Superfund
Superfund is a United States federal environmental remediation program established by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. The program is administered by the Environmental Protection Agency and is designed to pay for investigating and cleaning up sites contaminated with hazardous substances. Sites managed under this program are referred to as Superfund sites. The EPA seeks to identify parties responsible for hazardous substances released to the environment and either compel them to clean up the sites, or it may undertake the cleanup on its own using the Superfund, seeking to recover those costs from the responsible parties through settlements or other legal means. The EPA and state agencies use the Hazard Ranking System to calculate a site score based on the actual or potential release of hazardous substances from a site. A score of 28.5 results in a site being placed on the National Priorities List, eligible for long-term, remedial action under the Superfund program. Sites on the NPL are considered the most highly contaminated and undergo longer-term remedial investigation and remedial action. The state of New Jersey, the fifth smallest state in the U.S., disproportionately contains about ten percent of the priority Superfund sites., there were 1,343 sites listed; an additional 459 had been deleted, and 38 new sites have been proposed on the NPL.
Approximately 70% of Superfund cleanup activities historically have been paid for by the potentially responsible parties, reflecting the polluter pays principle. However, 30% of the time, the responsible party either cannot be found or is unable to pay for the cleanup. In these circumstances, taxpayers had been paying for the cleanup operations. Through the 1980s, most of the funding came from an excise tax on petroleum and chemical manufacturers. However, in 1995, Congress chose not to renew this tax and the burden of the cost was shifted to taxpayers in the general public. Since 2001, most of the cleanup of hazardous waste sites has been funded through taxpayers generally. Despite its name, the program suffered from under-funding, and by 2014 Superfund NPL cleanups had decreased to only 8 sites, out of over 1,200. In November 2021, the Infrastructure Investment and Jobs Act reauthorized an excise tax on chemical manufacturers, for ten years starting in July 2022.
Superfund also authorizes natural resource trustees, which may be federal, state, and/or tribal, to perform a Natural Resource Damage Assessment. Natural resource trustees determine and quantify injuries caused to natural resources through either releases of hazardous substances or cleanup actions and then seek to restore ecosystem services to the public through conservation, restoration, and/or acquisition of equivalent habitat. Responsible parties are assessed damages for the cost of the assessment and the restoration of ecosystem services. For the federal government, the EPA, US Fish and Wildlife Service, or the National Oceanic and Atmospheric Administration may act as natural resource trustees. The US Department of Interior keeps a list of the natural resource trustees appointed by state's governors. Federally recognized Tribes may act as trustees for natural resources, including natural resources related to Tribal subsistence, cultural uses, spiritual values, and uses that are preserved by treaties. Tribal natural resource trustees are appointed by tribal governments. Some states have their own versions of a state Superfund law and may perform NRDA either through state laws or through other federal authorities such as the Oil Pollution Act.
CERCLA created the Agency for Toxic Substances and Disease Registry to prevent human exposure to Superfund site contaminants and manage public health response when it occurs.
The primary goal of a Superfund cleanup is to reduce the risks to human health through a combination of cleanup, engineered controls like caps, and site restrictions such as groundwater use restrictions. A secondary goal is to return the site to productive use as a business, recreation, or as a natural ecosystem. Identifying the intended reuse early in the cleanup often results in faster and less expensive cleanups. EPA's Superfund Redevelopment Program provides tools and support for site redevelopment.
History
CERCLA was enacted by Congress in 1980 in response to the threat of hazardous waste sites, typified by the Love Canal disaster in New York, and the Valley of the Drums in Kentucky. It was recognized that funding would be difficult, since the responsible parties were not easily found, and so the Superfund was established to provide funding through a taxing mechanism on certain industries and to create a comprehensive liability framework to be able to hold a broader range of parties responsible. The initial Superfund trust fund to clean up sites where a polluter could not be identified, could not or would not pay, consisted of about $1.6 billion and then increased to $8.5 billion. Initially, the framework for implementing the program came from the oil and hazardous substances National Contingency Plan.The EPA published the first Hazard Ranking System in 1981, and the first National Priorities List in 1983. Implementation of the program in early years, during the Ronald Reagan administration, was ineffective, with only 16 of the 799 Superfund sites cleaned up and only $40 million of $700 million in recoverable funds from responsible parties collected. The mismanagement of the program under Anne Gorsuch Burford, Reagan's first chosen Administrator of the agency, led to a congressional investigation and the reauthorization of the program in 1986 through an act amending CERCLA.
1986 amendments
The Superfund Amendments and Reauthorization Act of 1986 added minimum cleanup requirements in Section 121 and required that most cleanup agreements with polluters be entered in federal court as a consent decree subject to public comment. This was to address sweetheart deals between industry and the Reagan-era EPA that Congress had discovered.Environmental justice initiative
In 1994 President Bill Clinton issued Executive Order 12898, which called for federal agencies to make achieving environmental justice a requirement by addressing low income populations and minority populations that have experienced disproportionate adverse health and environmental effects as a result of their programs, policies, and activities. The EPA regional offices had to apply required guidelines for its Superfund managers to take into consideration data analysis, managed public participation, and economic opportunity when considering the geography of toxic waste site remediation. Some environmentalists and industry lobbyists saw the Clinton administration's environmental justice policy as an improvement, but the order did not receive bipartisan support. The newly elected Republican Congress made numerous unsuccessful efforts to significantly weaken the program. The Clinton administration then adopted some industry favored reforms as policy and blocked most major changes.Decline of excise tax
Until the mid-1990s, most of the funding came from an excise tax on the petroleum and chemical industries, reflecting the polluter pays principle. Even though by 1995 the Superfund balance had decreased to about $4 billion, Congress chose not to reauthorize collection of the tax, and by 2003 the fund was empty. Since 2001, most of the funding for cleanups of hazardous waste sites has come from taxpayers. State governments pay 10 percent of cleanup costs in general, and at least 50 percent of cleanup costs if the state operated the facility responsible for contamination. By 2013 federal funding for the program had decreased from $2 billion in 1999 to less than $1.1 billion.In 2001, the EPA used funds from the Superfund program to institute the cleanup of anthrax on Capitol Hill after the 2001 anthrax attacks. It was the first time the agency dealt with a biological release rather than a chemical or oil spill.
From 2000 to 2015, Congress allocated about $1.26 billion of general revenue to the Superfund program each year. Consequently, less than half the number of sites were cleaned up from 2001 to 2008, compared to before. The decrease continued during the Obama administration, and since under the direction of EPA Administrator Gina McCarthy Superfund cleanups decreased even more from 20 in 2009 to a mere 8 in 2014.
Reauthorization of excise tax
In November 2021, Congress reauthorized an excise tax on chemical manufacturers, under the Infrastructure Investment and Jobs Act. The new chemical excise tax is effective July 1, 2022, and is double the rate of the previous Superfund tax. The 2021 law also authorized $3.5 billion in emergency appropriations from the U.S. government general fund for hazardous site cleanups in the immediate future.Provisions
CERCLA authorizes two kinds of response actions:- Removal actions. These are typically short-term response actions, where actions may be taken to address releases or threatened releases requiring prompt response. Removal actions are classified as: emergency; time-critical; and non-time critical. Removal responses are generally used to address localized risks such as abandoned drums containing hazardous substances, and contaminated surface soils posing acute risks to human health or the environment.
- Remedial actions. These are usually long-term response actions. Remedial actions seek to permanently and significantly reduce the risks associated with releases or threats of releases of hazardous substances, and are generally larger, more expensive actions. They can include measures such as using containment to prevent pollutants from migrating, and combinations of removing, treating, or neutralizing toxic substances. These actions can be conducted with federal funding only at sites listed on the EPA National Priorities List in the United States and the territories. Remedial action by responsible parties under consent decrees or unilateral administrative orders with EPA oversight may be performed at both NPL and non-NPL sites, commonly called Superfund Alternative Sites in published EPA guidance and policy documents.
- the current owner or operator of the site;
- the owner or operator of a site at the time that disposal of a hazardous substance, pollutant or contaminant occurred;
- a person who arranged for the disposal of a hazardous substance, pollutant or contaminant at a site; and
- a person who transported a hazardous substance, pollutant or contaminant to a site, who also has selected that site for the disposal of the hazardous substances, pollutants or contaminants.
The CERCLA also required the revision of the National Oil and Hazardous Substances Pollution Contingency Plan 9605. The NCP guides how to respond to releases and threatened releases of hazardous substances, pollutants, or contaminants. The NCP established the National Priorities List, which appears as Appendix B to the NCP, and serves as EPA's information and management tool. The NPL is updated periodically by federal rulemaking.
The identification of a site for the NPL is intended primarily to guide the EPA in:
- Determining which sites warrant further investigation to assess the nature and extent of risks to human health and the environment
- Identifying what CERCLA-financed remedial actions may be appropriate
- Notifying the public of sites, the EPA believes warrant further investigation
- Notifying PRPs that the EPA may initiate CERCLA-financed remedial action.