|Long title||An act to provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites.|
|Enacted by||the 96th United States Congress|
|Public law||P.L. 96-510|
|Statutes at Large||94 Stat. 2767|
|Titles amended||42 (Public Health)|
|U.S.C. sections created||42 U.S.C. § 9601 et seq.|
|United States Supreme Court cases|
|United States v. Bestfoods, 524 U.S. 51 (1998)|
Guam v. United States, No. 20-382, 593 U.S. ___ (2021)
The United States federal Superfund law, officially the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), established the federal Superfund program, administered by the U.S. Environmental Protection Agency (EPA). The program is designed to investigate and clean up sites contaminated with hazardous substances. Sites managed under this program are referred to as "Superfund" sites. There are 40,000 federal Superfund sites across the country, and approximately 1,600 of those sites have been listed on the National Priorities List (NPL). Sites on the NPL are considered the most highly contaminated and undergo longer-term remedial investigation and remedial action (cleanups).
The EPA seeks to identify parties responsible for hazardous substances releases to the environment (polluters) and either compel them to clean up the sites, or it may undertake the cleanup on its own using the Superfund (a trust fund) and seek to recover those costs from the responsible parties through settlements or other legal means.
Approximately 70% of Superfund cleanup activities historically have been paid for by the potentially responsible parties (PRPs), the latter 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 pay for the cleanup. Through the 1980s, most of the funding came from a tax passed on to the consumers of petroleum and chemical products. However, in 1995, Congress chose not to renew this tax and the burden of the cost was shifted to tax payers. Since 2001, most of the cleanup of hazardous waste sites has been funded through taxpayers generally. Despite its name, the program has suffered from under-funding, and Superfund NPL cleanups have decreased to a mere 8 in 2014, out of over 1,200.
The EPA and state agencies use the Hazard Ranking System (HRS) to calculate a site score (ranging from 0 to 100) based on the actual or potential release of hazardous substances from a site. A score of 28.5 places a site on the National Priorities List, eligible for long-term, remedial action (i.e., cleanup) under the Superfund program. As of April 1, 2020 , there were 1,335 sites listed; an additional 424 had been delisted, and 51 new sites have been proposed.
The Superfund law also authorizes federal natural resource agencies, primarily the Environmental Protection Agency (EPA), states and Native American tribes to recover natural resource damages caused by hazardous substances, though most states have and most often use their own versions of a state Superfund law. CERCLA created the Agency for Toxic Substances and Disease Registry (ATSDR).
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 Initiative provides tools and support for site redevelopment.
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 (bankruptcy or refusal), 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 (HRS) in 1981, and the first National Priorities List (NPL) in 1983. Implementation in early years, during the 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.
The Superfund Amendments and Reauthorization Act of 1986 (SARA) 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 (section 122). This was to address sweetheart deals between industry and the Reagan-era EPA that Congress had discovered.
In 1994, President Bill Clinton proposed a new Superfund reform bill, Executive Order (E.O) 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 regional offices of the Environmental Protection Agency now had to apply required guidelines for its 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 bill did not get bipartisan support. The newly elected Republican Congress made numerous unsuccessful efforts to significantly weaken the law. The Clinton Administration then adopted some industry favored reforms as policy and blocked most major changes.
Until the mid-1990s, most of the funding came from a tax on the petroleum and chemical industries, reflecting the polluter pays principle. Even though by 1995 nearly $4 billion in fees were in the Superfund, Congress chose not to reauthorize collection of these and by 2003 the Superfund was empty.:1
In 2001, the Environmental Protection Agency 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.
According to a 2015 U.S. Government Accountability Office report, since 2001, most of the funding for cleanups of hazardous waste sites has come from taxpayers; a state pays 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 funding had decreased from $2 billion in 1999 to less than $1.1 billion (in constant dollars).:11
From 2000-2015, 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.:8
The preliminary 2018 Trump Administration Superfund budget would cut the program by $330 million out of its nearly $1.1 billion budget, a 30% reduction to the Environmental Protection Agency program.
CERCLA authorizes two kinds of response actions:
A potentially responsible party (PRP) is a possible polluter who may eventually be held liable under CERCLA for the contamination or misuse of a particular property or resource. Four classes of PRPs may be liable for contamination at a Superfund site:
The liability scheme of CERCLA changed commercial and industrial real estate, making sellers liable for contamination from past activities, meaning they can't pass liability onto unknowing buyers without any responsibility. Buyers also have to be aware of future liabilities.
The CERCLA also required the revision of the National Oil and Hazardous Substances Pollution Contingency Plan 9605(a)(NCP). 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:
Including a site on the NPL does not itself require PRPs to initiate action to clean up the site, nor assign liability to any person. The NPL serves informational purposes, notifying the government and the public of those sites or releases that appear to warrant remedial actions.
The key difference between the authority to address hazardous substances and pollutants or contaminants is that the cleanup of pollutants or contaminants, which are not hazardous substances, cannot be compelled by unilateral administrative order.
Despite the name, the Superfund trust fund lacks sufficient funds to clean up even a small number of the sites on the NPL. As a result, the EPA typically negotiates consent orders with PRPs to study sites and develop cleanup alternatives, subject to EPA oversight and approval of all such activities. The EPA then issues a Proposed Plans for remedial action for a site on which it takes public comment, after which it makes a cleanup decision in a Record of Decision (ROD). RODs are typically implemented under consent decrees by PRPs or under unilateral orders if consent cannot be reached. If a party fails to comply with such an order, it may be fined up to $37,500 for each day that non-compliance continues. A party that spends money to clean up a site may sue other PRPs in a contribution action under the CERCLA. CERCLA liability has generally been judicially established as joint and several among PRPs to the government for cleanup costs (i.e., each PRP is hypothetically responsible for all costs subject to contribution), but CERCLA liability is allocable among PRPs in contribution based on comparative fault. An "orphan share" is the share of costs at a Superfund site that is attributable to a PRP that is either unidentifiable or insolvent. The EPA tries to treat all PRPs equitably and fairly. Budgetary cuts and constraints can make more equitable treatment of PRPs more difficult.
Upon notification of a potentially hazardous waste site, the EPA conducts a Preliminary Assessment/Site Inspection (PA/SI), which involves records reviews, interviews, visual inspections, and limited field sampling. Information from the PA/SI is used by the EPA to develop a Hazard Ranking System (HRS) score to determine the CERCLA status of the site. Sites that score high enough to be listed typically proceed to a Remedial Investigation/Feasibility Study (RI/FS).
The RI includes an extensive sampling program and risk assessment that defines the nature and extent of the site contamination and risks. The FS is used to develop and evaluate various remediation alternatives. The preferred alternative is presented in a Proposed Plan for public review and comment, followed by a selected alternative in a ROD. The site then enters into a Remedial Design phase and then the Remedial Action phase. Many sites include long-term monitoring. Once the Remedial Action has been completed, reviews are required every five years, whenever hazardous substances are left onsite above levels safe for unrestricted use.
As of 9 August 2016, there were 1,328 sites listed on the National Priority List; an additional 391 had been delisted, and 55 new sites were proposed.
Historically about 70 percent of Superfund cleanup activities have been paid for by potentially responsible party (PRPs). When the party either cannot be found or is unable to pay for the cleanup, the Superfund law originally paid for toxic waste cleanups through a tax on petroleum and chemical industries. The chemical and petroleum fees were intended to provide incentives to use less toxic substances. Over five years, $1.6 billion was collected, and the tax went to a trust fund for cleaning up abandoned or uncontrolled hazardous waste sites.
The last full fiscal year (FY) in which the Department of the Treasury collected the tax was 1995.:1 At the end of FY 1996, the invested trust fund balance was $6.0 billion. This fund was exhausted by the end of FY 2003;:3 Since that time superfund sites for which the potentially responsible parties could not pay have been paid for from the general fund appropriated by Congress.:1
The Hazard Ranking System is a scoring system used to evaluate potential relative risks to public health and the environment from releases or threatened releases of hazardous wastes at uncontrolled waste sites. Under the Superfund program, the EPA and state agencies use the HRS to calculate a site score (ranging from 0 to 100) based on the actual or potential release of hazardous substances from a site through air, surface water or groundwater. A score of 28.5 places the site on the National Priorities List, making the site eligible for long-term remedial action (i.e., cleanup) under the Superfund program.
Federal actions to address the disproportionate health and environmental disparities that minority and low-income populations face through Executive Order (E.O) 12898 required federal agencies to make environmental justice central to their programs and policies. Superfund sites have been shown to impact minority communities the most. Despite legislation specifically designed to ensure equity in Superfund listing, marginalized populations still experience a lesser chance of successful listing and cleanup than areas with higher income levels. After the executive order had been put in place, there persisted a discrepancy between the demographics of the communities living near toxic waste sites and their listing as Superfund sites, which would otherwise grant them federally funded cleanup projects. Communities with both increased minority and low-income populations were found to have lowered their chances of site listing after the executive order, while on the other hand, increases in income led to greater chances of site listing. Of the populations living within 1 mile radius of a Superfund site, 44% of those are minorities despite only being around 37% of the nation's population. It has also been shown that the government responds slower to community demands from minority communities than from white communities. Superfund sites near white communities are reputed to have better clean-up, harsher penalties for polluters, and a larger tax-base of funding than minority communities.
As of January 2021, more than 9,000 federally-subsidized properties -- including ones with hundreds of dwellings -- were less than a mile from a Superfund site.
In 1978, residents of the rural black community of Triana, Alabama were found to be contaminated with DDT and PCB, some of whom had the highest levels of DDT ever recorded in human history. The DDT was found in high levels in Indian Creek, which many residents relied on for sustenance fishing. Although this major health threat to residents of Triana was discovered in 1978, the federal government did not act until 5 years later after the mayor of Triana filed a class-action lawsuit in 1980.
In West Dallas, Texas, a mostly African American and Latino community, a lead smelter poisoned the surrounding neighborhood, elementary school, and day cares for more than five decades. Dallas city officials were informed in 1972 that children in the proximity of the smelter were being exposed to lead contamination. The city sued the lead smelters in 1974, then reduced its lead regulations in 1976. It wasn't until 1981 that the EPA commissioned a study on the lead contamination in this neighborhood, and found the same results that had been found a decade earlier. In 1983, the surrounding day cares had to close due to the lead exposure while the lead smelter remained operating. It was later revealed that EPA Deputy Administrator John Hernandez had deliberately stalled the clean up of the lead-contaminated hot spots. It wasn't until 1993 that the site was declared a Superfund site, and at the time it was one of the largest ones. However, it was not until 2004 when the EPA completed the clean-up efforts and eliminated the lead pollutant sources from the site.
The Afton community of Warren County, North Carolina is one of the most prominent environmental injustice cases and is often pointed to as the roots of the environmental justice movement. PCB's were illegally dumped into the community and then it eventually became a PCB landfill. Community leaders pressed the state for the site to be cleaned up for an entire decade until it was finally detoxified. However, this decontamination did not return the site to its pre-1982 conditions. There has been a call for reparations to the community which has not yet been met.
Bayview-Hunters Point, San Francisco, a historically African American community, has faced persistent environmental discrimination due to the poor remediation efforts of the San Francisco Naval Shipyard, a federally declared Superfund site. The negligence of multiple agencies to adequately clean this site has led Bayview residents to be subject to high rates of pollution and has been tied to high rates of cancer, asthma, and overall higher health hazards than other regions of San Francisco.
One example is the Church Rock uranium mill spill on the Navajo Nation. It was the largest radioactive spill in the US, but received a long delay in government response and cleanup after being placed as a lower priority site. Two sets of five-year clean up plans have been put in place by US Congress, but contamination from the Church Rock incident has still not been completely cleaned up. Today, uranium contamination from mining during the Cold War era remains throughout the Navajo Nation, posing health risks to the Navajo community.
Cuts to the EPA's funding and resources would hinder the regulation and remediation of Superfund sites. This would perpetuate the exposure to health risks that adjacent communities face from proximity to the Superfund site. Delays in government response to Superfund conditions increases the exposure of health risks to proximate communities.
The data in the Superfund Program are available to the public.
While the simple and relatively easy sites have been cleaned up, EPA is now addressing a residual number of difficult and massive sites such as large-area mining and sediment sites, which is tying up a significant amount of funding. Also, while the federal government has reserved funding for cleanup of federal facility sites, this clean-up is going much more slowly. The delay is due to a number of reasons, including EPA's limited ability to require performance, difficulty of dealing with Department of Energy radioactive wastes, and the sheer number of federal facility sites.
From 1981 until mid-1983, the CERCLA program suffered from frequent policy shifts and reorganizations, patent abuse by its leadership, and a demoralizing slowdown of Fund expenditures and other cleanup initiatives. Negotiation acquired a bad name during this period because key officials appeared willing to negotiate unduly generous cleanup terms with site users.