This year, Congress has again taken up the challenge of reforming and reauthorizing the Superfund law, or more officially the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). Despite wide agreement that hazardous cleanups under Superfund have not been completed at either the pace or cost hoped for, Congress has been unable to pass reauthorizing legislation that satisfies both critics and supporters of the program. Critics cite examples of excessive litigation, slowness, and infringement on state authority as reasons for significant reform. Supporters argue that drastic reform will potentially increase litigation and slow the current pace of cleanups -- cleanup has begun at 85 percent of all Superfund sites and almost 600 have been placed on the Construction Completed list. No fewer than five bills have been proposed in the 106th Congress that address Superfund reform and some are making progress, albeit painfully slow, toward becoming law.
The original CERCLA, passed in 1980, gave the government the authority to investigate, designate, and remediate sites in the United States that were contaminated with hazardous waste. CERCLA also gave the authority to exact payment from polluters and establish a trust fund to pay for cleanup when the responsible parties could not be found. The 1986 Superfund Amendments and Reauthorization Act (SARA) increased the funding to $8.5 billion over five years and instituted a tax for corporations to augment the trust fund. SARA also stated a preference for permanent cleanup solutions over simply containment, and required all cleanups to meet federal and state standards that were "applicable or relevant and appropriate."
Every year since 1994, when SARA's authority expired, Congress has unsuccessfully attempted to reauthorize Superfund legislation. Two major pieces of Superfund legislation -- H.R. 1300, the Recycle America's Land Act sponsored by Rep. Boehlert (R-NY), and S. 1090, the Superfund Program Completion Act of 1999 sponsored by Sen. John Chafee (R-RI) -- exhibit a concerted effort to avoid many contentious issues in the hopes that they will have a greater chance of passage. While issues such as natural resource damages and remedy selection have been circumvented by these streamlined bills, Congress must still defuse disagreements about funding, state authority, and liability relief for any legislation to pass.
Expanding State Authority and Limiting Litigation
Over the two decades that Superfund has existed, states have been steadily gaining technical expertise in cleanups through cooperative agreements with the EPA. Due to many clashes between the EPA and states, however, S. 1090 seeks to give the states more control over cleanup. At a Senate Environment and Public Works Committee hearing on the bill, state officials testified that they supported provisions increasing state control over cleanups such as requiring a governor's request to list a site on the National Priority List and giving states the authority to declare finality at a site, thereby protecting the owner from future clean-up requirements by the EPA. Environmental groups, however, testified that these provisions put too much power in state hands and would potentially jeopardize clean-up standards at sites and prevent cleanup if a site is not politically beneficial for a governor to add to the National Priority List.
In response to the large amounts of litigation resulting from CERCLA liability measures, legislation currently proposed has included liability relief for certain parties and sites. For example, H.R. 1300 gives liability relief to small businesses, recyclers, and innocent land owners. S. 1090 also limits liability for minimal (de micromis) contributors, municipalities, and hazardous waste transporters. Opponents of these bills argue that the liability relief given is too broad and again will result in taxpayers funding clean up, not the polluters. Coming to an agreement on who receives liability and to what degree will be crucial in order to pass legislation.
Among the many contentious issues, remediation of brownfields represents a rare island of agreement. Brownfields are small sites that have lower levels of contamination; these sites are usually abandoned industrial or commercial complexes located in urban areas. Estimates of the number of brownfield sites range from 100,000 to 500,000 nationally, totaling hundreds of thousands of acres. These sites, if cleaned up, could enhance economic development in urban centers and help prevent urban sprawl by encouraging businesses to redevelop existing urban areas rather than pristine open space. Brownfields exist because owners fear high costs of clean up and lack of finality, which leaves them open to future requests to clean the site by the EPA. Given the broad, bipartisan support for this specific aspect of Superfund, brownfields legislation could easily pass as a separate bill. For precisely this reason, proponents of CERCLA reform are holding brownfields hostage as an incentive for compromise and passage of comprehensive reauthorization of CERCLA.
Reauthorization of the Superfund tax, which expired in 1995, is one of the most contentious issues facing any reform effort. The Superfund tax payments from the petroleum, chemical, and environmental industries go directly into a trust fund specifically earmarked for environmental clean-up costs. This fund covers 83 percent of clean-up costs with the remaining 17 percent supplied by annual congressional appropriations. At the current funding level of $1.5 billion a year, the Congressional Budget Office estimates that the Superfund trust fund would not last beyond Fiscal Year 2001. One option is for Congress not to reauthorize the fund and instead pay for clean-ups solely out of appropriations. Critics of this plan, including EPA Administrator Carol Browner, argue that it deviates from the "polluter pays" principle by shifting the clean-up costs to the tax payers. Another option has surfaced in a massive tax-cut bill (H.R. 2488) by which the Leaking Underground Storage Tank (LUST) trust fund would be combined with Superfund, thus allowing Superfund cleanups to tap into the $1.4 billion currently in the LUST fund. However, there is little hope this proposition will survive negotiations with the White House -- the tax bill cuts $792 billion, while the Administration has threatened to veto any bill cutting more than $300 billion.
In an era of divided government, Superfund reauthorization will only
occur after significant compromises have been made. This Congress
may have a better chance than most of passing legislation, as many of the
bills were specifically crafted to avoid contentious issues, leaving them
for separate legislation. However, critics argue this strategy results
in bills that are too narrow and do not address issues that must be resolved
in order to continue cleaning up the environment and protecting the health
of our citizens. In the slew of recent congressional hearings on
Superfund, witnesses agreed on one only thing -- legislation needs to be
Superfund, like many issues, comes up year after year, sometimes breeding despair and frustration at the apparent lack of progress. However, Congress is designed so that each year new faces, new positions, and new issues are added to the playing board creating the possibility for unprecedented compromises, partnerships, and outcomes. If Superfund legislation is not passed this Congress, the 107th Congress will surely pick up the challenge the following year. That much is certain.
Sarah Robinson is a doctoral student at Arizona State University studying the geomorphology of alluvial fans. She holds a bachelor's degree in geology from Franklin and Marshall College.
This article is reprinted with permission from The Professional Geologist, published by the American Institute of Professional Geologists. AGI gratefully acknowledges that permission.
Please send any comments or requests for information to the AGI Government Affairs Program.
Posted January 4, 2000
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