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Superfund is the common name given to the law called the Comprehensive Environmental Response, Compensation and Liability Act of 1980, or CERCLA. Superfund is also the trust fund set up by Congress to handle emergency and hazardous waste sites needing long-term cleanup. (In this sense, “trust fund” is money government sets aside for a specific purpose. That means that the government can't spend Superfund money on anything except cleaning up hazardous-waste sites.) Superfund is administered by the Environmental Protection Agency ( EPA).
Even though Superfund was created relatively recently, civilizations have always had to deal with the problem of waste disposal. Archaeologists have unearthed trash pits that are thousands of years old. During the Industrial Revolution of the 19th century, the economy shifted from agriculture to manufacturing.
Manufacturing created new products, as well as new wasteful by products. As more factories were built, the amount of hazardous waste began to grow. Before regulation, polluters could dump these toxic byproducts wherever they pleased: landfills, lakes and streams, or in metal drums in the countryside.
In 1892, a businessman named William T. Love proposed a canal to connect parts of the Niagara River in New York state. Love Canal would create a man-made waterfall to provide cheap hydroelectric power. Unfortunately, the canal was never finished, leaving a deep ditch in the land.
In 1920, the land was sold to a company called Hooker Chemical. For the next 33 years, Hooker Chemical dumped 22,000 tons of hazardous waste into the canal. Hooker Chemical’s hazardous waste included by products from dyes, perfumes, rubber production, and cleaning fluids. The waste was stored in 55-gallon containers, or drums. The company put an impermeable (waterproof) clay cap on top of the drums. However, there was nothing to prevent the toxic materials at the bottom from leaching (leaking) into nearby waterways and the Niagara River. The city of Niagara, N.Y., and the U.S. Army also dumped garbage at the site.
In 1953, Hooker Chemical sold Love Canal to the local school board for $ 1. Part of the sale included the so-called “Hooker clause”: Hooker Chemical would not be responsible if anyone became sick or died because of the waste buried in the canal.
The school board built the 99th Street School on top of the property. During construction of the school in 1955, a clay cap on one of the drums broke. Over the years, residents noticed a foul smell coming from the canal. Children's shoes melted to the pavement, dogs would burn their noses as they touched the chemicals coming up from the ground, and people started getting sick.
In 1978, Lois Gibbs noticed that her son developed asthma and began to have seizures after attending 99th Street School. Wanting to find out why, she began to research the area and found out about the toxic waste.
Gibbs organized her community and forced the state and federal government to do something about the tons of hazardous waste materials buried in her neighborhood. She and the Love Canal Homeowners Association protested to the city, other residents and the press. Because of the Hooker clause, the chemical company refused to take responsibility. The government did not believe the toxic waste was connected to residents ’health problems.
Eventually, Love Canal became a national issue. Television news covered the protests and showed the black, toxic sludge that oozed into residents ’basements. National leaders took notice. Due to the actions of Gibbs and the Love Canal Homeowners Association, President Jimmy Carter signed the Superfund bill into law on December 11, 1980. Part of the Superfund payment to Love Canal included $ 20 million to move Love Canal residents into safer neighborhoods.
Remediate and Remove
Superfund’s waste sites fall into two categories: remedial and removal. Sites are found either by the state where the site is located or a citizen who alerts the EPA to the problem.
The EPA then checks out the site to see if it qualifies for Superfund. The EPA uses what it calls the Hazard Ranking System (HRS). The HRS is based on the size of the site, the toxic materials found there, and the site’s hazard to human health. The HRS assigns sites a score from 0-100.
Most sites that score above a 28.5 are considered remedial sites. Remedial sites go on the National Priorities List (NPL), meaning they are scheduled for long-term cleanup. Landfills, dumps and abandoned chemical plants are examples of remedial sites.
Removal sites are sudden environmental emergencies that are not on the NPL. Mercury spills, oil tanker spills and factory fires are examples of removal sites.
After a superfund site is identified, an initial cleanup is made. Studies are performed to determine what kind of hazardous waste is on the site and what risk it poses to the environment. Then the EPA decides how to clean up the site. The method of cleanup usually involves human labor, chemical treatment, and some construction.
After construction is completed, the site is monitored to make sure no waste is leaking into the air, soil, surface water, or groundwater.
The site (or parts of the site) are deleted from the National Priorities List once the state and the EPA determine that the site poses no significant environmental or health risk. As of May 2009, 332 sites have been deleted from the NPL.
Superfund is a unique program because it makes polluters responsible for paying part of the cleanup cost. Superfund starts by identifying polluters, called Potentially Responsible Parties (PRP).
"The EPA finds the PRPs about 70 percent of the time and makes them pay for site cleanup," said Mick Hans, spokesperson for EPA Region 5, based in Chicago.
PRPs fall into four categories: the current owner or operator of the site, anyone who owned or operated the site before, anyone who arranged for hazardous wastes to be dumped on or treated at the site, and anyone who transported hazardous wastes to the site.
Rarely is only one person or company responsible for a site’s pollution. Usually there are dozens of PRPs involved. If only a few of the PRPs can be located, they are responsible for paying for the entire cleanup. Because Superfund sites cost anywhere from $ 15 million to $ 100 million to clean, identified PRPs will seek out the others involved, and the companies decide among themselves how much each party is responsible for.
Superfund also holds polluters responsible after the site is cleaned up. If the government or an individual citizen spends money to clean up a hazardous-waste site, they can sue the person or company that was responsible for polluting the site. The money won in a lawsuit would be used to recover the cost of cleanup.
This process is legally referred to as "strict, joint, and several liability." The liability is retroactive, meaning that companies like Hooker Chemical can't avoid paying for the cleanup because there were no laws regulating the dumping of hazardous waste when they were in business. (Hooker Chemical is now owned by Occidental Petroleum. Strict, joint and several liability also means that Occidental Petroleum is now liable for Hooker Chemical’s pollution.)
If a PRP can't be found, it's considered an orphan site and Superfund pays for the entire cleanup. This wasn't always the case. In the past, businesses that made and sold chemical products were taxed to clean up orphan sites. Congress repealed this tax in 1995, meaning Superfund didn’t have as much money to clean all the hazardous waste sites found by the program.
Superfund was bankrupt by 2003, meaning all future cleanups had to be done with taxpayer money.
In 2008, the U.S. Supreme Court ruled in the case Burlington Northern v. United States that the polluters involved only had to pay a share of the cleanup costs and not the entire amount. Since strict, joint and several liability has been used to clean up hazardous-waste sites for decades, this new ruling makes cost recovery by the government and private individuals uncertain.
Sites After Superfund
Superfund’s ultimate goal is to return hazardous waste sites back to productive use. Sites have been turned into wetlands, office spaces, new businesses, manufacturing facilities, and more.
Houses and apartments have been built on some Superfund sites. Love Canal is such a place. It was deleted from the National Priorities List in 2004 and renamed Black Creek Village.
Lois Gibbs, the former community organizer at Love Canal and the current executive director of the Center for Health, Environment, and Justice (www.chej.org), believes Superfund sites should not be used to build houses.
"We don't know enough about the chemicals that are at these waste sites," Gibbs said. “The minimum safe level of exposure of these chemicals keeps changing, for one thing. What may be considered a safe level now may be found to be too toxic in the future. "
The CHEJ points to a recently released study showing a greater rate of autism in students attending schools built 10 to 20 miles from Superfund sites.
"The children who grew up in Love Canal 30 years ago, now they are having children of their own, and with the same rate of birth defects as the original Love Canal residents," Gibbs said. “We don't know the full extent of the damage to their DNA and what damage they may be passing on to their children. But genetically, it's as if they've never left Love Canal. "
Gibbs does agree with reclaiming Superfund sites for non-housing purposes.
“I think Superfund sites can and should be reused. There are a number of Superfund sites in urban areas that would benefit from turning eyesores into green spaces. "
In York County, Va., A fly ash dump was turned into a park with soccer fields and baseball diamonds. (Fly ash is a byproduct of burning coal.) In Pickaway County, Ohio, Bowers Landfill was transformed into a wetlands home for plants and migratory birds. In Pensacola, Fla., The Beulah landfill has been turned into a model-airplane park. Many more Superfund sites have been turned into green spaces for agricultural, ecological and recreational use.
A common factor in the success of Superfund site restoration is active community involvement, Gibbs said.
"It's important to have a united voice, not just during the construction cleanup phase, but also in coming up with a future land-use plan. What does the community want out of this site? Do they want green space, or a low- impact business? People are very creative when they're asked what they want. These spaces, they are our properties. Seeing them become productive, attractive spaces again protects our sense of community. "
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