Obama’s reelection gives the President a chance to make good on one of his 2008 campaign promises—the promise to put the “Super” back in Superfund.
Congress created the Superfund program as part of the U.S. Comprehensive Environmental Response, Compensation & Liability Act of 1980 (CERCLA). This legislation was aimed at cleaning up toxic sites throughout the country. After a much publicized, 70-acre chemical waste contamination catastrophe at a Niagara Falls landfill called the Love Canal, the EPA came up with CERLCA as a means of addressing the estimated 30,000 to 50,000 unregulated hazardous waste sites believed to exist throughout the country.
These sites, polluted by former or current industrial operations, leached hazardous waste into the soil, water, and air. Operations ranged from agricultural chemical production to petroleum storage, marine construction, natural gas plant operations, and rail car manufacturing, to name a few. The primary contaminants come from petroleum products and chemical derivatives.
CERCLA gave the EPA the power to identify “potentially responsible parties” (PRPs) and require them to clean up toxins released into the environment. Pollutants include asbestos, lead, arsenic, and mercury;benzene, a volatile organic compound (VOC) that causes acute myeloid leukemia (AML); trichloroethylene (TCE), another VOC, that is suspected of causing kidney, liver, and other cancers; and polychlorinated biphenyls, or PCBs, which can harm the immune system, the nervous system, the endocrine system, and the reproductive system.
Historically, PRPs have paid for approximately 70 percent of the cleanup costs. For the remaining sites or partial sites that no one laid claim to—the so-called “orphan sites”—Superfund came to the rescue.
And this was the true beauty of the Superfund program: For nearly two decades, the EPA funded
its orphan site cleanup projects with taxes imposed on those industries that profited most from their toxic-waste-generating business operations.
The gas and oil industry paid 9.7 cents per barrel on refinery crude oil and imported petroleum products. There also was a per-ton tax of between 22 cents and $4.87 per ton on 42 hazardous chemicals. And large corporations also had to pay a corporate environmental tax of .12 percent of their alternative minimum taxable income above $2 million. Together these three taxes generated about $4 million a day.
The Superfund was working. By the end of the 20th century, cleanup had been completed on 757 highly toxic sites.
But in 1995, the Republican-run Congress declined to reauthorize these taxes. Despite appropriations from the General Treasury, the fund was essentially empty by the end of FY 2003.
What followed was exactly what you would expect: toxic sites stopped getting cleaned up. From 1996-1999, the EPA completed its clean up goals on 109 sites; from 2006-2009, the agency completed cleanup on only 31 sites.
An influx of $600 million from the Economic Recovery Act gave the Superfund
program a boost in 2009. The money accelerated pending cleanup activities and was used to initiate new projects at a total of
51 toxic sites.
But of course, many more orphan sites remain. As of Jan. 14, 2013, there were roughly 1,300 sites on the EPA’s National Priorities List, the list of the most hazardous sites across the United States and its territories.
Recent efforts to introduce legislation to reinstate the taxes, by Democratic Senator Frank Lautenberg and Representative Frank Pallone of New Jersey and Representative Earl Blumenauer of Oregon, have failed.
Meanwhile, contamination from orphan sites continues to pollute wells, creeks, rivers and soil—and thus the drinking water, backyards, playgrounds and property values of neighboring communities.
Some citizens successfully have invoked the federal Resource Conservation and Recovery Act (RCRA), which authorizes them to bring lawsuits against past or present owners, operators, generators or transporters of hazardous waste treatment, storage and disposal facilities to abate “an imminent and substantial endangerment to health or the environment” caused by use of solid or hazardous waste. 42
Ironically, some federal courts have held that the citizens-suit provision of RCRA is preempted by CERCLA where the EPA has begun conducting cleanup of a site. (See, for example, Wason Ranch Corp.
v. Hecla Mining Co. (D. Colo. 2008) 2008 WL 906110, 12.)
Until President Obama fulfills his promise, it will be up to the injured parties to take matters into their own hands either by filing lawsuits, lobbying their Congressional representatives or both.