Hazardous Waste Landfills and Superfund

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Few environmental problems have stirred the kind of popularpassions that are behind the concern over abandoned hazardous wastelandfills. Similarly, few environmental laws have aroused thedisdain and frustration that policy analysts of all stripe feeltoward Superfund, the main legislative vehicle that addresses thosepublic fears. Although by no means the most expensive or mostencompassing of environmental statutes, Superfund nonetheless costssociety about $4 billion annually and, according to a study by theWaste Management Research and Education Institute at the Universityof Tennessee, will eventually cost the nation about $400billion.

The law has done terrible economic damage to those unfortunateparties targeted by its crude attempt to "make the polluter pay."In fact, the statute's economic and environmental excesses are sowidely acknowledged and well documented that it is curious thatreform, rather than repeal, is the political currency of the day.The truth is that Superfund's problems are so systemic that only byrepealing the law and starting anew can society's interest inefficient and effective remediation of hazardous waste sites berealized.

Into the Quagmire

CERCLA was originally designed as a short-term project; $1.6billion over five years to tackle 400 sites (by law, at least oneper state and, not coincidentally, about one per congressionaldistrict). Today Superfund has ballooned into one of the nation'slargest public works projects: $30 billion being spent at almost1,300 sites. The EPA is directed to find parties potentiallyresponsible for the mess and to stick them, rather than thetaxpayers, with the bill.

The Superfund site selection process begins when potential sitesare brought to the EPA's attention or flagged by the agency's ownidentification procedures. Those sites are then placed in acomputerized inventory system--CERCLIS--that currently listsapproximately 35,000 such sites. A preliminary assessment thentakes place; about one-third of the sites investigated are found torequire no further action. Although the law was originallyjustified as the only means by which abandoned sites could becleaned, only a fraction of the sites listed are "orphaned"--mosteither have current owners or are still in operation. The U.S.Government Accounting Office believes that as many as 425,000 sitesmay eventually make their way into the CERCLIS.

Sites deemed potentially hazardous after preliminary assessmentsare then evaluated using the Hazard Ranking System (HRS) todetermine each site's potential threat to public health.

The HRS is a crude statistical index that "scores" sites basedon potential exposures from groundwater, surface water, air, andsoil. Each of those pathways is scored separately on a 0 to 100scale: a score of 28.5 makes a site eligible for the NationalPriority List (the so-called NPL, which now totals over 1,200sites), the official ledger of sites to be cleaned up underSuperfund.

The 28.5 cutoff score is completely arbitrary, originally meantonly to ensure that 400 sites would be identified for cleanup. AsCurtis C. Travis of the Center for Risk Management at Oak RidgeNational Laboratory notes, "There is little correlation between asite being on Superfund's National Priority List and the risk itposes to human health. . . . Many sites on the list pose little orno risk to human health. . . . Conversely, many sites withsignificant health and environmental risks are not on the list."Joel Herschhorn of the Office of Technology Assessment observesthat "the ranking system is only very loosely related to the actualseverity of the problems at the sites."

The problems with the HRS are legion, although two are mostsignificant: (1) the single most hazardous substance located at asite is used to "score" the toxicity for all the contaminants atthe site; and (2) greater weight is given to the number of peoplenear a site than to the toxicity of the hazardous constituents inquestion. At a Superfund site in South Carolina, for example, theEPA took two surface soil samples and more than 20 subsurfacesamples from depths of three to six feet. The most contaminatedsample of the nearly 30 performed was used to calculate the soilexposure pathway in the HRS. Dr. Richard Goodwin, a privateenvironmental engineer in New Jersey who has overseen more than 20cleanups, asked the New York Times rhetorically: "Does it makesense to spend millions of dollars cleaning up a site that only hasa tenth of an ounce of contamination? I say no. All we're doing inmost cases is throwing money at a problem without improving publichealth or the environment."

Where immediate health risks exist, the EPA is empowered toundertake emergency cleanup actions designed to quickly eliminaterisks to the surrounding community. Thomas Grumbly of Clean Sites,an engineering consulting firm, believes that the 2,600 suchemergency actions undertaken since 1980 "ha[ve] probably eliminatedmost of the immediate health risks posed by abandoned hazardouswaste sites."

Preliminary assessments and HRS investigations take an averageof four years to complete. Not surprisingly, thousands of sites onthe CERCLIS are still awaiting such evaluations, and the U.S.General Accounting Office finds that the EPA screens candidatesites according to the level of regional effort necessary for aninvestigation and the length of time that the site has been in thequeue, not according to potential health or environmental risk.

Although CERCLA directs the EPA to make certain that cleanupsare cost effective, the EPA is required to favor "permanence" and"treatment" in selecting site remedies. Therefore, the EPAconsiders more than what would be required to make a site safe forthe community at present: it generally considers what needs to bedone to make sure the site is safe in the future should thatproperty become the site of a residential development with a highconcentration of children, children that might play in and eat thedirt or drink from an aquifer that might become the source ofdrinking water.

What is often ignored in the Superfund debate is just how fewpeople are presently at risk from any given site. The EPA's region1, for example, sampled 13 regional NPL sites and found that themedian number of people potentially at risk was only 250.Similarly, professors Kip Viscusi and James Hamilton of DukeUniversity examined 78 NPL sites in 1993 and found that out of1,430 potential pollution exposures, 70 percent of the cancerrisks, 79 percent of noncancer risks, and 72 percent of total risksarose from future rather than current land uses. Viscusi andHamilton found that when both the frequency and the severity of therisks are considered, 91 percent of the risks from sites stemmedfrom hypotheses about future land use.

Remedies are also required to comply with all legally"applicable or relevant and appropriate requirements." The EPA hasinterpreted this as requiring, for example, contaminatedgroundwater aquifers to be able eventually to meet standards set bythe Safe Drinking Water Act, whether or not the aquifer iscurrently being used for drinking water.

It is important to remember that, for the most part, privateparties--not the federal government--are paying the bills. By 1993,80 percent of the costs associated with site remediation were paidby the private sector. The EPA is therefore unconstrained by thebudget process and has little incentive not to pursue the fullestextent of cleanup possible.

Thus far, the program has proven a disappointment. Only about200 of the 1,200 sites listed on the NPL have been completelycleaned up--at an average of $30 million and 12 years per site.

Lawyers in Love

One of the chief reasons for Superfund's exploding costs is thelitigious free-for-all engendered by the act. Superfund calls forretroactive liability, meaning that corporate practices that mighthave been safe, legal, fully permitted, or even required under thelaw years ago can now be punished retroactively. "PotentiallyResponsible Parties" (PRPs), according to the law, are those who(1) own or operate a site; (2) owned or operated a site at the timeof the disposal of wastes; (3) arranged for disposal, treatment, ortransportation of waste; or (4) accepted waste for transport. Thecourts have interpreted Superfund as calling for joint and severalliability, meaning that any party that ever touched that waste--nomatter how tertiary the involvement or how minor the amount--can beheld liable for the full cost of remediation. Finally, CERCLAshifts the burden of proof from the government to the accused anddoes not require the government to meet any significant standardsfor admissible evidence. For example, the vague recollections of agarbage hauler about customers 40 years in the past has repeatedlybeen accepted as dispositive by the EPA and the courts.

Not surprisingly, lawyers, consultants, private investigators,and administrative overhead consume vast quantities of Superfunddollars. Such "transaction costs" eat up 35 percent of corporateSuperfund expenditures, 88 percent of insurance company Superfundexpenditures, and 50 percent of public Superfund expenditures.Before 1980 only 2,000 attorneys specialized in environmentallitigation nationwide. After 15 years of Superfund that number hasincreased tenfold. Although not all of those additional 18,000attorneys were created by Superfund, best guesses frompractitioners indicate that about 75 percent were.

Given that anything corrosive, flammable, reactive, toxic, or ingreat enough quantities (such as 150 gallons of vegetable oil) isconsidered hazardous waste, hundreds of companies are potentiallyliable for cleanup costs at any given site. Moreover, banks thatloaned those companies money, parties that sold those companieshazardous materials, and municipalities that dumped even routinehousehold garbage or sewage (which the Office of Management andBudget believes are responsible for a quarter of cleanup costs) atthe site are routinely held liable for remediation. Evencorporations that were required by the government to dispose oftheir wastes at a certain facility find that "we were onlyfollowing (government) orders" is no defense against liability.

The absurdity of this practice is apparent. Superfund liabilityhas "reached out and touched" pizza parlors, butcher shops (one ofwhich was nailed because some residual glue might have been on theflaps of cardboard boxes sent to a site), boy scout troops,clothing rental companies (one of which paid someone $14 in 1972 tohaul trash to a Superfund site), churches, schools, and dogkennels. Typical is the case of two deep-pocket PRPs in Utica, NewYork that sued 603 small and mid-sized businesses and collectedabout $2 million to pay a $9 million Superfund liability tab, eventhough half the money went to pay attorneys' fees. Although smallcompanies typically pay from $3,000 to $9,000 to settle, those thatare capable of paying more are hit with truly significant tabs.

One of the most negative consequences of the Superfund liabilityregime is its impact on the inner city. Virtually any abandonedmanufacturing plant (and urban America is littered with them) orcommercial property is a candidate for Superfund listing. GivenSuperfund's practice of targeting current owners of listedsites--whether they knew about or contributed to the contaminationat all--few are interested in taking a chance by chasing thoseproperties. Instead, businesses find it much less risky to developproperty in areas that have yet to be industrialized. In essence,then, the unintended consequences of the Superfund liability regimeinclude the further impoverishment of inner cities and theaccelerated industrialization of land that once harbored healthyecosystems. Although the EPA has acknowledged the problem (to whichthey refer as "brownfields"), there is little the agency can dounder the standards set by the law.

That Superfund parade of legal horribles is enough to turn evenenvironmental activists against the law. National WildlifeFederation president Jay Hair told an environmental trade journalthat the Superfund liability system "has failed" and that it oughtto be scrapped. Similarly, the National Association for theAdvancement of Colored People has called for the elimination ofretroactive and joint and several liability.

Despite the blatant injustices of retroactive and joint andseveral liability, environmentalists argue that Superfund "makesthe polluter pay" and that, after all, the alternative is to havethe innocent taxpayer foot the bill for the misdeeds of others.

Yet that argument is spurious on several grounds.

First, a company's Superfund cleanup bill is ultimately beingpicked up by the shareholders, customers, and employees of thefirm. Perhaps that is as it should be. After all, the PRP is simplythe economic agent of those parties, making those partiesultimately responsible for the PRP's action. Yet the cost of past(sometimes as much as 50 years in the past) behavior is being borneby current shareholders, customers, and employees--many if not mostof which might not have had anything to do with the "pollution" forwhich they are currently being forced to pay. Only by identifyingand "billing" shareholders, customers, and employees of the companyat the time of the action could Superfund truly be said to make thepolluters pay.

Second, the Superfund tax does not distinguish betweenresponsible and irresponsible waste disposers, or those whogenerate a lot of hazardous waste and those who only generate alittle. In fact, the tax often hits those who have nothing todowith waste generation and disposal in the first place.

Third, there is no requirement that the waste contributed by aPRP have anything to do with the environmental damage beingremedied. Thus, if a business is found responsible for sendingtrace amounts of cadmium to a site undergoing remediation becauseof PCB-contaminated groundwater, that business is required to payfor part of the cleanup.

Nor can it be said that industrial regions as a whole are beingforced to face up to the full cost of the industrial activity fromwhich they once profited. A recent study published in the Review ofRegional Studies found that a state's contribution to the Superfundexcise tax is unrelated to the number of NPL sites or the cost ofsite remediation in the state.

Finally, it has been suggested that the very brutality ofSuperfund liability has served as a vital deterrent to potentialpolluters. That ignores the fact, however, that Superfund focuseson past actions. The Resource Conservation and Recovery Act alreadydictates in minute detail the management of hazardous wastes fromcradle to grave and stipulates its own onerous set of cleanuprequirements for those that step out of line. Thus, Superfundprobably does little to influence present corporate behavior.

Assessing Superfund Risk

The threat that Superfund sites pose to public health is anuncertain matter. The National Research Council of the NationalAcademy of Sciences recently reviewed the published literaturepertaining to Superfund site risks and concluded that it could not"confirm or refute" the belief that Superfund sites present a riskto nearby communities. Of course, it is always difficult to prove anegative, but after investing some $30 billion in one of the mostexpensive public-works programs in national history, it is somewhatshocking to learn that there is no evidence that any good is beingaccomplished. The fact that only 1 percent of Superfundexpenditures is directed at risk evaluation implies that the EPAdoes not consider such data particularly relevant to theprogram.

The EPA calculates a site's risk by postulating a "maximallyexposed individual" (MEI), one who is generally assumed to: live200 meters from the site and breathe outdoor air there 24 hours aday for 30 years; have the dietary habits of a newborn and theappetite of a teenager; have the misfortune of an optimally badbreeze that wafts toward him the maximum concentration of thesite's pollutants; drink nothing but water drawn from the mostcontaminated part of an aquifer below the site for 30 years;and--if a child--spends 350 days per year playing on the site andconsuming 10 times the average amount of soil consumed daily bychildren on the most contaminated ground possible (even if it wouldbe necessary to break through a fence and dig through snow coverand concrete to get at the dirt).

The accuracy of the EPA's exposure models is questionable, tosay the least. At both the Triumph, Idaho and Smuggler's Mountain(Aspen, Colorado) Superfund sites, for example, federal healthinvestigators were certain that high levels of lead were in theblood of townspeople, given their proximity to mine tailings at thesite. Yet after decades of exposure blood tests found lower thanaverage levels of lead in the bodies of residents, probably becausethe lead was tied up in the mine tailings, so that only grinding orbreaking could possibly release the contaminant. The EPA ignoredthe test data and mandated cleanup anyway and--as a sidenote--increased the residents' exposure to lead by using heavyequipment to disturb the tailings and thereby increase ambientconcentrations of lead. A similar situation exists in Everett,Washington. The arsenic levels in the blood of residents were farbelow what the EPA expected given the soil contamination at thesite and the 100 years of exposure the town has been subjected tofrom the former smelting facility.

Once an MEI is identified, the EPA proceeds to conduct atraditional risk assessment. As with all EPA risk assessments, thefollowing worst-case assumptions are made: any chemical that causescancer in an animal species will also cause cancer in a human;there is no safe threshold dose; the dose-response curve is linearat low doses; the result of the most sensitive animal species andgender is applicable for humans; and humans are more sensitiverelative to body weight than the most sensitive species and gender.As Dr. Ronald Hart, director of the National Center forToxicological Research notes, "Our animal bioassay risk models arebased on at least 50 assumptions, none of which have beenscientifically demonstrated."

The Washington, D.C.-based Hazardous Waste Cleanup Projectanalogizes the EPA's risk assessment process to the decision onemight face about a 9:30 A.M. trip to the airport. Using worst-caseassumptions about when to leave Washington in a cab for Dullesairport (about 45 minutes away from the Capitol under normalconditions), one might plan for: 2 hours worth of constructiondelays; an hour should the driver get lost; an hour in case of aflat tire; an hour in case of rush hour delays; 45 minutes shouldthere be a line at the ticket counter; and 45 minutes for thesecurity check and shuttle to the gate. Thus, if we planned ourtrip as the EPA plans cleanup requirements, we would leave forDulles at 2:15 A.M.! Although any one of those worst-caseassumptions is (barely) possible, there is virtually no chance thatthey will all occur at the same time.

Simply by examining four assumptions--chemical concentrations insoil, rate of soil ingestion, frequency of exposure, and durationof exposure--the Hazardous Waste Treatment Council calculated thatthe difference between reasonable mean estimates and EPA worst-casepostulations is a factor of 1,167.

Even if those hyper-conservative calculations are correct, fewenvironmental gains are realized from most Superfund remediations.The UB in New England report examined 1,570 potentially harmfulhazardous waste sites (only 59 of which were on the NPL) andestimated that just four cancer risks existed in all of New Englandfrom those sites. William Cooper, an ecologist at Michigan StateUniversity, concedes that "if you had to do it [Superfund cleanups]on risk alone, you wouldn't spend any money on these things." Giventhe background risk of cancer, even the EPA's worst-caseassumptions about Superfund risks mean that the "maximally exposedindividual" would have his lifetime risk of cancer decrease by arange of 0.03 percent to 0.0003 percent.

On the other hand, false toxicological negatives are notimpossible. The synergy between various chemicals is not consideredbecause our knowledge in this area is limited. We do know, however,that certain chemicals that might be relatively benign on their ownare more virulent in combination with others in certaincircumstances. Second, only a small percentage of industrialchemicals in use today have gone through a thorough toxicologicalexamination, and those not tested are not regulated particularlystringently. Third, the neurological toxicity of most chemicals isa great unknown. Finally, the very dubiousness of the entiretoxicological procedure casts doubt on any finding. We know ofseveral substances that passed toxicological examinations withflying colors but have since been correlated by epidemiologicalstudies with health problems; direct ingestion of cigarette smokeis perhaps the most prominent example.

Nor are epidemiological studies flawless. It might be thatsurveyed populations would be more healthy than the standard wereit not for certain environmental exposures.

The case for danger from Superfund sites is based almostentirely on "popular epidemiology": the practice of notingabnormally high concentrations of cancer and noncancer healthabnormalities near a site. There are three problems with thisapproach. First, no epidemiological study exists showing a nationalcorrelation between cancer or noncancer abnormalities and proximityto Superfund sites (indeed, a veritable mountain of studies existsdemonstrating that there is no such correlation). Second, itdiscounts the randomness of cancer distribution. Variation is to beexpected. It would indeed be odd if every community had the exactnumber of disease occurrences postulated by averages. Third,popular epidemiology commits the logical fallacy of assuming thatcorrelation equals causation. Even if a nationwide correlationbetween Superfund proximity and disease were one day discovered, itwould not necessarily mean that hazardous waste is the culprit. Itcould be that Superfund sites tend to be found in locations wheremedian ages are higher than average, or any number of otherfactors.

Still, we can draw some conclusions from the data. If Superfundsites truly presented a significant public health threat, one wouldexpect to see some correlation between health problems andproximity to the sites; but no such correlation exists. Second,through the process of elimination, we can judge how many cancerrisks could be explained by Superfund by eliminating the number ofcancers that we know are caused by something else. Drawing upon thedefinitive study on the causes of mortality from Oxford professorsRichard Doll and Richard Peto, Michael Gough of the Office ofTechnology Assessment calculates that only 1,200 to 6,600 cancerfatalities annually could possibly be attributed to environmentalpollution. Diet, lifestyle, smoking, and simple aging are the causeof the overwhelming number of cancer fatalities.

Of that universe of potential environmental harm, ecologists,scientists, and public health experts consistently rank hazardouswaste as only a medium-to-low risk compared to other environmentalconcerns. Most prominent in the literature is the EPA's 1987Unfinished Business and the agency's Science Advisory Board'sReducing Risk in 1990. When one combines the limited degree ofpotential risk with the fact that Superfund risk assessments arealmost entirely postulated on exposures that have yet to occur (andwill not, absent land use changes), it is difficult to concludethat Superfund cleanups are presently helping anybody.

The Precautionary Principle Reconsidered

Environmentalists often argue that, in the face of uncertainty,it is only prudent to adopt a principle of precaution, to avoidtaking any chances and act instead on the basis of the worst-casescenario. An ancillary argument is that even if only a handful ofcancer risks are eliminated by Superfund, not to act would beunconscionable and would amount to putting a price on human life.While the "precautionary principle" and "zero risk" standards seemreasonable, they are far less attractive once examinedrigorously.

First, there is the matter of the correlation between wealth andhealth. The argument, popularized by the late political scientistAaron Wildavsky, is that richer societies have lower mortalityrates than poorer ones and that to deprive a society of wealth isto deprive it of safety. Wildavsky's argument is intuitivelycorrect; wealthier individuals can afford better health care, morenutritious diets, and tend to experience less stress, among otherthings. Using extremely detailed but rather preliminary regressionanalyses, systems analyst Ralph Keeney of the University ofSouthern California calculates that every $7.25 million ofregulatory costs results in an additional mortality. Thus,regulations that cost more than $7.25 million per life savedactually harm public health.

Second, to deny that cost is relevant to regulatory policy isimplicitly to deny the reality of economic scarcity and thecorresponding reality of opportunity costs. Money spent onSuperfund risks is money not spent on something else, including theability to protect public health in other ways, reduce poverty,improve public safety, or even the intangible (but very real)benefits one gets from disposing one's income as one likes.According to the EPA's (extremely dubious) estimates, for example,$1 million spent on Superfund saves approximately 2.5 years oflife. But $1 million spent on breast cancer screening saves 300 to700 years of life. Similarly, $1 million spent on cervical cancerscreening saves 700 to 1,500 years of life.

That environmentalists are occasionally oblivious to the notionof comparable risk is clear from a story in the December 13, 1992Denver Post. Lois Gibbs, former celebrity citizen-activist of LoveCanal and now head of the Hazardous Waste Clearing House, wasreported to have led a march against then-Governor Mario Cuomo in1990 "eight months pregnant with her fourth child," shouting "LoveCanal killed and will kill again!" while "dragging on a Benson& Hedges."

Third, there is the matter of the public health cost ofremediation. Superfund cleanups frequently expose workers toharmful chemicals, create hazards in the transport of waste, andshift environmental contamination to other media. As the NationalResearch Council reported recently, remediation "might create moreof a hazard than would be caused by leaving such materialsundisturbed." Similarly, the U.S. General Accounting Office foundthat facilities receiving and treating wastes are themselvesresponsible for serious violations of EPA regulations.

Commonly used "pump and treat" remediation practices forgroundwater, for example, often cause serious land and otherecological damage. Dewatering an aquifer seriously depleted thegroundwater at a Superfund site in San Jose, California. "Soilwashing" techniques create a significant problem of waste waterdisposal. And drilling too deep to recover settled contaminants inaquifers can cause pollution to move deeper (and thus generallymore harmfully) into the groundwater--as happened at the Departmentof Energy's Savannah River site in South Carolina--or vertically,thus extending the contamination.

In sum, the precautionary principle can become a suicide pact,and the pursuit of zero risk is not risk free.

Remediation on Trial

Startlingly, there is a growing debate about whether Superfundcleanups are even making the sites in question any safer. Most ofthe remediation problems are associated with groundwater, the mainpathway for Superfund risk exposures, thus the central target ofmost cleanups.

A recent study by the accounting firm Arthur D. Little foundthat chromium and mercury, two frequently targeted chemicals inSuperfund remediations, are virtually impossible to remove fromnormal soil and groundwater aquifers with current treatmenttechnologies. Little found no evidence that the theoreticalstandards set by the EPA had ever been achieved in cleanups,although laboratory and pilot scale tests indicated that it waspossible under certain conditions.

Most EPA cleanup plans state that pumping and treatinggroundwater will continue until drinking water standards aremet--without presenting any analysis that the goal can actually beachieved. But the evidence is mounting that the dominant methodemployed by the EPA to remediate groundwater contamination--pumpingthe water out of the ground, treating it, and then returning it tothe aquifer--is futile.

The reason for the difficulty is the fact that contaminantstypically bind to the soil, particularly when they have beenpresent for some time, and generally resist being drawn up by thepumping process. Pumping causes groundwater to flow through soilswith the highest permeability. Thus, soils with the lowestpermeability, where contaminants typically concentrate, are notpicked up by extraction. Cleaning an aquifer is therefore limitedto the rate of contaminant diffusion from the soil. Scientistsbelieve that the process could take centuries. Groundwater that ispumped and treated successfully could be returned to the aquiferonly to be recontaminated again--perhaps even to its originallevels.

Despite months of intense investigation, researchers at the OakRidge National Laboratory could not find a single aquifer that hadever been successfully restored using that process. The scientistswarned that "no matter how much money the federal government iswilling to spend, at present contaminated aquifers cannot berestored to a condition compatible with [drinking water]standards." In its report Alternatives for Ground Water Cleanup,the National Research Council confirmed that "almost universalconcern" exists "that the nation might be wasting large amounts ofmoney on ineffective remediation." An EPA-convened panel of expertsconcluded in 1991 that Superfund sites are highly likely to becontaminated with certain chemicals that make complete groundwatercleanup impossible using current technologies. Settled contaminantsmay "persist for decades or centuries before completely dissolvinginto groundwater."

Environmental Justice?

One of the driving forces that has recently emerged in theSuperfund cleanup program is the belief that a majority of sitesare located in poor and minority communities. Activists charge thatSuperfund sites are an element of "environmental racism"--thepractice of siting waste facilities in minority communities--andthat leaving them unremediated is disproportionately injurious tothe poor. That belief, however, is based on myth.

Political scientist John Hird of the University of Massachusettsat Amherst examined the distribution of NPL sites by county andfound that

  • The more economically advantaged the county, the more likely itis to have a Superfund site, and the higher the poverty level, theless likely a site will be found;
  • The number of NPL sites in counties most heavily represented bythe poor, the unemployed, and nonwhites is below the nationalaverage;
  • The median housing value for counties with Superfund sites is$44,225, compared to the national county average of $35,296;
  • Counties with the largest numbers of NPL sites--13 of whichcontain 10 or more sites--had poverty and unemployment rates farbelow the national average; and
  • Of the 35 sites that scored 60 or above on the HRS, thesurrounding population had lower poverty rates, higher medianhousing values, and a lower percentage of nonwhites than thenational average.

Concludes Hird, "What has never been conveyed is that virtuallyall Americans are paying for Superfund cleanups, and probablyregressively through higher product prices on (mostly) chemical andpetroleum products." Thus, although "Superfund is defended bygrassroots proponents as a populist reaction to the excesses of bigbusiness, the net effect of cleaning up abandoned waste sites ismost likely to redistribute resources regressively from consumersand taxpayers chiefly to wealthier communities."

Reform or Repeal?

The problems with Superfund are so profound and fundamental thatamending the law appropriately would be more challenging thansimply repealing it and starting over. Congress would therefore bebest advised to repeal CERCLA completely, along with the 1986Superfund Amendments and Reauthorization Act (SARA). In its place,Congress should create a National Hazardous Waste Trust Fund to bemanaged by the EPA. The fund--the repository for unspent federalSuperfund dollars--would be used to distribute money to each statebased on the number of sites currently on the NPL (distributingmoney to each locality would be preferable but probably politicallyunachievable). The only restriction would be that states would haveto forgo joint and several liability standards and abandonretroactive liability for any site listed earlier than 1980 inorder to qualify for federal money. Otherwise, they would be freeto conduct their cleanup efforts as they see fit. When currentfunds are exhausted, the disbursement operation should bedisbanded.

Federally owned facilities should remain a federalresponsibility. Cleanup protocols--currently linked to Superfundremediation standards--should be renegotiated to consider onlypresent land-use patterns. Risk assessments should then beperformed under a "Monte Carlo" procedure in which all possiblevariables for each matter of uncertainty are weighted and thencalculated. The aggregate of those calculations should then beconsidered and an appropriate upper-bound cleanup option chosen.Worst-case scenarios would be considered, but only in relation totheir likely occurrence.

Repealing the current liability standards is a simple act offairness. It is doubtful whether Superfund's joint and several orretroactive liability standards could even survive a courtchallenge, given the current composition of the Supreme Court.Repeal would also cut costs dramatically. An insurance industryreport concluded last March that simply repealing retroactiveliability would cut Superfund program costs by one-third.

The above proposal is predicated upon the concept ofsubsidiarity--the idea that local problems ought to be handled bylocal officials. A Superfund site is a quintessentially localconcern. Each particular site is unique, with differentcontaminants, soil hydrology, geological characteristics, sizeconsiderations, and land-use patterns. Moreover, potential hazardsfrom sites primarily affect those in the immediate surroundingcommunity. For example, the Smuggler's Mountain site in Aspen,Colorado, does not affect anyone in Chicago, New York, or evenWashington, D.C. Suggesting that because Superfund sites are foundnationally, a national response is called for is spurious.Education, road repair, garbage collection, park maintenance,emergency services, and law enforcement needs are all nationalphenomena that we still consider particularly local concerns.Suggesting the former standard would mean transferring mostresponsibilities of city councilmen to Washington.

Ultimately, decisions about local resources ought to be made bylocal citizens. Environmentalists fear, of course, that when askedto spend their own tax dollars directly, people will become lessenthusiastic about Superfund cleanups. Perhaps so, but under thecurrent regime, people also pay for Superfund cleanups, but aredoing so indirectly through a regressive levy that manifests itselfin higher consumer prices. Just as some communities favor moreschools or parks than others, some communities will undoubtedlyprefer different mixes of economic growth and environmentalcleanliness than others. To presume that the communal preferencesof Washington should dictate such matters is to ignore (1) howfinancially and culturally atypical the average Washingtonian trulyis, and (2) the rights of communities to choose their own paths.Given that citizens can "vote with their feet" to express suchpreferences, it is more likely that communal choices will matchprivate preferences than monopoly dictates from Washington thatleave individuals little choice in their affairs.

Allowing multiple cleanup regimes would encourage innovationthrough hundreds of environmental policy experiments. Newtechnologies largely untapped today include chemicalneutralization, physical stripping, aerobic decontamination, andthermal treatment. Many have blamed the EPA for not introducingthose technologies faster and for having too conservative amindset.

Moreover, local citizens might think that it makes sense tosimply fence off a site and rezone the facility to precluderesidential land use, rather than to spend millions cleaning it upfor the future. The Waste Management Research and EducationInstitute at the University of Tennessee estimates that $268billion could be saved while still providing equivalent levels ofprotection of human health and the environment, simply byconsidering present rather than future land uses. Similarly,relocation compensation of $250,000 to $500,000 for at-riskhouseholds would almost certainly (1) be more cost effective thanstandard remediation practices; (2) prove more popular with theaffected population; and (3) have the benefit of completelyremoving any health risk. For sites in populated areas, HughKaufman of the EPA confirms that "the best thing we can do isevacuate people if they want, then put up a fence and a flag thatsays stay away." Similarly, President Clinton's Office ofManagement and Budget has urged the administration to acknowledgethat some sites are not worth restoring to productive use. Aseconomist Richard Stroup of the Political Economy Research Centernotes:

Since new cleanup technologies are constantly becomingavailable, a permanent cleanup that may be chosen later is likelyto be safer, more complete, and less costly. Another reason toconsider non-permanent cleanup is the fact that the passage of timemay reveal a different and more valuable future use of the land.Then a more suitable cleanup goal (which may be either morestringent or less stringent than current EPA policies require) canbe selected.

The inescapable fact remains that unless cleanup priorities areset, Superfund cleanup costs could dwarf those of the savings andloan bailout by several orders of magnitude. "It is doubtful thatthe U.S. will be able to fund the huge task of remediating all thesites to the cleanest level possible," observed the NationalResearch Council in October 1994. Decisions about remediation andcost must be made, and the only fair way to go about it is to allowthose most directly affected to make the decisions themselves.

A national association of state environmental control or publichealth officials would likely replace the EPA as the center forstatistical information, technological advice, and environmentalresearch. States would have every incentive to pool their resourcesso as not to duplicate those kinds of

Jerry Taylor

Subcomittee on Water Resources and Environment
Committee on Transportation and Infrastructure
United States House of Representatives