Superfund: Super-waste, super-abuse, super-fail

Careful gents, the gasoline can might give you cancer... there is definitely a 0.0001% chance of it...

“Superfund was a federal overreaction to a locally manageable problem. Its rules violate canons of fairness. It has been enormously expensive, yet has produced no demonstrable protections for either human health or the environment.” This quote published in 1996 by the National Center for Policy Analysis's environmental analyst Dr. H. Sterling Burnett, perfectly sums up the federal waste cleanup agency known as Superfund. Created in 1980 by an act of Congress, Superfund is the federal government's attempt at providing an agency to clean hazardous waste sites. After looking at Superfund, the reasons for its inception, and the negative effects it has had, it will be clear that it necessitates either significant reform or complete abolition.

In order to understand the reasons behind Superfund, and the effects it has had, a person must first understand what Superfund is. Superfund is a hazardous waste cleanup agency that was authorized by CERCLA. CERCLA stands for the Comprehensive Environmental Response Compensation and Liability Act. This act authorized the creation of the agency Superfund in 1980. Superfund has been budgeted between $1 billion, and $1.5 billion each year for the past three years. To supplement these congressional appropriations, Superfund has the authority to seize money from potentially responsible polluters. The seizure is made under the assumption that the money will then be spent to clean the waste sites that the polluters were responsible for polluting.

The writers of the act quickly recognized that if Superfund was to sue each individual polluter, the agency would get bogged down in the court process. In an effort to secure money quickly and without litigation, the act was designed to authorize Superfund lawyers to seize money without a trial. Under the provisions of the act, if a potential polluter claims they are not responsible for polluting, they may petition their case. However, they may only petition their case after the money has been seized and used to clean the waste site. If at that point the potentially responsible polluter is able to prove that he or she is not responsible, then the Superfund agency is fined by the federal government. Despite the fact this fine is levied, Superfund faces no overall loss of money. Superfund simply pays the federal fine using the yearly congressional appropriations given to them by the federal government. While money goes in circles within the federal system, there exists no compensation clause in the CERCLA text. As a result, unless the potentially responsible polluters have the resources to sue the federal government, they receive no compensation.

Now it is clear what Superfund is and how it operates, the question has to be asked what was the cause or reason for creating Superfund? The answer is perfectly captured in the following quote from the former Assistant Attorney General Dave Kopel. He writes, in June of 2002, “The Superfund law, formally known as CERCLA — the Comprehensive Environmental Response Compensation and Liability Act, was enacted during the Carter administration thanks to an episode of panic and misinformation about the Love Canal incident in New York, a panic intensified by President Carter's declaration of a state of emergency.” As illustrated by Dave Kopel, the primary cause for CERCLA passing through Congress, was what has become known as the Love Canal incident. Love Canal was a small neighborhood in Niagara falls New York, where over twenty tons of toxic waste was deposited underground during the 1940's. This toxic waste then leaked out and mass hysteria, backed by media sensationalism, worked the state of New York into a panic. In response to the hazardous waste disaster, on August 7'th, 1978, former President Jimmy Carter announced a state of federal health emergency. It was during this time of hype and hysteria that CERCLA was purposed and passed.

It was only after this panic had dissipated that the facts about the state of federal health emergency actually came out. According to the Center for Disease Control's report in May of 1983, no health risks or birth defects were discovered as a result of the so called toxic pollution. Despite the reality that no health emergency really existed, Superfund was in full swing by 1983 with a long list of sites they were responsible for cleaning.

Having seen what Superfund is, and why they were created, all that remains to be seen is the effects of the program. The only merit the Superfund agency holds claim to is the waste sites they have cleaned; However, even these cleanups would be obtained without the Superfund agency. According to the Environmental Protection Agency, Superfund has cleaned a total 345 sites in their 30 year history. Critics of the Superfund agency point out that site cleanups are accomplished faster and at a lower cost by state agencies. According to senior attorney John Pendergrass of the Environmental Law Institute, states have cumulatively completed 29,000 sites in their combined 20 year history. This means to every one site Superfund has cleaned, states have accomplished almost 85 in less time, and at a lower cost.

The cost and time comparison is startling. In the Environmental Law Institute's report they illustrate that over the last fifteen years states continue to clean the same amount of sites, with ever decreasing costs. While the states cost less and less every year, the federal costs continue to spiral upward. According to New York Representative Sherwood L. Boehlert, Chairman of of the subcommittee on Water Resources and Environment, he says under Superfund “Cleanups still take too long and cost too much – the average site now takes 10-11 years to be cleaned up at a cost of $24-25 million.” The effects of Superfund are clearly negative. Superfund is redundant, trying to accomplish exactly what the states are already doing; Superfund is slow, taking between 10 and 11 years to finish each individual site; finally, Superfund is also wasteful, costing up to $25 million dollars per site.

The most important effect of the Superfund agency is their abuse of citizen's right to due process through a court trial. Hearkening back to the details concerning Superfund's powers to secure funds for cleanups, it is clear they have the power to seize funds from potentially responsible polluters. The act's power is detailed by the Property and Environment Research Center's senior research analyst, Professor Richard Stroup. In his article titled “Superfund: The shortcut that failed,” he writes the following. “The EPA treats accused polluters, or potentially responsible parties, as wrongdoers. These are the parties, usually firms, that must pay cleanup costs if they can be found. Yet the EPA has no responsibility to prove that they were guilty of wrongdoing, that they polluted the site in question, or even that serious risk from pollution exists ... Accused parties can do little to challenge the EPA's decisions, except at the very end of the remediation process, typically expected to be 12 years.” In summary, citizens who are considered potentially responsible parties can have their money taken without respect to the due process of law. Potentially responsible polluters receive no right to court proceedings, no right to trial, no defense of their rights or property.

At least the Salem Witch trials used witnesses in their bogus proceedings... more than I can say for Superfund...

Superfund's disregard for the right to due process goes far beyond the flagrant disregard for a basic sense of justice. The United States Constitution in the fourteenth amendment guarantees that “Nor shall any State deprive any person of life, liberty, or property, without due process of law.” According to the fourteenth amendment no person should be deprived of their property without due process of law. By taking the right of potentially responsible parties to defend themselves in court, the Superfund agency is effectively taking their right to due process of law, and thus, violating citizens constitutional right to justice.
After having analyzed both the reasons behind Superfund, and the effects it has produced, it is clear Superfund necessitates either significant reform or complete abolition. Superfund has a long history. They have left a trail of waste and abuse with no unique benefits. States agencies have proven themselves capable of fulfilling the role of Superfund, while costing the American people significantly less. It is time that the current form of Superfund be either altered or abolished. Let it become part of history as a warning, a warning not to react in haste and panic to purported disasters.