Superfund program: a smaller cleanup rag

One price of progress in the late industrial age has been hazardous waste. Sunk into the soil, drained into streams and lakes, pulverized into dust and sent into the air, it has threatened human health and the environment across the country.

Slowly but surely, many of the culprits - factories, petrochemical plants, old mines, military bases - have been cleaned up under a federal program dubbed Superfund.

But now, the government fund that's paid for that cleanup at a cost of more than $1 billion a year is virtually bankrupt. At the same time, it's becoming harder and harder to clean up the remaining, really nasty sites.

As a result, the number of high-priority Superfund sites cleaned up annually has declined for three years running.

The Environmental Protection Agency announced last week that 40 high-priority hazardous waste sites had been cleaned up during the fiscal year just ended. That brings the total number of such cleanups to 886 since the Superfund program began in 1980, shortly after the infamous Love Canal episode in western New York. Still, that leaves 1,203 sites on the "National Priorities List" that haven't been fully cleaned up.

"We still face serious challenges because we still have much work to do at our remaining sites," says Marianne Lamont Horinko, assistant administrator of the Environmental Protection Agency. "Although we currently have 699 construction projects under way at 436 sites, many of these sites tend to be large, expensive, and complex."

According to the US Public Interest Research Group (PIRG), which lobbies in Washington for grass-roots organizations around the country, 1 out of 4 Americans (including 10 million children, who can be especially vulnerable to toxic pollution) lives within four miles of a Superfund site.

The immediate political issue - how to reduce that risk and accelerate the cleanup - revolves around the original philosophy of Superfund: make the polluter pay. In most cases, the actual polluter volunteered or was made to pay.

But that left a significant number of "orphan sites" - those that were abandoned or whose owners had gone bankrupt.

For the first 15 years of the law, cleanup of those orphan sites was financed mainly by excise taxes on the oil and chemical industries plus an additional income tax levied on most other corporations. But those fees expired in 1995, and Congress has not renewed them.

As a result, the portion funded by individual taxpayers has increased from 18 percent to 53 percent of the total cost as the fund dwindled.

"We've known for a long time that the Superfund trust fund was running out, but unfortunately the president and Congress have continually failed to reinstate Superfund's 'polluter pays' fees, leaving regular taxpayers to foot the bill," said Julie Wolk, environmental health advocate for PIRG. "At the same time that taxpayers are paying more and polluters are paying less, the number of Superfund sites getting cleaned up [each year] has dropped by more than half."

While some advocates say the "polluter pays" principle should be rigorously enforced in the form of those special industry taxes, other critics say Superfund has become a legal nightmare that should be done away with.

Jerry Taylor, director of natural- resource studies at the Cato Institute in Washington, calls it a "litigious free-for-all." This is particularly true, he says, because the law calls for "joint and several liability," meaning that any party that ever touched that waste - no matter how remote the involvement - can be held liable for the full cost of remediation.

"Typically, the EPA tries to hunt down one or two deep-pocket corporations that can somehow be linked to the site and then hits them with the full cost of cleanup," he says. "Those companies then go about finding any party that might conceivably have had anything to do with the site and then sue that party under the joint and several liability standard to pay the bill."

The result, critics say, is that much (in some cases, most) of the cost of Superfund goes for lawyers, consultants, private investigators, and administrative overhead rather than for actual cleanup.

Others note that one of the unintended consequences of Superfund is that those who might invest in new urban development where polluting plants once stood are afraid to do so because purchasing the land might make them liable for toxic sins of the past.

Eliminating Superfund is by all accounts politically infeasible, so the main question remains: how to pay for it.

A small number of Senate Democrats, led by Barbara Boxer of California, are pushing resumption of the tax levied mainly on oil and chemical companies.

But this ignores the changing nature of Superfund, says Ms. Horinko of the EPA.

"At one time, most sites had contamination linked to chemical production and wastes," she wrote in a letter to The New York Times last week. "Now mining sites and contaminated harbors and river bottoms are an increasingly large part of the Superfund budget. The tax has no connection with these sites. Superfund is the cleanup party of last resort - a government function properly paid for by taxpayers."

In other words, say Horinko and others, it's not fair to tax specific industries when much, if not most, of the problem may no longer be their fault.

In any case, Superfund no doubt will continue in some form. And if one considers consumers to be ultimately responsible for the products associated with hazardous waste, then it may be that the "polluter pays" in the end anyway.