Superfund Fact Book
Mark Reisch & David Michael Bearden

Table of Contents for this Section

De Minimis Settlements
Orphan Share Settlements
Natural Resource Damages
Land Use

Health Issues and the Agency for Toxic Substances and Disease Registry

Public Health Assessments
Epidemiologic Studies
Overall Assessment of Public Health Impact
Toxicological Databases

International Comparisons

Austria
Canada
Denmark
Germany
Netherlands
Sweden
Mexico

Endnotes
Glossary of Superfund Terms [External]

List of Tables

Table 7. Five Largest Natural Resource Damage Settlements at Superfund Sites as of July 1995
Table 8. On-Site and Surrounding Land Uses at Superfund Sites
Table 9. Common Sources of Funding for State Cleanup Activities

List of Figures

Figure 6. Public Health Assessments of Superfund Sites from 1993-1995

De Minimis Settlements

De minimis parties are PRPs that are responsible for a minor share of the total cleanup costs at a site and that have contributed minimally to the volume or toxic effects of hazardous waste at a site compared to other PRPs. CERCLA authorizes EPA to enter into expedited settlements with de minimis parties and encourages EPA to do so t'as promptly as possible." ⁶⁶

CERCLA authorizes de minimis settlements in situations where a party is the owner of the property where the facility is located but did not conduct or permit the generation, handling or disposal of hazardous substances at the facility; did not contribute to the release or threatened release from the facility; and did not acquire the facility with knowledge that it had been used to store, handle or dispose of hazardous substances.⁶⁷

De minimis settlements can reduce EPA's administrative and judicial enforcement activities at a site by obtaining expedited cash payments for cleanup costs without resorting to extensive litigation, and can benefit small volume contributors by removing them from further liability and protecting them from litigation by other PRPs.⁶⁸

"De micromis" settlements are a subset of de minimis settlements and are available to PRPs whose contribution to a hazardous release is a "minuscule" amount, less than the '1minimal" amount contributed by de minimis parties. "De micromis" settlements are available to generators and transporters of waste but are not available to owners or operators of sites. Like de minimis settlements, "de micromis" settlements also remove PRPs from further liability and protect them from litigation by other PRPs. Whereas de minimis settlements do require PRPs to pay a small portion of the total cleanup costs at a site, de micromis settlements completely remove PRPs from financial liability.⁶⁹

· In 1993, EPA remedial project managers at 1,056 non-federal Superfund sites estimated that there were one or more de minimis parties at 175 sites (17%); at 609 sites (58%) there were none; and the status was unknown at 272 sites (26%).⁷⁰

· GAO estimated that the number of de minimis parties at the 175 sites ranged from 8,500 to more than 25,000. ⁷¹

· GAO also estimated that the number of PRPs contributing less than 1% to the total amount of waste at these sites may exceed 30,000. The cutoff for determining a de minimis party generally is 1%. ⁷²

· The current number of de minimis parties is likely higher than GAO's estimate because data on sites added to the NPL since 1993 were not available. EPA projects that as many as 700 sites may be placed on the NPL in the future and that approximately 140 (20%) of these sites could have de minimis parties. ⁷³

· At the end of FY1993, EPA had settled liability claims for 6,144 de minimis parties.⁷⁴ By December 1996, that number had almost doubled to 12,000 de minimis parties who had settled. ⁷⁵

Orphan Share Settlements

Under CERCLA's joint and several liability standards, financially viable PRPs are responsible for paying the cleanup costs of defunct or financially insolvent PRPs. The share of the costs for a non-viable PRP is referred to as an orphan share.⁷⁶

· On June 3, 1996, EPA announced that $50 million would be available from existing Superfund appropriations to compensate viable PRPs for a portion of their orphan share expenses. EPA is offering this compensation to facilitate site settlements with PRPs who agree to pay the cleanup costs of orphan shares for which they are liable under CERCLA.⁷⁷

· In a 1993 study, EPA estimated that the annual cost to pay the entire orphan share for remedial design and action at every site where PRPs perform the remedy would range from $150 to $420 million per fiscal year.⁷⁸

Natural Resource Damages

CERCLA makes PRPs liable for the costs of restoring natural resources that are damaged or lost due to a hazardous substances release and for the costs of assessing these damages or losses.⁷⁹ Federal, state, and Indian tribal authorities act on behalf of the public as trustees to assess damages at contaminated sites and to prepare damage claims.⁸⁰ According to the Department of Justice, federal trustees can seek payments for claims only if damage remains after the cleanup of a CERCLA site is complete. The federal trustees settle almost half of the damage claims without requiring separate payments for natural resource damages because the initial cleanup frequently repairs the damage.⁸¹

· As of April 1995, the federal trustees had settled 98 natural resource damage claims for a total of $106 million, of which 50 required payments ranging between $4,000 and $24 million. The federal trustees estimated that 60 sites may eventually have claims equalling or exceeding $5 million and that up to 20 of these claims may exceed $50 million.⁸²

· The total amount of the five largest natural resource damage settlements at Superfund sites was $83.8 million as of July 1995. Table 7 lists the amount of each of these settlements and indicates the location where natural resource damage occurred. As of July 1995, about 40% of the $83.8 million had been collected, and roughly 11% of the collected amount reimbursed the federal trustees for assessing damages and developing plans to restore natural resources. Aside from an experimental restoration project in Commencement Bay, none of the collected amount had yet been disbursed for restoration activities.⁸³

Table 7. Five Largest Natural les'ource Damage
Settlements at Superfund Sites as of July 1995

Source: GAO. Outlook for and Experience with Natural Resource Damage Settlements. GAO/RCED-96-71. April 1996. p.8.

· By the end of 1995, 28 states had passed laws to authorize the recovery of natural resource damages at non-NPL sites within their jurisdictions. Under state laws, eight states have recovered natural resource damages, and seven have pending natural resource damage claims. States also may recover natural resource damages under federal authority in CERCLA at non-NPL sites within their jurisdictions. Under federal authority, 13 states have recovered natural resource damages, and 11 states have pending natural resource damage claims. In FY1995, states spent nearly $70 million to restore natural resources that were damaged or lost due to a hazardous release. ⁸⁴

Land Use

EPA's survey of NPL site managers in 1994 indicated that industrial use is the most common activity on Superfund sites. However, residential use occurs most frequently in the areas surrounding a site. Educational use ranks the lowest among the major land uses. Table 8 lists the major types of land use that occur on Superfund sites and in the areas surrounding them.

Table 8. On-Site and Surrounding Land Uses at Superfund Sites

"Other" includes closed landfills, mihtaty lands, undeveloped lands, wetlands, and other wildlife habitats.

Note: Of the 1,249 final and deleted Superfund sites at the time of the survey in 1994 (123 federal facilities and 1,126 non-federal sites), on-site land uses reflect data from 1,247 sites reporting while surrounding land uses reflect data from 1,245 sites reporting. Totals for land use exceed the number of Superfund sites because of multiple uses at certain sites.

Source: EPA. OSWER. Survey of NPL Site Managers. Januaiy 28,1994.

Health Issues and the Agency for
Toxic Substances and Disease Registry ⁸⁵

CERCLA created a new public health agency, the Agency for Toxic Substances and Disease Registry (ATSDR), to investigate the impacts of hazardous substance releases on public health and to take public health interventions. As amended in 1986, CERCLA requires the ATSDR to conduct public health assessments of all Superfund sites proposed for the NPL and for other hazardous waste sites in response to public petitions. CERCLA also requires the ATSDR to establish a priority list of hazardous substances found most often at Superfund sites, to produce toxicological profiles for each substance on this list, to initiate research to fill toxicologic gaps for priority substances, to conduct epidemiology and surveillance, to establish a national registry of persons exposed to hazardous substances, and to provide training and ducation for physicians. Although the ATSDR is a separate agency within the U.S. Public Health Service, the Superfund program provides funding for the agency's annual operating budget.

Public Health Assessments

· As of December 31, 1996, the ATSDR had completed a total of 1,781 public health assessments at 1,371 sites (1,736 assessments at NPL sites and 45 at non-NPL sites).

· Each public health assessment includes an evaluation of a site's environmental contamination, community health concerns, and relevant public health data that local and state health authorities provide. The ATSDR integrates these data, makes a professional judgment about the hazard posed by a site, and recommends the actions necessary to protect public health.

· From 1993 through 1995, the ATSDR classified 4% of Superfund sites as an Urgent Hazard, 49% as a Health Hazard, and 33% as an Intermediate Hazard (due to an absence of data). The ATSDR classified 14% as No Apparent Hazard or No Hazard. (See figure 6.)

Figure 6.

Public Health Assessments
of Superfund Sites from 1993-1995

Prepared by CRS with data from the Agency for Toxic Substances and Disease Registry.

· The ATSDR estimates that approximately 11 million people live within one mile of the nation's 1,210 Superfund sites. Demographic data show that a significantly higher percentage of minority populations live near Superfund sites than in other parts of the affected counties.

Epidemiologic Studies

· The extent of exposure to hazardous substances among people living in proximity to Superfund sites is unknown. However, exposure assessment studies conducted by the ATSDR show that compounds such as lead, arsenic, mercury, polychlorinated biphenyls (PCBs), and bromides are found at levels of health concern in people living near some hazardous waste sites.

· Exposure studies focusing on lead show that soil is the most common pathway of exposure of children living near hazardous waste sites. Other studies have demonstrated increased exposure to several compounds from consuming contaminated vegetables, beef, milk, and fish raised and caught near hazardous waste sites.

· The ATSDR has selected seven priority health conditions as the most important for evaluating populations living near hazardous waste sites: birth defects and reproductive disorders, cancer, immune function disorders, kidney disfunction, liver dysfunction, lung and respiratory diseases, and neurotoxic disorders. The agency has conducted or provided funds for a variety of health studies investigating these priority health conditions.

Overall Assessment of Public Health Impact

· Epidemiologic findings are still unfolding. However, the health data from many Superfund sites indicate that proximity to hazardous waste sites seems to be associated with a small to moderate increased risk of certain kinds of birth defects and, though it is less well documented, some specific cancers.

· Data from the ATSDR's National Exposure Registry for persons exposed to trichioroethylene or benzene indicate an elevated rate of some chronic diseases (e.g., stroke, liver disease, diabetes, anemia, kidney disease, urinary tract disorders). These data are based on registrants' self-reported data and compared with national baseline data.

· Physicians and other health care providers in communities around Superfund sites have expressed a need for training and technical assistance in dealing with health concerns potentially related to exposure to hazardous substances.

Toxicological Databases

· The ATSDR has identified 30 hazardous substances found in at least 10% of sites with completed exposure pathways (i.e., sites with documented human exposure). Of these 30 substances, five are known human carcinogens and eight are reasonably anticipated to be a carcinogen.

· The ATSDR has established a national database on the public health hazard of all Superfund sites that it has assessed. The database, called HazDat, is available through the ATSDR's Homepage on the internet at http://atsdr1.atsdr.cdc.gov:8080/atsdrhome.html. HazDat contains data on environmental contamination, human exposure, toxicity of substances, and other information specific to individual Superfund sites.

· The ATSDR has made available to the public 200 toxicological profiles of prioritized hazardous substances. The agency has provided 40 fact sheets on priority substances, which also are available through the ATSDR's Homepage at the above internet address.

State Superfund Programs

The state role at Superfund sites can range from sharing cleanup costs at federally funded cleanups (as required by GERCLA) to actively managing a site. Of the nearly 13,000 CERCLIS sites, roughly 90% are not on the NPL. At these non-NPL sites, the federal role may be limited to cleanup assessment or emergency remedial activities, or the federal government may not be involved at all. There also are other potentially hazardous sites that are not included in CERCLIS. State superfund programs have the authority to assess and clean up non-NPL sites listed in CERCLIS and to identify other potentially hazardous sites for cleanup in their jurisdictions.⁸⁶

· By the end of 1995, 41 states had passed their own superfund laws to authorize cleanup enforcement, and the remaining states had included enforcement authority in other statutes. During FY1995, 44 states actively managed cleanup sites in their jurisdictions.⁸⁷

· A total of 35 states maintain an official priority list, registry, or inventory of potentially hazardous sites within theirjurisdictions. There are roughly 18,000 sites on these lists. However, the states differ widely in the criteria used for listing a site.⁸⁸

· States also track potentially hazardous sites by classifyng them as sites needing attention, but states do not necessarily include these sites in their official lists. The amount of sites needing attention more accurately reflects the number of sites warranting cleanup activities than the state lists indicate. At the end of 1995, the states reported a total of almost 30,000 sites needing attention, and five states reported having more than 1,000 sites in this classification. New Jersey reported 6,500 sites, the highest number of any state, and North Dakota did not report any sites either on its state list or as needing attention. ⁸⁹

· Nearly all states have established funds for cleanup activities, but Nebraska and the District of Columbia do not have a fund. The total balance of all state funds was $1.46 billion at the end of 1995, and the average state fund balance was $29.3 million. At the end of 1995, the states had spent a total of $386.1 million on cleanup activities ($203 million, 52.6%, of it at nonNPL sites), and each state had spent an average of $1.1 million on cleanup activities. ⁹⁰

· States use a variety of revenue sources to fund cleanup activities. Table 9 lists the common sources of funding for state cleanup activities.

Table 9. Common Sources of Funding
for State Cleanup Activities

Source: Environmental Law Institute (ELI). An Analysis of State Superfund Programs: 50-State Study, 1995 Update. Washington, 1996. 293 p. ELI Project #941724.

· The majority of states have followed the federal model of strict, joint and several, and retroactive liability in their own laws to identify which parties are responsible for a hazardous release and to allocate the portion of a party's liability. To identify liable parties, 43 states enforce retroactive liability standards, and 41 states additionally enforce strict liability standards. To allocate the amount of the release for which a party is responsible, 37 states enforce joint and several liability standards. Six states additionally allow parties to seek proportional allocation, but five states specify proportional liability as the only applicable standard. The remaining states do not specify standards to allocate liability.⁹¹

· State superfund programs have the flexibility to select among federal standards or to develop their own standards for cleanup activities at nonNPL sites within their jurisdictions. By the end of 1995, 24 states had completed and announced their own cleanup standards, and the remaining states selected among the federal standards. However, nearly all states follow EPA guidelines either in selecting federal standards or developing their own. Fifty states use drinking water standards, 49 states use surface water criteria, 45 use health-based risk assessment, 37 use ground water criteria, and 27 use soil criteria to select or develop standards for cleanup activities.⁹²

· During 1995, the states completed 7,960 removal and remedial actions at non-NPL sites, and 16,090 actions were ongoing. Since the beginning of state superfund programs, the states have completed 44,690 removal and remedial actions at non-NPL ⁹³ (Site cleanup typically involves multiple remedial or removal actions. The actual number of non-NPL sites that states have cleaned up is lower than the indicated number of completed removal and remedial actions.)

International Comparisons

A study of five European countries and Canada indicated that a significant number of potentially contaminated sites may warrant cleanup activities, ranging from as many as 250,000 in Germany to 500 in Denmark. Some of these countries have made substantial progress in identifying and assessing these sites, while others have just begun. Compared to the United States, the study concluded that these countries have a less comprehensive process to characterize potentially hazardous sites and less stringent standards to determine and enforce a party's liability for a hazardous release.⁹⁴

Austria ⁹⁵

Austria has identified about 7,000 potentially hazardous sites and estimates that the cost to clean them up will be roughly $2 billion.

The national and state governments are authorized to require responsible parties to conduct or finance cleanup activities. The national government funds unrecoverable cleanup costs through a $16/ton tax on industrial hazardous waste generation and a $3.30/ton tax on nonhazardous industrial waste generation.

Canada ⁹⁶

Within their jurisdictions, the provincial governments identify, assess, and clean up the majority of potentially hazardous sites across the country. The National Contaminated Sites Remediation Program evaluates sites where a responsible party cannot be identified or where the site owner is financially unable to pay the cleanup costs.

Environment Canada, the national environmental agency, is responsible for identifying and assessing potentially hazardous sites on publicly owned land. (Roughly 40% of Canada is publicly owned land.) As of March 31, 1994, Environment Canada had identified and assessed 231 sites and begun cleanup activities at 11 of these sites.

General tax revenues finance cleanup costs, and the national and provincial governments divide these costs evenly. Canada does not collect fees or taxes on hazardous waste generation to finance cleanup costs.

Denmark ⁹⁷

There are roughly 500 potentially hazardous sites in Denmark. The total cost to assess and clean up these sites could range between $1 and $3 billion.

Responsible parties are required to pay for cleanup costs, and private property owners must certify that a site is clean before developing it. However, the national and county governments pay for cleanup costs at sites where a responsible party is financially insolvent.

Germany ⁹⁸

There are roughly 250,000 potentially hazardous sites in Germany, including 14,000 military sites. The total cost to identify, assess, and clean up these sites could reach $260 billion. Current cleanup expenditures are nearly $4 billion annually.

Whenever possible, Germany enforces liability for contamination. However, the Unification Treaty between West and East Germany exempts investors from liability who acquired sites in the former East Germany where the contamination occurred before July 1, 1990. The national government pays 60% of the cleanup costs, and the German states pay the remainder. The German states are authorized to develop tax revenue structures to finance cleanup costs. Some states collect fees or taxes on waste generation and ground water use to finance cleanup costs.

Netherlands ⁹⁹

There are roughly 110,000 potentially hazardous sites in the Netherlands. The total cost to clean up these sites could reach $25 billion. Cleanup activities are complete at more than 1,000 sites.

General tax revenues initially finance cleanup costs. However, the national government recovers these costs from the responsible parties after cleaning up a site.

Sweden ¹⁰⁰

There are roughly 8,000 potentially hazardous sites in Sweden, of which 4,000 are municipal waste disposal sites.

General tax revenues finance most cleanup costs because the country's liability laws limit recovering these costs from responsible parties. Targeted tax revenues to finance cleanup costs through taxes on hazardous and nonhazardous waste disposal have been proposed but rejected.

Mexico ¹⁰¹

In addition to the above countries, Mexico also has a hazardous waste program, which it announced on October 9, 1996. The new program will establish information requirements for government and industry, revise hazardous waste regulations, promote cooperation between government and industry, and identify sites for waste confinement and treatment.

The national government reports that the country's industry produces 8 million tons of hazardous waste annually and that 88% of this waste is disposed unsafely or illegally. The new program has compiled an inventory of 55 sites that potentially warrant cleanup. These sites are located in central Mexico and represent about 65% of the country's hazardous waste. The national government expects to construct at least four hazardous waste confinement and processing facilities to clean up these sites.

Endnotes

66 42 U.S.C. 9622(g). "De Minimis Settlements."

67 42 U.S.C. Sec. 9622(g)(1)(B).

68 EPA. Office of Site Remediation and Enforcement. Revised De Minirnis Contributor Consent Decree. EPA Memorandum. September 29, 1995.

69 EPA. Office of Site Remediation and Enforcement. Revised Guidance on CERCLA Settlements with De Micromis Waste Contributors. EPA Memorandum. June 3, 1996.

70 GAO. Superfund & Number of Potentially Responsible Parties at Superfund Sites is Difficult to Determine. GAO/RCED-96-75. March 1996. p.4.

71 Ibid., p.4. The data were reported in ranges for each site: 0,1, 2-10, 11-50, 51-100, 101-500, 501-1,000, and more than 1,000 de minimis parties. GAO reached its estimate by using the low and high ends of each range.

72 Ibid.

73 Ibid.

74 EPA. The First 125 De Minimis Settlements. October 1993. p.3.

75 EPA. Superfund Administrative Reforms Annual Report, Fi8ca1 Year 1996. December1996. p. vi'.

76 EPA. Office of Enforcement and Compliance Assurance. Interim Guidance on Orphan Share Compensation for Settlors of Remedial Design/Remedial Action and Non-Time-Critical Removals. EPA Memorandum. June 3, 1996.

77 Ibid.

78 EPA. OSWER. Mixed Funding Evaluation Report. The Potential Costs of Orphan Share8. September 1998.

79 42 U.S.C. 9607(a)(4)(C). "Liability."

80 42 U.S.C. 9607(f). "Natural resources liability; designation of public trustees of natural resources."

81 GAO. Outlook for and Experience with Natural Resource Damage Settlements. GAO~CED-96-7l. April 1996. p.4-5.

82 Ibid., p.5.

83 Ibid,. p. 6

84 Environmental Law Institute. An Analysis of State Superfund Programs: 50-State Study, 1995 Update. ELI Project #941724. p.46.

85 U.S. Department of Health and Human Services. Agency for Toxic Substances and Disease Registry. Report to Congress: 1993, 1994, 1995. 1996. 68 p.

86 Environmental Law Institute (ELI). An Analysis of State Superfund Pogram8:50-State Study, 1995 Update. Washington, 1996.293 p. ELI Project #941724.
In addition to all 50 states, ELI also treated the District of Columbia and Puerto Rico as states in their study.

87 Ibid., p.10.

88 Ibid., p. 67-69.

89 Ibid., p.67-69.

90 Ibid., p.81-85.

91 Ibid., p.41-44.

92 Ibid., p 35.

93 Ibid., p.70.

94 "New Alternatives Advanced for Financing Site Remediation," The Hazardous Waste Consultant. vol.13, no.2. March/April 1995. p.1.13-1.15.

95 Ibid.

96 Ibid.

97 Ibid.

98 Ibid

99 Ibid.

100 Ibid.

101 "Mexico: Hazardous Waste Program Announced; Inventory Covers Zones for Treatment Units," Daily Environment Report. October 15,1996 (no.199). p. AA-1.