Issue Date: November 12, 2007
SUPERFUND IS LOSING steam. Recently, Congress began probing why and searching for ways to rev up the federal program for cleaning the nation's worst contaminated sites.
Superfund activities operate at a slower pace than they did in the 1980s and 1990s. The Bush Administration and some in industry say this slowdown is because those Superfund sites that remain tainted and dangerous are larger and more complex than those addressed years ago. Other observers, including some Democrats and environmental activists, dismiss this argument and say the program is increasingly impeded by lack of funds.
Under the Superfund program, toxic waste has been removed from hundreds of sites. At some sites, however, cleanup began decades ago yet remains unfinished.
Since 1983, the Environmental Protection Agency has listed 1,579 sites on its National Priorities List (NPL) of Superfund sites. Once a site is placed on the list, either EPA can do the cleanup itself and then force polluters to reimburse the government for the expense, or the agency can compel companies responsible for the contamination to do the cleanup.
Of the sites ever included on NPL, 321 have been cleaned up and removed from the list. Some of the delisted sites have become parks, and others have undergone commercial redevelopment.
Remaining on NPL are 1,248 sites. Of these, EPA has deemed 712 as "construction complete." This means that the sites no longer harbor toxic wastes and tainted soils and that remediation technology, such as pump-and-treat systems for stripping pollutants out of groundwater, has been installed. Sites classified as construction complete stay on NPL until EPA declares that the pollution is completely remediated.
For many of the sites left on NPL that aren't deemed construction complete, cleanup of the waste will be expensive and complex and could take a long time to finish. They include old mining sites, closed-down smelters, and former leather tanneries. Some are landfills leaching pollution into soils or groundwater. Others are rivers with beds and banks polluted by upstream industries. Some are military bases and Energy Department facilities.
Meanwhile, annual funding for the program has been flat at about $1.2 billion since 2006. The Bush Administration says this is enough money for EPA to do what needs to be done at Superfund sites.
THE ADMINISTRATION, in fact, maintains that the Superfund program is working just fine as it stands, a claim that some say does not jibe with EPA's declaration that only 24 NPL sites reached the construction completion phase in fiscal 2007.
In previous years of the Bush Administration, the agency moved, on average, 42 NPL sites annually into the construction complete category, according to a report released earlier this year by the nonprofit Center for Public Integrity. In contrast, the Clinton Administration average was 79 sites per year, the study found.
After years of perfunctory oversight of the program, Congress is now taking a hard look at Superfund and considering how to pick up the pace of cleanups. Some environmental activists wanting local sites cleaned up faster are pushing for Congress to pump more money into the program.
Some Democrats in Congress want to reinstate a Superfund tax on businesses to achieve this, an idea that industry staunchly opposes. Meanwhile, some Republicans, backed by businesses, say the program needs management reforms so more money can be directed to cleanups and away from EPA bureaucracy.
In July, House Democrats asked the Government Accountability Office (GAO) to investigate the pace of sites being added to NPL and whether cleanups are being delayed due to a lack of funding. And on Oct. 17, the Senate Environment & Public Works Subcommittee on Superfund & Environmental Health held an extensive hearing on the status and future of Superfund.
At that hearing, Sen. Barbara Boxer (D-Calif.) said the stagnating rate of site cleanups and additions to NPL "is simply unacceptable."
But Michael W. Steinberg, an attorney who represents the Superfund Settlement Project, an industry association, said this change in pace is natural because Superfund has "largely addressed its original workload." Installation of technologies to remediate contamination is completed at most sites on NPL, he pointed out at last month's Superfund hearing in the Senate.
"Superfund—once a topic of intense public concern, dominated by controversy and emotion—has fundamentally achieved its objectives and accordingly has receded in the public focus," Steinberg said. "Most NPL sites no longer pose health risks."
According to EPA, human exposure to toxic pollutants remains uncontrolled at 110 sites on NPL. And the agency says it does not have enough information to determine whether human exposure is controlled at another 159 NPL sites. This is because the agency is in the process of revisiting NPL sites to check for potential vapor intrusion: the migration of contaminants, such as volatile organic compounds, through soils and into buildings.
EPA acknowledges that some Superfund sites are taking decades to clean up. Susan P. Bodine, the agency's assistant administrator for solid waste and emergency response, said that of the more than 530 sites on NPL that aren't construction complete, 284 have been on the list since before 1991.
"This does not mean that EPA had been neglecting these sites," she told the Senate subcommittee. "It simply means that some sites present a greater cleanup challenge than others, often due to the size or complexity of sites."
WHEN THE SUPERFUND program began, it generally was the only program for cleaning up a toxic waste site, Bodine noted. Now, in addition to the federal Superfund, states and Native American tribes run their own cleanup efforts, which often involve sites where polluting companies agree to carry out or underwrite remediation activities. EPA also takes action to address some polluted sites under the U.S. law that governs hazardous waste, the Resource Conservation & Recovery Act, added Bodine, EPA's top Superfund official.
Sites that are added to NPL these days tend to involve complex cleanups, often with companies that resist cleaning up the contamination they caused, or they are so-called orphan sites where the corporate polluter is either out of business or insolvent, Bodine said.
A witness who served during the Clinton Administration took issue with Bodine's complexity argument for explaining the slower pace of Superfund cleanup projects.
"The composition in NPL did not change overnight" after the Bush Administration took office, said Bradley M. Campbell, an attorney and environmental consultant. "But the pace of cleanup and the agency leadership did. Many of the cleanups that await completion are utterly commonplace in nature, presenting no unusual challenges of complexity or scale," alleged Campbell, who served under Clinton at EPA and on the President's Council on Environmental Quality.
Moreover, a number of the cleanup sites placed on NPL early in Superfund's history were complex, including the well-known Love Canal and Hooker Chemical sites in New York, Campbell added. He was commissioner of New Jersey's Department of Environmental Protection from 2002 to 2006.
The problem with Superfund, according to Campbell, is that the program does not have enough money.
"The pace of cleanup is closely tied to the availability of funding," Campbell said. A lack of federal dollars has particularly affected sites where cleanup work is ready to start, he said. "As a consequence, bureaucratic delay in the cleanup process has been encouraged or has been used as a veil to obscure funding shortfalls," he told the subcommittee.
When Boxer asked Bodine whether EPA's Superfund program is getting enough money each year, given the number of sites left to clean up, Bodine said that EPA continues to make progress in cleaning up Superfund sites at current funding levels. She added that when EPA draws up its budget, it asks Superfund site managers to review their needs carefully.
Steinberg, meanwhile, argued that instead of more funding, the Superfund program needs to be managed better.
Under a policy established by the Clinton Administration, most of the Superfund cleanup decisions are made by the agency's 10 regional offices scattered throughout the U.S. Steinberg urged EPA to return to having all Superfund cleanup decisions made at agency headquarters in Washington, D.C.
Decisions on the type of cleanup to be carried out at Superfund sites affect the cost of those actions. Thus, Steinberg said, "EPA headquarters does not actively manage the rate at which the Superfund program takes on new financial obligations."
The top Republican on the Environment & Public Works Committee, Sen. James M. Inhofe (R-Okla.), endorsed this idea. "There needs to be multiple cleanup alternatives considered for each site, and this important decision should be made by high-level EPA officials, someone that can be held accountable, rather than EPA bureaucrats" at regional offices, Inhofe said.
In addition, Steinberg argued for the agency to cut its oversight of some Superfund cleanups. The agency could reduce the attention it focuses on companies that have a proven track record on cleanups and on sites with uncomplicated strategies for remediation, Steinberg said. This would free up resources for other sites that do require more oversight, he suggested.
Campbell, meanwhile, took issue with EPA's seeming unwillingness to use its enforcement powers and order companies responsible for the waste site to do cleanups at an accelerated pace or to require businesses to operate in a more environmentally protective fashion.
Despite all the talk about management, the biggest political hot potato about the program is the Superfund tax.
The now-empty federal trust fund known as Superfund was bankrolled by a three-prong tax. This included levies on chemical feedstocks and crude oil as well as a corporate environmental tax. These Superfund taxes generated approximately $1.5 billion in revenues per year until they expired in 1995. The trust fund's balance peaked at $3.6 billion in 1995, but without new revenues, the coffer dwindled until it essentially ran out of money in 2003.
After the Superfund ran dry, Congress has supported the program from general tax revenues. Since the mid-1990s, some members of Congress have introduced legislation to reinstate the Superfund tax, but the bills have never gained traction.
At the Senate subcommittee hearing last month, Democratic presidential front-runner Sen. Hillary Rodham Clinton (D-N.Y.) called for reviving the Superfund levy. "Ordinary taxpayers should not be paying for cleanup," said Clinton, who chairs the Superfund & Environmental Health Subcommittee.
Rena Steinzor, board member of the Center for Progressive Reform and a law professor at the University of Maryland, also endorsed reinstituting Superfund taxes. The oil and chemical industries are the sectors "most involved" at Superfund sites, so it is only fair that they should carry the largest tax burden for the cleanups, she said at the hearing. Compared with the profits of oil companies, she added, "this tax is so small."
That's not how Inhofe sees it. "This tax does not distinguish a polluter from a company that is an environmental steward," he argued. In the past, he contended, the levy "unfairly targeted the oil and chemical industries, penalizing companies that had no contact with any Superfund site."
J. Winston Porter, a Reagan Administration official who ran the Superfund program from 1985 to 1989, also argued against the tax. Cities, states, and federal agencies are partially responsible for the contamination that created Superfund sites, yet they did not chip in to the trust fund, said Porter, president of the Waste Policy Center, a consulting company.
Porter suggested that if Congress wants to provide more money for Superfund, it should direct the funds to specific cleanup projects. A simple increase in funding for the EPA program, he said, would likely result in a bigger bureaucracy.
But whether Congress, facing budget deficits, will pour more money into Superfund or consider reinstating the Superfund tax is likely to remain undetermined in coming months. Boxer predicts more hearings on Superfund in the Senate. And the House may also hold hearings after the GAO investigation is completed. All the while, Superfund cleanups will plug along at a slowing pace.
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