Order Code RL33426
Superfund: Implementation and Selected Issues
Updated May 24, 2007
Jonathan L. Ramseur
Environmental Policy Analyst
Resources, Science, and Industry Division
Mark Reisch
Environmental Policy Analyst
Resources, Science, and Industry Division
Superfund: Implementation and Selected Issues
Summary
Superfund is the federal government’s principal program for cleaning up the
nation’s contaminated waste sites and protecting public health and the environment
from releases of hazardous substances. Enacted into law as the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, P.L.
96-510), the program became known as Superfund because Congress established a
large trust fund — originally supported by taxes levied on specific petroleum
products and chemicals — to provide the majority of the program’s funding needs.
Although the 26-year-old program has seen less attention compared with earlier
years, Superfund issues continue to generate debate. This report provides a
background and overview of the Superfund program and examines four topics that
received interest in recent years.
The first issue concerns Superfund program funding: who should pay for the
program, general taxpayers or a dedicated tax on industry? The program was
originally funded by a tax on industry that expired at the end of 1995. Without
dedicated taxes, and with a relatively small balance in the trust fund, Congress has
been using general revenues for a larger percentage of cleanup funds. Members
introduced bills to reinstate the taxes in the current and past two Congresses, but so
far, these efforts have lacked the necessary support.
The second issue regards Superfund program appropriations. Recent evidence
indicates that appropriations from the past several years have fallen short of program
needs. The Administration’s FY2007 budget proposal for Superfund also fell below
levels that, according to some estimates, are needed to meet program obligations.
Without reinstating the Superfund taxes, any increased appropriation would be
funded through General Treasury revenues.
The third issue involves Superfund interaction with abandoned and
contaminated hardrock mines. The number of hardrock mining sites requiring
cleanup in future years, particularly those without identifiable responsible parties,
could play an important role in the Superfund funding debate. There is also a
concern that the threat of CERCLA liability may act as a cleanup disincentive for
“good samaritans” who might offer cleanup assistance at abandoned hardrock mines.
The fourth issue concerns Superfund’s role at animal feeding operations.
Stakeholders argue about whether these operations should be required to report
ammonia air emissions, primarily resulting from animal waste, as hazardous
substance releases. This issue also concerns the responsibility for releases of animal
waste that reach water bodies.
Contents
Legislative Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Superfund Program Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Responding to Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Site Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The National Priorities List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Removal Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Remedial Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Cleanup Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CERCLA Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Natural Resource Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Federal Superfund Sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The State Role in the Superfund Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Selected Superfund Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Superfund Trust Fund and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Superfund Program Funding Needs and Appropriation Levels . . . . . . . . . . 12
Abandoned Hardrock Mines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Mining Sites and the National Priorities List . . . . . . . . . . . . . . . . . . . . 17
Federal Land Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Good Samaritan Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Releases from Animal Feeding Operations . . . . . . . . . . . . . . . . . . . . . . . . . 20
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
List of Figures
Figure 1: Removal and Remedial Program Annual Appropriations Compared
With Total Superfund Annual Appropriation, FY2003-FY-2006 . . . . . . . . . 6
Figure 2. Superfund Trust Fund, Beginning Year Balance,
FY1994-FY2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Figure 3. Superfund Appropriations: FY2001-FY2006 Enacted and
FY2007 Requested Versus Resources for the Future Projections
of Funding Needs (amounts in millions prior to transfers) . . . . . . . . . . . . . 13
Figure 4: Administration Budget Request Versus Enacted Superfund
Appropriation, FY2004-FY2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
List of Tables
Table 1. CERCLA and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Superfund: Implementation
and Selected Issues
The Superfund program had its 25th anniversary in 2005. Although Superfund
debate has lessened, as compared with past years, particular aspects of the program
continue to generate debate. Policymakers are faced with broad programmatic
concerns, as well as more specific issues concerning program implementation. This
report discusses some of these questions: Who should pay to clean up the nation’s
most contaminated sites if responsible parties cannot be found? Is the program
receiving enough funding to meet its current and future obligations? How does the
statute interact with abandoned hardrock mining sites and animal feeding operations?
To supply the context for these issues, this report first provides a background and
overview of the Superfund program.
Legislative Background
On December 11, 1980, Congress enacted the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA, P.L. 96-510)1 to create the
hazardous substance cleanup program. The program became known as “Superfund”
in reference to the trust fund established by the law. The fund was originally
supported by taxes levied on specific petroleum products and chemicals, and by a
corporate environmental income tax. Until recent years, the Superfund taxes
provided the majority of the funding for the needs of the program.
At the time of CERCLA’s enactment, other federal environmental statutes
provided federal agencies with only limited authority to address contamination at
abandoned sites. CERCLA gave the federal government the authority to take direct
action to respond to instances involving uncontrolled releases of hazardous
substances (or pollutants and contaminants) that may endanger public health or the
environment. CERCLA also enables the Environmental Protection Agency (EPA)
to compel the persons responsible to clean up their contaminated sites. If the
potentially responsible parties (PRPs) cannot be located, or they are unable (generally
for financial reasons) to perform cleanup, EPA is authorized to use monies from the
Superfund Trust Fund to clean up the site.
CERCLA was expanded and reauthorized by the Superfund Amendments and
Reauthorization Act of 1986 (SARA, P.L. 99-499).2 Amendments after SARA have
been narrowly focused. In 1992 and 1996, Congress enacted legislation allowing for
easier transfer of military bases with contaminated areas to local entities. In 1996
and 1999, Congress provided conditional liability exemptions for financial
1 CERCLA, as amended, is codified at 42 U.S.C. 9601-9675.
2 SARA also created other authorities, most notably SARA Title III, otherwise known as the
Emergency Planning and Community Right-to-Know Act (EPCRA).
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institutions and recycling facilities. In 2002, Congress enacted the Small Business
Liability Relief and Brownfields Revitalization Act (P.L. 108-118), which added
further liability relief and authorized the Brownfields Program. Table 1 lists the
various CERCLA amendments.
Table 1. CERCLA and Amendments
(codified generally as 42 U.S.C. 9601-9675)
Year
Act
Public Law Number
Comprehensive Environmental Response,
1980
P.L. 96-510
Compensation, and Liability Act
1986
Superfund Amendments and Reauthorization Act
P.L. 99-499
Omnibus Reconciliation Act (extended
P.L. 101-508, §§ 6301,
1990
authorization)
11231
Community Environmental Response Facilitation
1992
P.L. 102-426
Act
Asset Conservation, Lender Liability and Deposit
P.L. 104-208, Division
1996
Insurance Protection Act
A, Title II, Subtitle E
1996
Defense Authorization Act of Fiscal Year 1997
P.L. 104-201, § 334
P.L. 106-113, appendix
1999
Superfund Recycling Equity Act
I, title VI
Small Business Liability Relief and Brownfields
2002
P.L. 107-118
Reauthorization Act
Superfund Program Implementation
The National Oil and Hazardous Substances Pollution Contingency Plan (NCP)
contains the procedures and regulations for implementing the Superfund program.3
Generally, EPA leads the response to releases on land and in inland waters, whereas
the Coast Guard leads the response in coastal waters of the United States.
Responding to Releases
Actions under the Superfund program are triggered by a release (or threat of
release) of a hazardous substance into the environment. The CERCLA
“environment” includes all media: water (surface and groundwater), soil, and air.
CERCLA defines “hazardous substance” to include all the materials identified as
hazardous under the Resource Conservation Recovery Act (RCRA), the Clean Water
Act (CWA), the Clean Air Act (CAA), and the Toxic Substances Control Act
(TSCA). CERCLA also authorizes EPA to respond to releases of “pollutants or
contaminants,” which are broadly defined to include virtually anything that can
threaten the health of “any organism.”
3 The NCP is codified at 40 CFR Part 300.
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Petroleum is specifically excluded from the definition of hazardous substance
and pollutant or contaminant. This means that neither CERCLA authority nor trust
fund monies may be used to respond to releases of petroleum.4 However, the 2002
Brownfields law authorizes the cleanup of some petroleum-contaminated sites.
Site Assessment. The Superfund cleanup process starts either with a site
discovery or with a notification to EPA of a potential hazardous substance release.
Sites of concern can be discovered by various parties: citizens, state agencies, or EPA
Regional offices. CERCLA § 103 requires release notification. Facilities must
notify the National Response Center if there has been a release of a hazardous
substance above a certain threshold, termed a reportable quantity (RQ).5
Since the inception of the Superfund program, EPA has catalogued almost
46,000 potentially contaminated sites in the agency’s database: the Comprehensive
Environmental Response, Compensation, and Liability Information System
(CERCLIS)6. After a site has been identified, EPA or a state agency performs a
preliminary assessment to judge the site’s potential hazards.7 After further screening,
EPA uses the Hazard Ranking System (HRS) to score the site’s contamination and
its risk of exposure to surrounding communities.
The National Priorities List. Sites that score high enough on the HRS are
eligible for the National Priorities List (NPL), which is generally considered the
official list of the most hazardous sites in the nation. Only a small percentage of the
sites assessed are placed on the NPL. Over Superfund’s history, EPA has placed
1,562 sites on the NPL. Of these sites, 319 have met cleanup goals and have been
subsequently removed (deleted) from the NPL. At an additional 1,010 sites, all
physical construction activities have been performed and operation and maintenance
(such as treatment of contaminated groundwater) are ongoing. These sites are
referred to as “construction complete.”8
The NPL has been described as the centerpiece of the Superfund program, and
thus it has been a focal point for Superfund criticism. As noted in a comprehensive
4 Petroleum spills are covered under other statutes, such as the Oil Pollution Act of 1990.
For more information regarding oil spills, see CRS Report RL33705, Oil Spills in U.S.
Coastal Waters: Background, Governance, and Issues for Congress, by Jonathan L.
Ramseur.
5 40 CFR § 302.6. EPA codified the list of hazardous substances and their respective RQs
in 40 CFR § 302.4. Hazardous substance RQs can range from 1 pound to 5,000 pounds.
6 U.S. EPA, Office of Solid Waste and Emergency Response, FY 2004 Superfund Annual
Report, September 2005, p. 11.
7 In practice, this activity is often carried out by a contractor.
8 See [http://www.epa.gov/superfund/sites/query/queryhtm/npltotal.htm], visited May 24,
2007.
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report prepared by Resources for the Future (RFF)9 (hereafter referred to as the RFF
Report):10
The expense and pace of cleaning up NPL sites has been, and continues to be, a
contentious topic among followers of the Superfund program.... [E]ven though
more than half of all NPL sites have been deemed “construction complete” —
meaning that all physical remedies are in place and immediate risks posed by the
site have been addressed — there remain hundreds of sites placed on the NPL
during the early years of the program where cleanup remedies have still not been
fully implemented.
Some interest groups have questioned the listing process itself and the slow pace
of cleanup at NPL sites. The decision to list a site on the NPL is ultimately at EPA’s
discretion.11 Many factors, other than the HRS score, influence whether a site is
proposed for listing — for example, state support,12 community concerns,13 and
Superfund budgetary issues.14 EPA has stated that
The NPL is only of limited significance, however, as it does not assign liability
to any party or to the owner of any specific property. Neither does placing a site
on the NPL mean that any remedial or removal action necessarily need be
taken.15
There are two categories of response activity in the Superfund program: (1)
short-term removal action and (2) long-term remedial action. The trust fund can
support removal action at NPL or non-NPL sites. However, trust fund monies can
be used for remedial activity only if the site is on the NPL.16
The Removal Program. The removal program grew out of the recognition
that certain hazardous substance releases would necessitate a quick response.
Removal action seeks to stabilize a site, and in some cases this minimizes the need
9 In the FY2000 VA-HUD-Independent Agencies appropriation (P.L. 106-74) conference
report, Congress directed EPA to contract with RFF to analyze the projected federal costs
of the Superfund program for the period FY2000-FY2009.
10 Katherine Probst, et al., 2001, Superfund’s Future: What Will It Cost? Resources for the
Future, Washington, DC (2001), p. 31.
11 The process has been called “more art than science.” Probst, Katherine, 2005, “Superfund
at 25 - What Remains To Be Done?” Resources, Fall 2005, p. 20.
12 P.L. 104-19 (an FY1995 appropriations bill) directed EPA to obtain a letter of
concurrence from the governor of a state prior to listing a site in that state on the National
Priorities List. P.L. 104-134 (an FY1996 appropriations bill) provided similar direction.
EPA, as a matter of policy to further enhance the role of states in the Superfund program,
continues to request a governor’s letter of concurrence prior to NPL listing.
13 An NPL designation generally carries a stigma, and local communities often worry about
the effects an NPL site will have on nearby property values.
14 For example, EPA might be hesitant to list “mega sites” on the NPL, unless the parties
responsible for the site have been identified. RFF Report, p. 89.
15 See, for example, U.S. EPA, “National Priorities List for Uncontrolled Hazardous Waste
Sites,” 70 Federal Register 54329, September 14, 2005.
16 40 CFR § 300.425(b)(1).
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for further cleanup. Removal action can be undertaken at sites regardless of their
NPL status, and historically, most removal actions occur at non-NPL sites.17
CERCLA limits removal action to a one-year effort and expenditures of not more
than $2 million.18 This limit applies only to efforts led by EPA and funded by trust
fund dollars, not at sites where the responsible party is performing cleanup.
Not all actions under the removal program are considered equally urgent. EPA
groups removal actions into the following three categories:
(1) Classic emergencies. Those actions where the release requires that on-site
activities be initiated within minutes or hours of the determination that a removal
action is appropriate.
(2) Time-Critical Actions. Those actions where, based on an evaluation of the
site, EPA determines that less than six months is available before site activities
must be initiated.
(3) Non-Time-Critical Actions. Those actions where, based on an evaluation of
the site, EPA determines that more than six months is available before on-site
activities must begin.19
Removal actions may include, but are not limited to:
! repairing a hazardous waste storage unit (e.g., landfill cover),
! transporting leaking drums to an appropriate disposal facility, and
! erecting a security fence to reduce opportunity of exposure.
In recent years, the removal program has consistently received about one-third of the
amount appropriated to the remedial program (see Figure 1).
17 From FY1992-FY1999, approximately 76% of removal actions occurred at non-NPL sites.
RFF report, p. 16.
18 CERCLA § 104(c)(1). These limits can be exceeded if a waiver is obtained. EPA
estimated that as of January 2001, about 8% of the removal actions conducted by EPA have
exceeded $2 million. RFF report, p.16, citing EPA analysis.
19 See EPA’s Response Program description at [http://www.epa.gov/superfund/programs/er/
hazsubs/ralts.htm]
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Figure 1: Removal and Remedial Program Annual Appropriations
Compared With Total Superfund Annual Appropriation,
FY2003-FY-2006
) $1,500
ns
$1,265
$1,258
$1,247
$1,242
illio
m $1,000
in
$
(
$575
$600
$597
$589
tions
$500
ia
$196
$198
$198
$193
opr
pr
p
A
$0
FY2003
FY2004
FY2005
FY2006
Removal Program
Remedial Program
Total Superfund Appropriation
Sources: Prepared by the Congressional Research Service using data from the following: (1)
Removal/Remedial source data: FY2003 and FY2004 enacted amounts are EPA estimates provided
by the Office of Congressional Affairs; FY2005 enacted amounts are from the conference report on
the Interior, Environment, and Related Agencies Appropriations Act for FY2006 (H.R. 2361, H.Rept.
109-188, p. 154), which reflects an across-the-board rescission of 0.80% required in the Consolidated
Appropriations Act for FY2005 (P.L. 108-447); FY2006 amounts are from EPA’s FY2007 budget
justification, Appendix, Program Projects Table, p. 82 (FY2006 enacted amounts are EPA estimates,
which reflect a 0.476% across-the-board rescission required in the Interior, Environment, and Related
Agencies Appropriations Act for FY2006 (P.L. 109-54), and a 1% government-wide rescission
required in the Department of Defense Appropriations Act for FY2006 (P.L. 109-148); (2) Total
Appropriations source data: FY2003-FY2005 total appropriations are from prior year funding
comparisons in committee reports on annual appropriations bills from FY2004-FY2006; FY2006 total
appropriation is from EPA’s FY2007 budget justification.
The Remedial Program. The remedial program is the core of the Superfund
program. In contrast to removal actions, remedial actions, in general, take more time,
cost more money, and represent a more permanent solution. Congress consistently
apportions about half of the annual Superfund appropriation to the remedial program
(see Figure 1).20
The remedial program consists of multiple process steps, each with its own term
of art. Although the remedial process does not typically follow a linear, step-by-step
progression, a simplified version of events is discussed below, highlighting the main
milestones.
20 Other substantial accounts in the total appropriation include the removal program ($194
million), enforcement ($180 million), and operations and administration ($122 million).
Amounts reflect FY2006 enacted appropriation.
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The remedial program first involves a comprehensive investigation of the site
and analysis of cleanup alternatives or remedies. This examination process (the
Remedial Investigation/Feasibility Study, or RI/FS) can take months, or even years.21
Following completion of the RI/FS, EPA selects a remedy to address the site’s
contamination. EPA must solicit public comment when determining the remedy for
the site, and states typically play an active role in the remedy selection process.
CERCLA directs EPA to select a permanent remedy or treatment whenever possible.
The less-preferred option is to leave the waste in place and reduce human exposure
(e.g., soil cover or security fence). If the method chosen is not permanent, EPA must
review the site every five years to ensure remedy protection.
After EPA decides the site-specific cleanup remedy and issues a formal Record
of Decision (ROD), the remedial design (RD) phase commences. The RD is the
engineering plan used to implement the remedy chosen by EPA. Development of the
RD takes, on average, approximately two years.22 After the RD is complete, the
actual cleanup process (Remedial Action) begins. For sites where cleanup has been
completed, the total process, from start (a proposed listing on the NPL) to finish
(cleanup goals achieved), takes between 8 and 11 years, on average.23
Cleanup Standards. CERCLA directs EPA to assure that Superfund site
cleanups protect human health and the environment.24 CERCLA specifically requires
cleanups to meet “any standard, requirement, criteria, or limitation” under any federal
or state environmental law.25 EPA may waive this requirement if, for example,
meeting the standard will not provide a balance between (1) the need for protection
of health and the environment at the site and (2) the availability of monies in the trust
fund for other locations.26
CERCLA Liability
CERCLA contains a liability scheme that is, by any measure, stringent. If a
hazardous substance is released, or threatened to be released, from a facility,
CERCLA liability may attach to a wide variety of persons. A potentially responsible
party (PRP) is any individual or company that may have contributed to contamination
at a Superfund site.
21 The RFF report (p. 48) cites EPA data from FY1993-FY1999, which indicates the average
duration is 2.6 years.
22 The RFF report cites EPA’s estimate at 1.7 years, but the report authors calculated an
average RD duration of 2.25 years. RFF report at p. 210.
23 EPA estimates the average duration is eight years, but the RFF report finds this calculation
to be inaccurate because only completed actions are included. If incomplete actions are also
included, as demonstrated in the RFF report, the average duration increases to 11 years ( pp.
48-52).
24 CERCLA § 121(d).
25 Id.
26 CERCLA provides five other conditions that allow EPA to waive the requirements.
CERCLA § 121(d)(4).
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PRPs may include
! current or former owners of a facility or vessel,
! current or former operators of a facility or vessel,
! generators who sent hazardous substances to the site, and
! transporters who brought hazardous substances to the site.27
CERCLA liability is considered to be strict, joint and several, and retroactive:28
! Strict liability means that a party can be held responsible regardless
of negligence. Moreover, under CERCLA, proof of causation is not
necessary.
! Joint and several liability means that any liable party can be held
responsible for the full cost of cleanup, regardless of the degree of
involvement.
! Retroactive liability means that parties can be held responsible for
actions that caused contamination prior to the passage of CERCLA.
CERCLA’s liability scheme provides EPA with strong enforcement authority
to require PRPs to address site contamination. The joint and several component
creates an incentive for one PRP (already identified by EPA) to locate other PRPs,
so that the cleanup costs can be shared.
The statute does provide several defenses, exemptions, and mechanisms for
eliminating or reducing a party’s CERCLA liability.29 This report does not discuss
these devices. For information regarding several of them, see CRS Report RL31911,
“Innocent Landowners” and “Prospective Purchasers” Under the Superfund Act,
by Robert Meltz.
Natural Resource Damages30
In addition to cleanup costs, CERCLA requires PRPs to address the
environmental harm they caused by restoring or replacing any injured natural
resources. PRPs must also pay for the lost use of a publicly owned resource and the
associated damage assessment. CERCLA designates federal, state, and tribal
authorities to serve as natural resource trustees within their jurisdiction. Only the
trustees can make a natural resource damages claim under CERCLA.31 In some
27 CERCLA § 107(a).
28 The CERCLA statute does not include the text “strict, joint and several, and retroactive.”
These features of CERCLA liability derive from legislative history, case law, and the
CERCLA instruction that its liability standard is the same as that in Clean Water Act § 311.
See CERCLA § 101(32).
29 See, for example, CERCLA §§ 107(b), 107(d), 107(n), 107(o), 107(p), 107(q), 107(r).
30 For more background on this issue, see CRS Report RS20772, Superfund and Natural
Resource Damages, by Mark Reisch.
31 “Although private parties do not have a statutory cause of action for natural resource
damages, they may assert similar claims under common law theories, such as negligence and
(continued...)
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respects, liability for natural resource damages is more narrow than the liability for
cleanup costs. For example, natural resource injuries occurring wholly before the
enactment of CERCLA (1980) are excluded.32 Also, a claim must be brought within
three years of its discovery and connection to a particular release.
Federal Superfund Sites
With the passage of SARA in 1986, federal facilities became subject to
CERCLA in the same fashion as non-governmental entities.33 Before SARA was
enacted, no federal facilities were placed on the National Priorities List (NPL). Since
1986, EPA has placed 172 federal facilities on the final NPL.34 Almost all federal
facilities on the NPL are defense sites, including military facilities administered by
the Department of Defense (DOD) and former nuclear weapons production sites
administered by the Department of Energy (DOE). These sites are among the most
contaminated of those on the entire NPL.
The Superfund Trust Fund cannot be used to pay for cleanup at federal facilities.
The agency responsible for the contamination is responsible for cleanup, and funding
for removal or remedial action must come from that agency’s budget. However, the
trust fund may be used to provide alternative water supplies if groundwater
contamination migrates beyond the facility boundaries and other PRPs are involved
at the site.
At federal sites on the NPL, EPA oversees remedy selection and remedial
action. Federal sites that do not qualify for the NPL are subject to state laws
concerning removal, remedial action, and enforcement. At these sites, states oversee
cleanup activity. There are almost 800 sites nationwide that fall into this category.35
The State Role in the Superfund Process
A state’s role at Superfund sites can range from actively managing the site to
sharing cleanup costs at Fund-led cleanups. At sites within this latter group,
CERCLA § 104(c)(3) requires states to pay 10% of the remedial cleanup costs and
100% of the maintenance costs after cleanup has occurred. However, if the facility
was operated by the state (or a political subdivision thereof) at the time of disposal,
the state must share 50% of the removal or remedial cleanup costs.
This cost-sharing component may play a role in whether sites are listed on the
NPL. Although not currently required by law, EPA typically does not propose new
31 (...continued)
strict liability.” Bradley M. Marten and Cestjon L. McFarland, “Litigating CERCLA
Natural Resource Damage Claims,” Environment Reporter, July 19, 1991, p. 671.
32 CERCLA § 107(f).
33 CERCLA § 120.
34 See [http://www.epa.gov/superfund/sites/query/queryhtm/npltotal.htm], visited May 24,
2007.
35 A CERCLIS search (January 18, 2007) identifies 787 federal sites not on the NPL, of
which 15 were deleted from the NPL and 6 are proposed to be on the NPL.
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sites to the NPL without a state’s agreement.36 For budgetary reasons, states may be
hesitant to add Fund-led sites to the NPL.
Most Superfund sites are not on the NPL. Of the roughly 10,000 sites currently
in the CERCLIS database, about 90% are not on the NPL. At these non-NPL sites,
the federal role may include cleanup assessment or removal activity, or the federal
government may have no presence at all. State cleanup programs have the authority
to assess and clean up non-NPL sites and to identify other potential hazardous sites.
The majority of the state cleanup programs have authorities similar to the federal
Superfund program.37
Selected Superfund Issues
This section of the report discusses four Superfund issues that have received
interest in recent years. The first two issues concern program funding, including who
should fund the program (industry or general taxpayers) and how much funding is
needed to meet the program’s obligations. The second two issues concern CERCLA
interaction at specific site types: abandoned hardrock mines and animal feeding
operations.
Superfund Trust Fund and Taxes38
In February 2002, controversy erupted over the Bush Administration’s proposal
not to request renewal of the Superfund taxes in its FY2003 budget submission39 —
a decision repeated in its FY2004, FY2005, FY2006, and FY2007 submissions.
Congress has concurred with the Administration’s position and chosen not to renew
the Superfund taxes.
The tax authority expired in 1995, but the fund’s balance remained positive until
FY2003. Without dedicated taxes, and with a relatively small balance in the trust
fund, Congress has been using general revenues for a larger percentage of cleanup
funds. Although several Members of Congress have introduced bills to reinstate the
taxes during these years, such efforts have lacked the necessary support.
36 P.L. 104-19 (an FY1995 appropriations bill) directed EPA to obtain a letter of
concurrence from the governor of a state prior to listing a site in that state on the National
Priorities List. P.L. 104-134 (an FY1996 appropriations bill) provided similar direction.
EPA, as a matter of policy to further enhance the role of states in the Superfund program,
continues to request a governor’s letter of concurrence prior to NPL listing.
37 Environmental Law Institute, 2002, An Analysis of State Superfund Programs: 50-State
Study, 2001 Update, p. 13.
38 For a more comprehensive discussion, see CRS Report RL31410, Superfund Taxes or
General Revenues: Future Funding Issues for the Superfund Program, by Jonathan Lee
Ramseur, Mark Reisch, and James E. McCarthy.
39 The Administration had not requested renewal of the taxes in its FY2002 budget
submission either, but the issue did not become particularly contentious, in part, perhaps,
because the fund had a larger balance at the time.
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CERCLA established the Superfund program and its trust fund in 1980.
Although General Treasury revenues have provided some support for the program
since its inception,40 the trust fund traditionally provided most of the funding for the
Superfund program. Congress raised trust fund revenues primarily through excise
taxes on the petroleum and chemical industries and a corporate environmental
income tax. These dedicated taxes sustained the trust fund until the taxing authority
expired December 31, 1995. Since 1995, efforts to reinstate the taxes have not
succeeded.
At the end of FY1996, the trust fund reached a peak balance of $3.8 billion (see
Figure 3). Without a consistent source of funding, the balance dwindled essentially
to zero by the end of FY2003.41 The annual budgets have compensated for the lack
of dedicated tax revenue by increasing the contribution from the general fund of the
U.S. Treasury. In fiscal years 2004-2007, virtually the entire Superfund program was
funded through General Treasury revenues appropriated by Congress. The FY2008
budget request followed this course, proposing to fund the vast majority of the $1.24
billion requested appropriation from General Treasury revenues.
Figure 2. Superfund Trust Fund, Beginning Year Balance,
FY1994-FY2006
Source: Prepared by the Congressional Research Service, with information provided by OMB Budget
of the United States Government, Appendix, Fiscal Years 1996-2007.
In a majority of cases, Superfund cleanups are paid for by potentially
responsible parties (PRPs) — usually current or previous owners/operators of the
site. According to EPA, PRPs conduct cleanup at more than 70% of the sites on the
40 From FY1991-FY1995 — the five year period prior to the expiration of the Superfund
taxes — General Treasury revenues contributed approximately 17% of the total revenues
supporting the Superfund Trust Fund.
41 The trust fund received (and continues to receive) income from interest earned, cost
recoveries, and fines and penalties, but these sources are minor compared with the previous
tax revenues.
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NPL.42 At approximately 30% of the NPL sites, either EPA cannot locate PRPs for
these properties or the PRPs located do not have the necessary financial resources to
assist with cleanup. It is primarily for this group of NPL sites (often called “orphan”
sites) that EPA uses funds from the trust fund to conduct cleanup activities. In
general, the current Superfund funding debate (i.e., whether a dedicated tax or
General Treasury revenues should support the trust fund) applies to this subset of
NPL sites.43
Proponents of reinstating the Superfund taxes argue that the cleanup of orphan
sites should rely on taxes paid by the chemical and petroleum industries and
companies that use CERCLA hazardous substances, not ordinary taxpayers. They
refer to this as the “polluter pays” principle. When Bush Administration
spokespersons indicate support for the “polluter pays” concept, they generally mean
that cleanup should be funded by the parties directly involved (i.e., PRPs) rather than
by industrial sectors or corporations that did not directly contribute to a specific site’s
contamination. Opponents of reinstating the tax argue, for example, that the tax is
overreaching and unfair, as it applies to all industry sectors and to both compliant and
noncompliant companies. Superfund tax proponents contend that in the context of
federal budget deficits, it may be difficult to maintain spending at needed levels
without dedicated taxes.
Since the 107th Congress, Members have offered legislation that would reinstate
the Superfund taxes, but these efforts have failed. The 109th Congress saw three bills
introduced that would renew Superfund taxes, but these proposals received no action.
In the 110th Congress, H.R. 1887 and S. 1179 would reinstate the taxes and, for the
first five years, would increase them by 50% to fund a response at “megasites”
(where cleanup costs exceed $50 million) and at sites that present high health risks.
Superfund Program Funding Needs and Appropriation Levels
Related to the Superfund program funding debate is the concern that the
Superfund program is not receiving enough funding to match its annual obligations.
Recent evidence indicates that appropriations from the past several years have fallen
short of program needs. If Congress decides to increase annual appropriations
without reinstating the Superfund taxes, General Treasury revenues contribution to
the program will increase, possibly conflicting with deficit reduction goals.
As noted above, in July 2001, Resources for the Future (RFF) released a
comprehensive study, mandated by Congress,44 that estimated future program needs
42 At many sites, EPA cannot immediately locate a financially viable PRP, or there are
disputes among the PRPs concerning their degree of responsibility. In such cases, the
statute permits EPA to proceed with cleanup using the trust fund’s resources, to locate PRPs
after or during cleanup, and to recover the cleanup costs from PRPs at a later date.
43 Although 70% of the NPL cleanups are performed by PRPs, the RFF report (chapter 5)
finds there may be many orphan sites eligible for the NPL (i.e., have a high enough HRS
score) that remain unlisted for various reasons (discussed in the NPL subsection above).
Thus, one might argue that the 70%-30% ratio understates the universe of orphan sites that
need federal funding for cleanup.
44 In the FY2000 VA-HUD-Independent Agencies appropriation (P.L. 106-74) conference
(continued...)
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for fiscal years 2000-2009. RFF calculated that the base case program needs for
FY2007 would be $1.7 billion. The report also estimated a high and low case: $1.5
billion and $1.9 billion per year, respectively. RFF concluded that funding needs
would remain above $1.6 billion annually through FY2009 (using RFF’s base case).
As Figure 3 indicates, annual Superfund appropriations in recent years have
consistently been several hundred million dollars less than the funding needs
projected by RFF.
Figure 3. Superfund Appropriations: FY2001-FY2006 Enacted
and FY2007 Requested Versus Resources for the Future
Projections of Funding Needs
(amounts in millions prior to transfers)
2,000
1,854
1,763
1,748
1,724
1,691
1,699
1,668
1,615
1,566
1,500
1,311
1,270
1,265
1,258
1,247
1,242
1,259
1,000
500
0
2001
2002
2003
2004
2005
2006
2007
2008
2009
Need Projected by RFF
Appropriated
Requested
Sources: Prepared by the Congressional Research Service using information from the following
sources: FY2001-FY2005 enacted amounts are from prior year funding comparisons in committee
reports on annual appropriations bills from FY2002-FY2006; FY2006 enacted and FY2007 requested
amounts are from EPA’s FY2007 budget justification; projected funding levels are from the Resources
for the Future report, Superfund’s Future: What Will It Cost?
Several factors contributed to RFF’s projections for increased funding needs.
First, RFF anticipated that numerous “mega sites” would move beyond the analysis
and design phases and into the actual construction and cleanup phases.45 In the RFF
analysis, the cost of remedial action at mega sites was projected to remain above
historic levels through FY2007, and the cost of the Superfund program as a whole
44 (...continued)
report, Congress directed EPA to contract with RFF to analyze the projected federal costs
of the Superfund program for the period FY2000-FY2009.
45 “Mega sites” are sites at which the projected cleanup cost is $50 million or more. The
average cost at mega sites is projected to be $140 million. RFF Report, p. 87.
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was projected to remain above FY2001 levels through at least FY2009 (the final year
in the analysis).46
Second, EPA’s Office of Inspector General (IG) highlighted the concern that
hardrock mining sites may have a significant financial impact on the trust fund. The
IG identified “156 hardrock mining sites nationwide that have the potential to cost
between $7 billion and $24 billion to clean up.” Although the IG points out
uncertainty regarding the risks to human health and the environment at these sites,47
there is also uncertainty concerning PRPs and their ability to pay for cleanup.48
There is evidence that funding shortfalls have occurred in recent years.
According to an EPA IG report, in FY2002, the EPA regional offices received no
funds for seven of the sites at which the regions requested construction funding. At
five different sites, the Regions received less than half of the total funds requested.49
In FY2003, the IG identified an additional 11 sites that could not begin construction
because of a funding shortfall, and at least 5 other sites that did not receive their full
funding request in that year.50 Although the IG did not report on the subject in
FY2004, a survey of EPA staff by the House Energy and Commerce Committee
Democratic staff found a reported shortfall of $263.1 million.51 EPA challenged
some of the committee data but confirmed in letters to House and Senate Democrats
that, due to lack of funding, it did not start construction at 19 sites that were ready for
construction in FY2004.52
Congress could increase appropriation levels to meet the increased funding
needs. The Administration notes that it requested increases in funding in both its
FY2004 request for $1.39 billion and its FY2005 request for $1.38 billion, which
Congress did not provide. Congress cut the FY2004 and FY2005 requests by $132
million and $134 million, respectively. Although the Administration’s request in
FY2006 ($1.28 billion) was lower compared with previous years, Congress cut the
proposal by $40 million, enacting $1.24 billion. The Administration requested $1.26
billion for FY2007, a $20 million decrease from its previous request, but $20 million
46 RFF Report, pp. 127, 266.
47 This factor is important because sites must be on the NPL to qualify for long-term cleanup
(remedial) assistance from the trust fund.
48 EPA Office of Inspector General, Annual Superfund Report to Congress for Fiscal Year
2004, EPA-350-R-05-001, August 2005, p. 3.
49 Letter of October 25, 2002, from Nikki L. Tinsley, EPA Inspector General, to Senator
James Jeffords, Chairman, Committee on Environment and Public Works, and Senator
Barbara Boxer, Chair, Superfund, Toxics, Risk, and Waste Management Subcommittee, pp.
1-3.
50 U.S. EPA, Office of Inspector General, Congressional Request on Funding Needs for
Non-Federal Superfund Sites, Report 2004-P-00001, January 7, 2004, pp. 4, 8-9.
51 Letter from Representative John Dingell, Ranking Member of the House Committee on
Energy and Commerce, to Mike Leavitt, EPA Administrator, August 13, 2004.
52 See Letter from Mike Leavitt, EPA Administrator to Representative John Dingell,
Ranking Member of the House Committee on Energy and Commerce, October 14, 2004.
See also “FY2004 Cleanup Delays Renew Democrats’ Criticism of Superfund
Budget,”Inside EPA Superfund Report, October 25, 2004. The data in the article were
confirmed by EPA in a personal communication March 3, 2005.
CRS-15
above the amount enacted by Congress in FY2006 (See Figure 4). The 109th
Congress adjourned without finalizing FY2007 appropriations for EPA, but it
enacted a continuing resolution (P.L. 109-383, H.J.Res. 102) to provide funding
through February 15, 2007. Pursuant to the formula provided in the continuing
resolution, the Superfund program will continue to receive funding consistent with
the FY2006 enacted appropriation.53 For FY2008, the Administration has requested
$1.24 billion.
Given RFF’s projected funding needs for the Superfund program and the
relatively minimal amounts available to the fund from sources other than general
revenues, Congress will face competing interests if it attempts to appropriate all of
Superfund’s needs. RFF estimates that General Treasury revenue contributions as
high as $1.5 billion per year would be needed to finance Superfund through the rest
of the decade in the continued absence of Superfund taxes. This could prove difficult
in light of current federal deficits and other funding priorities.
Figure 4: Administration Budget Request Versus
Enacted Superfund Appropriation, FY2004-FY2007
1,600
1,400
illion) 1,200
m
$ 1,000
(
n
800
tio
a
600
ri
p
o
400
pr
p
200
A
0
FY2004
FY2005
FY2006
FY2007
Administration Request
Enacted Amount
Sources: Prepared by the Congressional Research Service using data from the following sources:
FY2004-FY2005 enacted amounts and FY2004-FY2006 requested amounts are from prior year
funding comparisons in committee reports on annual appropriations bills from FY2004-FY2006;
FY2006 enacted amount and FY2007 requested amount are from EPA’s FY2007 budget justification.
Abandoned Hardrock Mines
Although CERCLA liability is a powerful tool for EPA to drive cleanup of
contaminated sites, the threat of CERCLA liability may act as a cleanup disincentive
53 The funding formula sets continuing appropriations for programs and activities generally
at either the current (FY2006) level, the level in the pertinent House-passed bill, or the level
in the Senate-passed bill, whichever is lowest. On May 18, 2006, the House passed the
FY2007 Interior, Environment, and Related Agencies appropriations bill (H.R. 5386,
H.Rept. 109-465) providing a total of $1.26 billion for EPA’s Superfund account (prior to
transfers to other accounts). This is $14.8 million more than the FY2006 enacted amount.
The Senate did not pass a bill, thus under the continuing resolution, funding will continue
at FY2006 levels.
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at abandoned hardrock mines. There are thousands of inactive or abandoned
hardrock mines in the United States. As discussed previously, the number of
hardrock mining sites listed on the NPL in future years, particularly those without
identifiable PRPs, could play an important role in the Superfund funding debate.
This section examines the interaction between CERCLA and contaminated hardrock
mines.
Background. Hardrock mining involves the extraction of metals found in the
earth’s hard formations.54 Although the raw materials generated are essential to the
U.S. economy, the hardrock mining process creates vast quantities of waste
materials.55 EPA’s Toxic Release Inventory (TRI) data show that the metal mining
industry consistently leads other industry sectors in total annual releases of TRI
chemicals.56
Hardrock mining played a central role in the development of the American
West. However, as mining sites became uneconomical, mines were closed or the
owners simply walked away. The precise number of inactive or abandoned mines is
unknown.57 Though arguably a conservative estimate,58 EPA states that there are
200,000 inactive or abandoned mines throughout the country.59 The actual number
of sites that pose a threat is also unknown. Estimates vary, and they seem to depend
on how a threat is classified. For example, the Western Governors Association
estimated that approximately 20% of abandoned mine lands (AMLs)60 may present
a “concern” to water quality, public safety, or both.61 In its 1997 report, EPA found
that only a small percentage of AMLs “contribute significantly” to threats to human
health or the environment, but the aggregate impact is substantial, with many
localized areas suffering serious environmental impacts. In 2002, an EPA team
54 Hardrock mining includes gold, silver, copper, and other metals, but not coal.
55 For example, in 1992, gold and copper mining in the United States generated 1.2 billion
metric tons of waste materials. In contrast, approximately 200 million metric tons of
municipal solid waste are produced annually. U.S. EPA, 1997, National Hardrock Mining
Framework, Appendix A, at A-1, at [http://www.epa.gov/superfund/programs/aml/policy/
hardrock.pdf]
56 See TRI Public Data Releases at [http://www.epa.gov/tri/tridata/index.htm].
57 For more information on inventory efforts, see, for example., GAO, 1996, Federal Land
Management: Information on Efforts to Inventory Abandoned Hardrock Mines,
GAO/RCED-96-30, available at [http://www.gao.gov/archive/1996/rc96030.pdf].
58 The Mineral Policy Center (see Lyon, James, 1993, Burden of Gilt, The Mineral Policy
Center and [http://www.mineralpolicy.org/aml.cfm]) placed the number as high as 557,000.
Though this higher number is often quoted, the 1996 GAO report and others find fault with
the Mineral Policy Center’s estimate.
59 U.S. EPA, 1997, National Hardrock Mining Framework, p. 2, at [http://www.epa.gov/
superfund/programs/aml/policy/hardrock.pdf]; U.S. EPA Office of Inspector General, 2004,
Nationwide Identification of Hardrock Mining Sites, Report No. 2004-P-00005, p. 4.
60 Most groups use the phrase “abandoned mine lands” (AMLs), but several sources describe
the sites as “inactive or abandoned mines” (IAMs). In general, these terms seem to be
interchangeable, though AMLs include land that is contiguous to the mine proper.
61 Western Governors Association, 1998, Cleaning Up Abandoned Mines: A Western
Partnership, p. 5, available at [http://www.westgov.org/wga/publicat/miningre.pdf].
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found that 5%-10% of the abandoned mines across the country may pose a “real
environmental and health risk.”
Mining Sites and the National Priorities List. CERCLA provides EPA
with the authority to address environmental contamination (e.g., acid mine drainage)
at AMLs.62 Pursuant to CERCLA authority, EPA has completed or overseen removal
actions at 74 hardrock mining sites.63 EPA has listed at least 88 hardrock mining
sites on the NPL.64 At least 17 of these mines are considered mega sites, with
cleanup costs over $50 million at each site.
Considering the large universe of AMLs, one might question why such a small
percentage of the sites are listed on the NPL. There are several factors, particular to
the mining industry, that may explain this. First, AML ownership often goes back
more than 100 years and involves numerous private and public entities. Thus, the
identification of PRPs is especially complex at mining sites.65 Second, the average
cleanup cost — about $22 million — at a non-mega mining site is more than double
the average cost of non-mega sites in other industries. Cleanup activities at mega
mining sites can cost hundreds of millions of dollars. Third, states may provide some
resistance to Fund-led (i.e., sites without PRPs) cleanup at mining sites, because the
Superfund statute requires the state to pay 10% of the remedial costs and 100% of
operation and maintenance costs.66 At mining sites, these costs could be significant
and last for an indefinite period of time.67
On the other hand, several factors may lead EPA and the states to increase the
number of AMLs on the NPL. For instance, growing populations in the West, due
either to business development or purchases of second homes, may bolster the
pressure to remove contamination from local water sources. Moreover, CWA
requirements may provide further pressure to address the pollution from AMLs.
Section 303(d) of the Clean Water Act requires states to identify pollutant-impaired
water segments and develop “total maximum daily loads” (TMDLs) that set the
maximum amount of pollution that a water body can receive without violating water
quality standards.68
62 CERCLA § 104 (Response Authorities).
63 See EPA’s abandoned mine lands CERCLIS inventory at [http://www.epa.gov/superfund/
programs/aml/amlsite/removal.htm].
64 For EPA’s list of AMLs on the NPL (as of April 2005), see [http://www.epa.gov/
superfund/programs/aml/amlsite/npl.htm].
65 At the start of EPA’s enforcement-first policy in FY1991 through FY1998, only 33% of
remedial action at mining sites was performed by PRPs. In contrast, the same measurement
at other site types (chemical manufacturing, oil refining, etc.) was generally doubled,
ranging from 56% to 89%. Probst, p. 216.
66 CERCLA § 104(c)(3).
67 RFF Report, p. 92.
68 For more information on the TMDL program, see CRS Report 97-831, Clean Water Act
and Total Maximum Daily Loads (TMDLs) of Pollutants, by Claudia Copeland.
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Federal Land Issues. As with the total number of inactive or abandoned
mines, the precise number of these mines on federal lands is unknown.69 The federal
government owns a substantial percentage of the land in the western states,70 and
many of the AMLs are on federal land. CERCLA prohibits the use of trust fund
dollars at federally owned facilities.71 Federal land managers may need to clean up
the site with funds from their own budget, if the federal government is considered the
owner of the abandoned mine.
Good Samaritan Issues. The term “good samaritan” refers to parties (e.g.,
government agencies, nonprofits, and corporations) that attempt to clean up
abandoned mines for which the parties have no legal responsibility. In most cases,
these parties have a vested interest in cleaning up the contaminated mines and are not
acting purely for altruistic reasons, as the term “good samaritan” might imply. Some
stakeholders believe that the threat of CERCLA liability72 serves as a disincentive to
good samaritan groups who might offer cleanup assistance. Under CERCLA’s joint
and several liability, EPA can hold one PRP responsible for the entire site cleanup.
Under the statute’s broad liability structure, good samaritans could potentially
become liable as site owners, operators, or as persons who arrange for the disposal
of a hazardous substance.73 For example, good samaritans who conduct remediation
activities, such as the treatment of acid mine drainage, might be considered a site
operator. Many groups argue74 that the threat of CERCLA liability creates a chilling
effect, discouraging volunteer cleanup at abandoned mining sites. These parties have
called for federal legislation that would provide good samaritans with protection
from Superfund’s liability scheme.
In general, most parties support the concept of encouraging good samaritan
assistance at AMLs. However, some environmental groups are concerned about
providing exemptions from CERCLA’s liability, pointing out that the strong liability
69 For various agency efforts on this calculation, see GAO, 1996, Federal Land
Management: Information on Efforts to Inventory Abandoned Hardrock Mines,
GAO/RCED-96-30.
70 The Bureau of Land Management and the Forest Service own almost 40% of the land in
the 12 western states. National Research Council, 1999, Hardrock Mining on Federal
Lands, p. 19.
71 CERCLA § 111(e)(3).
72 CWA liability is also a concern for Good samaritans. For more information regarding the
CWA, see CRS Report RL30030, Clean Water Act: A Summary of the Law, by Claudia
Copeland. For a discussion regarding CWA liability at abandoned mines, see, for example,
McAllister, Sean, 2003, “Unnecessarily Hesitant Good Samaritans: Conducting Voluntary
Cleanups of Inactive and Abandoned Mines Without Incurring Liability,” 33 Environmental
Law Reporter 10245, at [http://www.restorationtrust.org/goodsam.pdf] (hereafter
“McAllister, 2003”).
73 CERCLA § 107(a). See also Testimony of Assistant Administrator for Water, U.S. EPA,
Benjamin Grumbles, in U.S. Congress, House Subcommittee on Water Resources and the
Environment, 109th Cong., 2nd sess., March 30, 2006.
74 See, for example, Testimony of Administrator of Colorado Water Quality Control
Commission, Paul Frohardt, in U.S. Congress, House Subcommittee on Water Resources
and the Environment, 109th Cong., 2nd sess., March 30, 2006.
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provisions often drive cleanup at mining sites.75 Furthermore, some argue76 that the
Superfund statute already provides liability protection for good samaritans.
CERCLA § 107(d) (often referred to as the “good samaritan provision”)77 might
allow good samaritans to provide cleanup assistance at the direction of EPA, without
the threat of liability.
The Small Business Liability Relief and Brownfields Revitalization Act of 2002
(P.L. 107-118), which amended portions of Superfund, added the “bona fide
prospective purchaser” (BFPP) exemption.78 This provision allows parties to
purchase contaminated property without accepting the liability for historical
contamination, notwithstanding that they knew of the contamination when they
purchased. The BFPP exemption is conditional.79 For example, BFPPs must take
“reasonable steps” to (1) stop continuing releases, (2) prevent threatened future
releases, and (3) prevent or limit human, environmental, or natural resource exposure
to earlier hazardous substance releases.80 Thus, BFPPs may need to address the
releases related to the actions of former owner/operators. Regarding this issue, EPA
stated:
Congress did not intend to create, as a general matter, the same types of response
obligations that exist for a CERCLA liable party (e.g., removal of contaminated
soil, extraction and treatment of contaminated groundwater).... Nevertheless, it
seems clear that Congress also did not intend to allow a landowner to ignore the
potential dangers associated with hazardous substances on its property.
[Emphasis in original.]81
Regardless of the opportunities for avoiding liability, interested parties argue
that the threat of Superfund liability remains. In a general sense, good samaritans
may be uncertain how EPA would apply the BFPP provisions at a particular mining
75 See, for example., Testimony of Velma Smith, Senior Policy Associate with the National
Environmental Trust, in U.S. Congress, House Subcommittee on Water Resources and the
Environment, 109th Cong., 2nd sess., March 30, 2006.
76 See, for example, McAllister, 2003, 10245; Kodish, Jeffrey, 2002, Addendum: Restoring
Inactive and Abandoned Mine Sites: A Guide to Managing Environmental Liabilities, at
[http://www.restorationtrust.org/legalguides.htm].
77 See, for example, Kodish, Jeffrey, 2002, Restoring Inactive and Abandoned Mine Sites:
A Guide to Managing Environmental Liabilities, p. 115, at [http://www.restorationtrust.org/
legalguides.htm.], and McAllister, 2003, p. 10256.
78 CERCLA §§ 101(40), 107(r).
79 For a more legal analysis of the BFPP provision and other liability defenses, see CRS
Report RL31911, “Innocent Landowners” and “Prospective Purchasers” Under the
Superfund Act, by Robert Meltz.
80 CERCLA § 101(40)(D).
81 Memorandum from Susan Bromm, Director of EPA’s Office of Site Remediation and
Enforcement, to Regional Directors, “Interim Guidance Regarding Criteria Landowners
Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property,
or Innocent Landowner Limitations on CERCLA Liability (“Comment Elements”),” March
6, 2003, p. 9.
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site.82 This uncertainty is perhaps amplified due to the possibility of citizen suits,
which may occur if environmental or community groups disagree with an agency’s
interpretation or application of the law.83
Legislation. Four good samaritan bills were introduced in the 109th Congress.
None of the bills received committee action, although the House Transportation and
Infrastructure, Water Resources and Environment Subcommittee held an oversight
hearing on hardrock mine cleanup and good samaritans on March 30, 2006. No bills
have been introduced in the 110th Congress. For more information, see CRS Report
RL33575, Cleanup at Abandoned Hardrock Mines: Issues Raised by “Good
Samaritan” Legislation in the 109th Congress, by Claudia Copeland and Robert
Meltz.
Releases from Animal Feeding Operations84
In the United States, there are approximately 238,000 animal feeding operations
(AFO) — agriculture enterprises where animals are kept and raised in confinement.
Animal waste from these operations generates several chemicals (e.g., ammonia,
hydrogen sulfide, and phosphorous) that are listed as CERCLA hazardous
substances. CERCLA requires facilities to report hazardous substance releases into
the environment, including ambient air, that are above reportable quantities (RQ).85
The RQ for hydrogen sulfide and ammonia is 100 pounds per day; the RQ for
phosphorous is 1 pound per day.86
In recent years, there have been questions as to how CERCLA applies to animal
feeding operations. For example, are AFOs required to report ammonia air emissions
as releases under CERCLA, and if so, how should the releases be counted in regards
to the RQ? Several federal courts have addressed this particular issue by examining
the CERCLA definition of “facility.”87 Instead of counting each barn, lagoon, or land
application area as separate facilities, these courts have ruled that the entire site
should be considered a facility for purposes of CERCLA. Under this interpretation,
large AFOs (referred to as concentrated animal feeding operations, or CAFOs) will
be more likely to breach the reportable quantity levels because multiple release
locations at a given site will be aggregated.
At a hearing before the House Appropriations Subcommittee on Interior,
Environment, and Related Agencies on February 28, 2007, EPA Administrator
82 For example, what are “reasonable steps” under the BFPP exemption?
83 CERCLA § 310.
84 For further discussion, see CRS Report RL33691, Animal Waste and Hazardous
Substances: Current Laws and Legislative Issues, by Claudia Copeland.
85 The Emergency Planning and Community Right to Know Act (EPCRA, P.L. 99-499, USC
§§ 11001-11050) also contains reporting provisions. Facilities must report to state and local
officials any releases greater than the reportable quantity of a CERCLA hazardous substance
or an “extremely hazardous substance” under EPCRA.
86 40 CFR § 302.4.
87 See Sierra Club v. Seaboard Farms, 387 F.3d 1167 (10th Cir. 2004); Sierra Club v. Tyson
Foods, 299 F. Supp. 2d 693, (W.D. Ky. 2003).
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Stephen Johnson testified that the Agency was developing a regulation to exempt
CAFOs from Superfund mandates to report air emissions. He said this would be a
“very narrow regulation.”88
Another question concerns CERCLA liability for manure that reaches water
bodies (via erosion or leaching into groundwater).89 Manure is often applied to the
land as fertilizer, but CERCLA excludes the “normal application of fertilizer” from
the definition of release.90 Interested parties have argued that some AFOs are taking
advantage of this exclusion by applying more manure to the land than is necessary.
In the past three years, two federal district courts have looked into this matter, but
both cases were settled. The terms of the settlements were not made public, and the
settlements effectively ended the court proceedings without a formal ruling on the
CERCLA applicability issues.91 However, a third case92 involving this issue is
currently in the federal system.
This court activity has increased concern in the agricultural community that
other legal actions will follow, and that the courts will continue to apply CERCLA
to AFOs. This concern has led to recent congressional interest. Members in the 109th
Congress made several attempts to exempt manure from the requirements of
CERCLA. Although one of these legislative proposals (H.R. 4341) gained
considerable support (191 co-sponsors), the proposals also generated opposition from
environmental groups and state and local governments. None of the bills were
enacted. In the 110th Congress, H.R. 1398 and S. 807 follow a similar approach.
There has been no action on either bill.
Conclusion
Superfund issues, such as the four described above, continue to generate debate
and interest. The selected topics discussed in this report are not mutually exclusive;
activity in one of the issues may influence policy in another. For example, if more
abandoned hardrock mining sites are added to the NPL, Congress may consider
increasing annual appropriations to the Superfund program. This action could affect
the argument concerning who should pay for the program. Similarly, CERCLA’s
level of application to animal feeding operations could affect the use of agency
resources in the future. If more sites fall under the CERCLA umbrella, finite agency
resources may be strained, thus further fueling a debate over Superfund taxes and
funding levels
88 “EPA Plans Exemption for CAFO Emissions from Superfund Reporting,” Inside
EPA.com, February 28, 2007.
89 Data collected for the EPA’s 2000 National Water Quality Inventory identify agriculture
as the leading contributor to water quality impairments in rivers and lakes and the fifth
leading contributor to impairments in the nation’s estuaries. Animal feeding operations are
only a subset of the agriculture category, but 29 states specifically identified animal feeding
operations as contributing to water quality impairment.
90 CERCLA § 101(22).
91 See City of Waco v. Schouten, W.D. Tex., No. W-04-CA-118 (settled January 17, 2006);
City of Tulsa v. Tyson Foods, Inc., N.D. Okla., No. 01-CV-0900-EA (settled July 16, 2003).
92 Oklahoma v. Tyson Foods, Inc., N.D. Okla., 4:05-CV-329 (filed June 13, 2005).