Trump Budget Cuts Signal Increased Delays to Superfund Site Cleanups

Trump Budget Cuts Signal Increased Delays to Superfund Site Cleanups

By Dana Lyons, Staff Contributor

Communities across the country are concerned[1] that President Trump’s proposed budget will significantly delay, or even halt the cleanup of their local Superfund site, as Trump’s budget proposal would cut the EPA’s funding by 31 percent.[2] In particular, Trump’s cut includes 330 million to the federal Superfund program, roughly a third of the program’s budget from last year.[3] The goal of the budget cut is to rein in unnecessary administrative costs of the Superfund program,[4] but a historical analysis of the Superfund program reveals that these cuts will likely further delay remediation of Superfund sites across the country.

I. History

Congress enacted the Superfund program in 1980 as part of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). CERCLA provides a cause of action to sue for harm to natural resources, and under the law, damages constitute the money necessary to fully restore the resource to its original state or wholly replace the harmed resource.[5] CERCLA also created a “Superfund,” which provides money to study and remediate waste sites on Superfund’s National Priority List (NPL).[6] EPA regions submit sites to EPA headquarters for inclusion onto the NPL, and based on a variety of factors, including alternative state or federal programs that may be used to clean up the site, EPA determines whether the site will be added.[7] Once a site is added to the NPL, Superfund pays to remediate the site when the parties that caused the contamination cannot be found, or no longer exist because of insolvency. When the responsible parties are known, the EPA uses money from the fund to expedite the cleanup of NPL sites, after which, the fund is reimbursed by the responsible parties.[8]

II. Superfund Funding and its Effect on Superfund Sites

The Superfund program was originally funded through a tax on chemical and oil companies because they were and still are primarily responsible for the contamination of many Superfund sites.[9] In 1996 the tax expired, and CERCLA has no statutory provisions requiring annual appropriations to the fund.[10] After the tax expired, the Superfund had a balance of nearly 4 billion dollars; by the beginning of fiscal 2004, this balance had been reduced 0 dollars because it solely relied on annual appropriations.[11] The program’s annual appropriations have dropped by almost half – from $2 billion to 1.1 billion – between fiscal 1999 and 2013.[12]

Superfund funding since the tax expired has not come close to the levels achieved when tax collections were the primary source of the fund.[13] By the end of 2004, EPA slowed cleanups and decreased spending to the point where there was a minimum two-year backlog to begin the remediation of sites that had already been studied and prepared for.[14] Communities adjacent to the backlogged sites had already been waiting as long as three years for work to commence.[15]

The relationship between timely remediation and Superfund program funding is strong. The Government Accountability Office (GAO) found inadequate funding led to a decline in the number of remedial action completions.[16] Between 1999 and 2013, approximately one-third of ready to start Superfund sites were delayed because of the decline in funding.[17] After the Superfund program received an increase in funding from the American Recovery and Reinvestment Act of 2009, the EPA commenced all ready to start remedial projects in fiscal 2009 and 2010.[18] In fiscal 2012, when Superfund no longer received Recovery Act funding, EPA failed to begin all 21 projects eligible for remediation, and in fiscal 2013, 22 of 30 eligible projects were not funded.[19] Furthermore, cleanups take longer to complete when the Superfund program is poorly funded, with the median time for project completion increasing from 2.6 years in 1999 to 4 years in 2013.[20]

Currently, there are 1337 Superfund sites across the country, with additional sites going through the process to be added to the list.[21] Roughly 11 million people and between three to four million children live within a mile of a Superfund site.[22] Communities should not expect President Trump’s proposed cuts to delay the cleanup of Superfund sites equally, however. Superfund “orphan” sites – sites where no responsible parties can be identified or are solvent – will be the most affected by the budget cuts. In 2006, Office of Inspector General found that responsible parties fund 70% of all completed remedial actions.[23] The further depletion of Superfund funding severely limits the likelihood of remediation for orphan sites, which raises serious environmental justice concerns, as these sites tend to be in poorer, minority communities.[24]

III. Conclusion

Since the expiration of the “polluter pays” tax, the Superfund program has not consistently received adequate funding. History shows that the effect of an inadequately funded Superfund program is increased waiting time for remediation of ready to start NPL sites, as well as delayed remediation completion. Communities across the country should expect President Trump’s proposed budget cut to the Superfund program, which may have already occurred,[25] to significantly delay the cleanup of their local Superfund sites, especially if the site is an orphan site.

[1] See, e.g. Leslie Albrecht, Trump Budget Sends Gowanus Canal Cleanup Back to ‘Bad Old Days,’ AG Says, DNAINFO, (Mar. 22, 2017, 8:50 AM) https://www.dnainfo.com/new-york/20170322/gowanus/trump-gowanus-canal-superfund-cleanup; Grace Hood, What Trump’s Proposed EPA Cuts Could Mean For Colorado, Co. Public Radio News, (Mar. 16, 2017) http://www.cpr.org/news/story/what-trump-s-proposed-epa-cuts-could-mean-for-colorado.

[2] Marie J. French & David Giambusso, New York New Jersey Facing Major Cuts to Environmental Programs Under Trump Budget, Politico (Mar. 16, 2017, 4:11 PM) http://www.politico.com/states/new-york/city-hall/story/2017/03/new-york-new-jersey-face-environmental-threats-in-trump-budget-110448.

[3] Id.

[4] Id.

[5] Kathleen Chandler Schmid, Student Article, The Depletion of the Superfund and Natural Resource Damages, 16 N.Y.U. Envtl. L.J. 483, 500 (2008).

[6] Id. at 484.

[7] U.S. Gov’t Accountability Off., GAO-15-812 Trends in Federal Funding and Cleanup of EPA’s Nonfederal National Priorities List Sites 4 (2015).

[8] Nancy C. Loeb, Even Trump Should Want The Superfund To Be Super, The Hill, (Mar. 24, 2017, 12:20 PM) http://thehill.com/blogs/pundits-blog/healthcare/325629-even-trump-should-want-the-superfund-to-be-super.

[9] Id.

[10] Id.

[11] Nicole A. Franklin, The Superfund Program Past and Present Funding Implications, Envlt. sciences commons (May, 2011), at 42, http://scholarscompass.vcu.edu/cgi/viewcontent.cgi?article=3460&context=etd.

[12] U.S. Gov’t Accountability Off., supra note 7, at 12.

[13] Franklin, supra note 11.

[14] Martina E. Carwright, Superfund: It’s No Longer Super and It Isn’t Much of a Fund, 18 Tul. Envtl. L.J. 299, 318 (2005).

[15] John J. Fialka, Money Shortage Threatens Superfund, Wall St. J., Sept. 7, 2004, at A2.

[16] U.S. Gov’t Accountability Off., supra note 7, at 12.

[17] Id. at 11.

[18] Id. at 17.

[19] Id.

[20] Id. at 31.

[21] Superfund: National Priorities List (NPL), Envtl. Prot. Agency (last updated Mar. 21, 2017) https://www.epa.gov/superfund/superfund-national-priorities-list-npl.

[22] Loeb, supra note 8, at 2.

[23] Schmid, supra note 5, at 517.

[24] See Sarah Gonzalez & The WNYC Data News Team, Dirty Little Secrets: New Jersey’s Poorest Live Surrounded by Contamination, WNYC News, (Dec. 9, 2015) http://www.wnyc.org/story/nj-contaminated-sites/.

[25] Michael D. Regan, As Hundreds of Toxic Sites Await Cleanup, Questions Over Superfund Program’s Future, PBS Newshour, (Apr. 2, 2017, 1:27 PM) http://www.pbs.org/newshour/updates/superfund-toxic-sites-cleanup-future/ (citing a source who claims the budget has already been cut by 50 percent).

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