My name is Grant Cope. I am an Environmental Advocate for the United States Public Interest Research Group. U.S. PIRG is the national office of the state Public Interest Research Groups (PIRGs). PIRGs are nonprofit, nonpartisan environmental and consumer advocacy groups active across the nation.

Today, I will address three issues: first, the need to safely and expeditiously redevelop brownfields; second, the need to strengthen or at least preserve the federal safety net under current law; and third, the other critical issues that federal brownfields legislation should address. In brief, federal brownfields legislation should ensure that heavily contaminated sites are excluded from the definition of brownfields and ensure that EPA has the authority to conduct an upfront review of state programs to ensure they contain minimum, common sense criteria for protecting public health and environmental quality.

There is a serious need in thousands of communities across our nation to safely and expeditiously clean up brownfields. EPA defines brownfields as "abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination." While there is no definite tally on the number of contaminated sites across our nation, there may be as many as 600,000 such sites. These contaminated sites can contain numerous toxic substances, including substances that cause cancer, birth defects and a variety of other adverse health effects. Regardless of the ultimate number of sites, or their levels of contamination, there is a clear consensus that the nation needs to clean up and safely redevelop brownfields sites.

If this is not done correctly, the health of women, men, and particularly children that live, work, or play near contaminated sites will continue to be put at risk. In addition, developers will continue to seek out greenfields, rather than helping to redevelop blighted inner-city areas in need of reinvestment. Of course, this will exacerbate urban sprawl, which contributes to numerous health and environmental problems, including increased contamination of our nation's water resources, air pollution, and fragmentation of wildlife habitat. Clearly, brownfields redevelopment that protects public health and helps prevent sprawling development needs to occur across our nation.

Brownfields redevelopment programs should include commonsense criteria such as strong clean up standards, provisions to ensure that polluters pay to clean up their contamination, and meaningful involvement of citizens in clean up decisions. These provisions are essential to help combat the real health dangers associated with contaminated sites.

The federal government can help facilitate these types of programs by providing common sense criteria for state clean up programs and federal funds to help spur beneficial redevelopment efforts.

Over the years, members in both the House and Senate have put forward responsible bills that sought to address the brownfields issue head on. Others bills have been drafted in such a way as to weaken protections for public health and environmental quality. U.S. PIRG would like to offer to assist the Committee, in any way possible, in constructing the former type of legislation.

Of course, the environmental community remains united in opposing bills that seek to roll back protections provided by Superfund, and other statutes concerned with the remediation of toxics. Such roll back efforts have included weakening the polluter pays principle, clean up standards, and the federal safety net.

EPA's order authority under the Superfund programs provides a vital federal safety net that is the last line of defense for protecting public health and environmental quality. EPA's order authority has a number of beneficial effects. For example, state clean up officials rely on EPA's order authority to force intransigent parties to negotiate in good faith, or risk involvement by federal authorities. 1 Similarly, concerned citizens can go to the EPA and request that they facilitate clean up efforts. Additionally, EPA' s order authority ensures that people have the choice to seek protections from both the state and federal governments.

Proponents of barring or modifying EPA's order authority under Superfund fail to present coherent arguments for such actions. The main rationale generally given is the need to ensure developers get "finality." However, the need for additional finality disappears after considering five factors: 1) the benefits of a strong federal safety net for public health; 2) the benefits of a strong federal safety net for reduced transaction costs; 3) EPA's failure to credibly use its order authority; 4) consensus liability provisions that provide broad relief for responsible developers; 2 and 5) a growing market for environmental insurance.

The federal safety net can assist state voluntary clean up programs (VCP) provide minimum protections for public health and the environment. This is important because state programs provide widely differing levels of protection. 3 Unfortunately, social, political and economic factors can contribute to inadequate state environmental protection programs, particularly for state brownfields programs. 4 For example, because states constantly compete with neighboring states in attracting business and residential development, some states may relax clean up standards and liability systems. 5 This could initiate a race to the bottom on protections that ultimately ends with an increase in threats to human health. 6 Therefore, it is vital that state programs meet minimum standards, to ensure the long-term protection of human health. The federal safety net can help states meet these minimum standards.

The current Memorandum of Agreement Process (MOA) between State Voluntary Clean Up Programs and EPA, while not a formal review process of a delegated program, provides a surrogate for such a process. 7 Under this program, EPA provides increased certainty to developers who operate under state programs that have an MOA. Under this process, a state and EPA agree to an MOA if the state VCP meets six minimum criteria. 8 These baseline criteria include requirements that state programs provide opportunities for meaningful community involvement; ensure that voluntary response actions are protective of human health and the environment; and have adequate resources to ensure that clean up are conducted in appropriate and timely manner. 9

Unfortunately, the State of Ohio is an example of a poor state clean up program that lacks an MOA (see discussion in III. D. below) For example, an initial report on Ohio's program raises serious concerns regarding the program's ability to protect public health. 10 However, citizens are urging the State of Ohio to improve its VCP so that the program can enjoy the increased certainty associated with an MOA, and people can enjoy minimum protections under the state program.

In addition to helping to develop better state clean up programs, the federal safety net provides people with a choice between seeking protection from the state or federal government. This protection is critical because, at a minimum, developers will make mistakes during some clean ups. However, state programs also provide varying levels of protections. In fact, some states may bend to parochial considerations and choose to expedite their state's clean up process by weakening standards, cutting the public out of the clean up process, and seeking to protect industrial and redevelopment interests from federal enforcement efforts. 11 When combined with state releases from liability, this can create a dangerous combination of ill-planned and unprotective cleanups with little or no incentives that development protect public health.

Therefore, the federal government should maintain the ability of the public to choose between state and federal protections. At a minimum, we should retain the ability of citizens to request swift federal protection. Changing this protection could lead to burdensome litigation over new legal standards. This choice goes to the very heart of the benefits of a federal system of government, where states can choose to innovate and go beyond protection provided by the federal government.

The federal safety net also provides an important deterrent effect against inappropriate clean ups. This deterrent effect can benefit state VCPs, reduce transaction costs and conserve limited public resources. For example, EPA's order authority assists state regulators in forcing intransigent parties into good faith negotiations at clean ups or during revisions to a program's regulations. 12 Parties are less likely to negotiate in bad faith with state entities if they know such action will result in the Federal government assisting state efforts to ensure compliance with applicable laws. 13 This increases the efficacy of state VCPs, decreases the possibility that businesses may have to negotiate with multiple parties, and allows federal and state agencies to better target and coordinate resources.

Ensuring state voluntary clean up programs incorporate minimum protections can increase consistency and certainty for businesses wishing to redevelop contaminated sites. 14 This consistency can decrease transaction costs for business and the government in a variety of ways. This is particularly true for good actors that do not want bad actors to financially benefit by being allowed to cut corners.

Importantly, states retain the flexibility to develop and negotiate innovative programs within the MOA process. 15 For example, states can respond to business concerns by targeting federal funds to certain parties and geographic regions. Alternatively, states can use tax incentives and federally funded state informational systems (e.g. databases and geographic information systems) to help spur safe redevelopment efforts.

The force behind weakening the Federal Safety Net is filled with more hyperbole than fact. Put simply, overfilings are a very rare occurrence. 16 ("Overfiling" refers to a situation where the EPA conducts an enforcement action against the same entity and for the same violation as a state enforcement official.) The Environmental Council of the States (ECOS) conducted a state-by-state survey regarding EPA's use of its overfiling authorities. 17 This survey used an extremely broad definition of "overfile," which included instances where EPA brought an action for violations that a state had failed to address, rather than just instances where EPA brought an action for violations that a state had claimed to already have addressed. Even under this expansive definition of "overfiling," the survey demonstrated that EPA overfiles in a fraction of one percent of all cases under numerous environmental laws. In fact, states reported that EPA overfiling accounted for just 0.3 percent of all Federal enforcement actions during fiscal years 1992-1994, and, during fiscal year 1994-1995, EPA overfiled on about 0.1 percent of all state enforcement actions. 18 Based on these numbers, it is clear that EPA almost never uses its enforcement authority, indeed, it appears that EPA only overfiled against the worst violators or in the most inadequate state programs.

The findings of the ECOS state-by-state survey are mirrored in a survey of 42 states' voluntary cleanup programs funded by the National Association of Homebuilders. 19 This state survey reports that "virtually all of the states [confirmed] that U.S. EPA is not involved or only minimally active in monitoring the state's [voluntary clean up programs]." 20 A few states reported that while they have a close working relationship with EPA, the agency does not extensively monitor the state program, but rather provides funds and program support. 21

There are a variety of reasons for the exceedingly low level of federal oversight of state programs. Some reasons include limited federal resources, the discretionary nature of enforcement actions, EPA respect for the cooperative federalism structure of environmental regulation, and the political repercussions of such overfiling. 22

Over the course of many years, bills in both the House and the Senate have contained consensus liability exemptions that provide expansive relief from liability for responsible developers. These provisions include limitations on the liability of prospective purchasers, innocent landowners and contiguous landowners. 23 Innocent landowners language protects people that purchased land prior to the enactment of the legislation and who took steps to protect public health from contamination found on their property. Prospective purchasers language limits the liability of people that purchase property after enactment of the legislation and who take steps to protect public health from contamination found on their property. Contiguous landowner language protects people whose property has been contaminated by a nearby property, so long as the landowner takes steps to protect public health from that contamination. All three of these liability limitations protect responsible developers, while maintaining disincentives for irresponsible developers who desire quick profits at the expense of public health.

In addition to enjoying a negligible amount of federal oversight, developers also enjoy broad liability protection under state laws. A 1999 study funded by the National Association of Homebuilders found that most state voluntary clean up programs offer "Covenants Not to Sue" or "No Further Action Letters" to developers that complete the clean ups under state programs. 24 By issuing these documents, states largely foreclose on their ability to make developers civilly liable for future clean ups costs. As described below, EPA provides similar assurances under federal brownfields initiatives.

There is an already established and growing environmental insurance market for brownfields redevelopment. The Northern Kentucky University and The E.P Systems Group, Inc. published a 1999 report of such products that is based, in part, on a survey and interviews with insurance carriers and brokers, including AIG Environmental and Kemper. 25 The report found that developers already widely use such policies; further, the types of coverage, occurrences covered, dollar limits, and coverage periods of polices are expanding, while costs and preconditions to coverage are decreasing. The report quotes one insurance carrier representative, "The market now provides very broad coverage, which it didn't five years ago." 26

These insurance policies, which are no different from any other type of real estate insurance coverage, provide real estate buyers and developers with certainty. These policies cap liability, thereby enabling buyers and developers to better assess the impacts of market forces. Ultimately, these market forces dictate when, where, and how redevelopment occurs.

A number of federal statutes give EPA the ability to protect public health using their enforcement authorities. 27 These authorities also provide a plethora of protections for public health. To weaken one of these provisions invites a downward spiral of weakening protections, and the benefits inherent in those protections. 28 For example, requests for "finality" have led to calls for rolling back protections under a host of statute, such proposals have also suggested language that bars criminal fines and penalties. U.S. PIRG strongly urges the government to uphold EPA's ability to protect public healt h and environmental quality, rather than eroding it in this fashion.

EPA and other federal agencies rely on their order authorities to protect public health under a variety of circumstances. For example, EPA currently uses its order authority under the Resource Conservation and Recovery Act to protect children from lead based paint. Similar provisions also exist under the Toxic Substances Control Act (TSCA). TSCA and RCRA orders also apply to polychlorinated biphenyls, dioxin and a variety of other highly toxic substances. There is no justifiable reason to weaken EPA's authority with respect to such dangerous substances.

Any attempt to modify EPA's enforcement authorities under numerous statutes is fraught with peril. Different statutes apply differing standards to a variety of regulatory requirements that pertain to hundreds of highly toxic substances. Modifying EPA's authority under numerous statutes risks not only creating massive confusion, but also an across-the-board weakening of EPA ability to protect public health and environmental quality.

The same is true when modifying EPA's order authority under one statute. For example, EPA's order authority under RCRA includes the ability to enforce a variety of different requirements at different types of sites regulated under the program. Varying standards provide flexibility while protecting human health. Modifying this structure would create an adverse ripple effect across the RCRA program.

In addition to the benefits of retaining the federal safety net described above, a host of other benefits also inure to government, business interests, and the public through consistent and vigorous enforcement of environmental laws. First, consistent enforcement efforts ensure that members of the business community are treated fairly. This fact is reflected in the findings of a 1996 General Accounting Office report (GAO), which reiterated the findings of a 1991 GAO report, that "penalties play a key role in environmental enforcement by deterring violators and by ensuring that regulated entities are treated fairly and consistently so that no one gains a competitive advantage by violating environmental regulations. [The GAO also found that] environmental statutes have been violated repeatedly when penalties have not been applied." 29

Vigorous enforcement of environmental laws, particularly hazardous waste, can also provide incentives to increase pollution prevention efforts. In fact, 96 percent of respondents to a 1995 Price Waterhouse survey identified enforcement pressure as one of the most important drivers of pollution prevention among both large and small businesses. 30 Within the context of brownfields cleanups, enforcement actions can help to ensure that current regulated entities do not create future brownfields sites. This means that the by retaining the federal safety net, we both prevent harm and preserve future options for land and groundwater use.

While there is no need to weaken the federal safety net, there appears to be a need for stepped up federal enforcement and oversight of state environmental programs. While this testimony goes into more detail below (See Section III. D.), a brief recitation of concerns regarding state enforcement of environmental laws is provided here. Both governmental and non-governmental studies document a consistent lack of state enforcement efforts against even significant violators of environmental laws. 31 This deficiency stretches across environmental programs, and therefore raises concerns regarding weak state oversight and enforcement in voluntary clean up programs. Indeed, initial assessments of some state programs provide reason for such concerns. 32 However, without modifications to budgetary priorities and political predilections, such protections will likely remain illusive. Therefore, at a minimum, the federal government should preserve or strengthen the federal safety net.

With consensus on broad forms of liability relief, an insignificant risk of federal intrusion in state programs, and bars on state civil liability for future clean up costs, developers could enjoy broad guarantees of "finality," so long as they do one simple thing: ensure that cleanups adequately protect public health. Indeed, the only people that would need additional "assurance" are developers that do an inadequate job of cleaning up contamination. Importantly, this is the very situation where the federal government should retain -unencumbered- its ability to protect public health.

There is an old saying, "If it ain't broke, don't fix it." Nowhere is this adage more true than with the fundamental protection for public health that is currently embodied in EPA's order authority.

There are a number of issues that are critical to redressing the problem of brownfields redevelopment. In this testimony, I would address two of the more prominent and contentious issues. First, I will address the need to ensure that heavily contaminated sites are excluded from the definition of brownfields. Second, I will address the need for an upfront review of state programs prior to getting any federal funds. In this section, I will also outline some of the commonsense criteria that state programs should include. The need for this federal review and for the inclusion of only sites with low levels of contamination is that state programs provide disparate levels of protection. Therefore, an upfront review process would ensure minimum levels of protection that also precludes a race-to-the-bottom between state clean up programs.

Many state clean up programs incorporate expanded liability relief under state law and varied clean up standards without adequate oversight or long-term assurances of protection. Therefore, state programs should only include sites with low levels of contamination.

This is vitally important because some legislative proposals have called for state clean up programs to include heavily contaminated sites. This is danger given that such federal legislation also calls for vastly increased funding. According to the National Conference of Mayors, lack of funding for redeveloping brownfields is the number one factor inhibiting redevelopment. 33 However, such money should not be used to fuel inadequate and inappropriate state programs. Rather, federal funds should be appropriately focused on thoroughly cleaning up brownfields, preserving and promoting parks and open spaces, and meaningfully incorporating the local community in clean up decisions.

Federal legislation should include an upfront review of state clean up programs prior to funneling federal resources to those programs. This review process should ensure that state programs include commonsense criteria to protect public health and integrate citizens into the clean up process. The lack of a review process could result in federal funds increasing the capacity, but not the quality, of state clean up programs. This could dramatically accelerate ill-planned and unprotective redevelopment activities. If this occurs, our nation could face a new public health crisis in the coming decades. After all, lead, arsenic, and mercury will be toxic long after the last developer leaves a brownfields site and the first homeowner moves in. Therefore, it is vital that states ensure developers thoroughly clean up sites.

Put another way, prevention is the best approach when protecting public health and environmental quality. Therefore, U.S. PIRG strongly supports an upfront federal review of state programs prior to the distribution of any federal funds or transfer of oversight authorities. A front-end review process is a preventative measure that helps to ensure peoples' lives are not put at risk by inadequate and unprotective state programs.

The following issues are criteria that state should incorporate in their clean up programs. This is not meant to be a full vetting of the issues, but rather a brief highlight of the main components for such programs.

State clean ups must protect human health, welfare, and the environment. Programs should completely remediate both soil and groundwater. State programs must monitor and track all contaminated sites in a public database. If a "remediated" site may endanger public health or the environment, the State must, with public input, reassess the site remedy and rectify any problems.

State programs use institutional controls (e.g. deed and zoning restrictions) if they decide to allow developers to leave contamination on-site. Institutional controls are "non-engineered instruments such as administrative and other legal controls that minimize the potential for human exposure to contamination by limiting land or resource use. State use of institutional controls to limit exposure to toxic substances must protect public health-including the most vulnerable in our society- and the environment, incorporate multiple layers of institutional controls that rely on different parties for enforcement, by supported by the community, and include a publicly available database. 34 Additionally, all entities must use the database prior to conducting any work on or near a site.

State programs must survey their state for contaminated sites, assess the risks posed by each site to humans and the environment, and list all known or suspected sites in a publicly available database.

State programs must not use taxpayer funds to finance the program. States must provide a stable, long term source of funding based on the polluter pays principle (e.g. taxes or fees on polluting industries) to finance clean up programs. This funding must pay for all program costs, including the clean up of orphan sites (sites for which there are no liable parties).

Clean ups must be primarily funded by strict, joint and several, and retroactive liability, or with revenue derived from funding as described in paragraph "d." The only acceptable defenses to this liability system are for "innocent landowners," "bona fide prospective purchasers" and "contiguous property owners."

All states must give citizens the right to file citizen suits for contamination resulting from such sites and provide citizens with a fees for winning any such suit in court.

State clean up programs should focus their programs on devising smart growth plans that decrease sprawl and revitalize urban areas. This includes preserving existing parks, open spaces and greenways, as well as promoting the creation of such areas.

State programs must meaningfully involve all citizens in clean up decisions. This includes making all clean up related documentation and correspondence publicly available, providing for public notice, comment, and a hearing, and giving citizens the right to appeal the results of that hearing. Clean up activities must not occur until the community is satisfied with the protectiveness of the clean up. This includes assurances that state clean up programs and individual clean up plans act to remedy any pattern of industrialization that has created pockets of contamination and contaminated lands. 35 Further, state programs should provide communities with resources (both technical and financial) to fund citizen boards that provide an avenue for meaningful public input in the construction of the clean up plan.

State programs must ensure all citizens have the right to know about all toxics in their community. This includes ensuring that citizens are made aware of any past, current, or ongoing releases, the name of the company responsible for the release and responsible for cleaning up the release, as well as health effects associated with the chemicals being released (including any cumulative or synergistic effects, if known).

An upfront review is commonplace in other environmental programs, including the Resource Conservation and Recovery Act and the Clean Air and Water Acts. 36 Despite this type of review, experience with these programs demonstrates that states are extremely varied in their ability and commitment to strongly enforce these laws that protect public health and environmental quality. 37 Simply put, some states do a better job of protecting public health than do others. However, because there are minimum standards, citizens can both work to ensure their states meet these minimal standards and, realizing the true benefits of federalism, push their states to go beyond these minimal protections.

It is clear that not all state clean up programs are alike. However, some broad themes are evident from the available data. For example, initial data on state clean up programs demonstrates that some states do an inadequate job of protecting public health, meaningfully involving the public in clean up decisions, ensuring that polluters pay to clean up contamination, enforcing the law, managing contained sites over the long-term, funding their clean up programs, and retaining and developing sufficient technical expertise to remediate very contaminated sites.

The following failings highlight the need to ensure that state programs meet minimum, commonsense criteria that protect public health and environmental quality.

For example, one of the most controversial issues regarding the clean up of contaminated sites is the use of institutional controls to decrease human exposure to toxic substances that are left on-site after clean up activities are complete. (Institutional controls are legal instruments, such as a deed restriction, that restricts the use of land as a way of controlling exposure to toxic substances.)

In 1997, the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) conducted a survey of 40 states to determine how they used institutional controls when remediating toxic waste sites. 38 The survey found that 31 states required the use of institutional controls, while 8 states allowed them as an option in clean ups. Of the 40 states, only 16 states required public notification or participation when there is a restriction put on the use of the land and only 11 required public notification and involvement when the there was restriction placed on the use of contaminated groundwater.

Importantly, limiting the use of land or groundwater in an area can adversely impact a community. For example, cleaning up areas to only industrial or commercial standards may decrease the amount of residential development in a neighborhood, while vastly increasing the amount of industrial development. This could increase pollution, depress property values and degrade the residential quality of nearby communities. These types of issues affect the entire community; therefore, states should reach out and attempt to integrate the public into the decision-making process for cleaning up contaminated sites.

The ASTSWMO study also surveyed states about their enforcement of institutional controls. 39 Only 9 states provided for fines or penalties for a failure to comply with institutional controls. Further, many types of institutional controls rely on local government for enforcement. However, 20 states noted that local governments generally lack adequate funding to enforce institutional controls. 40 The ASTSWMO survey also found problems with enforcing institutional controls, as well as raft of problems that inhibit the successful use of these controls.

Another study, by the Environmental Law Institute, examined the effectiveness of institutional controls at Superfund sites. 41 This study found problems with enforcement at a local level, even at these highly contaminated sites. One problem noted was the failure to implement some institutional controls, as required in clean up plans. Other failures included the lack of a public education program regarding the dangers of waste left on-site and the failure to pass local regulations restricting the use of contaminated sites. The study also documents instances of possible human exposure to contaminated waste as a result of noncompliance with institutional controls.

Importantly, a report published by Northeast-Midwest Institute in 2000 found that states are encouraging residential development on brownfields. 42 For example, California reported that 5,200 new housing units had been built on brownfields, and Colorado reported the construction of 2,855 such units. The report goes on to site numerous incentives that states have implemented to encourage residential development on brownfields. Particularly at residential sites, of developers use institutional controls, it is vital that the controls are effective.

However, even if a site is initially cleaned up and developed for commercial or industrial development, it is still vital that authorities monitor for any changing land use and the adequacy of protections over the long term. Land use is a dynamic process of economic and social growth, not static endpoint. Commercial developments can hold day care centers and industrial areas can be transformed into housing developments. Therefore, it is essential that authorities monitor the adequacy and enforce the requirements of institutional controls.

A wealth of data indicates a variety of problems with states' clean up programs.

Public notice and involvement in cleanup decisions is critical for ensuring the long-term protection of public health, particularly when contamination is left on-site. When the public is informed about the risks of a site and understands the tools used to decrease those risks, they are uniquely situated to help enforce those controls, whether by telling children not to play in certain areas or by informing new residents or businesses not to undertake certain actions. 43

However, a study by the Northeast-Midwest Institute on Ohio's Voluntary Action Program (VAP) found that the public might not be notified of a clean up plan until after a cleanup occurs and the state has issued a covenant not to sue. 44

A coalition of groups recently reviewed Ohio's VAP. 45 Their findings are rather disturbing. Under Ohio's VAP, if the Ohio EPA agrees that a site meets the standards set forth in the VAP, Ohio EPA will issue a Covenant Not to Sue, which releases the owner from state civil liability. By releasing developers from liability, the state largely forecloses its primary tool to ensure that landowners or developers pay to clean up dangerous contamination left on-site. This means that taxpayers may bear the costs of any future clean ups.

The report lists a number of other disturbing findings regarding Ohio's VAP. For example, Ohio provided financial incentives for some sites to participate in the VAP, but the sites were never cleaned. Additionally, the report notes that the VAP process did not address offsite contamination concerns, as required by Ohio statutes, and that "[s]ome sites were located on or near critical resource aquifers, wells, and/or municipal water supplies. On- and offsite [contamination] threatened these critical resources, [and] potentially [threatened] human health." 46

The VAP program also strongly relies on institutional or engineering controls as a form of clean up, rather than requiring contamination to be remediated or removed. For example, deed restrictions on land use or groundwater use, the most common form of institutional control employed, were applied at 49.5 percent of the 111 surveyed sites. Additionally, Ohio's program has an Urban Setting Designation that allows developers to avoid cleaning up contaminated groundwater. Thus far, the Ohio Program has issued 57 "Covenants Not to Sue " at VAP sites; of these sites, 17,526 acres of groundwater have been defined as Urban Setting Designators, while another 525 acres of groundwater and 828 acres of land have also been restricted through institutional controls.

Other problems continue to crop up with Ohio's clean up program. For example, The Columbia Dispatch recently reported that that only 10 sites within Ohio have been completely cleaned up since the program began over a decade ago. 47 Additionally, owners of contaminated property recently won a suit that bars Ohio EPA from publicly listing contaminated sites. 48

Currently, citizens across Ohio are urging their state government to improve their program by meeting EPA's standards that would allow for a Memoranda of Agreement. Thus far, the state has failed to make the required program improvements.

Problems have also been found with New York's state clean up program. In February 2001, the New York comptroller published an audit of the state clean up program. 49 The audit found that since 1979, 167 sites have been taken off of the state contaminated site list. Of those sites, only two met the goal of being as clean as they were before being polluted. Of the 221 treated sites that were still on the list, 30 did not meet the state's minimum standards for protecting public health. At five other sites, state workers had failed to meet their own cleanup goals. At 141 other sites, the comptroller found that state records did not demonstrate whether the state's cleanup goals were met. The audit also noted that gaps in the system could have left the public unaware of the continuing dangers or the restrictions on some sites. Finally, the state administration has recently projected that the state clean up fund will be exhausted by March, with a projected deficit of about $50 million.

In 1999, the California legislature failed to reauthorize the state's Superfund cleanup law. 50 On November 19, 1998, a state agency had to adopt emergency cleanup regulations, which were effective for only 120 days.

In 1998, the Los Angeles Daily News reported that at least nine Los Angeles schools were built on sites that school district officials knew might be contaminated. 51 These findings came from a study prepared by California's Joint Legislative Audit Committee.

The Philadelphia Inquirer reported that "many states [including Pennsylvania], under the banner of so-called brownfields, have dramatically loosened cleanup regulations and standards in recent years to spur the development, or sales, of contaminated lands." 52 The story quotes Rick Gimello, assistant commissioner at New Jersey's Department of Environmental Protection as stating, "I don't think any state is as busy as we are. . . Our pace [of putting properties through the program] is off the charts."

On April 16, 1999, the Seattle Post-Intelligencer reported that the state fund which pays for the cleanup of toxic spills and environmental contamination is facing a $5.9 million shortfall, about a seventh of the program's annual budget. 53 The story noted that cleanup work could be halted or delayed at a minimum of 12 highly contaminated, high-priority sites. The shortfall could also severely limit monitoring and testing operations. The paper referenced Jim Pendowski, manager of the state toxic cleanup program, as stating that the "shortfall would compromise the department's ability to detect emerging toxic problems in the environment and deal with existing ones."

A series of reports by the same paper present compelling evidence that the state's Department of Ecology failed to protect 635 Hispanic migrant workers from drinking contaminated groundwater, while providing other (mostly Caucasian) people with bottled drinking water. 54 The migrant workers lived for "several years at a camp with a well that had ethylene dibromide levels 17 times higher than federal regulators considered safe." The paper quotes agency memos from 1988 and 1989 that describe agency debate about whether to provide bottled water to workers. The memos also express concern about the public reaction if people learned that the agency was providing water to white residents, but not Hispanic workers.

In a series of stories, the Bergen Record reported that the Mayor of Secaucus, New Jersey failed to notify citizens and city council members about the migration of contamination from a nearby Superfund site, under the homes of nearby residents. 55 The paper also reported that the Mayor ordered engineers to locate test wells on municipal property where there was no requirement to notify the public. The Mayor stated that since the waste did not pose a danger to the residents, release of the information would have unnecessarily alarmed the public. While some city council members agreed with the Mayor's decision, the paper reported that homeowners and other city council members insisted that they should have been included in the decision making process.

These problems do not appear to be relegated to the few state programs highlighted above. A 1999 report by the National Conference of Mayors surveyed officials in 231 cities across the nation. The survey asked the officials to rank their state's voluntary clean up program. 56 Only 23% of the officials reported that their state programs were excellent, while almost one out of every five officials reported that their state program was not very good. Perhaps more troubling, 34% could not rank their states program, pointing to a large gap in knowledge or a lack of any coherent efforts at education, oversight, and implementation.

Recent EPA reports on the quality of our nation's groundwater document the extremely high value of this resource and startling statistics on groundwater contamination. 57 These reports find that groundwater use is of fundamental importance to human life and is of significant important to our nation's economic vitality. 58 Groundwater supplies drinking water to half of the nation and virtually all people living in rural areas. Some states obtain more than 50% of their total water supply from ground water. Groundwater supports billions of dollars worth of food and industrial production. It also supplies the majority of streamflow in large areas of the nation and provides much of the water in our country's lakes and wetlands. 59

A variety of agricultural, industrial, commercial, and waste disposal practices contaminate our nation's ground water supply. 60 Some of the most frequently cited major sources of potential ground water contamination are landfills, hazardous waste sites, impoundments, industrial facilities, and hazardous waste generators. 61 "Spills [of industrial contaminants] are a source of grave concerns among states." 62 Unfortunately, because of existing data gaps, inaccurate data submitted by states, and a lack of appropriate analytical tools, the problem of groundwater contamination may be far worse than currently estimated. 63

A wide variety of public health and environmental concerns accompany groundwater contamination from hazardous waste sites. 64 Only through the expense of millions of dollars to clean up contaminated groundwater have "people [been protected] from exposure to ground water contaminants released from sources such as hazardous waste sites and leaking underground storage tanks." 65 However, despite these clean up efforts, the reports recognize that more federal, state and local coordination is needed to prevent future contamination and to clean up contaminated ground water resources. 66

Looking at clean up programs along a continuum, upfront federal review protects public health by ensuring that state programs meet common sense criteria, while the federal safety net protects public health at the back end. Since prevention is often less costly, in terms of funds expended and lives affects, than remediation, U.S. PIRG supports an upfront federal review of state programs prior to giving these programs the resources to ramp up their redevelopment activities. This position is supported by data that indicates a wide disparity between the protections afforded by state programs.

In conclusion, we look forward to working with the committee to craft good brownfields legislation that both speeds much-needed redevelopment of blighted inner city areas, while preserving and increasing protections for public health. Of course, legislation that weakens protections would certainly engender strong opposition from the environmental community. In particular, this includes modification to federal safety new.