Superfund progress drops off under Bush

Introduction

By every significant measure, the pace of the Superfund program’s progress and success in cleaning up the nation’s worst toxic waste sites has declined in the past six years — and the decline has sparked a heated political debate.

Several former Clinton administration officials, environmental activists and Superfund experts blame the decline on a shrinking Superfund budget and lack of institutional will in the Bush White House to commit resources and energy to the cleanup.

Bush administration officials, industry lawyers, and other experts, however, say the number of sites being cleaned up has dropped because the easy sites have been done, picked off like “low-hanging fruit,” by the previous administration. The ones that remain, according to the Environmental Protection Agency, which administers Superfund, are bigger and more complex and will cost more to fix.

In a yearlong investigation of Superfund, the Center for Public Integrity has found:

• The number of sites declared “construction complete” in the six Clinton years averaged 79, while that average dropped to 42 a year under the Bush administration. Construction complete is reached when all the cleanup remedies have been installed at a site, although it sometimes takes years for the pollution to be eliminated and for such a site to be removed from the Superfund list.Cleanup work was started at about 145 sites in the past six years under President Bush, while the startup rate was nearly three times higher during the last six years of Bill Clinton’s presidency.

• The EPA’s 2007 target for construction completions was 40 sites, but it has been scaled back to 24. The 2008 target is 30 sites, according to the EPA’s 2008 budget request.

• EPA has estimated that 70 percent of the cleanups taking place are paid for by the parties responsible for the waste, with no need for Superfund support. But the number of those cleanups has also decreased by more than 50 percent between the two administrations. From 1995 to 2000, companies conducted about 545 cleanup activities at 473 sites. From 2001 to 2006, polluters carried out 239 activities at 210 sites. (Multiple cleanup actions often take place at one site.)

• In cases where the EPA has cleaned up sites and charged companies thought to be responsible for the pollution, the amount of money recovered by the agency peaked in the fiscal years 1998 and 1999, at about $320 million each year. By fiscal 2004, collected cost recoveries had dropped well below $100 million. In the last two fiscal years, 2005 and 2006, the EPA collected about $60 million each year.

“A corporation’s job is to make money, and when you have an expensive long-term capital investment like cleaning up Superfund sites and no one is standing there asking you to do it, then you don’t spend the money on it,” said Rena Steinzor, an environmental law professor at the University of Maryland who helped write the Superfund reauthorization amendments in 1986 when she was a congressional staffer. “And this … shows that there is no one standing there asking these companies to clean up.”

Rick Hind, legislative director of Greenpeace’s campaign against toxic chemicals, who has worked on Superfund issues since the early 1980s, agreed. “EPA is lazy and is allowing companies to drag their feet” on cleanup, he said. “Without the money in the trust fund, EPA can’t afford to maintain the pace they had in the late ’90s.”

Hind was referring to the expiration of the “polluters” tax on some industries that expired under a Republican-controlled Congress in 1995 and the depletion of the trust fund supported by the tax that paid for Superfund cleanups.

Susan Bodine, head of the Superfund program, blamed the slowdown on the characteristics of the sites.

“You have to realize that a lot of the sites that remain on the [Superfund list], the ones that are not done, have been there a long time,” she said. “A lot of them have been there since before 1991, they were there in the 1990s and they are still there now.” Including “proposed” and “deleted” sites, there are currently 1623 sites on the Superfund list.

‘Low-hanging fruit’

Michael Steinberg, an attorney at the law and lobbying firm Morgan, Lewis & Bockius, who has often represented companies responsible for Superfund sites, agreed that many of the sites cleaned up during the Clinton administration were easier to address than the remaining ones.

“During the Clinton years, in particular, the policy decision was made to … show progress by getting sites to construction complete, and they deliberately focused on the sites that could be moved to that milestone quickly,” he said.

“That was the low-hanging fruit, if you will,” Steinberg said. “Now we are left with the ones that are much more difficult, much larger, much more complicated. They are not going to move as quickly.”

John Pendergrass, who has studied Superfund as a senior attorney at the Environmental Law Institute in Washington, D.C., also agreed that “the easiest cases and possibly the biggest dollars of past costs to be recovered probably have already happened — where EPA did the work and has already recovered the money.

“That might account for some of the decrease [that the Center’s analysis found], but it surely doesn’t account for something from [$320] million down to $60 million,” he said.

Elliott Laws, an environmental lawyer who held Bodine’s position from 1993 to 1997, said current Superfund sites are not more complex. “I certainly wouldn’t accept the proposition that [the sites] we were working with were easy or the low-hanging-fruit,” Laws told the Center.Former Clinton Superfund officials are also skeptical.

“I don’t see anything [now] that is more technically complex, or more expensive,” said Kevin Matthews, who worked on Superfund program issues as a special assistant to Clinton’s EPA administrator, Carol Browner. “That is a nice sound bite, but … there is no reality to that.”

Superfund loses clout

Under Superfund, the EPA looks for what it calls “potentially responsible parties” to deal with hazards and health threats at the sites that make it to the National Priorities List. If a company refuses to clean up a site, the EPA can threaten to do the cleanup work and charge the company for that work and more, as a penalty. But the depletion of the trust fund, experts say, took away that threat.

“The federal government has unilaterally disarmed in the contest to get people to remediate these sites,” said former representative James Florio, a New Jersey Democrat who was a primary author of the original Superfund law.

Robert Spiegel, executive director of Edison Wetlands Association, a nonprofit environmental preservation group, viewed the trust fund as EPA’s leverage to get the companies to cooperate.

“It was EPA’s big stick to get the polluter to the table,” Spiegel said. Now, “since the EPA doesn’t have the funding, it has no teeth because the polluters know EPA is bluffing,” he said.

But others in the environmental community say the downturn in cleanups reflects the Bush administration’s relationship with industry.

“In a situation where you have a very pro-business, pro-industry administration, it is not surprising to see that cost recovery has gone down and that enforcement actions have gone down,” said Alex Fidis, environmental attorney with U.S. PIRG, a public-interest advocacy group.

Since the depletion of the trust fund — which reached $3.8 billion at its peak before running dry in 2003 — Superfund has had to rely on an annual appropriation of $1.2 billion to $1.3 billion in tax dollars and the decreasing amount of money the EPA recovered for cleanups from companies the EPA linked to the sites.

In the later years of his administration, Clinton tried unsuccessfully to reinstate the tax on polluters that had sustained the trust fund. While Bush did not try to revive it, he did attempt to increase the Superfund budget by $150 million in 2004. Ultimately, the Republican-controlled Congress increased the Superfund budget by $100 million.

According to a 2005 EPA Superfund accomplishments report, cleanups at nine sites were unable to begin because of funding issues. In 2006, cleanups at six sites were stalled because of funding.

In 2006, Bush called for a $7 million cut in the remedial action portion of the Superfund program, the part that pays for cleanup; in 2007, the president again called for a $7 million cut to the program as a whole.