At midlife, unending cleanups and less 'real money'

Correction appended.

In the current era of high-priced bailouts and even higher deficits, the nickname for U.S. EPA's signature toxic-waste cleanup program sounds quaint: "Superfund."

But the planned $1.6 billion fund, at the time of its creation, 30 years ago this week, was huge enough to be "super."

"In those days, that was real money," recalled Thomas Jorling, EPA's waste chief during the genesis of the Superfund law. The money was aimed at unchecked and abandoned chemical waste sites that seemed to proliferate in the United States as the 1980s dawned, prompting widespread anxiety over risks to public health.

But its anachronistic label may be the only aspect of Superfund that has not evolved since its birth. The number of waste sites on EPA's National Priorities List (NPL), reserved for areas with the most intense contamination, has tripled from its initial target of 400. More advanced cleanup technology is put into practice with each passing year, and the role of states as well as companies found responsible for pollution has grown as Superfund matures.

The onset of midlife, however, raises compelling and complex questions about the future of the program. How is the expiration of the industry taxes originally used to fill the "superfund" affecting EPA's ability to steer cleanups forward? And will the taxes ever be reinstated? Is a jump-started cleanup possible at the estimated 62 percent of NPL sites where half or more of the job remains undone? What will the system look like on its 40th birthday?

Most longtime observers of Superfund interviewed for this story agree that EPA is unlikely to confront future sites that reach the scale of hazard found at Love Canal, the upstate New York town built atop a leaky landfill, and the Valley of the Drums, the Kentucky dump where more than 17,000 waste containers were left to leach a litany of toxic heavy metals into the ground.

"Companies certainly are taking much greater care about where chemicals end up than they were in the '70s," said Lewis & Clark College law professor Craig Johnston, who tackled Superfund cases as an EPA lawyer in the 1980s. But even as the program sees a downturn in urgency and "people complain about the cost, about the time the Superfund process takes to take hold," he added, "I haven't heard anybody say this is not a problem worthy of being addressed."


Even if the most shocking sites are behind Superfund, however, the NPL still carries a number of massive and challenging cleanups, from New York's Hudson River to the former mining hotspot of Idaho's Bunker Hill, itself as big as the island of Manhattan. In addition, about 30 percent of sites are "orphans" where a liable party was never found to help foot the bill for remediation.

One of Superfund's first and biggest champions, Love Canal resident turned green advocate Lois Gibbs, pointed to the uncertain prospects for restoring those long-running legacy sites in concluding that Superfund is "not doing so well" as its fourth decade begins.

"The really hard ones are left behind," said Gibbs, executive director of the nonprofit Center for Health, Environment and Justice (CHEJ). "They are more expensive because they're bigger, and so the result is, it's not about 'Can the program do this?' -- it can do this -- but it doesn't have the finances to."

Learning from the past

In fact, a dispute over finances almost killed Superfund before Congress even took it up, Jorling said.

On the 1978 night before then-President Carter was scheduled to propose charging oil and chemical companies to pay for waste cleanups, Jorling recalled, EPA and the White House Office of Management and Budget were the only two of 23 federal agencies in favor of the plan -- until the OMB chief overruled the approval granted by one of his associate directors.

"Fortuitously, the next week EPA had its budget meeting with the president," Jorling continued. At that meeting, the associate OMB director who aligned with EPA, Eliot Cutler, decided to speak up and tell Carter that the Superfund unveiling was scuttled because of a dispute over whether to use taxes or taxpayer money to fill its coffers.

Carter sided with Cutler, who narrowly lost a third-party bid for Maine's governorship this year, and the bill was back on track. But Congress did not sign off until the lame-duck session of 1980, with newly elected Republican Ronald Reagan about to move into the White House.

The Capitol Hill debate saw less controversy over the economic impact of new taxes on industry, now seen as a major impediment to the Obama administration's push for reinstated Superfund fees, than over abandoned attempts to cover oil spills and personal-injury claims under the new fund.

Vermont Law School professor Pat Parenteau, an EPA regional counsel during the 1980s, remembered "a major, major push" to get the Superfund bill passed at the time, during his term in the upper ranks of the National Wildlife Federation. "We knew we weren't going to get significant environmental legislation through Congress with Reagan in office," Parenteau said.

But Parenteau also harkened back to a widely held assumption at the time of the law's passage that time has long since disproved. "This was not thought to be a 30-year program," he said. "Nobody had any idea we were talking about decades of pumping and treating groundwater contamination. Nobody had any idea we were talking about entire rivers -- the Hudson, the Housatonic -- contaminated beyond recovery, beyond cleanup."

The original law, known formally as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), suggested the addition of 400 sites to the NPL. The minimum score on EPA's ranking system that determines whether a site is designated as highly contaminated was decided upon expressly to keep the number of chosen Superfund sites near that target, and the agency has not changed the cutoff since the Reagan administration.

That move was made under Reagan's first EPA chief, Anne Gorsuch Burford, who was later found in contempt of Congress during a dispute over subpoenaed documents related to charges that she had let the Superfund languish in mismanagement. Burford gained further notoriety for announcing that the government would buy out the entire town of dioxin-contaminated Times Beach, Mo., recalled Love Canal activist Gibbs, during a press conference that the town's residents were blocked from attending.

"It was like a perfect storm" of scandal, Gibbs said, that pushed Reagan to ease his resistance to implementing the Superfund law. "It was painful, always, but it [ended with] the right thing."

Paying for cleanups

Superfund's teenage years were marked by Congress' 1995 refusal to renew the chemical and oil fees that once provided steady money for cleanups.

Carol Browner, then leading President Clinton's EPA, told reporters days before the tax expired that the program could continue for "probably 18 months or so" before running into trouble.

That 18 months have turned into 15 years, some say, is a testament to EPA's savvy in using the court system as well as its state and local partners to speed the restoration of tainted sites. Others view the value of the taxes as overhyped, especially given that Superfund balances were still under the control of congressional appropriators even when they were padded by industry.

"I don't think the expiration of the tax is critical to the future success of the Superfund program," said New York-based environmental lawyer Philip Karmel, who has worked on several high-profile Superfund cases. "The program is underfunded in relation to the number of contaminated sites in the country, but many government programs are underfunded."

Though skeptics of a reinstated tax point to the relatively stable pattern of annual Superfund appropriations, the program's fiscal footing is far from rosy. The nonpartisan Government Accountability Office found in May that spending on Superfund has failed to keep pace with inflation, falling from a 1990 high that amounted to more than $2 billion in 2009 dollars.

Sen. Frank Lautenberg (D-N.J.), a longtime Superfund champion who chairs the upper-chamber subpanel in charge of it, described funding as "a basic problem" facing the program. "I would have those likely to be responsible pay for cleanups," he said in a brief interview.

But despite Lautenberg's calls to reinstate the industry taxes, echoed earlier this year by the Obama administration, the prospects for their restoration remain slim at best. With Superfund dependent on taxpayer money for the foreseeable future, then, its smoothest path to a 40th birthday party may be sweetening the pot to encourage redevelopment of contaminated sites.

EPA's Brownfields Program, crafted under Clinton and embraced by his Republican successor, offers federal loans and grants to speed the redevelopment of urban lands polluted by toxins but not in line for the Superfund list. Since the first brownfield was named in Ohio's Cuyahoga County, home of the infamous "river on fire" that awakened green activists in 1969, EPA estimates that its investments have resulted in $14 billion in public and private funding for cleanups.

Superfund law is a helpful instrument in cases of significant contamination, environmental lawyer Kenneth Kamlet said, but implementation of the program showed early on that "you can't get people to volunteer" to revitalize industrial sites where chemical hazards were less egregious.

"Brownfield programs across the country were probably one of best things Superfund accomplished, by going so far to one extreme that the necessity for a safety valve -- in the form of the Brownfields Program -- became apparent to everybody," said Kamlet, who spent 12 years in senior roles at the National Wildlife Foundation before working on high-profile redevelopments of contaminated property in New York.

In many ways, brownfields have become part of a broader tradeoff between idealism and pragmatism that plays out as political shifts in the wind buffet EPA's and environmentalists' approach to the program.

Jorling, the agency's assistant administrator during the dawn of Superfund, advised green groups to rely less on "the fear strategy" and more on "the analytical strategy" to shore up their constituency. "The reason brownfields are more successful in some states," Jorling said, "is that the public says ... 'We can support that'" in response to the promise of productively reusing blighted land."

He added, "That might be more the approach than, 'If this site isn't cleaned up, chemicals are going to cause people to die.'"

Stimulus benefits

This year's GAO estimate of dwindling inflation-adjusted Superfund spending did not take into account one congressional vote that nearly doubled annual cleanup funding -- the approval of the 2009 economic recovery act, which gave EPA $600 million for the program. The agency sees the resulting job-creation bump lasting past 2011 as work continues at 51 stimulus-funded NPL sites.

"The fact that you can put back a useful part of the community into the economic mainstream" makes Superfund a good match for the stimulus law, EPA Assistant Administrator Craig Hooks said in a recent interview.

Tapped to supervise EPA's $7.2 billion recovery act allocation, Hooks echoed Jorling in touting the practical gains of Superfund and brownfield cleanups. "Companies don't want to start a business in an area that's contaminated," he said, shrugging off the controversies that have erupted over other agencies' stimulus programs. "From where I sit, it's always been apolitical."

Stephanie TenBarge was among the real-world beneficiaries of the fresh infusion for Superfund. ECHO Housing Corp., the nonprofit agency she runs that provides affordable homes for the homeless, is building a 27-unit complex on land formerly contaminated by lead and arsenic at an NPL site in Jacobsville, Ind.

EPA officials moved the Jacobsville cleanup higher on their priority list after the stimulus bill passed, TenBarge said in a recent interview, to make sure that her project moved forward. "We'll do whatever it takes to keep you from losing your grant money," she recalled the agency saying.

While EPA has obligated all of its Superfund recovery money, 60 percent was spent as of October, according to the agency. Hooks said that "while we moved very aggressively in signing contracts for work to be done, this can take one, two, three years in some cases for work to be completed."

That long-term funding is "a real bonus to sites that weren't going to get funded under the limited standard annual budget," Environmental Law Institute senior attorney John Pendergrass said in a recent interview.

Still, even a shot in the arm from recovery act funds cannot mask the reality of a growing list of unmet cleanup needs. GAO's recent report found that remediation costs at Superfund sites over the next five years will fall between $335 million and $681 million, or at least $68 million more than previous EPA allocations during the 2000s.

Even that best-case scenario shortfall is "likely understated," GAO auditors wrote, because it does not consider sites now in the first stages of cleanup or those for which liable parties may no longer be around to help foot the bill.

Meanwhile, EPA regional officials projected that the average number of sites added to the NPL in the next five years would rise by as much as 50 percent over 2005-2009 levels.


The Obama years have already seen the first stirrings of a more transparent Superfund process. Under current Assistant Administrator Mathy Stanislaus, EPA's Integrated Cleanup Initiative (ICI) is moving to share more information about the phases of cleanup with affected local residents and, in the agency's own words, help "communities ... evaluate and hold EPA accountable."

Marianne Lamont Horinko, who steered Superfund and served as acting EPA chief during the George W. Bush administration, praised the ICI as a step toward breaking down some of the bureaucratic barriers that the program's critics often decry.

"In the early days of the program, EPA and the states approached every cleanup site as if it was a de novo review, as if we knew nothing," she said. "We've actually learned a great deal, and a number of process efficiencies can be achieved where we learn from historic data to reduce some of the 300-page reports to three pages."

Horinko predicted that Superfund engineers would see a more brisk business in the coming years than Superfund lawyers, as the government applies a more collaborative attitude to cleanups. For J. Winston Porter, who watched over the program as a Reagan-era EPA assistant administrator, that fate would be a welcome change from the current trend where "lawyers have too big a role."

"I don't have anything against lawyers," said Porter, now leading a private consulting firm, the Waste Policy Center, but "an adversarial atmosphere has developed. ... Someone's got to ride herd on this and say, 'How much data do we really need [for a cleanup]?'"

Of course, a site's journey from recognition to removal from the NPL -- outlined in 12 steps and nine acronyms as part of EPA's 20th-anniversary Superfund report -- will remain unavoidably complex as science advances and toxicologists constantly reassess the methods for determining human health risks. For instance, the "reasonable maximum exposure" standard EPA uses for its pre-cleanup hazard assessments weighs the effect of both current and future uses of tainted land.

"The whole thing is driven by the risk to the most exposed individual, whether it's one person who lives near the site or everyone who lives in Brooklyn," said Karmel, the New York-based environmental lawyer and partner at Bryan Cave LLP.

That process of scoring areas can make for high economic stakes even at relatively less contaminated sites, Karmel explained. "It's very important, in an era of declining resources," he said, "for EPA to prioritize its site selection process so it only elevates sites to the NPL where there is significant harm to public health."

Correction: An earlier version of this story improperly stated that former EPA Administrator Anne Gorsuch Buford served jail time. Buford offered to serve time rather than producing the subpoenaed documents but did not; Rita Lavelle, the assistant administrator in charge of Superfund, served three months on a perjury conviction.

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