Superfund: Implementation and Selected Issues

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Superfund: Implementation and Selected

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November 26, 2007

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RL33426

CRS Report for Congress

Prepared for Members and Committees of Congress

Superfund: Implementation and Selected Issues

Summary

Superfund is the federal government’s principal program for cleaning up the nation’s

contaminated waste sites and protecting public health and the environment from releases of

hazardous substances. Enacted into law as the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA, P.L. 96-510), the program became known as

Superfund because Congress established a large trust fund—originally supported by taxes levied

on specific petroleum products and chemicals—to provide the majority of the program’s funding

needs. Although the 26-year-old program has seen less attention compared with earlier years,

Superfund issues continue to generate debate. This report provides a background and overview of

the Superfund program and examines four topics that received interest in recent years.

The first issue concerns Superfund program funding: who should pay for the program, general

taxpayers or a dedicated tax on industry? The program was originally funded by a tax on industry

that expired at the end of 1995. Without dedicated taxes, and with a relatively small balance in the

trust fund, Congress has been using general revenues for a larger percentage of cleanup funds.

Members introduced bills to reinstate the taxes in the current and past three Congresses, but so far

these efforts have lacked the necessary support.

The second issue regards Superfund program appropriations. Recent evidence indicates that

appropriations from the past several years have fallen short of program needs. The

Administration’s FY2007 budget proposal for Superfund also fell below levels that, according to

some estimates, are needed to meet program obligations. Without reinstating the Superfund taxes,

any increased appropriation would be funded through General Treasury revenues.

The third issue involves Superfund interaction with abandoned and contaminated hardrock mines.

The number of hardrock mining sites requiring cleanup in future years, particularly those without

identifiable responsible parties, could play an important role in the Superfund funding debate.

There is also a concern that the threat of CERCLA liability may act as a cleanup disincentive for

“good samaritans” who might offer cleanup assistance at abandoned hardrock mines.

The fourth issue concerns Superfund’s role at animal feeding operations. Stakeholders argue

about whether these operations should be required to report ammonia air emissions, primarily

resulting from animal waste, as hazardous substance releases. This issue also concerns the

responsibility for releases of animal waste that reach water bodies.

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Contents

Legislative Background...............................................................................................................1

Superfund Program Implementation ............................................................................................2

Responding to Releases.........................................................................................................2

Site Assessment ..............................................................................................................3

The National Priorities List .............................................................................................3

The Removal Program ....................................................................................................4

The Remedial Program ...................................................................................................5

Cleanup Standards ..........................................................................................................6

CERCLA Liability ................................................................................................................7

Natural Resource Damages ...................................................................................................7

Federal Superfund Sites ........................................................................................................8

The State Role in the Superfund Process ...............................................................................8

Selected Superfund Issues ...........................................................................................................9

Superfund Trust Fund and Taxes ...........................................................................................9

Superfund Program Funding Needs and Appropriation Levels ............................................. 12

Abandoned Hardrock Mines................................................................................................ 15

Background .................................................................................................................. 15

Mining Sites and the National Priorities List ................................................................. 16

Federal Land Issues....................................................................................................... 17

Good Samaritan Issues .................................................................................................. 17

Legislation .................................................................................................................... 19

Releases from Animal Feeding Operations .......................................................................... 19

Conclusion................................................................................................................................ 20

Figures

Figure 1. Removal and Remedial Program Annual Appropriations Compared With Total

Superfund Annual Appropriation, FY2003-FY2007..................................................................5

Figure 2. Superfund Trust Fund, Beginning Year Balance, FY1994-FY2007.............................. 10

Figure 3. Superfund Appropriations: FY2001-FY2007 Enacted and FY2008 Requested

Versus Resources for the Future Projections of Funding Needs ............................................... 13

Figure 4. Administration Budget Request Versus Enacted Superfund Appropriation,

FY2004-FY2008.................................................................................................................... 15

Tables

Table 1. CERCLA and Amendments ...........................................................................................2

Contacts

Author Contact Information ...................................................................................................... 21

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Superfund: Implementation and Selected Issues

he Superfund program had its 25th anniversary in 2005. Although Superfund debate has

lessened, as compared with past years, particular aspects of the program continue to

generate debate. Policymakers are faced with broad programmatic concerns, as well as

more specific issues concerning program implementation. This report discusses some of these

questions: Who should pay to clean up the nation’s most contaminated sites if responsible parties

cannot be found? Is the program receiving enough funding to meet its current and future

obligations? How does the statute interact with abandoned hardrock mining sites and animal

feeding operations? To supply the context for these issues, this report first provides a background

and overview of the Superfund program.

Legislative Background

On December 11, 1980, Congress enacted the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA, P.L. 96-510)1 to create the hazardous substance

cleanup program. The program became known as “Superfund” in reference to the trust fund

established by the law. The fund was originally supported by taxes levied on specific petroleum

products and chemicals, and a corporate environmental income tax. Until recent years, the

Superfund taxes provided the majority of the funding for the needs of the program.

At the time of CERCLA’s enactment, other federal environmental statutes provided federal

agencies with only limited authority to address contamination at abandoned sites. CERCLA gave

the federal government the authority to take direct action to respond to instances involving

uncontrolled releases of hazardous substances (or pollutants and contaminants) that may endanger

public health or the environment. CERCLA also enables the Environmental Protection Agency

(EPA) to compel the persons responsible to clean up their contaminated sites. If the potentially

responsible parties (PRPs) cannot be located, or they are unable (generally for financial reasons)

to perform cleanup, EPA is authorized to use monies from the Superfund Trust Fund to clean up

the site.

CERCLA was expanded and reauthorized by the Superfund Amendments and Reauthorization

Act of 1986 (SARA, P.L. 99-499).2 Amendments after SARA have been narrowly focused. In

1992 and 1996, Congress enacted legislation allowing for easier transfer of military bases with

contaminated areas to local entities. In 1996 and 1999, Congress provided conditional liability

exemptions for financial institutions and recycling facilities. In 2002, Congress enacted the Small

Business Liability Relief and Brownfields Revitalization Act (P.L. 108-118), which added further

liability relief and authorized the Brownfields Program. Table 1 lists the various CERCLA

amendments.

CERCLA, as amended, is codified at 42 U.S.C. 9601-9675.

SARA also created other authorities, most notably SARA Title III, otherwise known as the Emergency Planning and

Community Right-to-Know Act (EPCRA).

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Table 1. CERCLA and Amendments

(codified generally as 42 U.S.C. 9601-9675)

Year

Act

Public Law Number

1980

Comprehensive Environmental Response, Compensation, and

Liability Act

P.L. 96-510

1986

Superfund Amendments and Reauthorization Act

P.L. 99-499

1990

Omnibus Reconciliation Act (extended authorization)

P.L. 101-508, §§ 6301, 11231

1992

Community Environmental Response Facilitation Act

P.L. 102-426

1996

Defense Authorization Act of Fiscal Year 1997

P.L. 104-201, § 334

1996

Asset Conservation, Lender Liability, and Deposit Insurance

Protection Act

P.L. 104-208, Division A, Title II,

Subtitle E

1999

Superfund Recycling Equity Act

P.L. 106-113, appendix I, title VI

2002

Small Business Liability Relief and Brownfields Reauthorization Act

P.L. 107-118

Superfund Program Implementation

The National Oil and Hazardous Substances Pollution Contingency Plan (NCP) contains the

procedures and regulations for implementing the Superfund program.3 Generally, EPA leads the

response to releases on land and in inland waters, whereas the Coast Guard leads the response in

coastal waters of the United States.

Responding to Releases

Actions under the Superfund program are triggered by a release (or threat of release) of a

hazardous substance into the environment. The CERCLA “environment” includes all media:

water (surface and groundwater), soil, and air. CERCLA defines “hazardous substance” to include

all the materials identified as hazardous under the Resource Conservation Recovery Act (RCRA),

the Clean Water Act (CWA), the Clean Air Act (CAA), and the Toxic Substances Control Act

(TSCA). CERCLA also authorizes EPA to respond to releases of “pollutants or contaminants,”

which are broadly defined to include virtually anything that can threaten the health of “any

organism.”

Petroleum is specifically excluded from the definition of hazardous substance and pollutant or

contaminant. This means that neither CERCLA authority nor trust fund monies may be used to

respond to releases of petroleum.4 However, the 2002 Brownfields law authorizes the cleanup of

some petroleum-contaminated sites.

The NCP is codified at 40 CFR Part 300.

Petroleum spills are covered under other statutes, such as the Oil Pollution Act of 1990. For more information

regarding oil spills, see CRS Report RL33705, Oil Spills in U.S. Coastal Waters: Background, Governance, and Issues

for Congress, by (name redacted).

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Site Assessment

The Superfund cleanup process starts either with a site discovery or with a notification to EPA of

a potential hazardous substance release. Sites of concern can be discovered by various parties:

citizens, state agencies, or EPA Regional offices. CERCLA § 103 requires release notification.

Facilities must notify the National Response Center if there has been a release of a hazardous

substance above a certain threshold, termed a reportable quantity (RQ).5

Since the inception of the Superfund program, EPA has catalogued more than 47,000 potentially

contaminated sites in the agency’s database: the Comprehensive Environmental Response,

Compensation, and Liability Information System (CERCLIS)6. After a site has been identified,

EPA or a state agency performs a preliminary assessment to judge the site’s potential hazards.7

After further screening, EPA uses the Hazard Ranking System (HRS) to score the site’s

contamination and its risk of exposure to surrounding communities.

The National Priorities List

Sites that score high enough on the HRS are eligible for the National Priorities List (NPL), which

is generally considered the official list of the most hazardous sites in the nation. Only a small

percentage of the sites assessed are placed on the NPL. Over Superfund’s history, EPA has placed

1,569 sites on the NPL (as of October 1, 2007). Of these sites, 321 have met cleanup goals and

have been subsequently removed (deleted) from the NPL. At an additional 1,030 sites all physical

construction activities have been performed, and operation and maintenance (such as treatment of

contaminated groundwater) is ongoing. These sites are referred to as “construction complete.”8

The NPL has been described as the centerpiece of the Superfund program, and thus it has been a

focal point for Superfund criticism. As noted in a comprehensive report prepared by Resources

for the Future (RFF)9 (hereafter referred to as the RFF Report):10

The expense and pace of cleaning up NPL sites has been, and continues to be, a contentious

topic among followers of the Superfund program.... [E]ven though more than half of all NPL

sites have been deemed “construction complete”—meaning that all physical remedies are in

place and immediate risks posed by the site have been addressed—there remain hundreds of

sites placed on the NPL during the early years of the program where cleanup remedies have

still not been fully implemented.

Some interest groups have questioned the listing process itself and the slow pace of cleanup at

NPL sites. The decision to list a site on the NPL is ultimately at EPA’s discretion.11 Many factors,

40 CFR § 302.6. EPA codified the list of hazardous substances and their respective RQs in 40 CFR § 302.4.

Hazardous substance RQs can range from 1 pound to 5,000 pounds.

http://www.epa.gov/superfund/sites/products/archinv.htm, visited October 3, 2007.

In practice, this activity is often carried out by a contractor.

http://www.epa.gov/superfund/sites/query/queryhtm/npltotal.htm, visited October 3, 2007.

In the FY2000 VA-HUD-Independent Agencies appropriation (P.L. 106-74) conference report, Congress directed

EPA to contract with RFF to analyze the projected federal costs of the Superfund program for the period FY2000FY2009.

Katherine Probst, et al., 2001, Superfund’s Future: What Will It Cost?, Resources for the Future, Washington, DC,

2001, p. 31.

The process has been called “more art than science.” Probst, Katherine, 2005, “Superfund at 25 - What Remains To

(continued...)

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other than the HRS score, influence whether a site is proposed for listing—for example, state

support,12 community concerns,13 and Superfund budgetary issues.14 EPA has stated that

The NPL is only of limited significance, however, as it does not assign liability to any party

or to the owner of any specific property. Neither does placing a site on the NPL mean that

any remedial or removal action necessarily need be taken.15

There are two categories of response activity in the Superfund program: (1) short-term removal

action and (2) long-term remedial action. The trust fund can support removal action at NPL or

non-NPL sites. However, trust fund monies can be used for remedial activity only if the site is on

the NPL.16

The Removal Program

The removal program grew out of the recognition that certain hazardous substance releases would

necessitate a quick response. Removal action seeks to stabilize a site, and in some cases this

minimizes the need for further cleanup. Removal action can be undertaken at sites regardless of

their NPL status, and historically, most removal actions occur at non-NPL sites.17 CERCLA limits

removal action to a one-year effort and expenditures of not more than $2 million.18 This limit

applies only to efforts led by EPA and funded by trust fund dollars, not at sites where the

responsible party is performing cleanup.

Not all actions under the removal program are considered equally urgent. EPA groups removal

actions into the following three categories:

(1) Classic emergencies. Those actions where the release requires that on-site activities be

initiated within minutes or hours of the determination that a removal action is appropriate.

(2) Time-Critical Actions. Those actions where, based on an evaluation of the site, EPA

determines that less than six months is available before site activities must be initiated.

(...continued)

Be Done?” Resources, Fall 2005, p. 20.

P.L. 104-19 (an FY1995 appropriations bill) directed EPA to obtain a letter of concurrence from the governor of a

state prior to listing a site in that state on the National Priorities List. P.L. 104-134 (an FY1996 appropriations bill)

provided similar direction. EPA, as a matter of policy to further enhance the role of states in the Superfund program,

continues to request a governor’s letter of concurrence prior to NPL listing.

An NPL designation generally carries a stigma, and local communities often worry about the effects an NPL site will

have on nearby property values.

For example, EPA might be hesitant to list “mega sites” on the NPL, unless the parties responsible for the site have

been identified. RFF Report, p. 89.

See, for example, U.S. EPA, “National Priorities List for Uncontrolled Hazardous Waste Sites,” 70 Federal Register

54329, September 14, 2005.

40 CFR § 300.425(b)(1).

From FY1992-FY1999, approximately 76% of removal actions occurred at non-NPL sites. RFF report, p. 16.

CERCLA § 104(c)(1). These limits can be exceeded if a waiver is obtained. EPA estimated that as of January 2001,

about 8% of the removal actions conducted by EPA have exceeded $2 million. RFF report, p.16, citing EPA analysis.

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(3) Non-Time-Critical Actions. Those actions where, based on an evaluation of the site, EPA

determines that more than six months is available before on-site activities must begin.19

Removal actions may include, but are not limited to:

•

repairing a hazardous waste storage unit (e.g., landfill cover),

•

transporting leaking drums to an appropriate disposal facility, and

•

erecting a security fence to reduce opportunity of exposure.

In recent years, the removal program has consistently received about one-third of the amount

appropriated to the remedial program (see Figure 1).

Figure 1. Removal and Remedial Program Annual Appropriations Compared With

Total Superfund Annual Appropriation, FY2003-FY2007

Sources: Prepared by the Congressional Research Service from the following: (1) Removal and Remedial data:

FY2003 and FY2004 amounts are EPA estimates provided by the Office of Congressional Affairs; FY2005

amounts are from the conference report on the Interior, Environment, and Related Agencies Appropriations Act

for FY2006 (H.R. 2361, H.Rept. 109-188, p. 154); FY2006 and FY2007 amounts are from EPA’s FY2007 and

FY2008 budget justifications, Appendix, Program Projects Table, p. 82 and p. 78, respectively; (2) Total

Appropriations data: FY2003-FY2005 are from prior year funding comparisons in committee reports on annual

appropriations bills from FY2004-FY2006; FY2006 and FY2007 are from EPA’s FY2007 and FY2008 budget

justifications. FY2005 and FY2006 amounts include rescissions.

The Remedial Program

The remedial program is the core of the Superfund program. In contrast to removal actions,

remedial actions, in general, take more time, cost more money, and represent a more permanent

See EPA’s Response Program description at http://www.epa.gov/superfund/programs/er/hazsubs/ralts.htm.

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solution. Congress consistently apportions about half of the annual Superfund appropriation to the

remedial program (see Figure 1).20

The remedial program consists of multiple process steps, each with its own term of art. Although

the remedial process does not typically follow a linear, step-by-step progression, a simplified

version of events is discussed below, highlighting the main milestones.

The remedial program first involves a comprehensive investigation of the site and analysis of

cleanup alternatives or remedies. This examination process (the Remedial

Investigation/Feasibility Study, or RI/FS) can take months, or even years.21

Following completion of the RI/FS, EPA selects a remedy to address the site’s contamination.

EPA must solicit public comment when determining the remedy for the site, and states typically

play an active role in the remedy selection process. CERCLA directs EPA to select a permanent

remedy or treatment whenever possible. The less-preferred option is to leave the waste in place

and reduce human exposure (e.g., soil cover or security fence). If the method chosen is not

permanent, EPA must review the site every five years to ensure remedy protection.

After EPA decides the site-specific cleanup remedy and issues a formal Record of Decision

(ROD), the remedial design (RD) phase commences. The RD is the engineering plan used to

implement the remedy chosen by EPA. Development of the RD takes, on average, approximately

two years.22 After the RD is complete, the actual cleanup process (Remedial Action) begins. For

sites where cleanup has been completed, the total process, from start (a proposed listing on the

NPL) to finish (cleanup goals achieved), takes between 8 and 11 years, on average. 23

Cleanup Standards

CERCLA directs EPA to assure that Superfund site cleanups protect human health and the

environment.24 CERCLA specifically requires cleanups to meet “any standard, requirement,

criteria, or limitation” under any federal or state environmental law. 25 EPA may waive this

requirement if, for example, meeting the standard will not provide a balance between (1) the need

for protection of health and the environment at the site and (2) the availability of monies in the

trust fund for other locations.26

Other substantial accounts in the total appropriation include the removal program ($194 million), enforcement ($180

million), and operations and administration ($122 million). Amounts reflect FY2006 enacted appropriation.

The RFF report (p. 48) cites EPA data from FY1993-FY1999, which indicates the average duration is 2.6 years.

The RFF report cites EPA’s estimate at 1.7 years, but the report authors calculated an average RD duration of 2.25

years. RFF report at p. 210.

EPA estimates the average duration is eight years, but the RFF report finds this calculation to be inaccurate because

only completed actions are included. If incomplete actions are also included, as demonstrated in the RFF report, the

average duration increases to 11 years ( pp. 48-52).

CERCLA § 121(d).

Id.

CERCLA provides five other conditions that allow EPA to waive the requirements. CERCLA § 121(d)(4).

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CERCLA Liability

CERCLA contains a liability scheme that is, by any measure, stringent. If a hazardous substance

is released, or threatened to be released, from a facility, CERCLA liability may attach to a wide

variety of persons. A potentially responsible party (PRP) is any individual or company that may

have contributed to contamination at a Superfund site.

PRPs may include

•

current or former owners of a facility or vessel,

•

current or former operators of a facility or vessel,

•

generators who sent hazardous substances to the site, and

•

transporters who brought hazardous substances to the site.27

CERCLA liability is considered to be strict, joint and several, and retroactive:28

•

Strict liability means that a party can be held responsible regardless of

negligence. Moreover, under CERCLA, proof of causation is not necessary.

•

Joint and several liability means that any liable party can be held responsible for

the full cost of cleanup, regardless of the degree of involvement.

•

Retroactive liability means that parties can be held responsible for actions that

caused contamination prior to the passage of CERCLA.

CERCLA’s liability scheme provides EPA with strong enforcement authority to require PRPs to

address site contamination. The joint and several component creates an incentive for one PRP

(already identified by EPA) to locate other PRPs, so that the cleanup costs can be shared.

The statute does provide several defenses, exemptions, and mechanisms for eliminating or

reducing a party’s CERCLA liability. 29 This report does not discuss these devices. For

information regarding several of them, see CRS Report RL31911, “Innocent Landowners” and

“Prospective Purchasers” Under the Superfund Act, by (name redacted).

Natural Resource Damages30

In addition to cleanup costs, CERCLA requires PRPs to address the environmental harm they

caused by restoring or replacing any injured natural resources. PRPs must also pay for the lost use

of a publicly owned resource and the associated damage assessment. CERCLA designates federal,

state, and tribal authorities to serve as natural resource trustees within their jurisdiction. Only the

CERCLA § 107(a).

The CERCLA statute does not include the text “strict, joint and several, and retroactive.” These features of CERCLA

liability derive from legislative history, case law, and the CERCLA instruction that its liability standard is the same as

that in Clean Water Act § 311. See CERCLA § 101(32).

See, for example, CERCLA §§ 107(b), 107(d), 107(n), 107(o), 107(p), 107(q), 107(r).

For more background on this issue, see CRS Report RS20772, Superfund and Natural Resource Damages, by (name

redacted).

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trustees can make a natural resource damages claim under CERCLA.31 In some respects, liability

for natural resource damages is more narrow than the liability for cleanup costs. For example,

natural resource injuries occurring wholly before the enactment of CERCLA (1980) are

excluded. 32 Also, a claim must be brought within three years of its discovery and connection to a

particular release.

Federal Superfund Sites

With the passage of SARA in 1986, federal facilities became subject to CERCLA in the same

fashion as non-governmental entities.33 Before SARA was enacted, no federal facilities were

placed on the National Priorities List (NPL). Since 1986, EPA has placed 172 federal facilities on

the final NPL.34 Almost all federal facilities on the NPL are defense sites, including military

facilities administered by the Department of Defense (DOD) and former nuclear weapons

production sites administered by the Department of Energy (DOE). These sites are among the

most contaminated of those on the entire NPL.

The Superfund Trust Fund cannot be used to pay for cleanup at federal facilities. The agency

responsible for the contamination is responsible for cleanup, and funding for removal or remedial

action must come from that agency’s budget. However, the trust fund may be used to provide

alternative water supplies if groundwater contamination migrates beyond the facility boundaries

and other PRPs are involved at the site.

At federal sites on the NPL, EPA oversees remedy selection and remedial action. Federal sites

that do not qualify for the NPL are subject to state laws concerning removal, remedial action, and

enforcement. At these sites, states oversee cleanup activity. There are almost 800 sites nationwide

that fall into this category.35

The State Role in the Superfund Process

SARA encourages state involvement at Superfund sites, and outlines minimum requirements for

state participation at virtually every phase of decision-making, from site assessment to

enforcement and actively managing the site cleanup. CERCLA § 104(c) requires states to pay

10% of the remedial cleanup costs, and 100% of the operation and maintenance costs beginning

10 years after construction of the remedy has been completed. However, if the facility was

operated by the state (or a political subdivision thereof) at the time of disposal, the state must

share 50% of the removal or remedial cleanup costs.

“Although private parties do not have a statutory cause of action for natural resource damages, they may assert

similar claims under common law theories, such as negligence and strict liability.” Bradley M. Marten and Cestjon L.

McFarland, “Litigating CERCLA Natural Resource Damage Claims,” Environment Reporter, July 19, 1991, p. 671.

CERCLA § 107(f).

CERCLA § 120.

http://www.epa.gov/superfund/sites/query/queryhtm/npltotal.htm visited May 24, 2007.

A CERCLIS search (January 18, 2007) identifies 787 federal sites not on the NPL, of which 15 were deleted from

the NPL and 6 are proposed to be on the NPL.

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This cost-sharing component may play a role in whether sites are listed on the NPL. Although not

currently required by law, EPA typically does not propose new sites to the NPL without a state’s

agreement.36 For budgetary reasons, states may be hesitant to add Fund-led sites to the NPL.

Most Superfund sites are not on the NPL. Of the roughly 10,000 sites currently in the CERCLIS

database, about 90% are not on the NPL. At these non-NPL sites, the federal role may include

cleanup assessment or removal activity, or the federal government may have no presence at all.

State cleanup programs have the authority to assess and clean up non-NPL sites and to identify

other potential hazardous sites. The majority of the state cleanup programs have authorities

similar to the federal Superfund program.37

Selected Superfund Issues

This section of the report discusses four Superfund issues that have received interest in recent

years. The first two issues concern program funding, including who should fund the program

(industry or general taxpayers) and how much funding is needed to meet the program’s

obligations. The second two issues concern CERCLA interaction at specific site types: abandoned

hardrock mines and animal feeding operations.

Superfund Trust Fund and Taxes38

In February 2002, controversy erupted over the Bush Administration’s proposal not to request

renewal of the Superfund taxes in its FY2003 budget submission39—a decision repeated in its

submissions for FY2004 through FY2008. Congress has concurred with the Administration’s

position and chosen not to renew the Superfund taxes.

The tax authority expired in 1995, but the fund’s balance remained positive until FY2003.

Without dedicated taxes, and with a relatively small balance in the trust fund, Congress has been

using general revenues for a larger percentage of cleanup funds. Although several Members of

Congress have introduced bills to reinstate the taxes during these years, such efforts have lacked

the necessary support.

CERCLA established the Superfund program and its trust fund in 1980. Although General

Treasury revenues have provided some support for the program since its inception,40 the trust

fund traditionally provided most of the funding for the Superfund program. Congress raised trust

fund revenues primarily through excise taxes on the petroleum and chemical industries, and a

P.L. 104-19 (an FY1995 appropriations bill) directed EPA to obtain a letter of concurrence from the governor of a

state prior to listing a site in that state on the National Priorities List. P.L. 104-134 (an FY1996 appropriations bill)

provided similar direction. EPA, as a matter of policy to further enhance the role of states in the Superfund program,

continues to request a governor’s letter of concurrence prior to NPL listing.

Environmental Law Institute, 2002, An Analysis of State Superfund Programs: 50-State Study, 2001 Update, p. 13.

For a more comprehensive discussion, see CRS Report RL31410, Superfund Taxes or General Revenues: Future

Funding Issues for the Superfund Program, by (name redacted), (name redacted), and (name redacted).

The Administration had not requested renewal of the taxes in its FY2002 budget submission either, but the issue did

not become particularly contentious, in part, perhaps, because the fund had a larger balance at the time.

From FY1991-FY1995—the five year period prior to the expiration of the Superfund taxes—General Treasury

revenues contributed approximately 17% of the total revenues supporting the Superfund Trust Fund.

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corporate environmental income tax. These dedicated taxes sustained the trust fund until the

taxing authority expired December 31, 1995. Since 1995, efforts to reinstate the taxes have not

succeeded.

At the end of FY1996, the trust fund reached a peak balance of $3.8 billion (see Figure 2).

Without a consistent source of funding, the balance dwindled essentially to zero by the end of

FY2003.41 The annual budgets have compensated for the lack of dedicated tax revenue by

increasing the contribution from the general fund of the U.S. Treasury. In fiscal years 2004-2007,

virtually the entire Superfund program was funded through General Treasury revenues

appropriated by Congress. The FY2008 budget request followed this course, proposing to fund

the vast majority of the $1.24 billion requested appropriation from General Treasury revenues.

Figure 2. Superfund Trust Fund, Beginning Year Balance, FY1994-FY2007

Source: Prepared by the Congressional Research Service, with information provided by OMB Budget of the

United States Government, Appendix, Fiscal Years 1996-2008.

In a majority of cases, Superfund cleanups are paid for by potentially responsible parties

(PRPs)—usually current or previous owners and/or operators of the site. According to EPA, PRPs

conduct cleanup at more than 70% of the sites on the NPL.42 At approximately 30% of the NPL

sites, either EPA cannot locate PRPs for these properties or the PRPs located do not have the

necessary financial resources to assist with cleanup. It is primarily for this group of NPL sites

The trust fund received (and continues to receive) income from interest earned, cost recoveries, and fines and

penalties, but these sources are minor compared with the previous tax revenues.

At many sites, EPA cannot immediately locate a financially viable PRP, or there are disputes among the PRPs

concerning their degree of responsibility. In such cases, the statute permits EPA to proceed with cleanup using the trust

fund’s resources, to locate PRPs after or during cleanup, and to recover the cleanup costs from PRPs at a later date.

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(often called “orphan” sites) that EPA uses funds from the trust fund to conduct cleanup activities.

In general, the current Superfund funding debate (i.e., whether a dedicated tax or General

Treasury revenues should support the trust fund) applies to this subset of NPL sites.43

Proponents of reinstating the Superfund taxes argue that the cleanup of orphan sites should rely

on taxes paid by the chemical and petroleum industries and companies that use CERCLA

hazardous substances, not ordinary taxpayers. They refer to this as the “polluter pays” principle.

When Bush Administration spokespersons indicate support for the “polluter pays” concept, they

generally mean that cleanup should be funded by the parties directly involved (i.e., PRPs) rather

than by industrial sectors or corporations that did not directly contribute to a specific site’s

contamination. Opponents of reinstating the tax argue, for example, that the tax is overreaching

and unfair, as it applies to all industry sectors and to both compliant and noncompliant

companies. Superfund tax proponents contend that in the context of federal budget deficits, it may

be difficult to maintain spending at needed levels without dedicated taxes.

Amendments to CERCLA have addressed some of the claims of unfairness. The Asset

Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996 (P.L. 104-208)

limited banks’ and other lenders’ exposure to Superfund liability at a contaminated site to the

amount of their loans. Businesses engaged in recycling were absolved of liability if they met

certain criteria showing that their activities were genuine recycling, and not shams to disguise

illegal disposal of hazardous substances (Superfund Recycling Equity Act, P.L. 106-113).

Additional limits on CERCLA liability were provided in the Small Business Liability Relief and

Brownfields Revitalization Act (P.L. 107-118), which made contributors of small amounts of

hazardous substances at an NPL site exempt from liability if the wastes were disposed prior to

April 1, 2001. Also exempted were residential property owners, small businesses, and small

nonprofit organizations that sent only municipal solid waste to NPL sites, as well as property

owners whose land abuts a Superfund site, prospective purchasers of contaminated property, and

innocent landowners.

Since the 107th Congress, legislation has been introduced that would reinstate the Superfund

taxes, but these efforts have failed. In the 110th Congress, several members, including Senate

Environment and Public Works Committee Chairman Barbara Boxer and Subcommittee on

Superfund and Environmental Health Chair Hillary Clinton, have spoken in favor of restoring the

taxes. Representative Maurice Hinchey (H.R. 1887) and Senator Robert Casey (S. 1179)

introduced companion bills that would reinstate the taxes, and for the first five years would

increase them by 50% to fund a response at “megasites” (where cleanup costs exceed $50

million) and at sites that present high health risks. Representatives Earl Blumenauer and Frank

Pallone introduced H.R. 3636, which would reimpose the taxes beginning with the date of

enactment until January 1, 2018. Representative Pallone’s H.R. 3962 would restore the taxes at

their previous rates through the end of 2015.

Although 70% of the NPL cleanups are performed by PRPs, the RFF report (chapter 5) finds there may be many

orphan sites eligible for the NPL (i.e., have a high enough HRS score) that remain unlisted for various reasons

(discussed in the NPL subsection above). Thus, one might argue that the 70%-30% ratio understates the universe of

orphan sites that need federal funding for cleanup.

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Superfund Program Funding Needs and Appropriation Levels

Related to the Superfund program funding debate is the concern that the Superfund program is

not receiving enough funding to match its annual obligations. Recent evidence indicates that

appropriations from the past several years have fallen short of program needs. If Congress

decides to increase annual appropriations without reinstating the Superfund taxes, General

Treasury revenues contribution to the program will increase, possibly conflicting with deficit

reduction goals.

As noted above, in July 2001, Resources for the Future (RFF) released a comprehensive study,

mandated by Congress,44 that estimated future program needs for fiscal years 2000-2009. RFF

calculated that the base case program needs for FY2008 would be $1.7 billion. The report also

estimated a high and low case: $1.5 billion and $1.8 billion per year, respectively. RFF concluded

that funding needs would remain above $1.6 billion annually through FY2009 (using RFF’s base

case). As Figure 3 indicates, annual Superfund appropriations in recent years have consistently

been several hundred million dollars less than the funding needs projected by RFF.

Several factors contributed to RFF’s projections for increased funding needs. First, RFF

anticipated that numerous “mega sites” would move beyond the analysis and design phases and

into the actual construction and cleanup phases.45 In the RFF analysis, the cost of remedial action

at mega sites was projected to remain above historic levels through FY2007, and the cost of the

Superfund program as a whole was projected to remain above FY2001 levels through at least

FY2009 (the final year in the analysis).46

Second, EPA’s Office of Inspector General (IG) highlighted the concern that hardrock mining

sites may have a significant financial impact on the trust fund. The IG identified “156 hardrock

mining sites nationwide that have the potential to cost between $7 billion and $24 billion to clean

up.” Although the IG points out uncertainty regarding the risks to human health and the

environment at these sites,47 there is also uncertainty concerning PRPs and their ability to pay for

cleanup.48

In the FY2000 VA-HUD-Independent Agencies appropriation (P.L. 106-74) conference report, Congress directed

EPA to contract with RFF to analyze the projected federal costs of the Superfund program for the period FY2000FY2009.

“Mega sites” are sites at which the projected cleanup cost is $50 million or more. The average cost at mega sites is

projected to be $140 million. RFF Report, p. 87.

RFF Report, pp. 127, 266.

This factor is important because sites must be on the NPL to qualify for long-term cleanup (remedial) assistance from

the trust fund.

EPA Office of Inspector General, Annual Superfund Report to Congress for Fiscal Year 2004, EPA-350-R-05-001,

August 2005, p. 3.

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Figure 3. Superfund Appropriations: FY2001-FY2007 Enacted and FY2008 Requested

Versus Resources for the Future Projections of Funding Needs

(amounts in millions prior to transfers)

Sources: Prepared by the Congressional Research Service using the following sources: FY2001-FY2005 enacted

amounts are from prior year funding comparisons in committee reports on annual appropriations bills from

FY2002-FY2006; FY2006 and FY2007 enacted (FY2007 is from continuing resolutions), and FY2008 requested

amounts are from EPA’s FY2007 and FY2008 budget justifications; projected funding levels are from the

Resources for the Future report, Superfund’s Future: What Will It Cost?

There is evidence that funding shortfalls have occurred in recent years. According to an EPA IG

report, in FY2002, the EPA regional offices received no funds for seven of the sites at which the

regions requested construction funding. At five different sites, the Regions received less than half

of the total funds requested.49 In FY2003, the IG identified an additional 11 sites that could not

begin construction because of a funding shortfall, and at least 5 other sites that did not receive

their full funding request in that year.50 Although the IG did not report on the subject in FY2004,

a survey of EPA staff by the House Energy and Commerce Committee Democratic staff found a

reported shortfall of $263.1 million.51 EPA challenged some of the committee data but confirmed

Letter of October 25, 2002, from Nikki L. Tinsley, EPA Inspector General, to Senator James Jeffords, Chairman,

Committee on Environment and Public Works, and Senator Barbara Boxer, Chair, Superfund, Toxics, Risk, and Waste

Management Subcommittee, pp. 1-3.

U.S. EPA, Office of Inspector General, Congressional Request on Funding Needs for Non-Federal Superfund Sites,

Report 2004-P-00001, January 7, 2004, pp. 4, 8-9.

Letter from Representative John Dingell, Ranking Member of the House Committee on Energy and Commerce, to

Mike Leavitt, EPA Administrator, August 13, 2004.

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in letters to House and Senate Democrats that, due to lack of funding, it did not start construction

at 19 sites that were ready for construction in FY2004.52

Congress could increase appropriation levels to meet the increased funding needs. The

Administration notes that it requested increases in funding in both its FY2004 request for $1.39

billion and its FY2005 request for $1.38 billion, which Congress did not provide. Congress cut

the FY2004 and FY2005 requests by $132 million and $134 million, respectively. Although the

Administration’s request in FY2006 ($1.28 billion) was lower compared with previous years,

Congress cut the proposal by $40 million, enacting $1.24 billion. The Administration requested

$1.26 billion for FY2007, a $20 million decrease from its previous request, but $20 million above

the amount enacted by Congress in FY2006 (See Figure 4). The 109th Congress adjourned

without finalizing FY2007 appropriations for EPA, but it enacted a continuing resolution (P.L.

109-383, H.J.Res. 102) to provide funding through February 15, 2007. Pursuant to the formula

provided in the continuing resolution, the Superfund program will continue to receive funding

consistent with the FY2006 enacted appropriation. 53 For FY2008 the Administration has

requested $1.24 billion.

Given RFF’s projected funding needs for the Superfund program and the relatively minimal

amounts available to the fund from sources other than general revenues, Congress will face

competing interests if it attempts to appropriate all of Superfund’s needs. RFF estimates that

General Treasury revenue contributions as high as $1.5 billion per year would be needed to

finance Superfund through the rest of the decade in the continued absence of Superfund taxes.

This could prove difficult in light of current federal deficits and other funding priorities.

See Letter from Mike Leavitt, EPA Administrator to Representative John Dingell, Ranking Member of the House

Committee on Energy and Commerce, October 14, 2004. See also “FY04 Cleanup Delays Renew Democrats’ Criticism

of Superfund Budget,”Inside EPA Superfund Report, October 25, 2004. The data in the article were confirmed by EPA

in a personal communication March 3, 2005.

The funding formula sets continuing appropriations for programs and activities generally at either the current

(FY2006) level, the level in the pertinent House-passed bill, or the level in the Senate-passed bill, whichever is lowest.

On May 18, 2006, the House passed the FY2007 Interior, Environment, and Related Agencies appropriations bill (H.R.

5386, H.Rept. 109-465) providing a total of $1.26 billion for EPA’s Superfund account (prior to transfers to other

accounts). This is $14.8 million more than the FY2006 enacted amount. The Senate did not pass a bill, thus under the

continuing resolution, funding will continue at FY2006 levels.

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Figure 4. Administration Budget Request Versus Enacted Superfund Appropriation,

FY2004-FY2008

Sources: Prepared by the Congressional Research Service using data from the following sources: FY2004FY2005 enacted amounts and FY2004-FY2006 requested amounts are from prior year funding comparisons in

committee reports on annual appropriations bills from FY2004-FY2006; FY2006 enacted amount and FY2007

and FY2008 amounts are from EPA’s FY2007 and FY2008 budget justifications.

Abandoned Hardrock Mines

Although CERCLA liability is a powerful tool for EPA to drive cleanup of contaminated sites, the

threat of CERCLA liability may act as a cleanup disincentive at abandoned hardrock mines.

There are thousands of inactive or abandoned hardrock mines in the United States. As discussed

previously, the number of hardrock mining sites listed on the NPL in future years, particularly

those without identifiable PRPs, could play an important role in the Superfund funding debate.

This section examines the interaction between CERCLA and contaminated hardrock mines.

Background

Hardrock mining involves the extraction of metals found in the earth’s hard formations.54

Although the raw materials generated are essential to the U.S. economy, the hardrock mining

process creates vast quantities of waste materials.55 EPA’s Toxic Release Inventory (TRI) data

Hardrock mining includes gold, silver, copper, and other metals, but not coal.

For example, in 1992, gold and copper mining in the United States generated 1.2 billion metric tons of waste

materials. In contrast, approximately 200 million metric tons of municipal solid waste are produced annually. U.S.

EPA, 1997, National Hardrock Mining Framework, Appendix A, at A-1, at http://www.epa.gov/superfund/programs/

aml/policy/hardrock.pdf.

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show that the metal mining industry consistently leads other industry sectors in total annual

releases of TRI chemicals.56

Hardrock mining played a central role in the development of the American West. However, as

mining sites became uneconomical, mines were closed or the owners simply walked away. The

precise number of inactive or abandoned mines is unknown.57 Though arguably a conservative

estimate,58 EPA states that there are 200,000 inactive or abandoned mines throughout the

country.59 The actual number of sites that pose a threat is also unknown. Estimates vary, and they

seem to depend on how a threat is classified. For example, the Western Governors Association

estimated that approximately 20% of abandoned mine lands (AMLs)60 may present a “concern” to

water quality, public safety, or both.61 In its 1997 report, EPA found that only a small percentage

of AMLs “contribute significantly” to threats to human health or the environment, but the

aggregate impact is substantial, with many localized areas suffering serious environmental

impacts. In 2002, an EPA team found that 5%-10% of the abandoned mines across the country

may pose a “real environmental and health risk.”

Mining Sites and the National Priorities List

CERCLA provides EPA with the authority to address environmental contamination (e.g., acid

mine drainage) at AMLs.62 Pursuant to CERCLA authority, EPA has completed or overseen

removal actions at 74 hardrock mining sites.63 EPA has listed at least 88 hardrock mining sites on

the NPL.64 At least 17 of these mines are considered mega sites, with cleanup costs over $50

million at each site.

Considering the large universe of AMLs, one might question why such a small percentage of the

sites are listed on the NPL. There are several factors, particular to the mining industry, that may

explain this. First, AML ownership often goes back more than 100 years and involves numerous

private and public entities. Thus, the identification of PRPs is especially complex at mining

See TRI Public Data Releases at http://www.epa.gov/tri/tridata/index.htm.

For more information on inventory efforts, see, for example., GAO, 1996, Federal Land Management: Information

on Efforts to Inventory Abandoned Hardrock Mines, GAO/RCED-96-30, available at http://www.gao.gov/archive/

1996/rc96030.pdf.

The Mineral Policy Center places the number at approximately 500,000 (see http://www.mineralpolicy.org/

AbandonedMineLegacy.cfm). Though it is often quoted, the 1996 GAO report and others find fault with the Mineral

Policy Center’s estimate.

U.S. EPA, 1997, National Hardrock Mining Framework, p. 2, at http://www.epa.gov/superfund/programs/aml/

policy/hardrock.pdf; U.S. EPA Office of Inspector General, 2004, Nationwide Identification of Hardrock Mining Sites,

Report No. 2004-P-00005, p. 4.

Most groups use the phrase “abandoned mine lands” (AMLs), but several sources describe the sites as “inactive or

abandoned mines” (IAMs). In general, these terms seem to be interchangeable, though AMLs include land that is

contiguous to the mine proper.

Western Governors Association, 1998, Cleaning Up Abandoned Mines: A Western Partnership, p. 5, available at

http://www.westgov.org/wga/publicat/miningre.pdf.

CERCLA § 104 (Response Authorities).

See EPA’s abandoned mine lands CERCLIS inventory at http://www.epa.gov/superfund/programs/aml/amlsite/

removal.htm.

For EPA’s list of AMLs on the NPL (as of April 2005), see http://www.epa.gov/superfund/programs/aml/amlsite/

npl.htm.

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sites.65 Second, the average cleanup cost—about $22 million—at a non-mega mining site is more

than double the average cost of non-mega sites in other industries. Cleanup activities at mega

mining sites can cost hundreds of millions of dollars. Third, states may provide some resistance to

Fund-led (i.e., sites without PRPs) cleanup at mining sites, because the Superfund statute requires

the state to pay 10% of the remedial costs and 100% of operation and maintenance costs.66 At

mining sites, these costs could be significant and last for an indefinite period of time. 67

On the other hand, several factors may lead EPA and the states to increase the number of AMLs

on the NPL. For instance, growing populations in the West, due either to business development or

purchases of second homes, may bolster the pressure to remove contamination from local water

sources. Moreover, CWA requirements may provide further pressure to address the pollution from

AMLs. Section 303(d) of the Clean Water Act requires states to identify pollutant-impaired water

segments and develop “total maximum daily loads” (TMDLs) that set the maximum amount of

pollution that a water body can receive without violating water quality standards.68

Federal Land Issues

As with the total number of inactive or abandoned mines, the precise number of these mines on

federal lands is unknown. 69 The federal government owns a substantial percentage of the land in

the western states,70 and many of the AMLs are on federal land. CERCLA prohibits the use of

trust fund dollars at federally owned facilities.71 Federal land managers may need to clean up the

site with funds from their own budget, if the federal government is considered the owner of the

abandoned mine.

Good Samaritan Issues

The term “good samaritan” refers to parties (e.g., government agencies, nonprofits, and

corporations) that attempt to clean up abandoned mines for which the parties have no legal

responsibility. In most cases, these parties have a vested interest in cleaning up the contaminated

mines and are not acting purely for altruistic reasons, as the term “good samaritan” might imply.

Some stakeholders believe that the threat of CERCLA liability72 serves as a disincentive to good

At the start of EPA’s enforcement-first policy in FY1991 through FY1998, only 33% of remedial action at mining

sites was performed by PRPs. In contrast, the same measurement at other site types (chemical manufacturing, oil

refining, etc.) was generally doubled, ranging from 56% to 89%. Probst, p. 216.

CERCLA § 104(c)(3).

RFF Report, p. 92.

For more information on the TMDL program, see CRS Report 97-831, Clean Water Act and Total Maximum Daily

Loads (TMDLs) of Pollutants, by (name redacted).

For various agency efforts on this calculation, see GAO, 1996, Federal Land Management: Information on Efforts to

Inventory Abandoned Hardrock Mines, GAO/RCED-96-30.

The Bureau of Land Management and the Forest Service own almost 40% of the land in the 12 western states.

National Research Council, 1999, Hardrock Mining on Federal Lands, p. 19.

CERCLA § 111(e)(3).

CWA liability is also a concern for Good samaritans. For more information regarding the CWA, see CRS Report

RL30030, Clean Water Act: A Summary of the Law, by (name redacted). For a discussion regarding CWA liability at

abandoned mines, see, for example, McAllister, Sean, 2003, “Unnecessarily Hesitant Good Samaritans: Conducting

Voluntary Cleanups of Inactive and Abandoned Mines Without Incurring Liability,” 33 Environmental Law Reporter

10245, at http://www.restorationtrust.org/goodsam.pdf (hereafter “McAllister, 2003”).

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samaritan groups who might offer cleanup assistance. Under CERCLA’s joint and several

liability, EPA can hold one PRP responsible for the entire site cleanup. Under the statute’s broad

liability structure, good samaritans could potentially become liable as site owners, operators, or as

persons who arrange for the disposal of a hazardous substance. 73 For example, good samaritans

who conduct remediation activities, such as the treatment of acid mine drainage, might be

considered a site operator. Many groups argue74 that the threat of CERCLA liability creates a

chilling effect, discouraging volunteer cleanup at abandoned mining sites. These parties have

called for federal legislation that would provide good samaritans with protection from

Superfund’s liability scheme.

In general, most parties support the concept of encouraging good samaritan assistance at AMLs.

However, some environmental groups are concerned about providing exemptions from

CERCLA’s liability, pointing out that the strong liability provisions often drive cleanup at mining

sites.75 Furthermore, some argue76 that the Superfund statute already provides liability protection

for good samaritans. CERCLA § 107(d) (often referred to as the “good samaritan provision”)77

might allow good samaritans to provide cleanup assistance at the direction of EPA, without the

threat of liability.

The Small Business Liability Relief and Brownfields Revitalization Act of 2002 (P.L. 107-118),

which amended portions of Superfund, added the “bona fide prospective purchaser” (BFPP)

exemption. 78 This provision allows parties to purchase contaminated property without accepting

the liability for historical contamination, notwithstanding that they knew of the contamination

when they purchased. The BFPP exemption is conditional.79 For example, BFPPs must take

“reasonable steps” to (1) stop continuing releases, (2) prevent threatened future releases, and (3)

prevent or limit human, environmental, or natural resource exposure to earlier hazardous

substance releases.80 Thus, BFPPs may need to address the releases related to the actions of

former owner/operators. Regarding this issue, EPA stated:

Congress did not intend to create, as a general matter, the same types of response obligations

that exist for a CERCLA liable party (e.g., removal of contaminated soil, extraction and

treatment of contaminated groundwater).... Nevertheless, it seems clear that Congress also

did not intend to allow a landowner to ignore the potential dangers associated with hazardous

substances on its property. [Emphasis in original.]81

CERCLA § 107(a). See also Testimony of Assistant Administrator for Water, U.S. EPA, Benjamin Grumbles, in

U.S. Congress, House Subcommittee on Water Resources and the Environment, 109th Cong., 2nd sess., March 30, 2006.

See, for example, Testimony of Administrator of Colorado Water Quality Control Commission, Paul Frohardt, in

U.S. Congress, House Subcommittee on Water Resources and the Environment, 109th Cong., 2nd sess., March 30, 2006.

See, for example., Testimony of Velma Smith, Senior Policy Associate with the National Environmental Trust, in

U.S. Congress, House Subcommittee on Water Resources and the Environment, 109th Cong., 2nd sess., March 30, 2006.

See, for example, McAllister, 2003, 10245; Kodish, Jeffrey, 2002, Addendum: Restoring Inactive and Abandoned

Mine Sites: A Guide to Managing Environmental Liabilities, at http://www.restorationtrust.org/legalguides.htm.

See, for example, Kodish, Jeffrey, 2002, Restoring Inactive and Abandoned Mine Sites: A Guide to Managing

Environmental Liabilities, p. 115, at http://www.restorationtrust.org/legalguides.htm., and McAllister, 2003, p. 10256.

CERCLA §§ 101(40), 107(r).

For a more legal analysis of the BFPP provision and other liability defenses, see CRS Report RL31911, “Innocent

Landowners” and “Prospective Purchasers” Under the Superfund Act, by (name redacted).

CERCLA § 101(40)(D).

Memorandum from Susan Bromm, Director of EPA’s Office of Site Remediation and Enforcement, to Regional

Directors, “Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective

(continued...)

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Regardless of the opportunities for avoiding liability, interested parties argue that the threat of

Superfund liability remains. In a general sense, good samaritans may be uncertain how EPA

would apply the BFPP provisions at a particular mining site. 82 This uncertainty is perhaps

amplified due to the possibility of citizen suits, which may occur if environmental or community

groups disagree with an agency’s interpretation or application of the law.83

Legislation

Four good samaritan bills were introduced in the 109th Congress. None of the bills received

committee action, although the House Transportation and Infrastructure, Water Resources and

Environment Subcommittee held an oversight hearing on hardrock mine cleanup and good

samaritans on March 30, 2006. No bills have been introduced in the 110th Congress. For more

information, see CRS Report RL33575, Cleanup at Abandoned Hardrock Mines: Issues Raised

by “Good Samaritan” Legislation in the 109th Congress, by (name redacted) and (name redacted).

Releases from Animal Feeding Operations84

In the United States, there are approximately 238,000 animal feeding operations (AFO)—

agriculture enterprises where animals are kept and raised in confinement. Animal waste from

these operations generates several chemicals (e.g., ammonia, hydrogen sulfide, and phosphorous)

that are listed as CERCLA hazardous substances. CERCLA requires facilities to report hazardous

substance releases into the environment, including ambient air, that are above reportable

quantities (RQ).85 The RQ for hydrogen sulfide and ammonia is 100 pounds per day; the RQ for

phosphorous is 1 pound per day. 86

In recent years, there have been questions as to how CERCLA applies to animal feeding

operations. For example, are AFOs required to report ammonia air emissions as releases under

CERCLA, and if so, how should the releases be counted in regards to the RQ? Several federal

courts have addressed this particular issue by examining the CERCLA definition of “facility.”87

Instead of counting each barn, lagoon, or land application area as separate facilities, these courts

have ruled that the entire site should be considered a facility for purposes of CERCLA. Under this

interpretation, large AFOs (referred to as concentrated animal feeding operations, or CAFOs)

will be more likely to breach the reportable quantity levels because multiple release locations at a

given site will be aggregated.

(...continued)

Purchaser, Contiguous Property, or Innocent Landowner Limitations on CERCLA Liability (“Comment Elements”),”

March 6, 2003, p. 9.

For example, what are “reasonable steps” under the BFPP exemption?

CERCLA § 310.

For further discussion, see CRS Report RL33691, Animal Waste and Hazardous Substances: Current Laws and

Legislative Issues, by (name redacted).

The Emergency Planning and Community Right to Know Act (EPCRA, P.L. 99-499, USC §§ 11001-11050) also

contains reporting provisions. Facilities must report to state and local officials any releases greater than the reportable

quantity of a CERCLA hazardous substance or an “extremely hazardous substance” under EPCRA.

40 CFR § 302.4.

See Sierra Club v. Seaboard Farms, 387 F.3d 1167 (10th Cir. 2004); Sierra Club v. Tyson Foods, 299 F. Supp. 2d

693, (W.D. Ky. 2003).

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At a hearing before the House Appropriations Subcommittee on Interior, Environment, and

Related Agencies on February 28, 2007, EPA Administrator Stephen Johnson testified that the

Agency was developing a regulation to exempt CAFOs from Superfund mandates to report air

emissions. He said this would be a “very narrow regulation.”88

Another question concerns CERCLA liability for manure that reaches water bodies (via erosion

or leaching into groundwater).89 Manure is often applied to the land as fertilizer, but CERCLA

excludes the “normal application of fertilizer” from the definition of release. 90 Interested parties

have argued that some AFOs are taking advantage of this exclusion by applying more manure to

the land than is necessary. In the past three years, two federal district courts have looked into this

matter, but both cases were settled. The terms of the settlements were not made public, and the

settlements effectively ended the court proceedings without a formal ruling on the CERCLA

applicability issues.91 However, a third case92 involving this issue is currently in the federal

system.

This court activity has increased concern in the agricultural community that other legal actions

will follow, and that the courts will continue to apply CERCLA to AFOs. This concern has led to

recent congressional interest. Members in the 109th Congress made several attempts to exempt

manure from the requirements of CERCLA. Although one of these legislative proposals (H.R.

4341) gained considerable support (191 co-sponsors), the proposals also generated opposition

from environmental groups and state and local governments. None of the bills were enacted. In

the 110th Congress, H.R. 1398 and S. 807 follow a similar approach. There has been no action on

either bill. Senator Blanche Lincoln submitted Senate Amendment 1556 to the energy bill, H.R. 6,

on June 13, 2007; it would have added an exemption for manure from the definitions of

“hazardous substance” and “pollutant or contaminant,” and would have provided exceptions from

other provisions of CERCLA. However, during debate the amendment was not offered. H.R. 6

passed the Senate on June 21, 2007.

Conclusion

Superfund issues, such as the four described above, continue to generate debate and interest. The

selected topics discussed in this report are not mutually exclusive; activity in one of the issues

may influence policy in another. For example, if more abandoned hardrock mining sites are added

to the NPL, Congress may consider increasing annual appropriations to the Superfund program.

This action could affect the argument concerning who should pay for the program. Similarly,

CERCLA’s level of application to animal feeding operations could affect the use of agency

“EPA Plans Exemption for CAFO Emissions from Superfund Reporting,” Inside EPA.com, February 28, 2007. As of

October 21, 2007, the regulation had not been proposed.

Data collected for the EPA’s 2000 National Water Quality Inventory identify agriculture as the leading contributor to

water quality impairments in rivers and lakes and the fifth leading contributor to impairments in the nation’s estuaries.

Animal feeding operations are only a subset of the agriculture category, but 29 states specifically identified animal

feeding operations as contributing to water quality impairment.

CERCLA § 101(22).

See City of Waco v. Schouten, W.D. Tex., No. W-04-CA-118 (settled January 17, 2006); City of Tulsa v. Tyson

Foods, Inc., N.D. Okla., No. 01-CV-0900-EA (settled July 16, 2003).

Oklahoma v. Tyson Foods, Inc., N.D. Okla., 4:05-CV-329 (filed June 13, 2005). The case is expected to come to trial

in 2009, according to the Oklahoma Attorney General’s office. “Oklahoma AG’s Vow Fails to Limit Industry Fears

Over CAFO Waste Suit,” Water Policy Report, September 17, 2007, viewed at InsideEPA.com, October 22, 2007.

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resources in the future. If more sites fall under the CERCLA umbrella, finite agency resources

may be strained, thus further fueling a debate over Superfund taxes and funding levels.

Author Contact Information

(name redacted)

Analyst in Environmental Policy

[redacted]@crs.loc.g

ov, 7-....

Congressional Research Service

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