CERCLA was developed in response to hazardous waste disasters such as Love Canal, New York, in the 1970s. The primary source of support for the fund came from a tax on chemical feedstock producers; general revenues supplied the rest of the money needed. CERCLA is different from most environmental laws because it deals with past problems rather than trying to prevent future pollution, and because the Environmental Protection Agency (EPA), in addition to acting as a regulatory agency, must clean up sites itself.
Throughout the decade before the creation of Superfund, the public began to focus increasing attention on hazardous wastes. During this period, an increased number of cases involving such wastes contaminating drinking water, streams, rivers, and even homes were reported. Citizens were enraged by dangers posed by leaking landfills, illegal dumping of hazardous wastes along roads or in vacant lots, and explosions and fires at some facilities.
A strong catalyst for hazardous waste regulation was the Love Canal episode near Niagara Falls, New York. In the late 1970s, chemical wastes from an abandoned dump were discovered in the basements of some homes. Studies found significant health effects, including miscarriages and low-weight newborns. Residents worried about increased cancer and birth defect rates. In the federal emergency declaration, a school and two hundred houses were condemned. The combination of public concern and media coverage, together with EPA interest, brought national attention to this issue.
Debate soon began over proper government response to these problems. Industrial interests argued that a company should not be liable for cleaning up past hazardous waste dumps if it had not violated any law in disposing of the wastes. The industry argued that general taxes, not industry-specific taxes, should be used for the clean-up, and it sought to limit the legal liability of manufacturers in regard to the health effects of their hazardous wastes. Industrial companies also pushed for one national regulatory program, rather than a national program and several state programs to complicate the situation.
When Congress began debating a Superfund program in 1979, EPA officials argued that industry must pay the bulk of the clean-up costs. They based this argument on the philosophy that the polluter should pay and also the pragmatic reasoning that Congress could not be relied on to continue appropriating the funds needed for such an expensive and lengthy program. The Senate focused on a comprehensive bill that included provisions for liability and victims' compensation, but these were dropped in order to secure passage of the program through the House. The act was signed by President Carter in December 1980.
Under the law, the EPA determines the most dangerous hazardous waste sites, based on characteristics like toxicity of wastes and risk of human exposure, and places them on the National Priorities List (NPL), which determines priorities for EPA efforts. The EPA has the authority to either force those responsible for the site to clean it up, or clean up the site itself with the Superfund money and then seek to have the fund reimbursed through court action against the responsible parties. If more than one company had dumped wastes at a site, the agency is able to hold one party responsible for all clean-up costs. It is then up to that party to recover its costs from the other responsible parties. If those identified as responsible by the EPA deny their responsibility in court and lose, they are liable for treble damages. Removal actions, emergency clean-ups, or actions costing less than $2 million and lasting less than a year, can be undertaken by the EPA for any site. For federal hazardous waste sites, the clean-up must be paid for through the appropriation process rather than through the Superfund. States are required to contribute 10–50% of the cost of clean-ups within their boundaries; they are also responsible for all operation and maintenance costs once the job is finished. The EPA can also delegate lead clean-up authority to the states.
At the start of 2018, there were 1,341 sites on the NPL. Of those, 340 sites have been delisted and 52 new ones proposed since the creation of the NPL.
Studies of Superfund implementation have been quite critical. Reports by congressional committees, the General Accounting Office, and the Office of Technology Assessment (OTA) concluded that the EPA relied on temporary rather than permanent treatment methods, took too long to clean up sites because of poor management, too frequently opted to use the Superfund for clean-ups rather than requiring responsible parties to pay, and often lacked the expertise to oversee Superfund clean-up operations.
Another problem had been the amount of expensive and time-consuming litigation involved in the act. In some cases litigation costs to determine responsible parties and recover clean-up costs have exceeded the cost of clean-up itself. Between 1995 and 2002, the EPA recovered less than 15% of what it spent on clean-up from private parties.
See also Bhopal, India ; Centers for Disease Control and Prevention ; Environmental Protection Agency (EPA) ; Hazardous waste ; Lead ; Love Canal ; Superfund Amendments and Reauthorization Act .
Applegate, J. S., and J. G. Laitos. Environmental Law: RCRA, CERCLA, and the Management of Hazardous Waste. New York: Foundation Press, 2006.
United States Environmental Protection Agency (EPA). “National Priorities List (NPL).” Superfund. March 12, 2012. http://www.epa.gov/superfund/sites/npl/index.htm (accessed September 22, 2012).
Superfund, TRI, EPCRA, RMP & Oil Information Center, Ariel Rios Bldg., 1200 Pennsylvania Ave. NW, Washington, DC, 20460, (703) 412-9810, (800) 424-9346, http://www.epa.gov/superfund .
Christopher McGrory Klyza