The following commentary appeared in the July/August 2005 issue of The Environmental Forum®. Copyright © 2005, The Environmental Law Institute®, Washington, D.C. Reprinted by permission.
Given a long-winded name with a meaningless acronym, this landmark piece of legislation is known to most people as Superfund because it is designed to ensure that the federal government has the resources -- both legal and financial -- to clean up the most contaminated sites in the country.
CERCLA gives EPA two ways to assure cleanup. Liability is retroactive, strict, and joint and several. This powerful scheme means that EPA can compel responsible parties to conduct site studies and cleanups, or face enforcement action. Second, EPA can spend federal dollars to clean up sites and then recover these costs from the parties responsible. Under the law, the federal dollars come from general revenues and from the Superfund "trust fund." However, the corporate taxes that stocked the trust fund expired at the end of 1995, and the trust fund has now run dry.
Congress has appropriated a total of over $28 billion for the Superfund program in its 25 years. Corporate America, which has taken the lead in cleaning up the majority of sites on EPA's National Priorities List, has almost certainly spent billions of dollars as well. Many billions more have been spent by the Departments of Energy and Defense to address sites owned and operated by the government, arguable the most contaminated.
| Since the program's inception over 1,200 sites have been included on the NPL. Of these, just 300 have been "deleted," meaning that all response actions are complete and all cleanup goals achieved. An additional 600 or so are what EPA calls "construction-complete," meaning that all engineering and construction is complete but that the cleanup standards have not been met. Just when cleanup goals will be met for all 900 sites still on the NPL, EPA doesn't say, but it isn't any time soon.
In 2001, Resources for the Future published a Report to Congress on Superfund, of which I was co-author (Superfund's Future: What Will it Cost?). We concluded that the program would not "ramp down" in the next decade; there are still many too many sites yet to be addressed nationwide. We estimated a $2 billion funding shortfall over the 10 years from FY 2000 through FY 2009. But congressional appropriations have leveled off in recent years at $1.3 billion annually. The result: fewer sites listed each year, fewer cleanups initiated, and increased uncertainty about when cleanups now begun will in fact be completed. In the past few years, the number of sites EPA has added to the NPL each year has dwindled -- an average of 17 have been added for the past three years. But some of these sites are huge orphan sites that could cost hundreds of million of dollars. |
Katherine N. Probst and David M. Konisky with Robert Hersh, |
What do all these facts and figures mean? That even though Superfund is about to turn 25, there is still much to be done at those sites already on EPA's plate to ensure adequate cleanup, and there are, unfortunately, more sites that will warrant EPA's attention (and funds) for many decades
At the same time, Superfund is rarely in the press, nor does it seem to warrant congressional hearings. This is a far cry from the coverage and debate in earlier decades, when Superfund was one of the most controversial environmental programs. Most in industry decried its expansive liability scheme and stringent cleanup standards. Most in the environmental community were appalled by the slow progress actually cleaning up sites, and by the move to "containment" remedies, rather than the permanent solutions called for in the law. For most of the 1990s lobbyists from both sides bickered over needed changes to the law. Environmentalists wanted no changes, and industry wanted many. The debate was endless, and ultimately fruitless.
The long-drawn out reauthorization debate of the 1990s exhausted almost all the players, and few have the stomach any more to even think about major changes. Indeed it is hard to imagine a way out of the policy stalemate. That said, there are a few critical issues that Congress and EPA must address:
First, EPA needs to come clean about the funding shortfall and be required to let Congress and members of the public -- especially communities -- know how much money is needed to achieve cleanup goals at each site on the NPL and when these goals will be achieved given current funding levels.
| Second, Congress needs to appropriate more cleanup funds. While it is legitimate to question whether EPA should be directing more of its annual budget to site-specific cleanup activities (in FY 2004, EPA spent just one-third of its annual appropriations on what most of us would consider "cleanup") there is no way in the short-term for EPA to squeeze the extra $150-400 million needed each year out of its current budget.
Third, however painful, the main regulation governing the Superfund program, the National Contingency Plan, needs to be amended. The NCP sets out a clear process for selecting cleanup remedies, but is utterly deficient in developing a sound basis for ensuring the long-term protection of containment remedies. By definition, these remedies leave contamination on-site. As a result, they often require land and groundwater restrictions to assure protection of public health and the environment. These "institutional controls" are an increasingly important element of assuring protection, and study after study has raised concerns about whether the restrictions are being adequately implemented, monitored, and enforced. There are, of course, other important issues facing the Superfund program, but these three are critical to the program's long-term success and a good place to start in CERCLA's next quarter century. |
John Pendergrass and |
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Katherine Probst is a senior fellow at Resources for the Future.
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