Superfund

Comprehensive Environmental Response, Compensation, and Liability Act of 1980

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.
Acronyms (colloquial)	CERCLA
Nicknames	Superfund
Enacted by	the 96th United States Congress
Citations
Public law	P.L. 96-510
Statutes at Large	94 Stat. 2767
Codification
Titles amended	42 (Public Health)
U.S.C. sections created	42 U.S.C. § 9601 et seq.
Legislative history
Introduced in the House as "Hazardous Waste Containment Act of 1980" (H.R. 7020) by James Florio (D-NJ) on April 2, 1980 Committee consideration by House Interstate and Foreign Commerce, House Ways and Means, Senate Environment, Senate Finance Passed the House on September 23, 1980 (351–23) Passed the Senate on November 24, 1980  with amendment House agreed to Senate amendment on December 3, 1980 (274–94) Signed into law by President Jimmy Carter on December 11, 1980
Major amendments
Superfund Amendments and Reauthorization Act of 1986; Emergency Planning and Community Right-to-Know Act of 1986

Superfund is a United States federal government program designed to fund the cleanup of sites contaminated with hazardous substances and pollutants. It was established by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).^[1] It 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 CERCLA. CERCLA created the Agency for Toxic Substances and Disease Registry (ATSDR). EPA may 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 costs recovered from polluters by referring to the U.S. Department of Justice.

Approximately 70 percent of Superfund cleanup activities historically have been paid for by parties responsible (PRPs) for the cleanup of contamination. The exceptions occur when the responsible party either cannot be found or is unable to pay for the cleanup. Until the mid-1990s, most of the funding came from a tax on the petroleum and chemical industries, reflecting the polluter pays principle, but since 2001, most of the funding for cleanups of hazardous waste sites has come from taxpayers. Despite the name, the program has suffered from under-funding, and Superfund cleanups have decreased to a mere 8 in 2014. As a result, EPA will typically negotiate consent orders with PRPs to study sites and develop cleanup alternatives, subject to EPA oversight and approval of all such activities.

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 the site on the National Priorities List, making the site eligible for long-term remedial action (i.e., cleanup) under the Superfund program. As of 9 August 2016, there are 1,328 sites listed; an additional 391 have been delisted, and 55 new sites have been proposed.^[2]

History

Workers in hazmat suits check the status of a cleanup site

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.^[3] The initial trust fund to clean up a site where a polluter could not be identified, could not or would not pay (bankruptcy or refusal) consisted of about $1.6 billion.^[4]

The EPA published the first Hazard Ranking System (HRS) in 1981, and the first National Priorities List (NPL) in 1982.^[5] Implementation during early years, the two terms of the Reagan administration was ineffective, as only 16 of the 799 Superfund sites were cleaned up, and only $40 million of $700 million in recoverable funds from responsible parties were collected. Reagan's policies were described as laissez-faire.^[6]:5

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.^[7]

Until the mid-1990s, most of the funding came from a tax on the petroleum and chemical industries, reflecting the polluter pays principle.^[8] In 1994, the Clinton administration proposed a new Superfund reform bill, which some environmentalists and industry lobbyists saw 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.^[9] Even though by 1995 nearly $4 billion in fees were in the superfund, Congress did not reauthorize to collect these and by 2003 the superfund was empty.

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 if it 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).^[8]: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.^[4]:8

Provisions

CERCLA authorizes two kinds of response actions:

1. 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: (1) emergency; (2) time-critical; and (3) 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.^[10]
2. 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 which may include such measures as preventing the migration of pollutants with containment, or preferably removing and/or treating or neutralizing toxic substances. These actions can be conducted with federal funding only at sites listed on the EPA National Priorities List (NPL) 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.^[11]

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:

1. the current owner or operator of the site;^[12]
2. the owner or operator of a site at the time that disposal of a hazardous substance, pollutant or contaminant occurred;^[13]
3. a person who arranged for the disposal of a hazardous substance, pollutant or contaminant at a site;^[14] and
4. 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.^[15]

The CERCLA also required the revision of the National Oil and Hazardous Substances Pollution Contingency Plan 9605(a)(NCP).^[16] The NCP provides guidelines and procedures for responses to releases and threatened releases of hazardous substances, pollutants, or contaminants. The NCP also established the NPL. The NPL, which appears as Appendix B to the NCP, primarily serves as an information and management tool for the EPA. The NPL is updated periodically by federal rulemaking.

The identification of a site for the NPL is intended primarily to guide EPA in:

• determining which sites warrant further investigation to assess the nature and extent of the risks to the human health and environment;
• identifying what CERCLA-financed remedial actions may be appropriate;
• notifying the public of sites which EPA believes warrant further investigation; and
• notifying PRPs that EPA may initiate CERCLA-financed remedial action.

Inclusion of a site on the NPL does not itself require PRPs to initiate action to clean up the site, nor does it assign liability to any person. The NPL serves primarily 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, EPA will typically negotiate consent orders with PRPs to study sites and develop cleanup alternatives, subject to EPA oversight and approval of all such activities. 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.^[17] 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.^[18] 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.^[19] EPA as a matter of long-standing policy tries to treat all PRPs equitably (fairly). Budgetary cuts and constraints can make more equitable treatment of PRPs more difficult.

Procedures

Map of Superfund sites. Red indicates currently on final National Priority List, yellow is proposed, green is deleted (usually meaning having been cleaned up). This map is as of October 2013.

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.^[20] 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.^[21] 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 in order to define 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. 5-year reviews once the Remedial Action has been completed are required whenever hazardous substances are left onsite above levels safe for unrestricted use.

• The CERCLA information system (CERCLIS) is a database maintained by the EPA and the states that lists sites where releases may have occurred, need to be addressed, or have been addressed. CERCLIS consists of three inventories: the CERCLIS Removal Inventory, the CERCLIS Remedial Inventory, and the CERCLIS Enforcement Inventory.^[19]
• The Superfund Innovative Technology Evaluation (SITE) program supports development of technologies for assessing and treating waste at Superfund sites. The EPA evaluates the technology and provides an assessment of its potential for future use in Superfund remediation actions. The SITE program consists of four related components: the Demonstration Program, the Emerging Technologies Program, the Monitoring and Measurement Technologies Program, and Technology Transfer activities.^[19]
• A reportable quantity (RQ) is the minimum quantity of a hazardous substance which, if released, is required to be reported.^[19][22]
• A source control action represents the construction or installation and start-up of those actions necessary to prevent the continued release of hazardous substances (primarily from a source on top of or within the ground, or in buildings or other structures) into the environment (40 C.F.R. 300.5).^[19]
• A section 104(e) letter is a request by the government for information about a site. It may include general notice to a potentially responsible party that CERCLA-related action may be undertaken at a site for which the recipient may be responsible.<42 U.S.C. 9604(e)>. This section also authorizes EPA to enter facilities and obtain information relating to PRPs, hazardous substances releases, and liability, and to order access for CERCLA activities.^[23] The 104(e) letter information-gathering resembles written interrogatories in civil litigation.^[23]
• A section 106 order is a unilateral administrative order issued by EPA to PRP(s) to perform remedial actions at a Superfund site when EPA determines there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, subject to treble damages and daily fines if the order is not obeyed.^[19]
• A remedial response is a long-term action that stops or substantially reduces a release of a hazardous substance that could affect public health or the environment. The term remediation, or cleanup, is sometimes used interchangeably with the terms remedial action, removal action, response action, remedy, or corrective action.^[19]
  • A nonbinding allocation of responsibility (NBAR) is a device, established in the Superfund Amendments and Reauthorization Act, that allows the EPA to make a nonbinding estimate of the proportional share that each of the various responsible parties at a Superfund site should pay toward the costs of cleanup.^[19][24]
• Relevant and appropriate requirements are those United States federal or state cleanup requirements that, while not "applicable," address problems sufficiently similar to those encountered at the CERCLA site that their use is appropriate. Requirements may be relevant and appropriate if they would be "applicable" except for jurisdictional restrictions associated with the requirement (40 C.F.R. 300.5).^[19]

Implementation

Polluted Martin's Creek on the Kin-Buc Landfill Superfund site in Edison, New Jersey

As of 9 August 2016, there are 1,328 sites listed on the National Priority List; an additional 391 have been delisted, and 55 new sites have been proposed.^[2]

Approximately 70 percent of Superfund cleanup activities historically have been paid for by parties responsible (PRPs) for the cleanup of contamination. The only time cleanup costs are not borne by the responsible party is when that party either cannot be found or is unable to pay for the cleanup. For those sites, 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. 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; since that time funding for superfund sites for which the potentially responsible party (PRP) could not be found has been appropriated by Congress out of general revenues.^[25]

Hazard Ranking System

The Hazard Ranking System (HRS) 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, 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.^[26]

Accessing Superfund data

The data in the Superfund Program are available to the public.

• EPA Superfund Information Systems: Report and Product Descriptions^[27]
• EPA Superfund Information Systems: Superfund Product Order Form^[28]
• TOXMAP is a Geographic Information System (GIS) from the Division of Specialized Information Services^[29] of the United States National Library of Medicine (NLM) that uses maps of the United States to help users visually explore data from the EPA Toxics Release Inventory (TRI) and Superfund programs. TOXMAP is a resource funded by the US Federal Government. TOXMAP's chemical and environmental health information is taken from NLM's Toxicology Data Network (TOXNET),^[30] PubMed, and other authoritative sources.
• Locus Technologies provides a free Geographic Information System (GIS) to locate Superfund and other contaminated sites in the United States ^[31] that uses Google Maps to help users visually explore data from the TRI, RCRA, and Superfund programs.

See also

• Brownfield land
• Brownfield Regulation and Development
• Dense Non-Aqueous Phase Liquid (DNAPL)
• Formerly Used Defense Sites
• Gade v. National Solid Wastes Management Association (1992)
• List of Superfund sites in the United States
• National Oil and Hazardous Substances Contingency Plan
• Phase I Environmental Site Assessment
• Superfund Research Program
• Vapor intrusion
• Hazardous Materials Transportation Act

References

Further reading

• EPA. "CERCLA/Superfund Orientation Manual." Document No. EPA/542/R-92/005. October 1992.
• U.S. Environmental Protection Agency (EPA), Washington, DC (2010-05-10). "Introduction to the Hazard Ranking System."

External links

Wikisource has original text related to this article: Superfund

• Superfund – EPA
• Agency for Toxic Substances and Disease Registry
• National Priorities List of Hazardous Substances
• Superfund sites by state – EPA
• "High Court Limits Liability in Superfund Cases." – New York Times, 2009-05-05
• "Without Superfund Tax, Stimulus Money Helps Pay for Cleanups." – New York Times, 2009-04-26

Wikimedia Commons has media related to Superfund sites.