Superfund legislation and cleanup activities

• DATES: Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) passed by Congress on December 11, 1980; amended on October 17, 1986, by Superfund Amendments and Reauthorization Act; other, noncomprehensive amendments October 1, 1996; November 29, 1999; and January 11, 2002

“Superfund” legislation refers to a US law that empowered the federal government to manage the problems of hazardous-waste sites across the country. It established a trust fund to pay for cleaning up the waste sites.

Background

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was one of several fundamental environmental laws to be passed during the first decade of the US Environmental Protection Agency (EPA). Along with the Clean Air Act (1970), the Clean Water Act (1965, 1972), the Safe Drinking Water Act (1974), the Control Act (1972), the Resource Conservation and Recovery Act (1976), and the Toxic Substances Control Act (1976), CERCLA was intended to minimize and mitigate the release of toxic and hazardous substances to the environment.

In 1978, an environmental crisis at Love Canal made national headlines. A residential neighborhood in Niagara Falls, New York, Love Canal had been constructed beginning in the 1950s atop a known former industrial waste dump containing more than 20,000 metric tons of chemicals, including carcinogens such as benzene and dioxin. Following a period of unusually heavy rainfall in 1978, corroded metal drums began heaving their way to the ground surface. Chemical sludge oozed into basements and backyards. Children playing in contaminated soil or puddles suffered chemical burns. Environmental testing found eighty-two different chemical contaminants in samples from the neighborhood, several of them known or suspected carcinogens. After New York announced a state of emergency, hundreds of families were evacuated from Love Canal. President Jimmy Carter’s declaration of a federal health emergency at Love Canal marked the first time that American emergency funds were applied to a human-made disaster.

In response to the public outcry surrounding Love Canal—and recognizing that similar sites across the nation represented a toxic “ticking time bomb”—Congress passed CERCLA in 1980. Six years later, Congress reauthorized the program through the Superfund Amendments and Reauthorization Act (SARA), which amended CERCLA to reflect knowledge the EPA had gained while administering the first five years of the program. Three subsequent amendments all involved constraining liability: the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act (1996), the Superfund Recycling Equity Act (1999), and the Small Business Liability Relief and Brownfields Revitalization Act (2002).

Provisions

Superfund is designed to protect humans and the environment from uncontrolled releases of dangerous chemicals. It authorizes the federal government, primarily through the EPA, to work with state and local governments and private parties to respond directly to actual or threatened hazardous substance releases. It also establishes prohibitions and requirements for closed and abandoned hazardous-waste sites.

Some hazardous substance releases are emergencies, while others are long-standing situations. Therefore, Superfund follows a two-pronged approach. Its emergency program handles short-term problems requiring immediate response, including truck accidents, fires, and accidental spills of dangerous chemicals as well as emergencies at Superfund sites. Its long-term remedial response program, by contrast, deals with long-standing problems that have developed over many years and require years to be corrected. Here, releases or threatened releases are serious but not immediately life-threatening. Long-term remedial response is intended to provide a permanent, significant reduction in the danger posed by hazardous substances.

Remedial response activities include improvement of landfills, proper treatment of leachate, and actual removal of wastes. Landfill improvement involves placement of a soil cover to control wind and rain exposure as well as installation of a piping system to capture and sometimes burn off methane produced in the landfill. Leachate results when liquid industrial wastes are mixed with rain and water. Sometimes, leachate is treated on-site and sometimes it is transported elsewhere for treatment. Soil and other contaminated materials may also be transported off-site. Off-site disposal and treatment often involve delicate political maneuvering.

Superfund broadens the scope of the National Contingency Plan (NCP). Originally developed in 1968 as a coordinated approach to oil-spill reporting, containment, and cleanup in US waters, the NCP was expanded by the 1972 Clean Water Act to provide for hazardous substance releases and oil discharges. With Superfund, the NCP was revised to include releases at hazardous-waste sites requiring emergency removal actions.

Appendix B of the NCP is the National Priorities List (NPL), an EPA list of Superfund cleanup priorities for known or threatened releases of hazardous substances, pollutants, or contaminants at sites throughout the United States and its territories. A site must appear on the NPL before it can be considered for long-term remedial response under Superfund. (Short-term emergency response may be performed at both NPL and non-NPL sites.) In 1983, 406 sites comprised the “final” NPL. By 2022, the list had expanded to more than 1,300 sites.

The determination of which sites to place on the NPL is not totally objective. In particular, the rating system used in Superfund’s early years was semiquantitative and subjective, and it contained some contradictions. Because a major concern was danger to dense populations, a hazardous-waste site near a large area would get a high rating; however, a waste site near an serving a distant area of high population could also pose a threat to human health and the environment but would get a lower rating. In 1986, SARA required the EPA to improve the program’s Hazard Ranking System (HRS) to ensure a more accurate assessment of the relative degree of risk presented by uncontrolled hazardous waste sites under consideration for inclusion on the NPL. The current numerically based HRS applies findings from a preliminary assessment and site inspection. Sites are scored based on the toxicity, quantity, and other characteristics of the waste; the likelihood of past or future release; and affected populations or environments. Exposure pathways—groundwater migration, migration, soil exposure, and air migration—are also taken into consideration.

Any person or organization may petition the EPA to conduct a preliminary assessment of a site. A site can be listed on the NPL only after it has gone through HRS screening and a public comment period. Once a site is placed on the NPL, the EPA must determine whether the site warrants further investigation, identify what remedial actions may be appropriate, notify the public if further investigation is advisable, and serve notice to potentially responsible parties that remedial action may be initiated. Typically, a remedial investigation and feasibility study is conducted before Superfund cleanup begins.

Superfund requires responsible or potentially responsible parties to pay for cleanup whenever possible, so that the federal government or taxpayers are not left to foot the bill. No fault has to be shown, and liability can be assigned for activities predating the 1980 enactment of Superfund. (SARA established an exemption for landowners who acquired a property without knowing it was contaminated.) At some abandoned, inactive, or uncontrolled hazardous waste sites, however, no responsible party can be identified. To support cleanup at such locations, CERCLA created an excise tax on the chemical and industries; monies from the tax went into a trust fund—the “Superfund” by which CERCLA is more commonly known. CERCLA initially authorized the program for a five-year period and a budget of $1.6 billion, or $320 million a year. In 1986, SARA raised the funding authority to $8.5 billion and added a corporate environmental tax to bring in additional revenues. In 1990, Congress extended the taxing authority of Superfund again and increased the fund to $11.5 billion. When authorization for the Superfund-related taxes expired in 1995, it was not renewed. The trust fund, which at the time contained $3.8 billion, was used up by 2003. Superfund has continued to operate using general revenue. In 2009, the American Recovery and Reinvestment Act gave Superfund $600 million in stimulus funds for long-term cleanup projects.

Significant amendments to Superfund after SARA have all concerned liability. The Asset Conservation, Lender Liability, and Deposit Insurance Protection Act (1996) exempted from liability those lenders who may have had some level of site ownership related to a loan as well as trustees and other persons whose involvement with site operations was purely fiduciary. The Superfund Recycling Equity Act (1999) exempted certain categories of persons who sent material to a site for recycling instead of disposal. The Small Business Liability Relief and Brownfields Revitalization Act (2002) exempted small businesses that contributed very small amounts of hazardous waste and those whose contributions to a waste site were more along the lines of household waste. The act also encouraged productive reuse of thousands of non-Superfund contaminated sites, or brownfields, through redevelopment grants and limited liability for purchasers.

Impact on Resource Use

At the close of fiscal year 2023, the Superfund program, along with the EPA, had completed actions to control human exposure to hazards at 1,522 sites. It also controlled the movement of contaminated groundwater at 1,218 sites. The Superfund was able to take additional actions because of the Bipartisan Infrastructure Law, which was signed into law by President Joe Biden in 2021. It invested $3.5 billion into environmental remediation at sites on the Superfund National Priorities List. It also reinstated Superfund chemical taxes. These are taxes paid by manufacturers, producers, and importers who sell or use certain chemicals that are made or imported to the United States. In 2024, the EPA released $1 billion from the Infrastructure Law, its final release, to the Superfund program. This funding would start cleanups at twenty-five new sites on the National Priorities List and continue cleanup at more than eighty-five sites.

Superfund has led to significant changes in manufacturing business practices. More companies are manufacturing products in an environmentally safe manner, and new cleanup technologies have been developed. The nation and the world are more environmentally aware of the dangers of hazardous wastes than they were before the Superfund legislation.

From its inception, Superfund has been controversial. Initially perceived as a finite task, cleaning up all the sites on the NPL has become an increasingly daunting prospect. Remediation of some sites may take years. Economic slumps and mounting costs slow cleanup progress, and every year more sites are added to the list. Cleanup is an expensive prospect, involving not only the actual remediation but also studies and assessments, lawyers, consultants, and administration and management. The fund itself was a particular point of contention for industries that objected to paying additional taxes to support cleanup at abandoned sites that someone else was responsible for contaminating.

Superfund provides an obvious benefit in its or restoration of resources such as ground and surface waters, drinking water supplies, fish and wildlife, and land. Other effects on resource use are more challenging to assess. The expense of complying with Superfund and other US environmental regulations can have unintended negative consequences: higher prices for American-made goods, as manufacturers pass their costs on to the consumer; closure of American businesses unable to afford compliance; movement of industrial operations to other countries with less stringent environmental requirements; and hazardous waste disposal—legal or illegal—outside the United States. When manufacturing operations or wastes leave the United States for a friendlier regulatory climate, it is often the poorer, developing nations that are left bearing the environmental impact of waste mismanagement.

Bibliography

"Biden-Harris Administration Announces Over $1 Billion to Start New Cleanup Projects and Continue Work at 100 Superfund Sites Across the Country." US Environmental Protection Agency (EPA), 27 Feb. 2024, www.epa.gov/newsreleases/biden-harris-administration-announces-over-1-billion-start-new-cleanup-projects-and. Accessed 6 Jan. 2025.

Brookins, Douglas G. Mineral and Energy Resources: Occurrence, Exploitation, and Environmental Impact. Columbus, Ohio: Merrill, 1990.

Collin, Robert W. The Environmental Protection Agency: Cleaning up America’s Act. Westport, Conn.: Greenwood Press, 2006.

Gerrard, Michael. Whose Backyard, Whose Risk: Fear and Fairness in Toxic and Nuclear Waste Siting. Cambridge: Massachusetts Institute of Technology, 1994.

Gerrard, Michael, and Joel M. Gross. Amending CERCLA: The Post-SARA Amendments to the Comprehensive Environmental Response, Compensation, and Liability Act. Chicago: American Bar Association, 2006.

Hird, John A. Superfund: The Political Economy of Environmental Risk. Baltimore: Johns Hopkins University Press, 1994.

Macey, Gregg P., and Jonathan Z. Cannon, eds. Reclaiming the Land: Rethinking Superfund Institutions, Methods, and Practices. New York: Springer, 2007.

Mintz, Joel A. “Hazardous Waste and Superfund: Few Changes and Little Progress.” In Agenda for a Sustainable America, edited by John C. Dernbach. Washington, D.C.: Environmental Law Institute Press, 2009.

Nakamura, Robert T., and Thomas W. Church. Taming Regulation: Superfund and the Challenge of Regulatory Reform. Washington, D.C.: Brookings Institution Press, 2003.

Probst, Katherine N. “Superfund at Twenty-five: What Remains to Be Done.” Resources 158 (Fall, 2005): 20-23.

Probst, Katherine N., and David M. Konisky. Superfund’s Future—What Will It Cost? A Report to Congress. Washington, D.C.: Resources for the Future, 2001.

Reisch, Mark, and David M. Bearden. Superfund and the Brownfields Issue. New York: Novinka Books, 2003.

Samuel, Peter. Lead Astray: Inside an EPA Superfund Disaster. San Francisco: Pacific Research Institute, 2002.

Simmons, Robert A., and Kimberly Winson. “Brownfield Voluntary Cleanup Programs: Superfund’s Orphaned Stepchild, or Innovation from the Ground Up?” In Toxic Waste and Environmental Policy in the Twenty-first Century United States, edited by Dianne Rahm. Jefferson, N.C.: McFarland, 2002.

Switzer, Carole Stern, and Peter Gray. CERCLA: Comprehensive Environmental Response, Compensation, and Liability Act (Superfund). 2d ed. Chicago: American Bar Association, Section of Environment, Energy and Resources, 2008.

U.S. Environmental Protection Agency

Summary of CERCLA.

U.S. Environmental Protection Agency

Superfund.