angela logomasini - superfund

8/8/2019 Angela Logomasini - Superfund

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202-331-1010 www.cei.org Competitive Enterprise Institute

Perhaps no other environmental program

has been cited more often as a failure than thefederal Superfund law. Because of excessivelitigation promoted by the laws faulty liabil-ity scheme and needlessly expensive cleanupstandards, the program has produced scantcleanups. Yet for about two decades attemptsto reform the law have failed. 1 Meanwhile,states have created and eventually reformedtheir own cleanup laws, resulting in thousandsof state-led cleanups. This history makes strik-

1. Although legislation to address federal superfundsites has all failed in the past couple decades, Congress didpass the Small Business Liability Relief and BrownfieldsRevitalization Act in 2002. It created an additional wasteclean up program for non-superfund sites or so-calledbrownfields. This law is discussed in the Brownfieldsbrief in the Environmental Source.

ingly clear that Congress needs to devolve all

Superfund responsibilities to the states, wheresites will eventually be cleaned.

Statutory Scheme

The federal Superfund law 2 (also known asthe Comprehensive Environmental Response,Compensation, and Liability Act, or CERCLA)is allegedly designed to hold parties responsiblefor polluting property. Instead, the law arbi-trarily holds anyone remotely connected to acontaminated site liable for cleanup. Respon-sible parties include waste generators (anyonewho produced waste that eventually contami-

2. The law is usually referred to as the Superfundlaw, after the name of the government fund created toassist with cleanups.

Superfund Angela Logomasini


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The Environmental Source

Competitive Enterprise Institute www.cei.org 202-331-1010

nated property), arrangers for transport of waste, waste transporters (anyone who simplytransports wastes for legal disposal), opera-tors (those who manage waste landfills), andproperty owners (anyone who owns the land).Under the laws strict joint and several liabilityscheme, each party can be held liable for 100percent of the cleanup costs. Liability also isretroactive, applying to situations that occurredlong before Congress passed the law. Accord-ingly, parties ranging from small businesses,schools, and churches to large manufacturingplants have been held accountable for sites thatwere contaminated decades before Superfund

became law.Cleanups can proceed in a number of ways.

First, sites that the U.S. Environmental Protec-tion Agency (EPA) deems a priority for cleanupare listed on the National Priorities List (NPL).After listing a site, the EPA can clean it (pay-ing with funds from the federal Superfund,which was created by taxes on crude oil andother chemicals); then it can seek reimburse-ment from the Superfund by suing what the

law called potentially responsible parties.Often, the EPA engages in long and expensivelitigation beforehand to collect funds fromparties, and cleanup follows. In addition, par-ties found responsible may sue other parties togain compensation for their costs. As a result,Superfund has produced a web of lawsuits,and it can take a decade or more to reach thecleanup stage.

The cleanup process entails setting cleanup

standards that are based on applicable, rel-evant, and appropriate requirements. The EPAsets the standards for each site based on state,local, and federal laws. For example, sometimesthe EPA will use federal drinking water stan-dards to decide how clean water supplies at asite must be. Because the EPA uses extremely

conservative assumptions when assessing risk,the cleanup standards usually demand very ex-pensive cleanups.

Legislation and History

Although Superfund was created as a tem-porary program in 1980 to clean up 400 sites,the NPL now contains more than 1,635 active,proposed, and former sites. 3 The program andits taxing authority expired in 1995. Since then,members of Congress have battled over whetherto restore taxing authority, with fiscal conserva-tives blocking Superfund reauthorization billson tax issues alone. In addition, reform effortshave consisted of legislation designed to servevarious lobbies, each seeking liability exemp-tions, leaving other parties to hold the bag. 4

During recent congressional sessions, Super-fund reform has been high on the agenda, but ithas repeatedly fallen victim to intense politics.During the 107th Congress, Congress did man-age to pass a bill designed to solve problemscreated by Superfund, the so-called brownfieldsbill, which is discussed in another policy brief.During the past several congressional sessions,the Superfund debate has revolved aroundwhether to restore the Superfund tax, whichexpired in 1995.

Superfund grew out of the controversies of Love Canalthe toxic waste site that releasedchemicals into a community in Niagara Falls,

3. Database list of NPL sites was accessed on the U.S.

Environmental Protection Agency website on February26, 2008, at http://cfpub.epa.gov/supercpad/cursites/ srchsites.cfm.

4. For example, see David B. Kopel, Privileged Pollut-ers: The Case against Exempting Municipalities fromSuperfund (Washington, DC: Competitive EnterpriseInstitute, 1988), http://www.cei.org/gencon/025,01195.cfm.


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Solid and Hazardous Waste


New York. Love Canal was a symbol of corpo-rate wrongdoing, and it raised calls for federalefforts to force industry to pay for cleanup atcontaminated properties. But it is not surpris-ing that the birth of this failed law would haveemerged from a lie. 5

In the case, Hooker Chemical Companyselected the site in the early 1940s because, atthe time, it was well suited for a waste site (lowpopulation, largely impermeable clay soil). Butthe local school board forced Hooker to sell theland by threatening to condemn the property.Under pressure, the company agreed in 1953to donate the property to the school board for

one dollar. Hooker attempted to set agreed-upon conditions for safe use (surface use only,no construction that would break the lining),and the deed stated that the liability wouldtransfer to the school board and subsequentowners. The school board proceeded to builda school and then sell part of the land to devel-opersover Hookers objections. Constructionentailed digging into the clay cap, removingtons of soil, and building sewer lines that ran

through the landfill, puncturing it and releasingwaste throughout the community.Panic ensued regarding the risks, resulting

in a fear campaign about toxic waste. Thiscampaign eventually led to the passage of Su-perfund, based on the alleged need for govern-mental action to control industry (even thoughthe local government should have borne blameat Love Canal) and hold it accountable. Ironi-cally, the chemicals at the site did not pose

the risks claimed. Although there were somecontroversial studies that postulated risks, the

5. For an excellent expos of the Love Canal myth, seeEric Zuess, Love Canal: The Truth Seeps Out, Reason February 1981, 1633, http://www.reason.com/news/ show/29319.html.

best studies eventually refuted numerous claimsabout health impacts. 6

Status of Cleanups

Federal Superfund cleanups can take de-cades. The EPA is still trying to clean sites 20years after they were first listed. In fact, only ahandful of sites have actually reached the levelof complete. According to the U.S. GeneralAccounting Office (GAO), now the Govern-ment Accountability Office, it takes about 10years to clean up a Superfund site, and somesites require an additional stagefor monitor-

ing groundwater and the likethat can last anadditional 30 years. 7

Of the 1,635 sites listed on the NPL, only324 have been removed or deleted, 1,245 areactive NPL sites (meaning cleanup in occurringor pending), and 67 are on the proposed list.Of the sites currently on the NPL, 592or47 percentwere listed more than 20 yearsago (between 1983 and 1988), 1,047or 84percentwere listed more than ten years ago

(1983-1998). At this pace, it will take manymore decades to address all the NPL sites.

So What Are the Risks?

Although they are often depicted as cancerhot spots, there is little evidence that Superfundsites pose chronic health risks. In fact, it is very

6. For overviews of the scientific studies, see AaronWildavsky, Love Canal, in But Is It True? A Citizens

Guide to Environmental Health and Safety Issues (Cam-bridge, MA: Harvard University Press, 1995), 127152,and Elizabeth Whelan, The Disaster of Love Canal, inToxic Terror (Ottawa, IL: Jameson Books, 1985).

7. SuperfundInformation on the Programs Funding and Status , GAO/RCED-00-25 (Washington, DC: GAO,October 1999), http://www.gao.gov/docdblite/summary.php?rptno=RCED-00-25&accno=163047.


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difficult to determine risks associated with anylow-level exposures to chemicals in the envi-ronment, and the best research indicates thatsuch risks are likely to be so low that they areundetectable. For example:

In their landmark study on cancer risks,Richard Doll and Richard Peto concludedthat chemicals in the environment causeabout 2 percent of cancer cases. 8 The National Research Council concludedin 1991, Whether Superfund and otherhazardous waste programs protect humanhealth is a critical question. Based on its

review of the literature on the subject, thecommittee finds that the question cannot beanswered. 9

In addition, the EPAs risk assessments grosslyexaggerate the risks of these sites, thereby lead-ing to needlessly expensive cleanup standards.Researchers highlight some problems with EPAassumptions. 10 Consider a few:

The EPA assumes that chemicals that cause

cancer in animals also cause cancer in hu-

8. Richard Doll and Richard Peto, The Causes of Can-cer: Quantitative Estimates of Avoidable Risks of Cancerin the United States Today, Journal of the National Can-cer Institute 66, no. 6 (1981): 1257. For more details seethe policy brief titled Chemical Risk Overview.

9. While noting the serious limitations of the studies,the National Research Council says that risks might ex-ist. The National Research Council proceeds to make a

plea for additional research funding in this area. NationalResearch Council, Environmental Epidemiology, Vol. 1:Public Health and Hazardous Waste (Washington, DC:National Academies Press, 1991), http://www.nap.edu/ openbook.php?isbn=0309044960.

10. Steve Milloy, Science-Based Risk Assessment: A Pieceof the Superfund Puzzle (Washington, DC: National En-vironmental Policy Institute, 1995).

mans. However, these animals are usuallybred to be susceptible to cancer and areexposed to massive doses. Milloy notes,Without this assumption, few substances(only 24 according to the National Toxi-cology Program) would be considered hu-man carcinogens. According to EPA, thisassumption contributes to a high level of uncertainty, and actual risks calculated onthis basis may be as low as zero. 11 In the book Calculating Risks? , James T.Hamilton and W. Kip Viscusi assess risksat 150 Superfund sites (selected becauserisk assessment data were available). They

find that even using the EPAs unrealisti-cally conservative risk assumptions, 140 of these sites would generate no increase of cancer. Hence, spending millionsperhapsbillionsto clean these sites would producezero benefit. 12

Hamilton and Viscusi find that 10 sitesmight produce a total of 731 cancers over30 years. 13 But this number is probably farhigher than real risks, because it is based on

EPA assumptions about exposure and risk.One site would allegedly generate 652 can-cers related to exposure to polychlorinatedbiphenyls (PCBs). But scientist MichaelGough points out, Given the results for thelargest population of PCB-exposed workersever studied, which show that PCBs havenot caused cancer in humans, the 652 ex-pected cancer cases may be overestimated

11. Ibid., 22.

12. James T. Hamilton and W. Kip Viscusi, Calculating Risks? The Spatial and Political Dimensions of Hazard-ous Waste Policy (Boston: Massachusetts Institute of Technology, 1999).

13. Ibid.


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Solid and Hazardous Waste


by 652. 14 Plus, as Gough notes, the site isa parking lotwith all the chemicals underasphalt. Only if one digs up the asphalt andbuilds playgrounds, homes, or the like willthere be risk of exposure.

At What Price?

The costs are enormous:

According to the GAO, taxes paid into theSuperfund between 1981 and 1998 came to$13.5 billion, and the fund had a balance of $1.4 billion at the end of fiscal year 1999. 15

The GAO estimates that responsible par-ties cleanup costs came to $13 billion from1980 to 1998. 16 Transaction costs incurred by responsibleparties (for litigation and the like) rangedfrom $3.2 billion to $7.6 billion between1980 and 1998. 17 Total costs (both transaction and cleanup)to private parties are estimated to rangefrom $19 billion to $23 billion. 18

Congress also appropriated funds from gen-

eral tax revenues for the EPA to administerthe program.In addition, the law demands that states kickin 10 percent for the cleanup of private sitesand 15 percent for publicly owned sites.

14. Michael Gough, Superfund: The High Cost of En-

vironmental Alarmism, Regulation 23, no. 2 (2000):5860.

15. GAO , SuperfundInformation on the ProgramsFunding and Status .

16. Ibid.

17. Ibid.

18. Ibid.

Devolution Solution:State-Level Successes

Although the federal governments recordwith respect to Superfund is an abysmal failure,state governments are doing much better. In fact,they take much less time to clean more sites atfar lower costs. Consider some figures collectedin 1995 by the former EPA assistant administra-tor for solid waste, Dr. J. Winston Porter: 19

Although the EPA spent about $1 billionworking on about 1,000 sites, states werespending about $700 million annually

cleaning about 11,000 sites.States clean sites in a fraction of the timeit takes the federal government to cleansites, and states do so at far lower cost. Forexample, Minnesota cleans sites in two tothree years at costs of less than $5 millionper site.Although the federal government hadcleaned very few sites by 1994, states hadreached construction completion on

2,844 sites.

State programs have proven more success-ful because they focus on setting more realisticcleanup standards (assessing risks with morerealistic assumptions, considering future use of the property, etc.) and provide fairer liabilitypolicies that promote voluntary cleanup activi-ties by the private sector. Superfunds historyconfirms a basic point: those closer to a prob-

lem are better suited to fix it. Superfund sitesare exclusively a state and local concern. Giventhe demonstrated successes of states (in stark

19. J. Winston Porter, Cleaning Up Superfund: A Casefor Environmental Leadership (Los Angeles: ReasonPublic Policy Institute, 1995).


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contrast to serious federal failure), there is littlereason for Congress to reform federal Super-fund. Instead, members should seek ways tocompletely devolve the program to the states.

Key Experts

Angela Logomasini, Director of Risk andEnvironmental Policy, Competitive EnterpriseInstitute, [email protected].

Recommended Readings

Delong, James V. 1997. Superfund XVII: The

Pathology of Environmental Policy . Wash-ington, DC: Competitive Enterprise Insti-tute, www.cei.org/pdf/1197.pdf.

Gattuso, Dana Joel. 1999. Superfund Legisla-tion: True Reform or a Hazardous Waste?

CEI On Point 51, Competitive EnterpriseInstitute, Washington, DC, http://www.cei.org/utils/printer.cfm?AID=2411.

Kopel, David B. 1998. Privileged Polluters:The Case against Exempting Municipalitiesfrom Superfund . Washington, DC: Com-petitive Enterprise Institute, http://www.cei.org/gencon/025,01195.cfm.

Logomasini, Angela. 2003. EPA Uses Super-fund Tax to Target the Innocent. Atlanta

Journal Constitution , September 3. http:// www.cei.org/gencon/019,03653.cfm.

Milloy, Steve. 1995. Science-Based Risk As-sessment: A Piece of the Superfund Puzzle .

Washington, DC: National EnvironmentalPolicy Institute.

Porter, J. Winston. 1995. Cleaning Up Super-fund: A Case for Environmental Leadership .Los Angeles: Reason Public Policy Institute.

Updated 2008.

angela logomasini - superfund

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