SuperfundPrepared by Mark Reisch, Analyst in Environmental Policy,
CONTENTS FOR THIS SECTION
Table 1. Superfund and Amendments
The Fund And Taxes
Table 2. Superfund Revenue, Fiscal Year 1991 to 1995
Responding To Releases
Liability and Financial Responsibility
The Superfund hazardous substance cleanup program was created by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, P.L. 96-510, enacted December 11, 1980). It was enlarged and reauthorized by the Superfund Amendments and Reauthorization Act of 1986 (SARA, P.L. 99-499). CERCLA, as amended, is codified as 42 U.S.C. 9601-9675. The law's taxing authority was extended through December 31, 1995, by the Omnibus Budget Reconciliation Act of 1990 (OBRA, P.L. 101-508). The program was authorized at $1.7 billion per year through FY1991 by SARA, and through FY1994 by OBRA. Targeted amendments in 1992 and 1996 (P.L. 102-426 and P.L. 104-201) addressed transferring of contaminated defense sites; another 1996 amendment (P.L. 104-208) amended CERCLA to protect lenders.
Table 1. Superfund and Amendments(codified generally as 42 U.S.C. 9601-9675)
|Year||Act||Public Law Number|
|1980||Comprehensive Environmental Response, Compensation, and Liability Act of 1980||P.L. 96-510|
|1986||Superfund Amendments and Reauthorization Act of 1986||P.L. 99-499|
|1990||Superfund extension||P.L. 101-508,
§ 6301, 11231
|1992||Community Environmental Response Facilitation Act||P.L. 102-426|
|1996||Asset Conservation, Lender Liability and Deposit Insurance Protection Act||P.L. 104-208, division A, title II, subtitle E|
|1996||Defense Authorization Act of Fiscal Year 1997||P.L. 104-201, §334|
CERCLA authorizes the federal government to respond to spills and other releases (or threatened releases) of hazardous substances, as well as to leaking hazardous waste dumps. Hazardous substances are identified under the Solid Waste Disposal Act, the Clean Water Act, the Clean Air Act, and the Toxic Substances Control Act, or are designated by the Environmental Protection Agency. Response is also authorized for releases of "pollutants or contaminants," which are broadly defined to include virtually anything that can threaten the health of "any organism." Most nuclear materials and petroleum are excluded, except for those petroleum products that are specifically designated as hazardous substances under one of the laws mentioned above. The fund is not to be used for responding to: (1) releases of naturally occurring unaltered substances; (2) releases from products which are part of the structure of residential buildings, businesses, or community structures (such as asbestos); or (3) releases into drinking water supplies due to ordinary deterioration of the water system. An exception to these three limitations is made, however, in cases of public health or environmental emergencies when no other person has the authority and capability to respond in a timely manner. EPA is to give priority to releases that threaten public health or drinking water supplies.
The Fund And Taxes
The Hazardous Substances Superfund Trust Fund was first established at $1.6 billion for the 1980-1985 period. Revenues were raised primarily by taxes on crude oil and on 42 chemicals; one-eighth of the total was authorized from the General Fund of the Treasury.(2) The taxation authority expired on September 30, 1985, and to keep the program running during 1986 (while SARA was debated in the conference committee), Congress authorized two repayable advances, later repaid, to the fund: $150 million was loaned in April, and an additional $48 million was made available in August.
For the 1987-1991 period, SARA funded the program at $8.5 billion. As previously noted, these taxes were extended through 1995 at the same rate of $1.7 billion annually. Table 15 summarizes Superfund's revenue sources for the last 5 full fiscal years. (The excise taxes on crude oil and chemicals, and the corporate environmental income tax ceased on December 31, 1995.)
Table 2. Superfund Revenue, Fiscal Year 1991 to 1995
|Chemical Feedstocks Tax *||1.275||14.0|
|Corporate Environmental Tax||3.121||34.3|
|Cost Recoveries from Responsible Parties||0.901||9.9|
|Fines and Penalties||0.011||0.1|
|Interest on Investments **||0.998||11.0|
Source: Funds Management Division. U.S. Treasury Department. Hazardous Substances Superfund Trust Fund, 20X8145, Income Statement (monthly reports). Compiled by CRS.
* Includes tax on imported chemical derivatives.
** Includes accrued interest on investments.
All of the taxes went into effect on January 1, 1987, except the tax on imported chemical derivatives which began on January 1, 1989. It was also extended through 1995.
The tax on petroleum, previously 0.79 cents per barrel according to the 1980 law, was increased to 8.2 cents per barrel for domestic crude oil, and to 11.7 cents per barrel on imported petroleum products by the 1986 amendments. After a challenge by several countries before an investigative panel of the General Agreement on Tariffs and Trade, this tax was changed to 9.7 cents a barrel, regardless of source (P.L. 101-221).
With the exception of xylene, the taxes on the 42 organic and inorganic feedstock chemicals, which range from $0.22 to $4.87 per ton, were reimposed by SARA at their former rates. Xylene had been the subject of a controversial Treasury Department ruling having to do with separated isomers of the chemical and the point of taxation. SARA allowed all those who previously paid the tax on xylene to apply for a refund, with interest. To compensate for the lost revenues, the tax on xylene was increased from $4.87 to $10.13 per ton.
Certain chemicals listed in the tax table are exempt from payment of the tax when used for specified purposes, or when produced in certain ways. Thus, methane and butane are excused from the tax when used as fuel, as are substances used in the production of fertilizer. Also exempted are sulfuric acid when produced as a byproduct of air pollution control, and any chemicals derived from coal.
Two new taxes were imposed by the 1986 law. Imported chemical derivatives are taxed at a rate equal to the amount which would have been imposed on the feedstocks used in the manufacture of the derivative if the feedstocks had been sold in the United States for that purpose. If the importer does not furnish sufficient information to compute the tax in that manner, the tax is 5% of the customs value of the import. Fifty chemical derivatives are listed in the law. The Secretary of the Treasury is to add to this list any derivative made from taxable feedstocks, if the feedstocks make up more than 50% by weight of the raw materials used to produce the substance. The Secretary may also add other substances to the list if taxable feedstocks comprise more than 50% of the value of the raw materials used to make them. For the same reasons, the Secretary may remove substances from the list as well. As of August 1994 there were 113 chemicals on the list, including the 50 designated in the law. This tax went into effect on January 1, 1989, and was extended through 1995.
The other tax added by SARA in 1986 is the corporate environmental income tax, which is based on the alternative minimum income tax system of the Tax Reform Act of 1986. The tax is 0.12% ($12 per $10,000) of taxable income in excess of $2 million, and is imposed on corporations.
In addition to taxes and appropriations, the fund receives reimbursements from polluters for cleanup and other response costs under this Act and under section 311 of the Clean Water Act, plus any penalties and punitive damages assessed under other provisions of CERCLA.
Responding To Releases
The procedures to be followed in responding to hazardous substance releases are detailed in the National Contingency Plan (40 CFR Part 300). The Environmental Protection Agency (EPA) is the lead agency, except for spills in coastal areas and inland waterways, where the Coast Guard assumes responsibility.
There are two types of governmental response: (1) short-term removals, where emergency action is required (for example, to avert fire or explosion, or to prevent the imminent contamination of a water body); and (2) long-term remedial actions taken at sites on the National Priority List. Removals are limited to a 1-year effort and the expenditure of not more than $2 million. Remedial actions are of a longer term, are more expensive, and frequently involve extensive engineering at the sites.
To ensure that the most serious sites are addressed, the law calls for a National Priority List (NPL) to be assembled. EPA developed a Hazard Ranking System (HRS) to construct the NPL, which scores such factors as the quantity and nature of hazardous wastes present; the likelihood of contamination of ground water, surface water, and air; and the proximity of the site to population and sensitive natural environments. As of September 1998, the NPL contained 1,260 proposed and final sites. The total listed since the beginning of the program is 1,370, of which construction has been completed at 535 (39%); 176 sites have been removed from the NPL.
Before remedial action is undertaken at sites where Superfund money is used, the state must assure (1) that it will provide future maintenance of the site (in cases of ground or surface water cleanup, the 100% state maintenance requirement is delayed for 10 years); (2) that off-site disposal capacity is available, if necessary; and (3) that it will pay 10% of the costs of remedial action, or, if the site was owned or operated by the state or a local government at the time of disposal, that it will pay at least 50% of the costs.
Liability and Financial Responsibility
In general, waste generators, transporters who select the disposal site, and disposal facility owners and operators are liable for response costs and for damage to natural resources. Limits to liability are set as follows: (1) for vessels (except incineration vessels) carrying hazardous substances as cargo or residue, the greater of $300 per gross ton or $5 million; (2) for other vessels (except incineration vessels), the greater of $300 per gross ton or $500,000; (3) for motor vehicles, aircraft, pipelines, or rolling stock, $50 million or a lesser amount set by regulations, but in no event less than $5 million; and (4) for incineration vessels and for any other facility not specified in (3), the total of all costs of response plus as much as $50 million for any damages. The Act does not impose liability for victims of exposure to hazardous substances. Generally speaking, such victims must seek restitution for damages in state courts.
EPA's enforcement costs are collectible from potentially responsible parties (PRPs), as well as its cleanup costs. There are no limits to liability if the hazardous substance release is due to misconduct; negligence; violation of any safety, construction, or operating standards or regulations; or when cooperation and assistance requested by a public official in connection with response activities is denied. Triple punitive damages may be imposed for failure to comply with a cleanup order without sufficient cause. All federal agencies are subject to the Act.
Owners and operators of vessels and facilities are required to show evidence of financial responsibility (such as insurance). For vessels exceeding 300 gross tons (except non-self-propelled barges not carrying hazardous substances as cargo) such financial responsibility is to be the greater of $300 per gross ton or $5 million. For facilities, the amount is $1 million per occurrence, with an annual aggregate of $2 million for sudden accidental events. For non-sudden accidents coverage must be at least $3 million per occurrence, with an annual aggregate of $6 million.
The 1986 law added a provision limiting insurance companies' liability to the amount of coverage specified in the policy. Previously, some courts had held them liable for higher amounts. SARA also authorized companies to form "risk retention groups" as a means of insuring themselves (Title IV).
The 104th Congress passed the "Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996,"(3) amending CERCLA to protect lenders and fiduciaries from liability so long as they do not participate in the management of a facility contaminated with hazardous substances. Lenders at times have incurred liability after foreclosing on a contaminated property. This law details what actions a lender may take, which include activities related to his financial interest, and responding appropriately to the hazardous substance release. A fiduciary's liability is limited to the value of the assets held in trust, provided the fiduciary did not cause or contribute to the hazardous substance release.
CERCLA created the Agency for Toxic Substances and Disease Registry (ATSDR) in the Public Health Service to carry out the health-related authorities in the Act. ATSDR is to maintain a registry of persons exposed to toxic substances; maintain an inventory of literature, research, and studies on the health effects of toxic substance contamination; provide medical care and testing in cases of public health emergencies; and periodically conduct surveys and screening programs to determine the relationship between exposure to toxic substances and illness. Facilities of the Public Health Service are to be made available to exposed persons in cases of public health emergencies.
SARA created new duties for ATSDR. The Agency and EPA were to prepare a list of at least 275 of the hazardous substances most commonly found at NPL sites. ATSDR is to prepare toxicological profiles of these substances at a rate of at least 25 per year. Where there is insufficient information on a substance, ATSDR is to conduct research. The costs of the research program are to be borne by the manufacturers and processors of the hazardous substances in question, in accordance with procedures promulgated under the authorities of the Toxic Substances Control Act, and the Federal Insecticide, Fungicide, and Rodenticide Act.
The ASTDR must perform a health assessment at each facility within 1 year of its proposal for listing on the NPL. The health assessments are to assist in determining whether or not to take additional steps to reduce human exposure to hazardous substances, and whether to gather additional information through, for example, epidemiological studies or health surveillance programs. Citizens may petition ATSDR for a health assessment if they have been exposed to a hazardous substance. ATSDR is to provide consultations to EPA, and to state and local officials as requested, on health issues related to hazardous substances.
Because of slow cleanup progress, SARA set deadlines for commencing specified numbers of site inspections, rankings for the National Priorities List, remedial investigations and feasibility studies (RI/FSs), and physical on-site work through November 1990. Those targets have all been surpassed.
In general, cleanups must assure protection of health and the environment, and be cost-effective in both the long-term and the short-term. SARA requires that cleanups meet the standards of federal and state environmental laws, but EPA may waive a requirement when:
The law specifically requires cleanups to meet the Safe Drinking Water Act's recommended maximum contaminant levels (RMCLs), and the Clean Water Act's water quality criteria. The Agency is directed to choose permanent remedies when possible, as opposed to burying wastes in landfills. If a nonpermanent treatment is employed, EPA must review the site every 5 years to see if it presents a threat. States are given the opportunity for an active role in choosing the cleanup method.
Footnotes1. Prepared by Mark Reisch, Analyst in Environmental Policy, Environmental Protection Section, Environment and Natural Resources Policy Division.
2. Appropriations actually comprised 10.6% of the total.
3. Public Law 104-208, the Omnibus Appropriation Act of 1996. The language of the Asset Conservation ... Act is found in division A, title II, subtitle E.