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Superfund Faces Super Challenges

Taxpayers Shoulder Burden as Polluter Pay Fees Eliminated

By Lois Marie Gibbs

In the late1970s, residents of Love Canal alerted the nation to the dangers of toxic chemicals in the environment and won the relocation of 900 working-class families from a toxic waste dump. Overcoming powerful resistance from government and a multi-billion-dollar company, Occidental Petroleum, this grassroots effort demonstrated how ordinary citizens can gain power through organizing to win their struggle. Love Canal sparked a new social justice movement nationwide and prodded Congress to enact legislation creating a “super fund” to clean up toxic waste.

But the Superfund, originally set up so that polluting companies would have to pay to clean up their own mess, is now dependent on taxpayer money and in danger of collapse. The same grassroots movements that helped create it are now needed to reinstate corporate polluter pay fees.

History and Status of the Superfund

Twenty-six years ago, Congress responded to the Love Canal toxic disaster by creating the Superfund program to ensure the nation's worst toxic waste dumps are cleaned up. In response to public outrage over a national toxic waste crisis, President Jimmy Carter signed the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA or the Federal Superfund law). Congress created Superfund so the Environmental Protection Agency (EPA) could clean up toxic dumps when polluters refused to take action, went bankrupt or could not be found.

Since 1980, the EPA has facilitated the cleanup of more than 1,000 Superfund sites. Emergency actions and site cleanups have protected hundreds of communities and their drinking water supplies. Over the last 26 years, polluters have funded remediation at approximately 70% of the sites and the EPA has secured over $22 billion in cleanup commitments and cost recoveries from polluters.

Yet, much remains to be done. One in every four Americans still lives within three miles of a Superfund toxic waste site. The EPA has identified more than 50,000 potentially hazardous waste sites and continues to discover about 1,000 additional sites each year. Currently, over 1,200 of the most dangerous toxic sites in the country are Superfund sites, poisoning our water, air and land with chemicals that can cause cancer, birth defects and other health problems. The Superfund assesses “polluter pay fees” to fill the Superfund's Trust Fund to finance cleanups when responsible companies could not be found. The program is based on the principle that polluters - not taxpayers — should pay to clean up toxic waste sites. It embodies the old adage, “if you make a mess, you clean it up.”

In 1995, Superfund's polluter pay fees expired and Congress has failed to reinstate them. The Superfund Trust Fund did not immediately suffer because it had accumulated a surplus of $3.8 billion by 1996. But on October 1, 2003, the Trust Fund spent all the industry fees and American taxpayers came to bear the full weight of cleaning up abandoned hazardous waste sites.

The Bush administration is the first and only administration to oppose the polluter pay principle. Since it has opposed the reinstatement of fees, the Superfund's Trust Fund is now in its fourth year of being totally dependent on taxpayer funds, which compete every year with other important environmental programs.

Data provided by US Public Interest Research Group (USPIRG) shows that in 1995 taxpayers paid only 18% of the Superfund, or $300 million, when there was a total of $3.6 billion in the Trust Fund largely from polluter pay fees. In 2005, American taxpayers gave about $1.2 billion, an increase of approximately 300%. And “large polluting corporations enjoy a $4 million per day tax break as long as the Superfund polluter pay fees are not reinstated,” said Alex Fidis of USPIRG.

This decrease in dollars into Superfund has led to a dramatic reduction in the number of sites cleaned up. From 1997 to 2000, the EPA averaged 87 completed cleanups a year. In 2002, the number of sites cleaned up dropped drastically to 42 sites, and from 2003 to 2006, the EPA has completed cleanups at exactly 40 sites each year. Under the Bush Administration, there has been more than a 50% decrease in the pace of site cleanups from the late 1990s.

The Superfund site slowdown has resulted in increased toxic exposures and health threats to communities across America. Stable and equitable funding is long overdue for this critically important pollution prevention program.

How the Superfund Works

Administered by the federal EPA in cooperation with states and tribal governments, the Superfund provides broad authority for the government to respond to chemical emergencies, such as toxic spills and fires, and to clean up sites. Chemical spills and toxic dumps were causing loss of life, direct threats to human health, massive fish kills, wildlife destruction, air pollution, and contaminating drinking water supplies.

To pay for these cleanups the CERCLA law created a Trust Fund of approximately $1.6 billion for site cleanups where a polluter cannot be located, or is bankrupt or refuses to take action. The Superfund Trust Fund was financed from various taxes and court awards from polluters responsible for hazardous releases. The financing enabled the EPA to prevent future toxic disasters by quickly responding to toxic releases and then recovering expenses from the polluter. Under the US common law, polluter liability must be determined before any action can be taken. The advantage of Superfund was that it provided the EPA with the money to address a health-threatening toxic waste dump first and recover costs from the polluter later.

EPA has three basic options to facilitate a Superfund site cleanup:

1. Conduct the cleanup itself and then seek to recover costs from the polluter(s);
2. Compel the polluter to fund the cleanup through judicial or administrative proceedings; and
3. Reach a settlement agreement with the polluter that requires them to pay for the cleanup

In 1986, Congress upgraded the Superfund program by approving the Superfund Amendments and Reauthorization Act (SARA) to strengthen the CERCLA law and increase the Trust Fund to $8.5 billion. The SARA law made the goal of permanent site cleanups a priority, expanded agency investigations into human health problems from toxic exposures, and encouraged greater citizen participation in the site decision-making process by providing Technical Assistance Grants (TAGs) to some community groups at Superfund sites.

Since the Superfund Trust Fund ran out of funds in 2003, Congress has annually appropriated approximately $1 billion of general revenues (taxpayer money) to the Trust Fund. Except for President George W. Bush, the Superfund polluter pay fees have benefited from broad bipartisan presidential support. President Jimmy Carter signed the original 1980 law and President Ronald Reagan signed the 1986 law to expand the fees. In 1990, President George H.W. Bush signed a law renewing the fees.

Efforts to Reinstate Polluter Fees

The Center for Health, Environment & Justice, USPIRG, Sierra Club, National Environmental Trust Fund and hundreds of state and local environmental and community groups have waged a campaign to refinance the Superfund over the years. In addition to providing funding for the cleanups, the polluter pay principle creates a powerful disincentive against the reckless dumping of toxic wastes.

Last year groups in almost every state in the country joined in a national action in support of reinstating polluter pay fees. For the Superfund Polluter Pay Action, people delivered buckets of chicken to many of the 52 US Senators who voted against the Superfund polluter pay principle in the past. Why? The action intended to simplify and clarify one of the Superfund fee costs and the issue of fairness. If the Corporate Environmental Income fee was reinstated it would be paid by corporations with a minimum of $2 million in taxable profits. They would pay a $12 tax on every $10,000 in profits–the price of a large bucket of chicken. Taxpayers, most of whom make far less than $1 million and some less than even $10,000, now shoulder the entire costs. The fairest Superfund fee is the corporate fee–let the wealthy corporations shoulder the costs, as they can better afford the cost of a bucket of chicken ($12) for every $10,000 in profits.

Without polluter pay fees, there is simply not enough money, and US taxpayers are unfairly burdened with paying for 100% of Superfund expenses at abandoned sites. At the same time, toxic waste sites continue to be discovered; and, a growing number of sites on the National Priority List (NPL) are languishing and causing ongoing health threats, simultaneously as the EPA has dramatically reduced its cleanup timetable.

More than 1,600 sites have been investigated and/or cleaned up since Superfund's 1980 enactment. Yet, this successful program has been severely damaged by a decrease in funding throughout the past decade. According to a 2005 General Accounting Office report, in constant 2004 dollars the total funding for Superfund decreased from about $1.8 billion in 1993, largely from polluter pay fees, to about $1.2 billion in 2005, all of which is now funded by taxpayers.

Currently, the federal government must take money from regular taxpayers that should go to fund other programs. Superfund now competes with drinking water, air pollution and other important environmental programs, for limited funding. During an era of budget deficits, the Superfund ends up getting less money.

Securing Superfund's Future

Over 1,200 Superfund toxic waste sites poison our drinking water, land and air with chemicals that cause cancer, birth defects and other health problems. Decreased funding and the Superfund site cleanup slowdown have resulted in increased toxic exposures and health threats to communities across America. Stable and equitable funding is long overdue for this critically important pollution prevention program.

The Superfund was founded on the principle that those companies most closely associated with creating toxic waste sites and generating hazardous waste should bear the financial burden of cleaning them up. American taxpayers are unfairly bearing the full burden of paying for abandoned Superfund site cleanups. It is essential that polluter pay fees are reinstated to replenish the ailing Superfund and get it back on the cleanup track.

We can solve the Superfund slowdown and prevent toxic dumps from poisoning our communities by reinstating the stable funding source of polluter pay fees.

Lois Marie Gibbs is the founder and Executive Director of the Center for Health, Environment and Justice. In the 1970s, she led the Love Canal community in a ground-breaking battle to eventually relocate its residents and cleanup the site. Resist provided original funding to CHEJ. This article is adapted and updated from the 25th Anniversary of Superfund, America's Safety Net in Crisis, by CHEJ. For additional information, contact CHEJ, PO Box 6806, Falls Church, VA 22040-6806; www.chej.org.

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