01 Sep 2000 The Time for Superfund Reform is Now, by Michael Centrone
There was a time when the Ciba Specialty Chemicals Corporation in Toms River, New Jersey, employed nearly 2,000 workers. Today it employs none. The plant was forced to shut down operations in 1996 for violating the Environmental Protection Agency’s (EPA) controversial Superfund law. But, as is often the case with Superfund violations, Ciba Corporation did not intentionally pollute the area. Indeed, the company had actually been following the law in disposing of its waste products.1
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, commonly referred to as Superfund, granted the EPA the authority to list areas where the release of hazardous substances have become a threat to public health. Further, the agency decides which parties are responsible for contaminating the area and holds them liable to fund the removal of the hazardous substances.2 This is a process that averages a span of 15 to 20 years3 and $30 million in cleanup and transaction fees,4 often including heavy litigation and administrative costs when questions of liability arise.
In 1983, the EPA listed the Toms River site on its Superfund National Priorities List (NPL) and, as a result of the company’s waste disposal practices, found the Ciba Corporation responsible for contaminating groundwater in Toms River. Since that time, the company halted production while investing upwards of $200 million for cleanup of the polluted groundwater.
Ironically, the company’s disposal policy was never illegal. Prior to Superfund, the law permitted Ciba Corporation’s disposal methods. But under the Superfund law, the federal government says the company is still liable and must foot the entire bill for cleanup costs, completely ignoring the fact that Ciba’s waste disposal was legal at the time it occurred.
Perhaps even more disturbing is that in 1994, nine years after groundwater remediation had begun at the Toms River site, an EPA investigation concluded, "Since no one is drinking the contaminated groundwater, EPA has determined the site does not pose an immediate threat to the surrounding community or the environment."5 This should be of no surprise given that the EPA need not consider current or future land uses of contaminated sites. Instead, the agency operates on the assumption that residents live at the contaminated site and face "reasonable maximum exposure."6 This assumption has proven to be wrong time and again. A study carried out by James T. Hamilton of Duke University and W. Kip Viscusi of Harvard University noted that "much of EPA’s analyses are based on hypothetical risks so a lot of their analysis is dealing with risks that aren’t there today."7 Furthermore, a National Research Council study found that "in some cases, unnecessary or inappropriate remediation might create more of a hazard than would be caused by leaving such materials undisturbed."8
The situation in Toms River exemplifies just some of the problems that have surfaced since the Superfund law was enacted. For starters, Superfund was initially enacted as a five-year, $1-2 billion program.9 Yet, it still exists today, and is expected to cost a projected $75 billion to clean up the 4,500 sites the Congressional Budget Office has estimated are still in need of remediation.10 The Superfund program has been so costly and time-consuming for involved parties over the past two decades that the General Accounting Office reported that Superfund "poses significant financial risk to the government and potential waste and abuse."11
There are also intangible costs posed by Superfund. For one, the EPA identifies and lists potentially hazardous sites on its Comprehensive Environmental Response, Compensation and Liability Information System (CERCLIS) before ever determining if hazardous substances have contaminated an area. As of May 11, 2000 this list consisted of 11,327 properties nationwide, many of which will never become Superfund sites, but will be wrongly tagged as environmental traps.12 This causes the property in question to be viewed unfavorably, often resulting in the property value of the site and surrounding properties to plummet. This is detrimental to many urban and minority neighborhoods that are in desperate need of employment opportunities and economic expansion.
Also, contrary to what Superfund advocates preach in regard to implementing the "polluter pays" concept, consumers ultimately bear the clean-up costs by way of higher prices, decreased supplies and higher taxes.
Clearly, there is a serious need for reform of the federal Superfund program. It simply offends basic notions of fairness and justice to punish individuals and companies for waste disposal practices that, until Superfund became law, were perfectly legal. As even President Bill Clinton admits, "Superfund is a disaster."13
1 "Toms River Federal Superfund Site," Ciba-Geigy Corporation, downloaded from http://www.cibatomsriver.com on July 24, 2000.
2 "Superfund," Environmental Protection Agency, Washington, D.C., downloaded from http://www.epa.gov/superfund/whatissf/cercla.htm on July 19, 2000.
3 "Times to Complete Site Listing and Cleanup," General Accounting Office, Washington, D.C., February 4, 1998.
4 Richard L. Stroup, "Superfund: The Shortcut That Failed," Political Economy Research Center, Bozeman, Montana, May, 1996.
5 "Toms River Federal Superfund Site."
7 James T. Hamilton and W. Kip Viscusi, Calculating Risks: The Spatial and Political Dimensions of Hazardous Waste Policy, MIT Press, 1999.
8 "Environmental Epidemiology, Public Health and Hazardous Wastes," National Research Council, National Academy of Sciences, Washington, D.C., 1991.
9 "Reform of the Federal Superfund Program," National Association of Manufacturers, Washington, D.C., downloaded from http://www.nam.org/Search/DetailIssue.asp?ID=134&Type=NamTrak on July 24, 2000.
10 "The Total Costs of Cleaning Up Nonfederal Superfund Sites," Congressional Budget Office, Washington, D.C., 1994.
11 "Superfund: Progress Made By the EPA and Other Federal Agencies to Resolve Program Management Issues," General Accounting Office, Washington, D.C., April 29, 1999.
12 Mark Reisch, "Superfund Reauthorization Issues in the 106th Congress," Congressional Research Service, Washington, D.C., June 12, 2000.