Defining the EPA’s Superfund

The U.S. Environmental Protection Agency, or EPA, has a mechanism in place to identify and rectify geographic sites that harbor extensive pollutants as a result of industrial production.

It is called the Superfund, an environmental remediation program that came into being as a result of toxic waste sites. This Superfund, which is also the name of an actual remediation fund - the Comprehensive Environmental Response, Compensation and Liability Act of 1980, or CERCLA – provides the dollars need for cleanup.

It also allows the EPA to engage in enforcement actions which compel guilty parties to engage in their own cleanup or pay massive fines to enable said cleanup. Where companies can prove they are unable to pay (as in companies made insolvent by toxic torts, for example), the EPA may take over the cleanup using whatever CERCLA funds are available.

The problem with this is that the cost of cleanup continues to rise over time, and companies who generated the pollution are all too often bankrupt by their own misbehavior – as is often the case with industries involved in manufacturing or otherwise using compounds like asbestos, lead, pesticides, herbicides, dioxins (Agent Orange) and PCBs.

Utopian Dream turns to Toxic Dump

The law which governs Superfunds and CERCLA funds came into being as a result of toxic waste sites like Love Canal and Times Beach. Love Canal, which began life as a utopian dream (cheap power) ended in a nightmare when the canal between the upper and lower Niagara River found use as a municipal and industrial chemical dumpsite. A quarter century later, 82 different toxins, 11 of them suspected cancer-causing agents, started migrating upward from rusted-out barrels into upper layers of soil and groundwater reserves.

The City of Times Beach, in Missouri, was eventually relocated in masse on the advice of the Centers for Disease Control, when CDC agents found astonishing levels of dioxin – all the result of toxic waste from ICP, a local company working with Northeastern Pharmaceutical and Chemical Company to dispose of said dioxin wastes and earning $3,000 per discarded load.

ICP, in turn, paid Times Beach local waste hauler Russell Bliss $125 (per load) to get rid of the waste. Bliss’s idea of getting rid of it was to mix it with oil and spray it on Times Beach roads when they became dusty in summer, at a cost of six cents per gallon to the city. This continued from 1972 to 1976.

Assigning the Superfund designation is complex. First, EPA administrators and investigators have to assess the burden of pollution at a site. Then, if the problem is large enough, sites are placed on the National Priorities List, and appropriate cleanup plans drafted. The EPA, the premier agency in charge, can also:

Conduct removal actions on its own, where the pollution is a timely matter, and request reimbursement after the fact: 

• File suit through the Department of Justice to force polluters to pay using the federal courts system 

• Initiating and supporting community involvement measures like open dialogues and collaboration via meetings and plan revisions where community concerns dictate 

• Involve administrators at the state level in enforcement or remediation actions 

• Adopting Post Construction Completion plans to optimize remediation plans across all venues to insure ongoing protection activities

Taking as its blueprint the National Oil and Hazardous Substances Pollution Contingency Plan, or NCP, the EPA mediates all hazardous substance releases in similar manner. With its Office of Solid Waste and Emergency Response (OSWER) in Washington, D.C. acting as lead entity, the EPA takes on both private (industrial) and public (federal or state) sites, with OSWER designating and managing the federal Brownfields program.

Brownfields are abandoned or largely unoccupied industrial and commercial facilities like abandoned warehouses or buildings, open plots of land or former factories. Besides the effect on property values, these unwanted sites are a danger to residents, particularly children, and can if left untended lead to habitation by the homeless, gangs or others involved in nefarious activities.    

According to the EPA, where Brownfield grants are allocated, residential property values rise, crime and pollution are both reduced, and environmental remediation with an eye to public advantage – a park, a playground or other major asset to its geographic location, whether rural or urban – is introduced.

The EPA is charged with protecting the environment and holding polluters accountable for their pollution. However, individuals who identify brownfield sites don’t (and can’t) sue the EPA. This is the mission of public interest groups, or PIRGs, which may disagree with the EPA’s decision regarding a potential Superfund site (and the parties responsible for its cleanup) and elect to sue the EPA for failing to keep to its mission.

The Superfund has since acted in many instances, few worse than Love Canal or Times Beach. The most recent instance, and the largest exception, is the W.R. Grace and Company vermiculite mine in Libby, Montana, where asbestos – the substance left after vermiculite is processed – continues to sicken the town, even though the EPA has spent $370 million of the Superfund to remediate the area since May of 2000. On June 17, 2009, the EPA declared the town of Libby its first public health emergency in history.