American Geological Institute

Government Affairs Program


Government Affairs Report: The Continuing Saga of Superfund (4/98)

The following column by GAP Senior Advisor John Dragonetti is reprinted from the April 1998 issue of The Professional Geologist, a publication of the American Institute of Professional Geologists . It is reprinted with permission.

The Superfund program burst upon the national scene following the shocking revelations at Love Canal in Niagara Falls, New York. In a suburban subdivision built over a former industrial site, wastes buried in the 1940s by Hooker Chemical and Plastics Corporation were found to be causing serious health problems among the local residents in 1976. Public outcry was enormous when the U.S. Environmental Protection Agency (EPA) declared that thousands of similar abandoned hazardous waste sites probably exis ted, and it was realized that there were no federal laws to remedy such problems. The issue of abandoned hazardous waste sites appeared high on the public agenda and finally resulted in the passage of Public Law 96-510 entitled the Comprehensive Environme ntal Response, Compensation and Liability Act (CERCLA) in December 1980.

The law authorized the government to clean up any site where there is an unremedied release of a hazardous substance, but critics complain that more money has gone into legal fees than into actual remediation. Overhauling the current system is a high p riority in Congress, but intensive negotiations have yet to yield a workable compromise, and Senate leaders say that time is running out for reform this year.

How Superfund Works

CERCLA acquired its more familiar name -- Superfund -- from the $1.6 billion fund it established to expend for the clean-up of hazardous waste sites, chemical spills and releases of other environmental contaminants nationwide over a five-year perio d. Locations where hazardous wastes had been disposed of improperly were classified as Superfund sites. CERCLA also authorized several other undertakings: the restoration of locales where hazardous wastes were released from inactive waste locations if p ublic health and the environment were endangered, the establishment of a Hazardous Waste Response Fund, and the power to affix liability to persons responsible for releases of hazardous materials from inactive sites. Responsibility for administering the S uperfund program was assigned primarily to EPA, with the U.S. Coast Guard accountable for emergency response for hazardous waste releases within the nation's navigable waters.

EPA then instituted a National Contingency Plan to describe how it intended to respond to hazardous substance releases. The two types of responses were: short-term mitigation for emergency situations, and long-term corrective action for sites identifie d through a Hazard Ranking System for placement on the National Priorities List (NPL). Once a location had been identified and a site inspection conducted, it was determined whether placement on the NPL was warranted. Over the years, EPA has evaluated tho usands of sites requiring mitigation for possible inclusion on the NPL. Well over a thousand sites presently reside on the NPL, including nearly 200 at federal facilities. All 50 states and many of the territories have or have had sites on the NPL. New Je rsey leads the list with 112 locations. The clean-up of NPL sites has been accomplished either by EPA or by private industry under EPA oversight. Restoration at federal facilities must be funded through appropriations secured within individual agency budg ets.

Efforts to Reform Superfund

The process of fashioning Superfund into the optimum answer to the problem of abandoned hazardous waste sites has generated a stormy debate involving Congress, several Administrations, the insurance industry, waste producers, and environmentalists. There has been general agreement that fundamental weaknesses exist within CERCLA, and there is a need for comprehensive modifications. The first such effort was a significant expansion of the original act by the 1986 Superfund Amendments and Reauthorizat ion Act (SARA; P.L. 99-499) within which an $8.5 billion trust fund was established. The monies were to come from an environmental tax on corporations. There were also provisions aimed at accelerating the clean-up program. Within the 1990 budget reconcili ation act, Superfund's program and taxing authorities were extended once again, but reauthorization is now long overdue.

Despite nearly universal public concern and high priority within the 103rd and 104th Congresses (1993-1996), neither the House nor the Senate was able to pass a comprehensive reform bill as a consequence of partisan differences over very complex issues . The dominant reason for inaction and the most controversial element of CERCLA seems to be its liability provisions. The program has many detractors who cite its slow performance, ineffectiveness, and excessive expense. According to the Congressional Re search Service, the average clean-up period for a hazardous waste site is 12 years. Many assail the retroactive nature of the law requiring clean-up of activities that were legal prior to the enactment of CERCLA. While it is often thought that the law onl y affects big business and federal facilities, that is surely not the case. Small companies, social organizations, school districts, and municipalities all have come under Superfund's domain for discarding small amounts of waste. Polluting companies and t he insurance industry believe clean-up requirements are too demanding and costly. State officials have increasingly concluded that their interests are not adequately represented in national policy making and have sought to increase their influence. Enviro nmental groups are especially concerned for the provisions governing damage to natural resources.

Current Legislation

President Clinton adopted Superfund improvement as a 1996 campaign issue, claiming the Republican Congress maintained a pro-polluters stance. The 105th Congress, now in its second session, has joined the President in making Superfund reauthorizatio n a top environmental priority. There are approximately fifty pieces of proposed legislation in the House and Senate aimed at amending one or more aspects of Superfund.

Over 20 of those deal with the issue of brownfields -- lower-risk sites that tend not to get the program's attention but which are a major stumbling block to urban renewal efforts. Congress has supported the program by appropriating $36.8 million and $ 85 million respectively in the 1997 and 1998 fiscal years. EPA administers the brownfields program as part of Superfund, although it is not specifically authorized under CERCLA. Hence, both specific and comprehensive reform bills seek to properly authoriz e the brownfields program.

Three comprehensive reform bills are being actively considered, all put forward by subcommittee chairmen with jurisdiction over Superfund: H.R. 2727 (Superfund Acceleration, Fairness, and Efficiency Act), H.R. 3000 (Superfund Reform Act), and S. 8 (Sup erfund Cleanup Acceleration Act). New York Republican Sherwood Boehlert, who chairs the House Water Resources and Environment Subcommittee, is the sponsor of H.R. 2727. The bill exempts generators and transporters of municipal solid waste and small busin esses from particular liabilities, addresses prevention and clean-up of contaminated groundwater, and extends the time a state has to take remedial action on a governor-approved NPL listing. The bill has been the subject of intense negotiations with the A dministration and Democrats in Congress and has bipartisan support as well as the endorsement of industry and state and local government. At the present time, however, negotiations with the Administration have stalled, and Vice President Gore recently sta ted the Administration's opposition to the bill in its present form, claiming it weakens clean-up standards, inhibits the restoration of natural resources, and dilutes the capacity of forcing polluters to pay for hazardous waste damages. The Administratio n intends to continue its negotiations with Chairman Boehlert and has assigned EPA Administrator Carol Browner and Interior Secretary Bruce Babbitt the responsibility for coordinating the formation of a process for natural resource restoration within the Superfund program.

Boehlert's bill is competing for attention with H.R. 3000, introduced by House Hazardous Materials Subcommittee Chairman Michael Oxley (R-Ohio). H.R. 3000 has 39 co-sponsors -- including many of the House Republican leaders -- but it is strongly oppose d by House Democrats and the Administration for its groundwater provisions and liability aspects. EPA Administrator Browner has argued that the bill would invite litigation thereby slowing down clean-ups. Only one hearing has been held on H.R. 3000, and i t has made little progress through the legislative process.

The principal focus for Superfund reform in the Senate is S. 8, introduced by Superfund, Waste Control, and Risk Assessment Subcommittee Chair Bob Smith (R- New Hampshire). This bill is designed to streamline clean-ups, delegate authority to the states , and to provide liability relief in certain instances. Like H.R. 2727, it has been the subject of lengthy negotiations in an effort to craft a filibuster- and veto-proof plurality of support. The Environment and Public Works Committee expects to send th e bill to the Senate floor in March, but Senate Majority Leader Trent Lott (R-Miss.) has already stated that there is not enough time left in the session to debate this bill.

Concern has been expressed within the geological community over all three of these bills concerning whether or not geologists are considered environmental professionals for purposes of setting remediation standards. CERCLA does not have a definition of the term, and the only reference to the discipline is in a discussion of the brownfields program. Concern has also been raised about language in several of the major reform bills that endorses the use of American Society for Testing Materials (ASTM) sta ndards, which may not have been developed with sufficient geoscience input. There is also concern within the oil and gas industry over the redefinition of hazardous waste to include oil field wastes. Currently, petroleum and liquified natural gas are not subject to CERCLA release reporting, but are governed by other laws such as the Clean Water Act. Whether or not these bills pass, they will be the starting point for future reform efforts, and it is important that these concerns are addressed.

It is clear that the Superfund program represents a difficult task in framing environmental policy. Despite the best intentions of Congress, the Administration and ardent public support, agreement on an ideal mechanism for mitigating the nation's hazar dous waste sites may not be achieved in the 105th Congress or in the foreseeable future. If reform legislation does pass and successfully reduces the amount of litigation, it could represent a significant opportunity for geoscientists involved in the disc overy and remediation of abandoned hazardous waste sites.

The Government Affairs Column is a bimonthly feature written by John Dragonetti. John Dragonetti is the Senior Advisor the American Geological Institute's Government Affairs Program.


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 at govt@agiweb.org.

Contributed by John Dragonetti, AGI Government Affairs.

Posted April 17, 1998


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