Superfund

Superfund is the common name for the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), a United States federal law designed to clean up sites contaminated with hazardous substances.^[1] Superfund created the Agency for Toxic Substances and Disease Registry (ATSDR), and it provides broad federal authority to clean up releases or threatened releases of hazardous substances that may endanger public health or the environment. The law authorized the Environmental Protection Agency (EPA) to identify parties responsible for contamination of sites and compel the parties to clean up the sites. Where responsible parties cannot be found, the Agency is authorized to clean up sites itself, using a special trust fund.

History

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.[2] 

The EPA published the first Hazard Ranking System (HRS) in 1981, and the first National Priorities List (NPL) in 1982.^[3] The implementation during early years has been criticized as being ineffective due to the Reagan administration's laissez-faire policies. During his two terms, 16 of the 799 Superfund sites were cleaned up, and $40 million of $700 million in recoverable funds from responsible parties were collected.^[4]

The Superfund Amendments and Reauthorization Act of 1986 (SARA), made several important changes and additions to CERCLA including increasing the funding of Superfund to $8.5 billion and providing for studies and the use of new technologies.^[5]

In 1994, the Clinton administration proposed a new Superfund reform bill, which was seen as an improvement to existing legislation by some environmentalists and industry lobbyists. However, the effort was unable to gain bipartisan support.^[6] Until the mid-1990s, most of the funding came from a tax on the petroleum and chemical industries, reflecting the polluter pays principle, and Congress yielded to corporate pressure.^[7]

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.^[8]
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 which are serious, but lack the time-criticality of removal actions, and include such measures as preventing the migration of pollutants and neutralizing toxic substances. These actions can be conducted only at sites listed on the EPA National Priorities List (NPL) in the United States and the territories.^[9]

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;^[10]
2. the owner or operator of a site at the time that disposal of a hazardous substance, pollutant or contaminant occurred;^[11]
3. a person who arranged for the disposal of a hazardous substance, pollutant or contaminant at a site;^[12] 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.^[13]

The CERCLA also enabled the revision of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP).^[14] The NCP provided the guidelines and procedures needed to respond 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, and helps the EPA prioritize sites for cleanup. The NPL is updated periodically.

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.

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 government will typically order PRPs to clean up the site themselves.^[15] If a party fails to comply with such an order, it may be fined up to $25,000 for each day that non-compliance continues. A party that spends money to clean up a site may sue certain other PRPs under the CERCLA.^[16] A related provision allows a party that has reimbursed another party's response costs to seek contribution from other PRPs, during or after the original lawsuit. An "orphan share" is the share of waste at a Superfund site that cannot be collected because the PRP is either unidentifiable or insolvent.^[17]

Procedures

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.^[18] 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.^[19] Sites that score high enough to qualify for the full program then proceed to a Remedial Investigation/Feasibility Study (RI/FS). The RI includes an extensive sampling program and risk assessment in order to define the 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. The selected alternative is approved in a Record of Decision (ROD). The site then enters into a Remedial Design phase and then the Remedial Action phase. Many sites include Long-Term Monitoring and 5-year reviews once the Remedial Action has been completed.

• 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.^[17]
• 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.^[17]
• A reportable quantity (RQ) is the minimum quantity of a hazardous substance which, if released, is required to be reported.^[17][20]
• 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).^[17]
• A section 104(e) letter is the EPA's formal notice letter to potentially responsible parties that CERCLA-related action is to be undertaken at a site with those PRPs being considered responsible.^[17] The legal authority for the letter comes from CERCLA 104(e), codified at 42 U.S.C. § 9604(e). This section of law authorizes the EPA to enter facilities and obtain information relating to PRPs, hazardous substances releases, and liability.^[21] The section 104(e) letter is the main-information-gathering tool under this section of the law.^[21] The letter is essentially a questionnaire which resembles the interrogatories of civil litigation.^[21] It has been called an effective enforcement mechanism "because the respondent is prevented from testing the validity of the device until the government tries to enforce. Meanwhile, penalties for noncompliance can keep mounting."^[21]
• A section 106 order is a unilateral administrative order that allows the EPA to order a potentially responsible party to perform certain remedial actions at a Superfund site, subject to treble damages and daily fines if the order is not obeyed.^[17]
• 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.^[17]
• A remedial action plan is a plan that details the technical approach for implementing the remedial response. It includes the methods to be followed during the entire remediation process—from developing the remedial design to implementing the selected remedy through construction.^[17]
• 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.^[17][22]
• 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).^[17]

Implementation

As of November 29, 2010, there are currently 1,280 sites listed on the National Priority List, an additional 347 have been delisted, and 62 new sites have been proposed.^[23]

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 in which the Department of the Treasury collected the tax was FY1995. At the end of FY1996, the invested trust fund balance was $6.0 billion. This fund was exhausted by the end of FY2003; since that time funding for these orphan shares has been appropriated by Congress out of general revenues.^[24]

Accessing Superfund data

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

• EPA Superfund Information Systems: Report and Product Descriptions^[25]
• EPA Superfund Information Systems: Superfund Product Order Form^[26]
• TOXMAP is a Geographic Information System (GIS) from the Division of Specialized Information Services^[27] of the United States National Library of Medicine (NLM) that uses maps of the United States to help users visually explore data from the United States Environmental Protection Agency's (EPA) Toxics Release Inventory and Superfund [1] 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)^[28]
• Locus Technologies on its web site provides free Geographic Information System (GIS) to locate Superfund and other contaminated sites in the United States ^[29] that uses Google Maps to help users visually explore data from the United States Environmental Protection Agency's (EPA) Toxics Release Inventory, RCRA, and Superfund [2] programs.

and PubMed, and from other authoritative sources.

See also

• List of Superfund sites in the United States
• Brownfield land
• Brownfield Regulation and Development
• Formerly Used Defense Sites
• Gade v. National Solid Wastes Management Association
• Hazardous waste
• Toxic waste
• National Oil and Hazardous Substances Contingency Plan
• Phase I Environmental Site Assessment
• Resource Conservation and Recovery Act (RCRA)
• Superfund Research Program
• TOXMAP
• United States v. Bestfoods
• Vapor intrusion

References

• Works related to Superfund at Wikisource

External links

• Superfund - EPA Official Site
• 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