of the 17 programs gave volunteers some assurance that if
                          a cleanup were completed according to the program’s requirements, the
                          volunteer’s liability would be limited under state law for past instances of
                          contamination. This release from liability ranged from a legal assurance,
                          provided by four programs, that the state would not take enforcement
                          action against a volunteer, to a written certification, provided by the
                          remaining programs, that a cleanup was complete. In addition, most
                          voluntary programs established clear standards for the levels of cleanup



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Executive Summary




that must be achieved for a cleanup to be considered protective. At the
same time, the programs gave volunteers the flexibility to choose a type of
cleanup that was consistent with the future use of the land. For example,
for the majority of their sites, 10 programs allowed volunteers to assume
that the site would be used in the future for industrial rather than
residential purposes and could, therefore, be cleaned up to less stringent
and less expensive standards. Eight programs also more frequently
implemented nonpermanent cleanups, which use a barrier such as a clay
cap or a parking lot to, among other things, prevent contact with untreated
waste. By establishing limits on liability and clear cleanup standards,
voluntary programs assist volunteers in identifying and controlling their
costs.

To reduce the time and costs of cleanups and thereby attract more
volunteers, the 17 voluntary programs GAO reviewed also imposed fewer
requirements on cleanups than enforcement programs. The federal and
state enforcement programs require the monitoring of conditions at sites
with nonpermanent cleanups, as well as federal or state oversight of
cleanups, to ensure that they continue to isolate contaminants and prevent
human exposure to them.1 These programs also require public
participation in cleanup decisions to ensure that sites are cleaned up to
standards that are consistent with the sites’ anticipated uses and that
communities are aware of any restrictions on these uses. The programs in
GAO’s survey varied considerably in the extent to which they established
these types of requirements. Two programs required regular monitoring
after cleanup while five did not require active monitoring. To ensure that
cleanups remained effective, these programs relied, instead, on provisions
that a site would lose its cleanup certification or a volunteer would lose
the assurance of relief from liability if the land’s use were changed or if the
cleanup were not maintained. Five of the programs provided for extensive
state oversight while three required limited oversight, such as a review of
the final report submitted by a volunteer after completing a cleanup, with
no requirements for independent sampling or site visits to verify the
information contained in the report. Finally, three of the voluntary
programs always required public participation in certain cleanup steps
while eight had no requirements for active public participation.

Several programs varied their requirements for monitoring, oversight, and
public participation with the risks and characteristics of individual sites.
For example, nine programs keyed their oversight requirements to the

1
 Superfund: Operations and Maintenance Activities Will Require Billions of Dollars
(GAO/RCED-95-259, Sept. 29, 1995).



Page 6                                      GAO/RCED-97-66 State Voluntary Cleanup Programs
                           Executive Summary




                           severity of the contamination at a site. Five programs provided for public
                           participation when a site’s contamination or cleanup could affect a nearby
                           community or when a community requested a meeting.


EPA and the Congress       Under the Superfund law, EPA retains the authority to take enforcement
Have Supported Voluntary   action at any hazardous waste site where conditions are not protective of
Programs, but EPA Could    public health and the environment. Thus, although the states do not need
                           EPA’s approval for their programs, many plan to seek it in order to allay
Clarify Its Guidance on    private parties’ concerns about future federal liability at sites cleaned up
Program Requirements       through their programs. EPA and the Congress have provided funding for
                           these programs, and EPA has developed an interim memorandum outlining
                           six elements that the states’ voluntary programs should include to receive
                           the agency’s agreement not to plan to take enforcement action except in
                           limited circumstances. The voluntary programs GAO surveyed would like
                           such support to continue.

                           Financially, EPA has allowed the states to use some of the funds they
                           receive through the federal Superfund program to develop and implement
                           their voluntary programs and to perform assessments at brownfield sites.
                           The House Conference Committee report for EPA’s fiscal year 1997
                           Superfund budget directed funds to be allocated for brownfield programs,
                           and EPA plans to use $10 million of these funds to support state voluntary
                           cleanup programs as a means to encourage brownfield redevelopment.
                           The programs that GAO surveyed found this assistance helpful. Even those
                           that covered their own costs reported that they could use the funds for
                           development or innovative features, such as efforts to help municipalities
                           restore brownfields.

                           To help allay private parties’ concerns about being liable for the costs of
                           future federal action, six of EPA’s regions (I, III, V, VI, VII and VIII)
                           negotiated agreements with 10 states. These agreements provide a
                           statement that EPA will generally not plan to take further action at sites in a
                           state’s voluntary program except in limited circumstances. Because other
                           states also wanted an agreement, EPA issued a memorandum in
                           November 1996 outlining interim procedures for negotiating an agreement
                           and will work with the states to develop final guidance. To ensure that the
                           agreement could apply to the wide variety of state programs, EPA
                           established six broad criteria in the interim procedures. While flexible,
                           these criteria do not clearly define the elements EPA expects a state’s
                           program to provide in exchange for an agreement to reduce the prospect
                           of federal enforcement actions at sites cleaned up under the state’s



                           Page 7                            GAO/RCED-97-66 State Voluntary Cleanup Programs
                  Executive Summary




                  program. For example, although the guidance requires “meaningful” public
                  involvement, it does not define this term. EPA has the opportunity to better
                  clarify its criteria when it issues final guidance to the regions. Several state
                  programs that vary the requirements for voluntary cleanups with the risks
                  and conditions at sites offer EPA models of ways to balance the needs for
                  flexibility and protectiveness.


                  To encourage participation in voluntary cleanup programs while fulfilling
Recommendation    the agency’s responsibility to ensure that cleanups are protective of public
                  health and the environment, GAO recommends that the Administrator, EPA,
                  work with the states to more clearly define in the agency’s final guidance
                  the criteria that state voluntary cleanup programs should meet to obtain
                  an agreement limiting EPA’s involvement at sites, particularly in the areas
                  of monitoring after cleanup, acceptable oversight practices, and public
                  participation. EPA could consider as possible models the approaches that
                  several state programs have taken to tailor the requirements for cleanups
                  to the risks and conditions at individual sites.


                  We provided a draft of this report for review to EPA and a representative of
Agency Comments   the Association of State and Territorial Solid Waste Management Officials.
                  We also provided selected portions of the report to the managers of the 17
                  voluntary programs we reviewed. Representatives from each of these
                  organizations provided updated information and technical comments,
                  which we incorporated throughout the report. EPA officials, including the
                  Director of the Outreach and Special Projects Staff, the office responsible
                  for voluntary cleanup initiatives in EPA’s Office of Solid Waste and
                  Emergency Response, said that our recommendation addressed important
                  issues the agency faces in developing the final guidance for these
                  programs. The state association representative, who heads a task force on
                  state voluntary programs, emphasized that EPA must work with the states
                  to develop the final guidance and ensure that it reflects the different
                  perspectives and approaches the states have taken in implementing their
                  voluntary cleanup programs.




                  Page 8                             GAO/RCED-97-66 State Voluntary Cleanup Programs
Page 9   GAO/RCED-97-66 State Voluntary Cleanup Programs
Contents



Executive Summary                                                                                   2


Chapter 1                                                                                          12
                        Federal and State Hazardous Waste Cleanup Policies                         12
Introduction            State and Federal Actions to Encourage Voluntary Cleanups                  13
                        Objectives, Scope, and Methodology                                         15
                        Agency Comments                                                            16

Chapter 2                                                                                          18
                        Volunteers Identify and Clean Up More Sites                                18
Voluntary Programs      Voluntary Cleanups Cost Less and Take Less Time                            21
Allow More Sites to     Voluntary Cleanups Lead to Property Redevelopment                          22
Be Cleaned Up Faster
and at Less Cost
Chapter 3                                                                                          24
                        Voluntary Cleanup Programs Differed in Their Organization and              24
Voluntary Cleanup         Funding
Programs Differed       Voluntary Cleanup Programs Offered Different Incentives to                 28
                          Participants
Significantly From
One Another and
From Enforcement
Programs
Chapter 4                                                                                          46
                        EPA Retains Some Authority for Sites Cleaned Up Under States’              46
EPA Has Provided          Voluntary Programs
Financial Assistance    States Encourage Federal Support for Their Voluntary Cleanup               47
                          Programs
to Voluntary Programs   EPA’s Criteria Do Not Clearly Define Elements of Voluntary                 50
and Is Beginning to       Programs
Clarify Its Role at     Conclusions                                                                50
                        Recommendation                                                             51
Voluntary Sites         Agency Comments                                                            51

Appendixes              Appendix I: Characteristics of Each Voluntary Program                      54
                        Appendix II: Voluntary Cleanup Programs’ Requirements for                  57
                          Monitoring After Cleanup




                        Page 10                        GAO/RCED-97-66 State Voluntary Cleanup Programs
         Contents




         Appendix III: Voluntary Cleanup Programs’ Requirements for                  58
           Oversight
         Appendix IV: Voluntary Cleanup Programs’ Requirements for                   59
           Public Participation
         Appendix V: Major Contributors to This Report                               60

Tables   Table 2.1: Accomplishments of States’ Voluntary Cleanup                     18
           Programs
         Table 3.1: Funding Sources for Voluntary Cleanup Programs                   27
         Table 3.2: State Policy on Participation in Voluntary Program of            29
           Sites That Could Qualify for Federal Cleanup
         Table 3.3: Methods Used by Voluntary Programs to Certify                    32
           Cleanups
         Table 3.4: Financial Incentives Provided by Voluntary Programs              34
           to Attract Participants
         Table 3.5: Cleanup Standards Used in Voluntary Cleanups                     36
         Table 3.6: Voluntary Programs’ Use of Nonpermanent Soil                     37
           Cleanup Methods
         Table 3.7: Voluntary Cleanup Programs’ Requirements for                     39
           Monitoring After Cleanup
         Table 3.8: Voluntary Cleanup Programs’ Requirements for                     41
           Oversight
         Table 3.9: Voluntary Cleanup Programs’ Requirements for Public              44
           Participation
         Table I.1: Characteristics of Each Voluntary Program                        54

Figure   Figure 3.1: Status of Voluntary Cleanup Programs in 50 States               25




         Abbreviations

         CERCLA     Comprehensive Environmental Response, Compensation,
                         and Liability Act of 1980
         EPA        United States Environmental Protection Agency
         IRAP       Independent Remedial Action Program
         RCRA       Resource Conservation and Recovery Act
         NPL        National Priorities List


         Page 11                         GAO/RCED-97-66 State Voluntary Cleanup Programs
Chapter 1

Introduction


                    In 1980, the Congress passed the Comprehensive Environmental
                    Response, Compensation, and Liability Act (Superfund) to clean up
                    hazardous waste sites. Since that time, the federal government has made
                    some progress in cleaning up sites that have been labeled as the worst in
                    the nation, and the states have identified and cleaned up additional
                    hazardous waste sites. However, thousands more sites have not yet been
                    addressed at either the federal or the state level. To manage these sites,
                    states began to develop new voluntary cleanup programs that would
                    leverage private funds to pay for cleanups and return the sites to
                    productive use.


                    Under Superfund, the Environmental Protection Agency (EPA) has
Federal and State   established a process for assessing hazardous waste sites, selecting
Hazardous Waste     appropriate techniques for cleaning them up, constructing cleanup
Cleanup Policies    methods or remedies, and maintaining the remedies. The law requires EPA
                    to develop and maintain a list of hazardous sites it considers to be the
                    most seriously contaminated, known as the National Priorities List (NPL). If
                    EPA, a state, or any other party identifies a contaminated site, the site can
                    be referred to EPA, which in turn includes it in the agency’s inventory of
                    potential sites. Once in the inventory, the site is assessed to determine
                    whether it is contaminated seriously enough to be placed on the NPL.

                    The law makes parties responsible for the contamination—including
                    current and former site owners and site operators, waste generators, and
                    waste transporters—liable for cleanup costs. The federal government may
                    take action to compel a responsible party to perform or pay for a cleanup.
                    Under Superfund, any party that contributed to the contamination, even if
                    this action was legal at the time, is liable and under certain circumstances
                    may be held responsible for the entire cost of the cleanup. EPA may also
                    use the Superfund trust fund, supported primarily by a tax on crude oil
                    and certain chemicals, to pay for the cleanup and then seek
                    reimbursement from responsible parties. Under EPA’s regulations, the fund
                    may be used to finance long-term cleanups only at sites on the NPL. EPA
                    may also use the fund to take short-term actions that address
                    contamination at any site posing an imminent and substantial threat to
                    human health and the environment, regardless of whether the site is
                    included on the NPL.

                    Over the past 16 years, the Congress has authorized a total of $15.2 billion
                    to be appropriated from the Superfund. The NPL currently consists of about
                    1,300 sites. At the time of our review, remedies had been completed at 412



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                       Chapter 1
                       Introduction




                       of these sites. EPA has also taken about 4,000 short-term cleanup actions.
                       Approximately 70 percent of the cleanups at NPL sites are now funded by
                       responsible parties, and EPA funds the remaining cleanups from the trust
                       fund. EPA also has a list of about 12,000 sites in various stages of
                       assessment to determine whether they meet NPL criteria, and it expects
                       more sites to be identified and referred for its consideration.

                       Forty-one states have followed the federal government’s lead and
                       established their own version of the Superfund law in order to identify and
                       address sites not covered by the federal program. As a result, most states
                       now have departments and staff dedicated to managing hazardous waste
                       cleanups. The states generally address the thousands of sites that do not
                       meet the risk criteria for placement on the NPL. In addition, a state may
                       choose to forgo having EPA assess a site for placement on the NPL and,
                       instead, handle it under the state’s cleanup program. Some states have
                       adopted liability provisions similar to Superfund’s and have developed lists
                       of sites in their state requiring cleanup. These states have relied primarily
                       on enforcement actions against responsible parties to clean up sites, using
                       state funds only to clean sites where responsible parties are recalcitrant or
                       cannot be found.

                       After over a decade of federal and state efforts, significant numbers of
                       sites remain to be cleaned up. Because of limited resources, EPA and the
                       states have targeted their enforcement and cleanup efforts to the worst
                       sites on their lists. Furthermore, cities, lenders, developers, and others
                       with an interest in returning contaminated sites to productive use have
                       been reluctant to begin cleanups on their own because, under Superfund’s
                       or the state’s liability provisions, they could then be held liable for entire
                       cleanups. In addition, they might later be held liable for further cleanup
                       actions at the sites if new or more contamination were discovered or
                       stricter environmental standards were established.


                       To encourage redevelopment and help clean up sites that have not yet
State and Federal      been addressed, most states, in the last few years, have created voluntary
Actions to Encourage   cleanup programs. In contrast to the state cleanup programs that rely on
Voluntary Cleanups     enforcement to compel cleanups by responsible parties, these programs
                       allow volunteers, such as site owners or developers, to approach the state
                       and initiate cleanups on their own. As a result, volunteers can avoid the
                       delays and costs associated with the enforcement process and conduct
                       cleanups within the time frames needed for redevelopment or sale. Once a
                       volunteer has completed a cleanup, a state typically certifies that the



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Chapter 1
Introduction




cleanup meets the state’s requirements and standards, giving the volunteer
some assurance that the state is unlikely to require further cleanup in the
future.

Voluntary programs were a natural outgrowth of property transfer laws
that many states already had in place. These laws require property owners
to disclose whether their property is contaminated with hazardous wastes,
either by including this information in the deed or by notifying the
potential purchaser directly. However, disclosing the existence of
contamination sometimes prevented property sales because of the
uncertainty surrounding the cost of cleanup. Voluntary cleanup programs
provided owners or buyers with a method for assessing the existing
contamination and cleaning it up on their own while affording some
assurance that the state would be unlikely to impose additional cleanup
requirements at a later date. This arrangement allowed property
transactions to move forward.

Because voluntary programs are likely to produce more cleanups than the
states can compel under their enforcement programs alone, the states can
also benefit from these programs. However, sites with low development
potential—such as those in areas with inadequate infrastructure, high
taxes, crime, congestion, or other problems— are unlikely candidates for
voluntary cleanups. The states will have to continue handling these types
of sites, as well as any others they exclude from their voluntary programs,
through traditional enforcement cleanup programs.

EPA saw state voluntary cleanup programs as a way to leverage the limited
state and federal resources available for hazardous waste cleanups. The
agency is currently drafting guidance for establishing agreements with
states that would specify, for programs meeting EPA’s criteria, that
generally EPA will plan to take further action at sites in a state’s voluntary
program only in limited circumstances. By reducing the threat of federal
Superfund liability, these agreements could increase potential volunteers’
interest in the programs. In addition, EPA has allowed states to use funds
from their fiscal year 1995 and 1996 Superfund cooperative agreements
with the agency to develop voluntary programs.

The Congress has also taken actions to encourage voluntary cleanups of
hazardous waste sites. Lenders had feared being named as a responsible
party if they foreclosed on a contaminated property. In 1996, the Congress




Page 14                           GAO/RCED-97-66 State Voluntary Cleanup Programs
                     Chapter 1
                     Introduction




                     passed legislation limiting lenders’ liability at contaminated sites.1 As a
                     result, lenders may be more willing to finance projects to redevelop or
                     clean up contaminated sites.

                     At the same time states began developing voluntary programs, the federal
                     government’s interest in redeveloping brownfields began to grow.
                     Brownfields are abandoned or underused facilities, usually in industrial or
                     commercial areas, where redevelopment has been hampered by real or
                     perceived environmental contamination. Voluntary cleanup programs are
                     viewed as an important tool for facilitating the redevelopment of
                     brownfields because they allow owners and developers to identify
                     potentially valuable sites and clean them up independently. EPA took
                     several initiatives to encourage the redevelopment of these sites. For
                     example, the agency funded 78 pilot brownfields projects around the
                     country to promote creativity in addressing these types of sites. In
                     addition, to reduce the stigma of association with the Superfund program,
                     EPA classified approximately 29,000 sites from its inventory of potential NPL
                     sites as needing no further action. To focus national attention on
                     brownfields, EPA convened a series of conferences about them and created
                     an interagency working group to draft a coordinated federal brownfield
                     policy.


                     The Chairmen of the Senate Committee on Environment and Public Works
Objectives, Scope,   and its Subcommittee on Superfund, Waste Control, and Risk Assessment
and Methodology      asked us to review state voluntary cleanup programs. We agreed to
                     (1) identify voluntary cleanup programs’ accomplishments; (2) describe
                     these programs’ organization, funding, and major characteristics; and
                     (3) determine the effects of federal hazardous waste policies on voluntary
                     cleanups and the types of federal assistance that could further support
                     voluntary programs.

                     To identify examples of voluntary cleanup programs’ accomplishments,
                     we surveyed the administrators of 17 of these programs in 15 states,
                     concentrating first on 5 well-established programs in the Midwest and then
                     choosing additional programs in each of EPA’s regional offices to obtain
                     geographic diversity and a mix of program models. These 15 states
                     constitute over 40 percent of the 35 states that we found had created
                     voluntary programs nationwide. The 15 states were California, Colorado,
                     Delaware, Indiana, Illinois, Massachusetts, Minnesota, Missouri, New


                     1
                      The Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996, contained in
                     the Omnibus Appropriations Act, 1997 (P.L. 104-208).



                     Page 15                                     GAO/RCED-97-66 State Voluntary Cleanup Programs
                  Chapter 1
                  Introduction




                  Jersey, Ohio, Pennsylvania, Tennessee, Texas, Washington, and Wisconsin.
                  Massachusetts and Washington each administer two different voluntary
                  cleanup programs, which we included in our research, for a total of 17
                  programs in 15 states. We conducted a telephone survey with the
                  managers of the 17 programs and asked them for information on their
                  program’s success in achieving cleanups. We also reviewed materials on
                  the programs that they provided.

                  To evaluate these programs’ organization, funding, and major
                  characteristics, we surveyed officials in the 17 programs and asked them
                  to compare the procedural and cleanup requirements of their state’s
                  voluntary cleanup program with those of their state’s enforcement
                  program. We also interviewed national representatives of lenders;
                  developers; and environmental, state, and community development
                  organizations about their experiences with voluntary programs. We
                  reviewed studies on voluntary cleanups conducted by other organizations.

                  To determine the effects of federal hazardous waste policies on voluntary
                  cleanups and the types of federal assistance that could help the states
                  develop effective voluntary cleanup programs, we reviewed EPA’s and the
                  Congress’s efforts to support voluntary programs. We surveyed officials of
                  the 17 voluntary programs to obtain their opinions on the current federal
                  efforts and asked them whether the federal government could provide any
                  additional assistance. We interviewed officials in 13 states that currently
                  do not have a voluntary program about their plans for creating one. We
                  also interviewed EPA headquarters officials and officials in four EPA regions
                  for their views on EPA’s efforts to support voluntary cleanup programs.

                  We conducted our work from June 1996 through March 1997 in
                  accordance with generally accepted government auditing standards.


                  We obtained comments on a draft of this report from officials in EPA’s
Agency Comments   Office of Solid Waste Emergency Response, including the Director of
                  Outreach and Special Projects Staff, the office responsible for EPA’s
                  voluntary cleanup and brownfield initiatives. We also obtained comments
                  from the Deputy Director of the State, Tribal, and Site Identification
                  Center in the Office of Solid Waste and Emergency Response and from an
                  official in EPA’s Office of Enforcement and Compliance Assurance. We
                  responded to their comments throughout the report and summarized their
                  views in the executive summary and in chapter 4. For each of the 17
                  voluntary programs that we reviewed, we provided state officials with the



                  Page 16                          GAO/RCED-97-66 State Voluntary Cleanup Programs
Chapter 1
Introduction




information we planned to report, asked them to verify its accuracy, and
revised the information in response to their comments. Finally, we
obtained comments on the draft report from a representative of the
Association of State and Territorial Solid Waste Management Officials who
has been involved in the organization’s task force on cleanup programs. In
response to his comments, we made several changes to clarify portions of
the report.




Page 17                         GAO/RCED-97-66 State Voluntary Cleanup Programs
Chapter 2

Voluntary Programs Allow More Sites to Be
Cleaned Up Faster and at Less Cost

                                        Through voluntary programs, thousands of sites are being cleaned up,
                                        including those that a state or EPA has identified as a problem and those
                                        that a volunteer has discovered. Without the voluntary programs, these
                                        cleanups would generally not have occurred because the federal and state
                                        enforcement programs have not had the resources to support them.
                                        Voluntary cleanups can be completed more quickly than cleanups under
                                        state enforcement programs, according to state officials, because the
                                        voluntary approach eliminates some of the cleanup and enforcement
                                        steps. For the same reasons, voluntary cleanups are also less costly for
                                        both the states and volunteers. As a result, voluntary cleanups are
                                        encouraging economic redevelopment, including that of former industrial
                                        sites known as brownfields, by expediting the sites’ return to productive
                                        use.


                                        All of the 17 voluntary programs1 we reviewed reported identifying and
Volunteers Identify                     cleaning up significant numbers of sites. Officials for each program we
and Clean Up More                       reviewed said that their state’s voluntary program is addressing more
Sites                                   potentially contaminated sites than their state’s enforcement program
                                        alone could have accomplished. (See fig 2.1.)

Table 2.1: Accomplishments of States’
Voluntary Cleanup Programs                                                                             Number of
                                                                                                   sites currently                 Number of
                                                                                     Year program participating in                 completed
                                        Program                                        established       program                      sitesa
                                        California                                              1995                   250                 160
                                        Colorado                                                1994                    58                   51
                                        Delaware                                                1995                    37                    9
                                        Illinois                                                1989                   603                 198
                                        Indiana                                                 1993                   135                   14
                                        Massachusetts 1-year programb                           1993                1,800                4,700
                                        Massachusetts longer-term                               1993                5,700                1,400
                                        programb
                                        Minnesota                                               1988                   800                 530
                                        Missouri                                                1994                    81                   13
                                                                                                                           c                       c
                                        New Jersey                                              1992
                                                                                                                           d
                                        Ohio                                                    1995                                          7
                                        Pennsylvania                                            1996                   201                   68
                                                                                                                                  (continued)

                                        1
                                         Two states we reviewed, Massachusetts and Washington, administer two separate voluntary programs
                                        with different characteristics. We included all of these programs in our survey. As a result, we will be
                                        referring to 17 voluntary programs in 15 states throughout this report.



                                        Page 18                                      GAO/RCED-97-66 State Voluntary Cleanup Programs
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Voluntary Programs Allow More Sites to Be
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                                                                Number of
                                                            sites currently                 Number of
                                              Year program participating in                 completed
Program                                         established       program                      sitesa
Tennessee                                                1994                     72                    4
Texas                                                    1995                   370                    75
                                                                                    e
Washington Independent Remedial                          1993                                          225
Action Program (IRAP) sites
                                                                                                         f
Washington ordered sites                                 1994                   150
            g
Wisconsin                                                1994                     55                    2

a
  As of February, 1997. Not every site completing a state’s voluntary program requires a cleanup.
Therefore, these numbers may include sites investigated and found not to need a cleanup.
b
 Massachusetts has a two-part voluntary program to encourage risk reduction in the first year.
The state expects parties who discover contamination to report it to the state and take cleanup
action. If a volunteer chooses to complete a cleanup within 1 year, the volunteer must meet
restrictive cleanup standards but pay lower fees. Cleanups that take longer must meet different
reporting and oversight requirements. Both programs require a volunteer to notify the state of
contamination and then use a licensed site professional hired by the volunteer, rather than a state
employee, to oversee the cleanup.
c
  New Jersey officials could not provide this information. The official we spoke with said that, at
most, 2,200 sites have been completely cleaned up.
d
 Ohio does not require volunteers to notify the state that they plan to perform a cleanup, so state
officials cannot determine the number of program participants.
e
  Washington offers volunteers a choice of two voluntary programs. Under the IRAP, volunteers
may clean up a site on their own and report the cleanup to the state later. Under the ordered site
program, volunteers negotiate an agreement with the state and conduct a cleanup under a state
order and with state oversight. Volunteers who select the IRAP are not required to notify the state
that they intend to perform a cleanup, so state officials cannot determine the number of program
participants.
f
Washington officials could not provide this information.
g
 Wisconsin allows volunteers to participate in (1) the state’s traditional cleanup program, which
provides a volunteer or responsible party that has followed the state’s cleanup regulations with a
letter confirming the cleanup’s completion, or (2) the state’s newer Land Recycling Program,
which provides a complete release from liability. The figures in this table reflect participation in
the Land Recycling Program. Approximately 12,000 properties are currently included in the
traditional program, 6,000 of which have received letters confirming the cleanup’s completion.

Source: GAO’s survey of managers of 17 voluntary cleanup programs.



The number of completed cleanups varied from program to program, in
part because of differences in the ages of the programs, the attractiveness
of the incentives they offered, and the ability of the states to track
cleanups (some programs do not learn about voluntary cleanups until after
the cleanups have been completed). For example, at the time of our
survey, four cleanups had been completed through Tennessee’s voluntary




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Voluntary Programs Allow More Sites to Be
Cleaned Up Faster and at Less Cost




program, which is relatively new (1994) and offers fairly limited incentives,
whereas 198 cleanups had been completed through Illinois’ 8-year-old
program, which offers more incentives. New Jersey and Massachusetts,
with the highest numbers of voluntary cleanups, have large staffs devoted
to hazardous waste cleanups and long histories of administering these
cleanups.

Voluntary programs address sites that the federal or state enforcement
programs could not manage, given their existing cleanup workloads and
resources. For example, according to an EPA study, the states in our review
had identified about 54,000 sites that could be contaminated enough to
merit cleanup under the states’ enforcement cleanup programs.2 EPA has
approximately 12,000 sites that have been identified and await evaluation
and approximately 1,300 evaluated sites that have been placed on the NPL
and remain to be addressed. Since both the states and the federal
government have limited program resources, they will not be able to
address all of these sites at once. When volunteers clean up these sites,
they free the government programs’ resources for other sites.

State officials attributed the success of their voluntary programs to the
incentives these programs typically provide to attract participants,
including (1) relief under state law from future liability—and therefore
relief from the risk of incurring additional costs—for past contamination;
(2) clearly defined cleanup standards that identify the extent of the
necessary cleanup—and therefore the time and costs involved—at the
start of a cleanup; and (3) reduced paperwork and cleanup requirements.
These incentives allow volunteers to predict their costs and estimate their
long-term responsibility for a site more accurately, improving their ability
to weigh the costs and benefits of a cleanup and determine whether to
make the investment.

Besides promoting cleanups, voluntary programs have encouraged owners
to identify contaminated properties. Every state program official said that
volunteers have identified and cleaned up hazardous waste sites that the
state had not known of or had not listed as priorities for cleanup before
the volunteers initiated the cleanups. Since owners can better assess the
cleanup actions and costs they will face under voluntary cleanup
programs, they are more willing to notify state officials of their
contaminated sites and take action. Two voluntary cleanup programs have
explicitly allowed volunteers to assess sites where contamination has been

2
 An Analysis of State Superfund Programs: 50-State Study, 1995 Update, Environmental Law Institute,
under contract with EPA (1996).



Page 20                                    GAO/RCED-97-66 State Voluntary Cleanup Programs
                     Chapter 2
                     Voluntary Programs Allow More Sites to Be
                     Cleaned Up Faster and at Less Cost




                     perceived, determine that no contamination is present, and certify the sites
                     as clean if they meet the state’s cleanup standards and need no additional
                     action. This certification helps to remove the stigma of association with
                     hazardous waste at these sites and encourages owners and developers to
                     enter them into the real estate market. Two states reported that such sites
                     represent a substantial portion of the sites in their programs. According to
                     the managers of the Illinois and Minnesota voluntary programs, about half
                     of their completed sites fall into this category.


                     Because voluntary programs have fewer paperwork and oversight
Voluntary Cleanups   requirements than enforcement programs, they cost less both for the state
Cost Less and Take   and for volunteers, according to officials in every program we reviewed.
Less Time            The states receive funding for their programs by charging volunteers to
                     participate, so their programs are, to some extent, privately financed.
                     Volunteers either pay a fee when they apply for the program or reimburse
                     the state for its costs of overseeing the cleanup. The states also avoid the
                     costs, incurred under enforcement programs, of investigating sites,
                     identifying responsible parties, legally compelling these parties to perform
                     cleanups, and trying to recover their costs. All of the state program
                     officials said that cleanup costs were lower for volunteers than for parties
                     compelled to clean up a site through an enforcement program, although
                     the managers could not quantify the savings. Volunteers avoid the legal
                     costs of responding to an enforcement action and can scale back or
                     eliminate some cleanup steps, according to these officials.

                     The less adversarial, more streamlined voluntary process also leads to
                     faster cleanups,3 according to cleanup managers of the voluntary programs
                     we reviewed. For example, according to Texas cleanup managers, a
                     voluntary cleanup is typically completed within 1 year of a site’s entering
                     the program. Massachusetts’ programs provide specific incentives for
                     volunteers to complete a cleanup within 1 year of discovering
                     contamination. Cleanups are also completed faster because 11 of the 17
                     voluntary programs set deadlines for reviewing and approving volunteers’
                     plans and cleanup activities.4 For example, program officials must often
                     approve a site’s cleanup plan within 30 to 60 days of the plan’s submission.
                     As a result, some states have given very high priority to their voluntary
                     program. Officials in Delaware, Washington, and Wisconsin said that they

                     3
                      Although these officials said that voluntary cleanups were completed faster, they were seldom able to
                     say how much faster.
                     4
                      These programs are located in Colorado, Illinois, Indiana, Minnesota, Missouri, New Jersey, Ohio,
                     Pennsylvania, Tennessee, and Washington (both Washington programs set deadlines for review).



                     Page 21                                     GAO/RCED-97-66 State Voluntary Cleanup Programs
                         Chapter 2
                         Voluntary Programs Allow More Sites to Be
                         Cleaned Up Faster and at Less Cost




                         sometimes give higher priority to overseeing voluntary cleanups than to
                         overseeing state-initiated cleanups because their voluntary programs have
                         shorter time requirements and the volunteers are paying for the oversight.


                         Officials in all 17 voluntary programs we reviewed said that their program
Voluntary Cleanups       has restored some unused or underused sites to productive use. Since the
Lead to Property         cleanups are self-initiated, volunteers can identify potentially valuable
Redevelopment            pieces of contaminated property for cleanup and target them for
                         redevelopment. The reduced costs and time for cleanup are making the
                         voluntary cleanup and redevelopment of some contaminated sites a viable
                         investment option. Most of these voluntary programs also limit a
                         volunteer’s future liability under state law for a site’s contamination once
                         the site has been cleaned according to the program’s requirements,
                         reducing the risk that the volunteer will face future cleanup costs.

                         These incentives to clean up and redevelop sites are especially important
                         for brownfields, the former industrial properties whose redevelopment is
                         hampered by contamination.5 Several of the voluntary programs we
                         reviewed provided incentives targeted specifically to these sites. Without
                         voluntary programs that set out a method for evaluating and cleaning up
                         these sites, developers may find it easier and cheaper to locate on
                         “greenfields”—undeveloped property in suburban or outlying areas. By
                         redeveloping brownfields, cities and states hope to boost employment and
                         tax revenue in central urban districts and reduce suburban sprawl.

                         Voluntary program managers reported that new businesses have located
                         on some of the brownfield sites addressed through voluntary programs.
                         Examples of successful redevelopment projects include the following:

                     •   Chicago’s brownfield program cleaned up a closed wire-manufacturing
                         facility in cooperation with the Illinois voluntary cleanup program. The
                         site contained underground tanks and vaults filled with solvents and fuel
                         oil that had to be removed. The city then sold the property to an adjacent
                         fuel pump manufacturer, Blackstone Manufacturing. Blackstone built a
                         secured parking lot on the site, allowing the business to add an extra shift
                         of workers and increase production.
                     •   The Cellular One Corporation cleaned up several adjacent lots in New
                         Berlin, Wisconsin, through the Wisconsin Land Recycling Program. The
                         lots had been used for a variety of businesses, including those that

                         5
                          For a more complete discussion of the difficulties of redeveloping these sites, see Superfund: Barriers
                         to Brownfield Redevelopment (GAO/RCED 96-125, June 17, 1996) and Community Development:
                         Reuse of Urban Industrial Sites (GAO/RCED 95-172, June 30, 1995.)



                         Page 22                                      GAO/RCED-97-66 State Voluntary Cleanup Programs
    Chapter 2
    Voluntary Programs Allow More Sites to Be
    Cleaned Up Faster and at Less Cost




    repaired, maintained, and stored heavy vehicles. The site had a history of
    chemical spills, and the ground was contaminated with waste oil sludge,
    underground and aboveground storage tanks, and miscellaneous debris.
    Now that the soil has been excavated and treated and the tanks and debris
    removed, Cellular One plans to build a warehouse and office building on
    the site.
•   Occidental Chemical Corporation operated a facility in Clarksville,
    Indiana, from 1950 to 1992. The facility, which manufactured laundry
    detergents, produced sodium and potassium phosphate products and
    phosphoric acid. The facility’s cleanup was conducted under the Indiana
    voluntary cleanup program and consisted of demolishing all existing
    structures and removing over 25,000 cubic yards of soil contaminated with
    arsenic and phosphorus. Occidental then sold the 26-acre property to a
    real estate developer after receiving a covenant-not-to-sue from Indiana. A
    retail developer bought the site and constructed a large retail shopping
    center.
•   Thonet Manufacturing produced furniture in York, Pennsylvania, until the
    facility burned in 1993. A volunteer cleaned the property under
    Pennsylvania’s cleanup program, removing debris from the fire, paint
    containers and other drums, soil contaminated with lead and benzene, and
    asbestos. The groundwater was also contaminated and had to be cleaned
    to standards for industrial use. The volunteer is now building a
    37,000-square-foot facility to manufacture countertops.




    Page 23                               GAO/RCED-97-66 State Voluntary Cleanup Programs
Chapter 3

Voluntary Cleanup Programs Differed
Significantly From One Another and From
Enforcement Programs
                       Our review of 17 voluntary programs in 15 states showed considerable
                       variation in their organization and incentives to attract participants. For
                       example, some states established independent voluntary programs, while
                       others combined their voluntary and enforcement programs or relied
                       solely on a voluntary approach to cleanup. While all voluntary programs
                       collected fees from participants to fund their voluntary activities, most
                       programs also used some state support. Although nearly all of the
                       voluntary programs relied on incentives—rather than enforcement—to
                       encourage the transfer and economic redevelopment of potentially
                       contaminated properties, these incentives differed from program to
                       program. Whereas nearly all of the voluntary programs admitted sites
                       contaminated enough to qualify for federal cleanup, two programs
                       managed such sites only through the federal or their state’s enforcement
                       program. A few voluntary programs were more willing than others to
                       release participants from further liability for contamination after
                       completing cleanups. All of the 17 programs reduced the requirements
                       they imposed on cleanups to attract participants, but the changes varied
                       extensively. Some programs significantly reduced the requirements for
                       monitoring nonpermanent cleanups, overseeing cleanups, and involving
                       the public in cleanup decisions, while other programs varied the
                       requirements they placed on cleanups with the risks and conditions at
                       individual sites.


                       Most of the voluntary cleanup programs we reviewed were relatively new
Voluntary Cleanup      and differed significantly from one another in their organization, staffing,
Programs Differed in   and sources of funding. When we conducted our review, 35 states had
Their Organization     developed voluntary cleanup programs. All of these programs have been
                       established in the last 9 years. State legislatures established 31 of these
and Funding            programs by statute, and state environmental agencies created the other 4
                       through regulation. Ten of these programs have negotiated agreements
                       with EPA which state that the agency will generally not plan to take further
                       action at sites involved in the program except in limited circumstances.
                       Figure 1 shows the status of voluntary cleanup programs throughout the
                       nation at the time of our review.




                       Page 24                          GAO/RCED-97-66 State Voluntary Cleanup Programs
                                              Chapter 3
                                              Voluntary Cleanup Programs Differed
                                              Significantly From One Another and From
                                              Enforcement Programs




Figure 3.1: Status of Voluntary Cleanup Programs in 50 States




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                       Programs established by statute
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            AAAA
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                       No program


                                              Source: GAO’s interviews with state cleanup managers and studies by the Northeast/Midwest
                                              Institute and Stateside Associates, two professional organizations involved with environmental
                                              issues.




                                              Most of the voluntary cleanup programs we reviewed were administered
                                              either as part of a state’s Superfund program or as an alternative to it. Ten
                                              of the 17 programs were managed by the same staff who managed the
                                              enforcement program, 5 were managed by separate staff, and 2 had almost



                                              Page 25                                               GAO/RCED-97-66 State Voluntary Cleanup Programs
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Voluntary Cleanup Programs Differed
Significantly From One Another and From
Enforcement Programs




or fully taken the place of the enforcement program. Pennsylvania relied
on its voluntary cleanup program for most of its cleanups, and Colorado
had no enforcement program—all nonfederal cleanups in the state were
voluntary.

All of the voluntary programs we reviewed charged volunteers a fee to
help cover the costs of administering the program and overseeing the
cleanups; however, the amount and type of the fee varied. For example,
some of the programs charged volunteers a fee to apply for participation.
This fee, which ranged from $200 to $5,000, covered the states’ oversight
costs to varying degrees. Other state programs billed volunteers directly to
cover their oversight costs for such activities as reviewing the reports that
volunteers submit and visiting the sites. (See table 3.1.)




Page 26                              GAO/RCED-97-66 State Voluntary Cleanup Programs
                                         Chapter 3
                                         Voluntary Cleanup Programs Differed
                                         Significantly From One Another and From
                                         Enforcement Programs




Table 3.1: Funding Sources for Voluntary Cleanup Programs
Program                                   Payments by volunteers                          Other funds
California                               An initial deposit equal to half the estimated   None
                                         oversight costs. Volunteers are billed for
                                         oversight costs above this amount.
Colorado                                 $2,000 application fee.                          Superfund cooperative agreement
Delaware                                 $5,000 initial deposit, with subsequent          State appropriations, Superfund
                                         deposits if oversight costs exceed this          cooperative agreement
                                         amount.
Illinois                                 $500 initial deposit or half the estimated    Other state cleanup funds
                                         oversight costs, not to exceed $5,000. State
                                         bills volunteer for oversight costs exceeding
                                         the amount of the deposit.
Indiana                                  $1,000 application fee, with subsequent          State appropriations, Superfund
                                         deposits if oversight costs exceed this          cooperative agreement
                                         amount, plus a 10- percent surcharge to
                                         cover the program’s start-up costs.
Massachusetts 1-year program             Compliance fee each year site is in the          State bond fund,
                                         program, except first year.                      state appropriations, Superfund
                                                                                          cooperative agreement
Massachusetts longer-term program        Compliance fee each year site is in the          State bond fund,
                                         program, except first year.                      state appropriations, Superfund
                                                                                          cooperative agreement
Minnesota                                State bills volunteer for all oversight costs.   State appropriations, Superfund
                                                                                          cooperative agreement
Missouri                                 $200 application fee and a deposit to cover      State appropriations,
                                         anticipated oversight costs.                     Superfund cooperative agreement
New Jersey                               State bills volunteer for all oversight costs.   Other state cleanup funds
Ohio                                     $950 fee for sites where initial investigation   Superfund cooperative agreement
                                         reveals no contamination. $4,950 fee for
                                         sites needing additional investigation or
                                         cleanup. $2,950 additional fee for sites
                                         requiring operations and maintenance.
Pennsylvania                             $250 or $500 fee due with final report,          State appropriations
                                         depending on cleanup standard used.
Tennessee                                $5,000 participation fee in addition to          None
                                         oversight costs.
Texas                                    $1,000 application fee. State bills volunteer    State appropriations,
                                         if oversight costs exceed this amount.           Superfund cooperative agreement
Washington IRAP sites                    $1,000 fee or 2 percent of cleanup costs.        None
Washington ordered sites                 State bills volunteer for all oversight costs.   Other state cleanup funds
Wisconsin                                $250 application fee, with additional deposit Superfund cooperative agreement
                                         of $1,000 or $3,000, depending on size of
                                         site. Further deposits if oversight costs
                                         exceed this amount.
                                         Source: GAO’s survey of managers of 17 voluntary cleanup programs.




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                            Not all of the programs we reviewed charged volunteers enough to fully
                            finance their program and had to cover some costs from their general
                            revenues, hazardous waste cleanup funds, and/or federal Superfund
                            cooperative agreement funds. Colorado’s program, for example, can
                            charge a fee of up to $2,000, but this amount may not suffice to cover the
                            costs of overseeing some cleanups. When the fee is insufficient for a
                            Colorado site, the state and the volunteer agree to divide the site into
                            parts, and the volunteer pays an application fee for each part. In Ohio, the
                            program borrowed from the state’s general fund to pay its start-up costs.
                            Low initial participation has since precluded the program from paying for
                            itself or paying back the loan. In contrast, Minnesota’s program charges
                            $75 to $90 per hour for oversight, depending on the salary levels of the
                            staff assigned to the project and an overhead factor. This approach allows
                            the agency to recoup all of its operating costs, including those for
                            oversight and overhead, directly from the volunteer.


                            For most of the voluntary cleanup programs we reviewed, the main
Voluntary Cleanup           objectives are to encourage and facilitate the transfer and economic
Programs Offered            redevelopment of contaminated property through environmental cleanup.
Different Incentives to     In contrast to enforcement programs, which legally compel parties to
                            clean up contaminated sites, these programs use incentives to attract
Participants                volunteers to perform cleanups. Compared to enforcement programs,
                            most voluntary programs have fewer administrative requirements to meet
                            during the cleanup process and give volunteers more control over cleanup
                            decisions. However, the voluntary programs differed, for example, in the
                            types of sites and in the types of volunteers they allowed to participate in
                            their programs. They also differed in the extent to which they released
                            volunteers from future liability for past contamination and in the
                            stringency of their requirements for monitoring, oversight, and public
                            participation. (See app. I for a listing of each program’s components.)


Participation Varied for    All but two of the voluntary programs we reviewed prohibited the
Highly Contaminated Sites   enrollment of sites that were already involved in the federal Superfund
and for Parties That        program.1 Most of the programs also prohibited the enrollment of sites
                            involved in their state’s enforcement program. However, the managers for
Caused the Contamination    15 of the 17 programs reported that their program would admit sites that
                            could be contaminated enough to qualify for federal cleanup but had not
                            been referred to the Superfund program. Several of these managers

                            1
                             A Washington State official told us the state would allow some NPL sites to participate in both the
                            ordered site and the IRAP programs.



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                                           expressed their willingness to rely on volunteers who are ready and able
                                           to clean up such sites as a means of returning the sites to productive use.
                                           The other two programs would not admit such sites because, according to
                                           their managers, sites with this level of contamination are more
                                           appropriately addressed under a state or federal enforcement program.
                                           Three of the 15 programs that admitted sites contaminated enough to
                                           qualify for federal cleanup restricted participation in their voluntary
                                           program to sites that do not pose an immediate risk to human health or the
                                           environment. (See table 3.2.)

Table 3.2: State Policy on Participation
in Voluntary Program of Sites That                                           Sites that could qualify for federal cleanup are allowed
Could Qualify for Federal Cleanup                                                           in the voluntary programa
                                           Program                                                       Yes                                 No
                                                                                                             b
                                           California                                                       X
                                           Colorado                                                         Xb
                                           Delaware                                                         X
                                           Illinois                                                         X
                                           Indiana                                                          X
                                           Massachusetts 1-year
                                           program                                                                                             Xc
                                           Massachusetts longer-term
                                           program                                                          X
                                           Minnesota                                                        Xb
                                           Missouri                                                                                            X
                                           New Jersey                                                       X
                                           Ohio                                                             X
                                           Pennsylvania                                                     X
                                           Tennessee                                                        X
                                           Texas                                                            X
                                           Washington IRAP sites                                            X
                                           Washington ordered sites                                         X
                                           Wisconsin                                                        X
                                           a
                                            Of the 15 programs that allowed participation by such sites at the time of our review, 8 had
                                           addressed 0 to 10 such sites, 1 had addressed about 150 such sites, and 6 did not provide this
                                           information.
                                           b
                                            Any site considered an imminent threat to human health or the environment is excluded from the
                                           voluntary program.
                                           c
                                             The state program manager explained that volunteers hoping to clean up seriously contaminated
                                           sites typically do not choose to participate in this program because 1 year is not long enough to
                                           complete the work at a complex site.

                                           Source: GAO’s survey of managers of 17 voluntary cleanup programs.




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Several states allowed sites needing cleanups normally regulated under a
federal law other than Superfund to participate in their voluntary program.
The programs in Texas, Washington, and Wisconsin also allowed the
participation of some sites that require the type of cleanup required by the
corrective action provisions of the Resource Conservation and Recovery
Act (RCRA).2,3 The managers of most of the other programs said they would
admit such sites only on a case-by-case basis. For example, the managers
of Indiana’s voluntary program explained that they would enroll RCRA sites
if the managers of the state’s RCRA program agreed that the sites’
enrollment would be appropriate.

Although most program managers reported that, to date, few sites
contaminated enough to qualify for federal cleanup had applied to their
voluntary program, several factors could increase participation by these
sites as the voluntary programs mature. First, EPA has been adding fewer
sites to the federal Superfund program. Second, EPA recently issued a
policy stating its intent to consult with a state’s governor and
environmental agency officials before including a site on the NPL, even
though a 1996 legislative requirement to obtain the governor’s concurrence
has expired. In addition, as we reported in March 1996, some states still
have undiscovered sites and significant numbers of sites awaiting
assessment to determine the extent of their contamination.4 For example,
a cleanup manager in Illinois reported that environmental officials were
still identifying sites that were contaminated enough to qualify for the
federal cleanup program.

Besides restricting the types of sites allowed to participate, some
voluntary programs restricted the types of participants. These programs
cited the principle that the polluter should pay for the cleanup and not
reap certain benefits of voluntary programs, such as significant releases
from liability. For example, Delaware and Wisconsin provide less
comprehensive releases from liability for responsible parties than for
parties that did not contribute to contamination. Officials in programs that
did not restrict participation explained that they view cleaning up and
redeveloping sites rather than letting them remain idle as more important


2
 Under RCRA, parties that treat, store or dispose of certain hazardous materials are required to obtain
a permit and operate under its requirements. If a facility’s waste disposal practices contaminate a site,
RCRA requires that “corrective action” be taken to clean up the site.
3
 Texas and Wisconsin do not allow sites that are currently operating under a RCRA permit, sites that
have been issued a RCRA order, or certain other sites regulated under RCRA to participate in their
voluntary program.
4
 Impact on States of Capping Superfund Sites (GAO/RCED-96-106R, Mar. 18, 1996).



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                              than delaying cleanups by pursuing time-consuming legal actions to assign
                              responsibility for the contamination.


Most Voluntary Programs       A release from further liability for previous contamination at a site is a
Offered Volunteers a          major incentive provided by most of the voluntary programs we reviewed,
Release From State            but the extent of the release varies significantly. When a volunteer follows
                              a voluntary program’s requirements, the program certifies that the cleanup
Liability, but the Strength   is complete. This state certification provides the volunteer with some
of the Release Varied         assurance that the site will not require any further action—or costs—to
                              alleviate past contamination at the site. The assurance is designed to
                              encourage cleanups and stimulate redevelopment by relieving participants
                              of fears about the extent of the liability and cleanup costs they could face.

                              Of the 17 voluntary programs we reviewed, 11 used only one of three main
                              approaches for certifying cleanups, 5 used more than one approach, and 1
                              used a different approach. The first type of assurance, a
                              covenant-not-to-sue, was used by four of the programs. This covenant,
                              offered to some or all volunteers, provides that the state will generally not
                              take any enforcement action against the volunteer once a cleanup has
                              been completed.

                              The second type of assurance, a certificate of completion, was offered by
                              seven of the programs. According to this certificate, the cleanup has been
                              completed in accordance with the program’s standards and rules.
                              Most—but not all—of these programs included language in the certificate
                              releasing the volunteer from further liability for past contamination.

                              The third approach, a no-further-action letter, was used by 11 programs.
                              The letter certifies, on the basis of the state’s review of information from
                              the volunteer, that the state does not expect to require further action of
                              the volunteer. The letter does not, in most cases, excuse the volunteer
                              from further liability. Table 3 sets forth the types of cleanup certifications
                              offered by the voluntary cleanup programs we reviewed.




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Table 3.3: Methods Used by Voluntary Programs to Certify Cleanups
                                                                          Type of certification
Program                             Covenant-not-to-sue              Certificate of completion         No-further-action letter
California                                                           X                                 X
                                                                     For sites where the state         For sites where the state did
                                                                     oversaw the cleanup               not oversee the cleanupa
Colorado                                                                                               X
Delaware                            X                                X
                                    For volunteers not responsible   For responsible parties;a
                                    for the contamination            conditional certificate for
                                                                     cleanups that are not
                                                                     permanent
Illinois                                                                                               X
                                                                                                       Comprehensive letter for
                                                                                                       volunteers that perform a
                                                                                                       complete cleanup and focused
                                                                                                       letter for volunteers that clean
                                                                                                       up selected chemicals
Indiana                             X                                X
Massachusetts 1-year program                                                                           Xb
Massachusetts longer-term program                                                                      Xb
             c
Minnesota                           X                                X                                 X
                                    Covenant available as part of    Certificate with liability        Limited no-further-action letter
                                    no-further-action letter for     protection for volunteers who     for volunteers that clean up
                                    responsible parties that         are not responsible for the       part of a site; no-further-action
                                    perform cleanup                  contamination but no such         letter for sites that meet
                                                                     protection for other volunteers   cleanup standards with or
                                                                                                       without a cleanup
Missouri                                                             Xa
New Jersey                                                                                             Xa
Ohio                                X
                                    d
Pennsylvania
Tennessee                                                                                              Xa
Texas                                                                X
                                                                     For permanent cleanups;
                                                                     conditional certificate for
                                                                     cleanups that are not
                                                                     permanent
Washington IRAP sites                                                                                  Xa
Washington ordered sites                                                                               Xa
Wisconsin                                                            X                                 X
                                                                     For parties not responsible for   For parties responsible for
                                                                     contamination                     contamination


                                                                                                               (Table notes on next page)




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                          a
                              Does not provide any assurance of a release from liability.
                          b
                           Massachusetts uses licensed site professionals hired by the volunteers rather than state
                          employees to oversee and approve cleanups. These licensed professionals issue the
                          no-further-action letters.
                          c
                            Minnesota’s program also issues off-site source determination letters for property owners
                          exempting them from liability when their property is not the source of the contamination.
                          d
                              State statute releases a volunteer from state liability upon approval of final cleanup report.

                          Source: GAO’s interviews with state cleanup managers.




Some Voluntary Programs   Nine of the 17 voluntary programs we reviewed offered participants
Provide Financial         financial incentives to clean up sites, mainly as a means to encourage the
Incentives                industrial or commercial redevelopment of brownfields. These programs
                          tended to focus the incentives on the sites that were the least attractive to
                          prospective purchasers and developers. (See table 3.4.)




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Table 3.4: Financial Incentives Provided by Voluntary Programs to Attract Participants
Program                                      Types of financial incentives
California                                     None
Colorado                                       None
Delaware                                       Low-interest loans; grants to volunteers that plan to redevelop sites; property tax credits
                                               for volunteers in certain targeted redevelopment zones
Illinois                                       None
Indiana                                        Property tax credits; tax increment financing in some localities;a state payment for some
                                               site assessments
Massachusetts 1-year program                   No compliance fees in the first year
Massachusetts longer-term program              Lower fees for faster cleanups because volunteers must pay annual compliance fees
Minnesota                                      Grants provided by state economic development agency to local governments for
                                               voluntary cleanup actions
Missouri                                       None
New Jersey                                     Low-interest loans to volunteers not responsible for contamination and local
                                               governments; grants to local governments
Ohio                                           Low-interest loans to volunteers; grants to local governments; property and corporate
                                               income tax abatements when land is redeveloped
Pennsylvania                                   Low-interest loans; matching grants for site assessments and cleanups
Tennessee                                      None
Texas                                          None
Washington IRAP sites                          None
Washington ordered sites                       None
Wisconsin                                      Tax increment financing and corporate income tax credits for volunteers in some
                                               localities; state payment for some site assessments
                                           a
                                             Tax increment financing uses the anticipated growth in property taxes generated by a
                                           development project to help fund the project. For example, if the base tax revenue is $10 now
                                           and the revenue after redevelopment is expected to be $20, the state puts the difference of $10
                                           into a fund to finance cleanup and redevelopment activities.

                                           Source: GAO’s survey of 17 managers of voluntary cleanup programs.



                                           Of the nine programs offering financial incentives, most offered several
                                           types. For example, five programs allowed volunteers to use grant funds to
                                           subsidize the costs of site assessments or cleanups. Four programs also
                                           offered low-cost loans for these purposes in some cases. Four programs
                                           provided tax incentives for voluntary cleanups, including tax abatements
                                           or tax credits, and targeted these incentives to specific localities and
                                           activities.5 Two programs made tax increment financing available



                                           5
                                            Abatements, which freeze the assessed value of a piece of land at some point in time, reduce the tax
                                           rate for a certain period and exempt certain types of property from taxes altogether.



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                               specifically for voluntary cleanups that resulted in redevelopment in
                               certain localities.

                               Eight programs did not offer financial incentives at this time. Some of the
                               state representatives we contacted were wary of providing such incentives
                               because they did not want polluters to take advantage of them. The
                               representatives pointed out that rewarding some polluters financially did
                               not seem appropriate when other polluters had paid for cleanups through
                               either enforcement or voluntary programs.


Voluntary Programs Offer       To attract participants, the voluntary cleanup programs we reviewed gave
Flexibility in Cleanup         volunteers the flexibility to choose appropriate levels and methods of
Levels and Methods             cleanup, some of which were less costly than those required by the
                               enforcement program. However, the extent of the flexibility given to
                               participants varied from program to program.

Volunteers Can Choose          The 17 voluntary programs we reviewed set requirements for the amount
Cleanup Levels                 of risk reduction that cleanups must achieve in order to be protective of
                               human health and the environment. Participants in these programs
                               generally must meet the requirements by selecting one of three
                               approaches for achieving an appropriate level of cleanup:

                           •   the amount of a chemical that naturally existed in the local soil and
                               groundwater before the contamination occurred;
                           •   the cleanup standard established by the state for a contaminant, based on
                               a determination of the maximum amount of the contaminant that can
                               remain in soil or water without posing a risk to public health or the
                               environment: The state analyzes the toxicity of the contaminant and the
                               likelihood that people will be exposed to it to establish this cleanup
                               standard; or
                           •   the amount of cleanup necessary to control the unique risks posed by a
                               particular contaminant at a particular site, as determined by a formal
                               assessment of that site’s risks. This cleanup level may differ from site to
                               site.

                               Officials from several voluntary programs told us that volunteers often
                               select the second approach, cleaning up a site to the state’s established
                               standards. While the first approach sometimes requires the volunteer to
                               restore the site to “pristine” levels and the third approach is uncertain and
                               sometimes costly, the second approach enables the volunteer, at the
                               outset, to estimate the extent and the cost of the cleanup.



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                                       Both the second and third approaches also allow volunteers to link the
                                       cleanup standard to the use planned for the site. The standards are less
                                       stringent and less expensive to meet if the land will be used for industrial
                                       rather than residential purposes because people’s exposure to the site’s
                                       contamination will be more limited. The standards for industrial use are
                                       often appropriate because many sites are redeveloped for commercial or
                                       industrial purposes. Traditionally, the sites cleaned up under the federal
                                       Superfund program more often had to meet the most stringent standard
                                       for residential land use.6 In our review, we found that volunteers in 10 of
                                       the 17 programs used industrial standards most frequently for their
                                       cleanups. (See table 3.5.)

Table 3.5: Cleanup Standards Used in
Voluntary Cleanups                                                                                        Industrial land-use standards
                                                                                                          selected for at least half of the
                                                                                                                     cleanups
                                       Program                                                          Yes            No            Unknown
                                       California                                                       X
                                       Colorado                                                         X
                                       Delaware                                                         X
                                       Illinois                                                         X
                                       Indiana                                                          X
                                       Massachusetts 1-year program                                                    X
                                       Massachusetts longer-term program                                               X
                                       Minnesota                                                                       X
                                       Missouri                                                                        X
                                       New Jersey                                                       X
                                       Ohio                                                             X
                                       Pennsylvania                                                     X
                                       Tennessee                                                                                     Xa
                                       Texas                                                            X
                                       Washington IRAP sites                                                                         Xa
                                       Washington ordered sites                                         X
                                       Wisconsin                                                                                     Xa
                                       a
                                           These states do not track volunteers’ decisions about cleanup standards.

                                       Source: GAO’s survey of 17 managers of voluntary cleanup programs.




                                       6
                                        In 1995, EPA issued new guidance that encourages parties cleaning up sites to collect as much
                                       information as possible and to obtain the local community’s consensus on the future use of a site in
                                       the federal cleanup program. While this initiative is too new for an evaluation of its impact, it may lead
                                       to more frequent assumptions that land will be used for industrial purposes.



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Nonpermanent Cleanup                    After selecting a level of cleanup, a volunteer must select a method of
Methods and Partial Cleanups            cleanup. The federal Superfund program establishes a preference for
Are Allowed                             methods that result in a site’s permanent cleanup. Voluntary programs
                                        have not always adopted this preference for permanence, giving
                                        volunteers less expensive options to encourage their participation. A
                                        permanent remedy either removes or treats contamination in order to
                                        meet the applicable cleanup standards. A nonpermanent remedy typically
                                        prevents human contact with contamination by containing the waste—by,
                                        for example, placing a clay cap or a parking lot over contaminated soil,
                                        restricting the land’s use, or placing barriers around the contamination.
                                        Permanent remedies tend to be more expensive to implement than
                                        nonpermanent ones. The cleanup managers for 8 of the 17 programs we
                                        reviewed estimated that nonpermanent methods were used for at least half
                                        of their voluntary cleanups of contaminated soil. (See table 3.6.)

Table 3.6: Voluntary Programs’ Use of
Nonpermanent Soil Cleanup Methods                                                                 Nonpermanent remedy selected
                                                                                                    for at least half of the soil
                                                                                                             cleanups
                                        Program                                                   Yes        No        Unknown
                                        California                                                X
                                        Colorado                                                  X
                                        Delaware                                                             X
                                        Illinois                                                  X
                                        Indiana                                                   X
                                        Massachusetts 1-year program                                         X
                                        Massachusetts longer-term program                                    X
                                        Minnesota                                                 X
                                        Missouri                                                             X
                                        New Jersey                                                X
                                        Ohio                                                      X
                                        Pennsylvania                                                         X
                                        Tennessee                                                            X
                                        Texas                                                                X
                                        Washington IRAP sites                                                          X
                                        Washington ordered sites                                  X
                                        Wisconsin                                                                      X
                                        Source: GAO’s survey of 17 managers of voluntary cleanup programs.




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                             Some voluntary programs do not require the cleanup of contaminated
                             groundwater. For example, to attract volunteers, some programs grant an
                             exemption from their groundwater cleanup requirements if a volunteer
                             can demonstrate that the waste at a site is not causing the contamination.7
                             Because groundwater cleanups are usually expensive and time-consuming,
                             this exemption is an important incentive. It allows volunteers to control
                             cleanup costs and increases the likelihood that investing in a site’s
                             redevelopment will prove to be cost-effective.

                             Some voluntary programs also allow partial soil cleanups. For example,
                             New Jersey’s program allows a volunteer to evaluate a site and clean up
                             only the portion of a property that is to be redeveloped and to leave the
                             remainder of the property untreated. In Illinois, a volunteer may decide to
                             clean up just one of several chemicals at a site and receive a certification
                             for that chemical alone. At a Superfund or state enforcement site, the
                             cleanup would typically address all of the chemicals that threaten human
                             health or the environment.


Programs Vary in Providing   As we reported in 1995, the types of nonpermanent remedies used in many
for Monitoring the           voluntary cleanup programs need ongoing monitoring and maintenance
Effectiveness of Less        after the remedies have been implemented to ensure that they remain
                             effective.8 Such activities can include mowing, inspecting, and repairing a
Permanent Cleanups           clay cap; periodically sampling groundwater to ensure that chemicals are
                             not leaching into it from the soil or migrating off-site; and inspecting and
                             repairing signs and fences. Also, nonpermanent remedies premised on the
                             restricted use of the land need a method to guarantee that the restrictions
                             are maintained. The voluntary programs we reviewed varied considerably
                             in their requirements for monitoring a site after its cleanup has been
                             approved. (See app. II for a description of each state’s monitoring
                             requirements.) As table 3.7 shows, 2 programs required extensive
                             monitoring, 5 programs required no monitoring, and 10 programs required
                             some monitoring.




                             7
                              These states include Delaware, Illinois, Indiana, Minnesota, Texas, Wisconsin, and Washington.
                             8
                              Superfund: Operations and Maintenance Activities Will Require Billions of Dollars
                             (GAO/RCED-95-259, Sept. 29, 1995).



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Table 3.7: Voluntary Cleanup
Programs’ Requirements for     Extensive monitoringa             Some monitoring                  No monitoringb
Monitoring After Cleanup       California                        Colorado                         Illinois
                               Washington ordered sites          Delaware                         Minnesota
                                                                 Indiana                          New Jersey
                                                                 Massachusetts 1-year             Washington IRAP sites
                                                                 program
                                                                 Massachusetts longer-term        Wisconsin
                                                                 program
                                                                 Missouri
                                                                 Ohio
                                                                 Pennsylvania
                                                                 Tennessee
                                                                 Texas
                               a
                                Only these programs monitor land-use restrictions imposed as part of a cleanup program’s
                               requirements.
                               b
                                These programs did not monitor sites after cleanup but did reserve the power to remove the
                               cleanup certification under certain circumstances, such as a change in a site’s use or the
                               discovery of additional contamination.

                               Source: GAO’s survey of 17 managers of voluntary cleanup programs.



                               Two of the programs we reviewed monitored cleanups at voluntary sites
                               on a regular basis. Every 5 years, the voluntary program in California and
                               the ordered site program in Washington review sites where follow-on
                               operations and maintenance are necessary or land use is restricted. This
                               approach parallels the Superfund program’s requirement that EPA conduct
                               5-year reviews of similar cleanups. Officials in these states said they would
                               not feel comfortable releasing volunteers from liability unless the
                               volunteers performed some monitoring.

                               Five programs did not provide for active monitoring by state officials after
                               cleanup, even though most of these programs reported that volunteers
                               used either industrial cleanup standards or nonpermanent cleanup
                               methods for at least half of their sites. The program managers cited
                               trade-offs between limiting volunteers’ choices of remedies and
                               monitoring the remedies closely, on the one hand, and achieving high
                               levels of participation, on the other. The Illinois official we spoke with
                               partly attributed the significant numbers of participants in the state’s
                               voluntary program to the availability of alternative remedies and limited
                               monitoring requirements. According to the managers, the large number of




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                          cleanups accomplished through their voluntary programs preclude
                          monitoring every site.

                          Instead of monitoring these sites themselves, the five voluntary programs
                          generally relied on the private real estate market to enforce maintenance
                          and land-use restrictions. When these programs certified a cleanup’s
                          completion or released a volunteer from future state liability, they
                          generally stipulated in the certification that it would be revoked if the
                          land’s use changed or the cleanup method were not maintained. The
                          program managers consider this stipulation sufficient to guarantee
                          compliance because it would be discovered during the investigation
                          preceding a site’s sale. They argue that if a volunteer does not comply,
                          purchasers and developers will not choose the site for fear that the
                          cleanup certification will be revoked and they will face liability for further
                          action at the site.

                          The remaining 10 programs have tried to strike a balance between fairly
                          rigorous and no requirements for monitoring after cleanup. Although these
                          programs do not perform on-site reviews, they do require volunteers to
                          periodically file reports on the conditions at sites with nonpermanent
                          remedies. Compliance with these requirements is generally a condition of
                          retaining the state’s limits on the volunteer’s future liability. For example,
                          the Ohio voluntary program implements an operations and maintenance
                          agreement with the volunteer that requires reporting in exchange for a
                          state covenant not to sue the volunteer for past contamination at a
                          completed site.


Programs Provided for a   To speed cleanups and attract participants, most voluntary programs
Range of Cleanup          require less oversight than enforcement programs. Both the federal and
Oversight                 state governments typically oversee their enforcement program’s cleanups
                          by requiring parties to submit their workplans and progress reports for
                          review or by independently sampling and visiting sites. These procedures
                          provide the enforcement agencies with important information on the
                          quality and adequacy of the cleanups. In comparison, the amount of
                          oversight for voluntary cleanups provided by the programs we reviewed
                          ranged from extensive to minimal. (See app. III for a description of each
                          state’s oversight requirements.) A few program managers in our survey
                          reported providing substantially less oversight for their voluntary cleanups
                          than for their enforcement cleanups. In contrast, several programs based
                          their level of oversight on the characteristics of a site or reduced their




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                                       Enforcement Programs




                                       oversight at certain stages of a cleanup when it was not critical to ensuring
                                       the cleanup’s effectiveness.

                                       As table 3.8 indicates, five of the voluntary programs we reviewed
                                       provided for extensive oversight of voluntary cleanups, three programs
                                       required little oversight, and nine programs varied the level of oversight
                                       with the sites’ hazards or stage in the cleanup process.

Table 3.8: Voluntary Cleanup
Programs’ Requirements for Oversight   Extensive oversight                Variable oversight                 Little oversight
                                       Delaware                           California                         Colorado
                                       Indiana                            Illinois                           Pennsylvaniaa
                                       Missouri                           Massachusetts 1-year               Washington IRAP sites
                                                                          programb
                                       Washington ordered sites           Massachusetts longer-term
                                                                          programb
                                       Wisconsin                          Minnesota
                                                                          New Jersey
                                                                          Ohiob
                                                                          Tennessee
                                                                          Texas
                                       a
                                        For the majority of Pennsylvania’s voluntary sites that use state-established or background
                                       cleanup standards, little oversight is required. For the sites that use a site-specific risk
                                       assessment to determine the cleanup levels, site visits and additional reporting are required.
                                       b
                                        The Massachusetts and Ohio programs use licensed site professionals hired by volunteers,
                                       rather than state employees, to oversee and approve cleanups.



                                       The five voluntary programs that provide for extensive oversight of
                                       cleanups generally apply essentially the same requirements as their state
                                       applies to enforcement cleanups. These voluntary programs typically
                                       require participants to submit status reports at each stage of the
                                       cleanup—when assessing the nature of the site’s contamination, preparing
                                       a cleanup plan, and documenting the final cleanup. Officials from these
                                       states’ programs usually visit a site during a cleanup to determine whether
                                       the volunteer is completing the work according to the workplan. When the
                                       cleanup is complete, they may verify the volunteer’s final report by
                                       inspecting the site or by analyzing soil or water samples that they have
                                       taken to ensure that the cleanup meets the agreed-upon standards.
                                       According to one program manager in a state that releases volunteers from
                                       future liability, this level of oversight is important because the state may
                                       inherit responsibility for the site if the cleanup later proves to be




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inadequate. Oversight is also necessary because volunteers want to keep
their costs as low as possible and the state needs to ensure that
cost-cutting measures do not jeopardize the quality of the cleanup.

At the other end of the spectrum, three of the voluntary cleanup programs
we reviewed—the Colorado, Pennsylvania, and Washington IRAP
programs—provide little oversight for some or all of their cleanups, even
though some of these programs admit sites that could meet the criteria for
federal cleanup. For the majority of their sites, these three programs
require few reports, seldom require site visits, and do not require
verification of a volunteer’s final cleanup report through a site visit or
other means. The Washington IRAP program, for example, which has
approved 225 voluntary cleanups, allows a volunteer to clean up a site
without obtaining the state’s approval or agreement. The program does not
oversee the cleanup, but instead reviews the volunteer’s final report to
determine whether the cleanup meets the state’s standards. Similarly, for
the majority of Pennsylvania’s voluntary sites that use state-established or
background cleanup standards, the volunteer is required to submit a final
report upon completing a cleanup. A volunteer demonstrating compliance
with applicable cleanup standards is relieved of further liability under
state law for the contamination addressed by the cleanup and may not be
sued either by citizens or by other parties connected with the site’s
contamination. All of the voluntary programs requiring little oversight also
limit the time available for oversight by providing for the automatic
approval of reports that have not been reviewed on time.

According to the managers of these three programs, limiting oversight to
attract participants is necessary and appropriate because voluntary
cleanups usually address less contaminated sites than enforcement
cleanups. Limiting oversight is further appropriate, managers in Colorado
and Pennsylvania said, because voluntary programs are cooperative in
nature. Volunteers want the certificate of completion and the release from
liability that the state offers so they can use their properties; therefore,
according to these managers, they are likely to do good work and provide
the state with reliable information. Moreover, in the Pennsylvania
program, for example, the liability release can be reopened if new
contamination is discovered. As a result, the quality of the information
provided by the volunteer is critical. The Colorado program manager also
maintained that site visits would be too costly.

Nine of the voluntary programs have taken a variable approach to
oversight that, they maintain, provides them with good information about



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                           cleanups without deterring participation. These programs have either
                           reduced their oversight at certain stages or concentrated on more
                           hazardous sites. They require volunteers to submit reports throughout the
                           cleanup process but generally perform fewer site visits than the programs
                           that provide for more extensive oversight. Some volunteers want the
                           additional assurance of a cleanup’s adequacy that a site visit provides.
                           New Jersey provides less oversight for small, less complex soil cleanups
                           and more oversight for complex soil and groundwater cleanups and for
                           longer cleanups. Minnesota bases the number of site visits on the severity
                           of the contamination and the level of cooperation with the volunteer.
                           Seven of these nine voluntary programs approve the final cleanup report
                           submitted by the volunteer but do not independently verify the data
                           because, as two managers explained, they believe the frequent reporting
                           throughout the cleanup process has given them ample information about
                           the quality of the cleanup. Tennessee, on the other hand, varies the
                           number of reports it requires with the conditions at a site, but takes split
                           samples at all sites, either during the cleanup or afterward, to verify the
                           final report.


One-Half of the Programs   The voluntary programs we reviewed varied in their requirements for
Limit Opportunities for    public participation, from those that always required formal public
Public Participation       comments to those that made no provision for informing the public about
                           the cleanup. (See app. IV for a description of each program’s public
                           participation requirements.) In contrast, the Superfund program requires
                           anyone conducting a long-term cleanup to give the public an opportunity
                           to comment on the proposed cleanup plan. Public participation is required
                           to assure an affected community that the planned cleanup actions will
                           adequately address the risks that a site poses to public health and the
                           environment. According to one observer9 and representatives of
                           environmental groups, public participation can be especially important for
                           sites with nonpermanent remedies because the public can help to identify
                           the safeguards that will help keep people away from the contamination.
                           Representatives from community action organizations pointed out that
                           public participation is particularly important for voluntary programs when
                           other checks and balances on cleanups, such as monitoring and oversight,
                           have been reduced.

                           As table 3.9 indicates, three of the voluntary programs we surveyed always
                           required public participation, eight required little or no participation, and

                           9
                            John Pendergrass, “Use of Institutional Controls as Part of a Superfund Remedy: Lessons From Other
                           Programs,” Environmental Law Review, News and Analysis (Mar. 1996), pp. 10109-10123.



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                                    the remaining five varied their requirements with the conditions at
                                    individual sites.

Table 3.9: Voluntary Cleanup
Programs’ Requirements for Public                                       Participation
Participation                       Participation always                requirements dependent            Little or no participation
                                    required                            on site conditions                requireda
                                    California                          Massachusetts 1-year              Colorado
                                                                        program
                                    Indiana                             Massachusetts longer-term         Delaware
                                                                        program
                                    Washington ordered sites            Missouri                          Illinois
                                                                        Tennessee                         Minnesota
                                                                        Texas                             New Jersey
                                                                        Wisconsin                         Ohio
                                                                                                          Pennsylvaniab
                                                                                                          Washington IRAP sites
                                    a
                                     For the Colorado, Illinois, New Jersey, Ohio, and Washington IRAP programs, no public
                                    participation is ever required. The Delaware and Minnesota programs require newspaper
                                    notification in some cases. Officials in Delaware and Minnesota told us that they may occasionally
                                    require additional public participation.
                                    b
                                     For the majority of Pennsylvania’s voluntary sites that use state-established or background
                                    cleanup standards, newspaper notification is the only requirement. For sites that use a
                                    site-specific risk assessment to determine cleanup levels, local officials may request public
                                    participation.



                                    Three programs always require volunteers to consider how best to inform
                                    and involve the public in cleanup issues. The Indiana and Washington
                                    ordered site programs, much like the Superfund program, require
                                    volunteers to obtain and respond to public comments on cleanup plans.
                                    Volunteers may also be required to hold public meetings. In California,
                                    volunteers must prepare a community profile and work with state officials
                                    to determine appropriate avenues for public participation based on that
                                    profile and the site’s projected activities.

                                    In contrast, eight programs require little public participation. Five require
                                    none, and three require only the publication in a local newspaper of a
                                    notice about the cleanup. However, as we noted in a 1994 report,
                                    newspaper notices are ineffective because community members do not
                                    always see them.10 Nevertheless, according to the managers of these
                                    voluntary cleanup programs and volunteers, the programs’ requirements


                                    10
                                     Superfund: EPA’s Community Relations Efforts Could Be More Effective (GAO/RCED-94-156, Apr. 8,
                                    1994).



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for public participation are sufficient because most of the enrolled sites
are only lightly contaminated and are located in industrial neighborhoods.
These program managers do not view the Superfund model for public
participation as appropriate for voluntary cleanup programs. They
maintain that requiring extensive public participation would be
counterproductive, adding unnecessary time and costs to cleanups and
discouraging volunteers. Program managers in Illinois and New Jersey
point out that arranging public meetings and obtaining public comments is
very time-consuming. Moreover, according to one state official, the owners
of contaminated sites are often anxious to rid themselves of the
environmental liability associated with their site and do not wish to
publicize its hazards. Finally, other officials explained that a volunteer
planning to redevelop a site will have to obtain the approval of local
officials, who are responsible for and answer to their constituents.

The six remaining voluntary programs agree that extensive public
participation may not be necessary at every site and have tailored their
public participation requirements to site-specific conditions. As discussed,
several of these voluntary programs admit sites that are contaminated
enough to qualify for the federal Superfund program and its more
extensive public participation requirements. Texas requires a volunteer to
notify neighboring property owners if the contamination at a site is found
to exceed the state’s cleanup standards or if contamination could migrate
from the site. Missouri requires the volunteer to hold a public hearing if
the state plans to provide a covenant-not-to-sue. The Massachusetts and
Tennessee programs require public meetings only if local officials or the
public request them. Wisconsin’s requirements depend on a site’s risks and
the public’s concerns; in some instances, holding public meetings or
creating a local mailing list may be required to involve the public.




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EPA Has Provided Financial Assistance to
Voluntary Programs and Is Beginning to
Clarify Its Role at Voluntary Sites
                      Because the current Superfund law gives EPA the authority to take cleanup
                      or enforcement action at any hazardous waste site to protect human
                      health or the environment, the states want to be able to assure their
                      volunteers that EPA is unlikely to take future action at voluntary cleanup
                      sites. At the same time, EPA has an interest in determining that the states’
                      programs are effective and protective before providing such assurance.

                      Recognizing these interests and the voluntary programs’ contributions to
                      the cleanup of the nation’s hazardous waste sites, EPA has, since 1995,
                      supported these programs. Both the agency and the Congress have
                      supported the states’ efforts with funding for voluntary programs. Most of
                      the states we surveyed found this federal assistance useful and wanted it
                      to continue. To address volunteers’ concerns about federal liability for
                      contamination at sites, a Superfund reauthorization bill recently
                      introduced in the Senate would exempt from federal liability parties who
                      are associated with a release of hazardous substances that is subject to a
                      state’s cleanup plan. However, because the current Superfund law
                      provides no such exemption from federal liability, EPA has outlined six
                      elements in a memorandum to its regions that the states’ voluntary
                      programs should include to receive the agency’s agreement not to plan to
                      take federal enforcement action except in limited circumstances. These
                      criteria, however, are very general, limiting EPA’s ability to ensure that
                      these programs are protective of human health and the environment. The
                      memorandum does not define the elements a voluntary program would
                      need or the approaches EPA would accept in order for the program to
                      qualify for an agreement with EPA.


                      Under the Superfund law, EPA has the authority, in certain circumstances,
EPA Retains Some      to take action at any hazardous waste site, including one being cleaned up
Authority for Sites   outside the federal program. Specifically, the agency has the authority to
Cleaned Up Under      (1) address any release or threatened release of hazardous substances that
                      may endanger public health or welfare or the environment and (2) take
States’ Voluntary     enforcement action to ensure this protection.
Programs
                      Because EPA retains this responsibility, purchasers and real estate
                      developers are sometimes reluctant to voluntarily clean up and redevelop
                      sites because they fear EPA may require them to perform additional




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                       cleanup work in the future.1 Most states and volunteers are therefore
                       interested in having EPA clarify the circumstances under which it would be
                       likely to use its authority. For its part, EPA believes that it needs to
                       determine that a state’s program is resulting in adequate cleanups before it
                       agrees that it will not plan to take action at sites addressed by volunteers.
                       Otherwise, if a remedy fails at a site cleaned up under a state’s voluntary
                       program and the volunteer has been granted a release from state liability,
                       EPA may have to address the problem itself or compel the responsible
                       parties to do so. EPA is particularly concerned about quality and liability in
                       connection with voluntary cleanups at sites that were contaminated
                       enough to have qualified for the federal cleanup program.2


                       Because EPA and the Congress view voluntary cleanup programs as a way
States Encourage       to increase the number of hazardous waste cleanups nationwide, they
Federal Support for    have supported the development of such programs. EPA has provided funds
Their Voluntary        for the states to develop their programs and assess the sites enrolled in
                       them. The Congress has also set aside funding for these programs. In
Cleanup Programs       addition, EPA is developing guidance to clarify its role at sites cleaned up
                       through state voluntary programs. Most of the states we surveyed would
                       like EPA and the Congress to continue this support.


EPA and the Congress   Since 1995, EPA has allowed the states to use a portion of the funds from
Have Provided Funds    their Superfund cooperative agreements to develop their voluntary
                       cleanup programs. These agreements, which EPA has negotiated with the
                       states since the beginning of the Superfund program, provide funds for the
                       states to develop their Superfund programs, manage Superfund activities,
                       and assess hazardous waste sites to determine their eligibility for the
                       federal cleanup program. Cleanup managers for 15 of the 17 programs we
                       reviewed said that EPA’s making some of this funding available for
                       voluntary programs was helpful. For example, two managers explained
                       that the funds were used for start-up costs, such as those incurred in hiring
                       personnel, developing materials, or publicizing the program. Officials
                       whom we surveyed in the states without voluntary programs also thought
                       that such funds would help them initiate programs.


                       1
                        In other cases, states have found that Superfund’s liability provisions have provided leverage to
                       persuade responsible parties to clean up the more highly contaminated sites in the states’ inventories.
                       As we reported last year in Impact on States of Capping Superfund Sites (GAO/RCED-96-106R, Mar. 18,
                       1996), state program managers said that a major incentive for responsible parties to clean up their sites
                       is the desire to avoid having their properties included on the NPL.
                       2
                        In GAO/RCED-96-106R, we estimated that 1,400 to 2,300 sites nationwide were contaminated enough
                       to qualify for placement on the NPL but have not yet been listed.


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                           EPA has also allowed the states to use federal funds to assess brownfield
                           sites. In fiscal year 1995, EPA began allowing the states to use funds from
                           their Superfund cooperative agreements to assess brownfield sites.

                           The Congress has also provided funding for these programs. The House
                           Conference Committee report accompanying EPA’s fiscal year 1997
                           appropriations act noted that the agency’s Superfund appropriation
                           included $36.7 million for brownfield activities. EPA plans to use
                           $10 million of these funds to develop and enhance states’ voluntary
                           cleanup programs. Recently introduced legislation to reauthorize
                           Superfund, the Superfund Cleanup Acceleration Act of 1997, would also
                           provide annual grants to qualifying voluntary cleanup programs. The bill
                           establishes criteria that require qualifying programs to provide
                           (1) technical assistance to volunteers; (2) adequate opportunities for
                           public participation; (3) streamlined cleanup procedures; (4) oversight and
                           enforcement authorities adequate to ensure that voluntary cleanups will
                           protect human health and the environment and that cleanups will be
                           completed if volunteers do not finish them; (5) procedures for official
                           approval of voluntary cleanup plans; and (6) official certification that
                           cleanups are complete.

                           Most of the states we surveyed—even those with fees sufficient to cover
                           the costs of their programs—identified ways in which they could use this
                           support. Some states said the funds would help municipalities cover the
                           costs of assessing sites where no parties had been identified as
                           responsible for the contamination or where the cleanup costs would
                           otherwise be too high to attract volunteers. One state was interested in
                           using the federal grants to develop revolving loan funds to help
                           municipalities clean up these types of sites. Others said they would use the
                           funds to support their programs by, for example, publicizing the programs
                           or developing better information systems to improve the programs’
                           management and evaluation.


EPA Is Developing          Although the recent Superfund reauthorization proposal would exempt
Guidance for the States’   releases of contamination subject to a state’s cleanup plans from federal
Programs                   liability, under the current law EPA retains the authority to clean up or
                           order the cleanup of any release that threatens human health or the
                           environment. As a result, in fiscal year 1995, EPA began developing
                           guidance to clarify the role it expects to have at sites in states that have
                           met its requirements for a voluntary cleanup program. Regions I, III, V, VI,
                           VII, and VIII negotiated agreements with 10 states—Colorado, Illinois,



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Indiana, Maryland, Michigan, Minnesota, Missouri, Rhode Island, Texas,
and Wisconsin. These agreements specify that EPA generally will not plan
to take further action at sites in a state’s voluntary program except in
limited circumstances, such as a new release of contamination from a site.
Other states could also obtain an agreement if their EPA region determined
that their voluntary program was adequate to protect human health and
the environment. According to EPA officials, the 10 states find that the
agreements are an efficient means of encouraging participation because
they allay volunteers’ concerns about facing additional federal liability at a
site in the future. Officials in many of the voluntary programs we reviewed
that did not have an agreement also said that one would be useful for their
state.

Because more states wanted an agreement, EPA used the initial agreements
as models and in November 1996 issued an interim memorandum that its
regional offices could use to develop other agreements.3 EPA is working
with the states to publish draft guidance for public comment in the spring
of 1997 and to issue final guidance to its regions in the summer of 1997.
The interim memorandum sets forth six general criteria for voluntary
programs, directing that they (1) provide for meaningful levels of
community involvement, (2) use protective cleanup requirements, (3) have
adequate resources, (4) ensure the completion of cleanups, (5) oversee
cleanups, and (6) take enforcement action if necessary. According to EPA
officials, the memorandum establishes broad criteria in order to
encompass a wide variety of voluntary programs. EPA expects that
individual regional officials will use their own judgment to determine
whether a particular program is meeting the criteria. Upon determining
that a program does meet the criteria, EPA plans to assume that it generally
will not take additional action at sites in the program. Although the states
would like EPA to release volunteers in programs meeting the agency’s
criteria from any future federal liability, EPA reserves the right to invoke its
federal enforcement authority if it determines that a voluntary cleanup in
an approved program is not effective and protective.

Not all of the 10 initial agreements would satisfy all of the criteria set forth
in EPA’s interim memorandum. For example, Colorado does not have the
ability to take enforcement action at voluntary sites should such action
become necessary. Also, some of the initial agreements contain provisions

3
 EPA’s interim memorandum on developing an agreement with a state provides that although nothing
in the agreement constitutes a release from liability under applicable federal law, EPA generally does
not anticipate taking cleanup action at a site involved in the state’s voluntary cleanup program unless
EPA determines that the site poses an imminent and substantial endangerment to public health and
welfare or to the environment.



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                        that are not included in other agreements or addressed in the interim
                        memorandum. For instance, the agreement between Texas and Region VI
                        allows some sites needing cleanups under RCRA to be cleaned up under the
                        state’s voluntary program, while other agreements do not admit such sites
                        into their program.


                        To accommodate the differences in states’ voluntary cleanup programs,
EPA’s Criteria Do Not   EPA developed very broad criteria for its interim memorandum. The states
Clearly Define          supported this approach because they were concerned that detailed
Elements of Voluntary   criteria might require them to change the voluntary programs each has
                        developed to respond to its unique conditions. Although EPA needs to
Programs                make the criteria flexible to accommodate a wide range of voluntary
                        programs, the interim memorandum provides very little information on the
                        kinds of activities and approaches that EPA would find acceptable in
                        exchange for a statement that it would generally not plan further action at
                        sites involved in such programs. Using this memorandum, EPA regions may
                        have difficulty determining which programs meet the criteria and are
                        protective of human health and the environment. For example, the
                        criterion specifying that voluntary programs should have protective
                        cleanup requirements, while implying a need for adequate monitoring,
                        does not explicitly mention the importance of monitoring a volunteer’s
                        efforts to operate and maintain nonpermanent remedies or land-use
                        restrictions. Similarly, the criterion for overseeing cleanups, while
                        addressing a general need, does not specify what oversight practices are
                        acceptable in voluntary programs. Given the wide range of oversight
                        approaches in the states we surveyed, further definition of acceptable
                        practices is needed. Finally, the criterion calling for voluntary programs to
                        provide for meaningful levels of community involvement does not define
                        what program provisions would constitute such involvement.

                        Without further clarification, states with a voluntary program will have
                        difficulty determining whether their program meets EPA’s criteria and may
                        be deterred from negotiating an agreement with EPA. States developing a
                        program will be unsure what elements their program needs to qualify for
                        such an agreement.


                        The states we surveyed have developed successful voluntary cleanup
Conclusions             programs, in part by offering to limit future state liability for volunteers.
                        These states believe that their programs would be even more successful if
                        they could clarify the extent to which their volunteers are likely to face



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                  future federal liability. While EPA is interested in supporting voluntary
                  programs in this manner, it also has an interest in ensuring that these
                  programs are achieving protective cleanups before it agrees to plan taking
                  no further action at sites in the programs.

                  Given that EPA’s regions will use the agency’s guidance to make this
                  judgment, the guidance must clearly define the elements that EPA believes
                  these programs should include, particularly in the three areas we
                  identified. Without more clearly defined criteria, a region could enter into
                  an agreement with a state whose program’s provisions might not be
                  adequate for EPA to fulfill its responsibility under the current law to ensure
                  protective cleanups. We recognize that neither EPA nor the states want to
                  be overly prescriptive in the requirements they design for voluntary
                  cleanups because many sites may not warrant such requirements and
                  imposing them could discourage participation. Consequently, to better
                  define its criteria for voluntary programs in its final guidance, EPA could
                  look to the models implemented by several states that vary their
                  requirements with the risks and conditions at individual sites.


                  We recommend that the Administrator, EPA, work with the states to more
Recommendation    clearly define in the agency’s final guidance the criteria that state
                  voluntary cleanup programs should meet to obtain an agreement limiting
                  EPA’s involvement at sites, particularly in the areas of monitoring after
                  cleanup, acceptable oversight practices, and public participation. EPA
                  could consider as possible models the approaches that several state
                  programs have taken to tailor the requirements for cleanups to the risks
                  and conditions at individual sites.


                  EPA officials, including the Director of the Outreach and Special Projects
Agency Comments   Staff, the office responsible for voluntary cleanup initiatives in EPA’s Office
                  of Solid Waste and Emergency Response, agreed with the content and
                  presentation of information in the report and suggested several technical
                  revisions, which we incorporated. Observing that our recommendation
                  addressed several of the most important issues in crafting a policy on state
                  voluntary cleanup programs, these officials said they would consider it as
                  they develop the agency’s final guidance. The representative of the
                  Association of State and Territorial Solid Waste Management Officials,
                  who has been involved in the organization’s task force on cleanup
                  programs, also suggested several changes to clarify steps taken by the
                  states to ensure effective voluntary cleanups, and we incorporated this



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information in the report. In commenting on our recommendation, he
agreed that the states must work closely with EPA on the final guidance to
ensure that it reflects the distinct perspectives and the variety of
approaches that the states have taken in implementing voluntary cleanup
programs.




Page 52                               GAO/RCED-97-66 State Voluntary Cleanup Programs
Page 53   GAO/RCED-97-66 State Voluntary Cleanup Programs
Appendix I

Characteristics of Each Voluntary Program



Table I.1: Characteristics of Each Voluntary Program
                                                                             Type of monitoring required for sites with
                                           More than 50 percent of cleanupsnonpermanent remedies or restricted land use R
                                                         use                             State reviews                    r
                       Allow sites that    Industrial                                    reports                          t
                       would qualify for   land-use          Nonpermanent State actively submitted by                     c
Program                federal cleanupa    standards         remediesc    monitors sites volunteers        None requiredd v
California             X                   X                 X                X
Colorado               X                   X                 X                                   X
Delaware               X                   X                                                     X                                  X
Illinois               X                   X                 X                                                   X
Indiana                X                   X                 X                                   X                                  X
                                                                                                  i
Massachusetts 1-year                                                                             X
programh
Massachusetts          X                                                                         Xi
longer-term program
Minnesota              X                                     X                                                   X
Missouri                                                                                         X                                  X
New Jersey             X                   X                 X                                                   X
Ohio                                       X                 X                                   X
Pennsylvania           X                   X                                                     X
Tennessee              X                                     X                                   X
Texas                  X                   X                                                     X
Washington IRAP        X                   Unknown           Unknown                                             X
sitesm
Washington ordered     X                   X                 X                X                                                     X
sites
Wisconsin              X                   Unknown           Unknown                                             X                  X




                                               Page 54                            GAO/RCED-97-66 State Voluntary Cleanup Programs
                                           Appendix I
                                           Characteristics of Each Voluntary Program




        Type of oversight required
Reports          Reports and                                                                 Kind of certification providedb
required         site visits,   Few reports     Kind of public participation required   Covenant-
throughout       depending      and no site                 Depends on Little or        not-          Certificate
cleanup; state   on site        visits      Always          site       none             to-           of            No-further-
visits site      conditions     required    required        conditions requirede        sue           completion    action letter
                 X                          X                                                         Xf            X
                                X                                         X                                         X
X                                                                         X             Xg            X
                 X                                                        X                                         X
X                                           X                                           X             X
                 X                                          X                                                       X

                 X                                          X                                                       X

                 X                                                        X             Xj            X             X
X                                                           X                                         X
                 X                                                        X                                         X
                 X                                                        X             X
                                X                                         Xk,l
                                X                                         X                                         X
                 X                                          X                                         X
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                                           Page 55                               GAO/RCED-97-66 State Voluntary Cleanup Programs
Appendix I
Characteristics of Each Voluntary Program




a
  Refers to sites that state officials consider contaminated enough to meet the criteria for
placement on the federal National Priorities List.
b
 States use three different types of cleanup certification. The covenant-not-to-sue guarantees that
the state will generally not take any enforcement actions against the volunteer once a cleanup has
been completed. The certificate of completion documents that the cleanup has been completed
in accordance with the program’s standards and rules. Most—but not all—of these certificates
include language that excuses the volunteer from further liability for past contamination. The
no-further-action letter certifies, on the basis of information provided by the volunteer, that the
state does not expect to require further action of the volunteer.
c
  Nonpermanent remedies leave waste in place but reduce potential exposure by covering it with
a barrier, such as a clay cap or a parking lot, or by restricting access to the area.
d
 The programs identified in this column do not monitor sites after cleanup but do reserve the
authority to remove the cleanup certification under certain circumstances, such as a change in a
site’s use or the discovery of additional contamination.
e
  For the Colorado, Illinois, New Jersey, Ohio, and Washington IRAP programs, no public
participation is required. The Pennsylvania program requires that notice of a planned cleanup be
placed in a local newspaper. Minnesota and Delaware officials told us they may require public
participation in some cases.
f
 California offers different types of releases, depending on the level of oversight the state
performs.
g
 Delaware offers different types of liability releases, depending on the type of party that performs
the cleanup.
h
  Volunteers in Massachusetts may attempt to clean their sites within 1 year of discovering them. If
they cannot complete a cleanup in that time, they clean under the state’s longer-term program,
which has different requirements.
i
    Massachusetts also audits 20 percent of the completed cleanups in both programs.
j
Minnesota offers different types of releases, depending on the type of volunteer and the type of
cleanup.
k
 The majority of Pennsylvania’s voluntary cleanups use state-established cleanup standards and
therefore require only a notice in a local newspaper. For sites where a site-specific risk
assessment is used to determine cleanup levels, local officials may request public participation.
l
Pennsylvania provides a statutory release from state liability after the final cleanup report is
approved.
m
 Washington volunteers may choose between voluntary cleanup programs. Washington state
officials have not kept statistics about cleanups at IRAP sites. As an alternative, volunteers may
negotiate an agreement with the state and clean up under the state’s oversight.
n
  Wisconsin offers different types of liability releases, depending on the type of party that performs
the cleanup.




Page 56                                       GAO/RCED-97-66 State Voluntary Cleanup Programs
Appendix II

Voluntary Cleanup Programs’ Requirements
for Monitoring After Cleanup


Program                              Monitoring practices
California                           The volunteer must submit progress reports on the status of any operating treatment
                                     system for the lifetime of the system and evaluate the cleanup every 5 years.
Colorado                             The volunteer must submit reports on site conditions to the state.
Delaware                             The volunteer must submit reports on site conditions to the state.
Illinois                             The state does not monitor a site after the final cleanup report is approved.a
Indiana                              The volunteer submits reports and estimates when operations and maintenance will be
                                     completed.
Massachusetts 1-year program         The state uses licensed site professionals to manage and approve cleanups. These
                                     professionals must monitor any sites that require long-term monitoring and report
                                     periodically to the state. In addition, the state may audit sites for 5 years after their
                                     cleanup is complete and audits 20 percent of all completed sites. If a problem is found
                                     at this time, the state may continue to monitor for another 5 years.
Massachusetts longer-term program    The state uses licensed site professionals to manage and approve cleanups. These
                                     professionals must monitor any sites that require long-term monitoring and report
                                     periodically to the state. In addition, the state may audit sites for 5 years after their
                                     cleanup is complete and audits 20 percent of all completed sites. If a problem is found
                                     at this time, the state may continue to monitor for another 5 years.
Minnesota                            Although the volunteer submits periodic reports if there are ongoing response actions,
                                     the state does not monitor the completed cleanup.a
Missouri                             The volunteer must submit reports on site conditions to the state.
New Jersey                           The volunteer must comply with an operations and maintenance plan if performing
                                     groundwater treatment, but the state does not monitor other types of operations and
                                     maintenance.a
Ohio                                 Although the policy has not yet been established, Ohio plans to require volunteers to
                                     prepare an operations and maintenance agreement that would describe the operations
                                     and maintenance activities and require the volunteer to notify the state if the site
                                     changes hands. The program may also conduct site inspections.
Pennsylvania                         The volunteer must submit periodic reports on site conditions to the state.
Tennessee                            The volunteer must submit periodic reports on site conditions to the state.
Texas                                The volunteer must submit periodic reports on site conditions to the state.
Washington IRAP sites                The state does not monitor sites after the final cleanup report is approved.a
Washington ordered sites             Program officials review sites with ongoing operations and maintenance every 5 years.
Wisconsin                            Although the volunteer submits periodic reports of ongoing response actions, the
                                     program does not monitor the completed cleanup.
                                    a
                                      These programs do not monitor sites after cleanup but do reserve the authority to remove the
                                    cleanup certification under certain circumstances, such as a change in the site’s use or the
                                    discovery of additional contamination.

                                    Source: GAO’s survey of managers of 17 voluntary cleanup programs.




                                    Page 57                                     GAO/RCED-97-66 State Voluntary Cleanup Programs
Appendix III

Voluntary Cleanup Programs’ Requirements
for Oversight


                                                                       Site visits required during           Method for verifying that
Program                             Number of reports required         cleanup                               cleanup is complete
California                          More than 3                        When necessary and volunteer Review of final report
                                                                       agrees
Colorado                            2                                  Very rarely                           Review of final report
Delaware                            More than 3                        At all sites                          Review of final report; final site
                                                                                                             visit; sampling
Illinois                            More than 3                        At most sites                         Review of final report
Indiana                             More than 3                        At all sites                          Review of final report;
                                                                                                             sampling always required
Massachusetts 1-year program        3                                  At all sites                          Review of final report; site visit
Massachusetts longer-term program   More than 3                        At all sites                          Review of final report; site visit
Minnesota                           More than 3                        At most sites                         Review of final report
Missouri                            More than 3                        At all sites                          Review of final report;
                                                                                                             sampling if needed
New Jersey                          More than 3                        When volunteer requests one           Review of final report;
                                                                                                             sampling if needed
Ohio                                Depends on siteb                   Depends on site                       Depends on site
             c
Pennsylvania                        1                                  Not required, but field staff         Review of final report
                                                                       may conduct visits at their
                                                                       discretion
Tennessee                           Depends on site                    Depends on site                       Review of final report; sampling
Texas                               3                                  Depends on site                       Review of final report
                     d
Washington—IRAP sites               2                                  At most sites                         Review of final report
Washington—ordered sites            More than 3                        At all sites                          Review of final report
Wisconsin                           Depends on site                    Depends on site                       Review of final report;
                                                                                                             sampling if needed
                                          a
                                            The state specifies reporting, oversight, and approval requirements, but the licensed site
                                          professional carries them out. The state conducts its own oversight at sites that pose high risks or
                                          imminent hazards. The state audits up to 20 percent of all completed cleanups.
                                          b
                                           Ohio does not specify the types of reports needed. The licensed site professional must obtain
                                          enough information to decide whether the cleanup is complete and can be certified as complete.
                                          c
                                            For the few sites that are cleaned up to site-specific standards, Pennsylvania establishes more
                                          stringent oversight requirements, including requirements for three or more reports and site visits.
                                          d
                                           For sites where cleanups are carried out without the state’s approval or agreement, only the final
                                          report is reviewed.

                                          Source: GAO’s survey of managers of 17 voluntary cleanup programs.




                                          Page 58                                      GAO/RCED-97-66 State Voluntary Cleanup Programs
Appendix IV

Voluntary Cleanup Programs’ Requirements
for Public Participation


Program                                 Public participation requirements
California                              The volunteer must describe the community near the site as part of the application. The
                                        state bases the public participation requirements and the proposed cleanup activities
                                        on this profile. The volunteer is required to hold a public meeting for sites costing more
                                        than $1 million.
Colorado                                No requirements
Delaware                                The volunteer must publish a notice in a local newspaper about the cleanup before the
                                        cleanup begins. If there is public interest, the state may require a public meeting.
Illinois                                No requirements
Indiana                                 The volunteer is required to make the cleanup plan available for public comment for 30
                                        days. The volunteer may hold a public meeting if one is requested.
Massachusetts 1-year program            The volunteer must make the cleanup plan publicly available and publish information on
                                        major milestones in a local newspaper. If at least 10 people request a public
                                        participation plan, the volunteer must develop one.
Massachusetts longer-term program       The volunteer must make the cleanup plan publicly available and publish information on
                                        major milestones in a local newspaper. If at least 10 people request a public
                                        participation plan, the volunteer must develop one.
Minnesota                               The state does not have specific requirements but may require public participation
                                        activities in some cases. At a minimum, the state notifies local officials that a voluntary
                                        cleanup is planned for their community.
Missouri                                When a volunteer wants a covenant-not-to-sue, which provides the maximum release
                                        from state liability, the volunteer must conduct hearings. The volunteer must publish a
                                        notice in a local newspaper if the selected cleanup standards do not allow for future
                                        residential use.
New Jersey                              No requirements
Ohio                                    After the cleanup is completed and the state has awarded a covenant-not-to-sue, the
                                        state publishes a notice in a local newspaper.
Pennsylvania                            If the volunteer plans to use the state-established cleanup standards, it must publish a
                                        notice in a local newspaper before starting the cleanup. If the volunteer plans to
                                        develop its own standards instead of using the state-established standards, local
                                        government officials may require public participation.a
Tennessee                               The volunteer must publish a notice in a local newspaper upon entering the program
                                        and after completing the cleanup plan. The public may request a meeting.
Texas                                   The volunteer must notify owners of neighboring property if contamination at the site
                                        could migrate to the other property.
Washington IRAP sites                   No requirements
Washington ordered sites                The volunteer must publish a variety of notices in a local newspaper, obtain public
                                        comments, and hold public meetings.
Wisconsin                               The state may require activities such as publishing a notice in a local newspaper,
                                        holding public meetings, or creating local mailing lists, depending on conditions at the
                                        site and the level of public concern.
                                    a
                                        Most volunteers select the state-established standards.

                                    Source: GAO’s survey of the managers of 17 state voluntary cleanup programs.




                                    Page 59                                        GAO/RCED-97-66 State Voluntary Cleanup Programs
Appendix V

Major Contributors to This Report


               Eileen R. Larence, Assistant Director
               Mary Pniewski Marca, Senior Evaluator
               Katherine Siggerud, Senior Evaluator
               Rosa Maria Torres Lerma, Staff Evaluator
               Elizabeth R. Eisenstadt, Communications Analyst
               Fran Featherston, Senior Social Science Analyst
               Richard P. Johnson, Attorney




(160318)       Page 60                        GAO/RCED-97-66 State Voluntary Cleanup Programs
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