Legal Issues

The Superfund program was established by Congress in 1980 with the sole aim of providing government financing into cleaning activities of highly contaminated waste sites in the United States. Initially, the funding for the program was from dedicated taxes sourced from the chemical feedstock, corporate income and petroleum industries. Such went directly to the trust fund meant to help the Environmental Protection Agency .This however lasted up to 1995 and henceforth, the fund dwindled gradually because it had to rely on other alternative sources of funding.  By the end of financial year 2003, the funds balance was down to zero.

Between 2004 and 2008, the Superfund program was entirely funded from the treasury using the taxpayers money (Ramseur et al, 2008).  This however attracted different reactions from congressmen and the public alike with quite a significant number of propositions requesting for the reinstatement of the dedicated taxes. The argument for this was that the cleanup funds should come directly from the petroleum and chemical industries because they were responsible for the leaks and spills that made the greatest percentage of hazardous materials in the targeted sites.

Ramseur et all (2008) however observes that opponents of the reinstatement argued that the dedicated taxes were not only unfair, but overreaching too. This was especially so because the taxes were imposed on all industry players regardless of whether they were compliant with set environment protection measures or not.

According to Hogue (2007), Superfund plays a critical role in short and long-tern clean-up activities through out the United States landscapes. By 2008 however, Superfunds budget request presented by the president to the appropriation committees in the house and senate were declined for all the years between financial years 2004 and 2008. In the same years, the programs spending needs exceeded the funds appropriated to the same b y Congress.

Available funding for the Superfund after the expiry of the dedicated tax program came from the following

Inter-fund transactions  These are funds that are advanced to the program from the treasury. The amounts advanced each financial year mainly rely on congressional appropriation. In the financial year 2009, the amount proposed was 1.26 billion. However, this proposed amount would depend on the ending balance that the fund would have at the end of financial year 2008. Money advanced from treasury is meant to cater for the funding balance that remains after the balance of FY2008 is subtracted from the proposed appropriation. The maximum level of funding enacted by congress would not be exceeded.

Cost recoveries these are payments made to the fund by private entities for the purpose of reimbursing the government for the cleanup activities. The compensation is however done by private parties who are legally responsible for dumping and other forms of pollution. Projecting the funds from cost recoveries cannot be done in advance because they vary from one year to another. This represents vagueness in the amount of funding that the program gets and consequently the nature of planning that can be done.  According to Ramseur and others (2008), cost recoveries between financial years 1997 and 2002 registered an average of 272 million a year. Between financial years 2003 and 2006, the average amount of cost recoveries drastically fell to 60 million a year. FY2007 was more promising with 234 million, while FY2008 and 2009 averaged 76 million.

Interests and profits Like all government owned trust funds, Superfund qualifies to earn interests on any balance it has in its account until such a time that the money is expended. The more the unexpended balance, the more interest the interest the fund earns. Due to the slow pace of some of the funds obligation, the fund can earn interests for longer. In the FY2008 for example, the fund had 2.9 billion, which was estimated to have earned the fund 151 million in interest. In FY 2009, the fund was also estimated to have earned 125million in interests.

Fines and Penalties Although this contributes only a small percentage of the monies that are needed in the Superfund program, it is still considered a supplementary source of revenue. The average collection from these fines and penalties average 1 million annually.

Cleaning the hazardous wastes in different sites is no mean feat. Agreeably, Superfund requires immense finances for it to accomplish its mandate. When the program was first initialized in 1980, there were 19,000 sites that needed cleaning (Habitch  Henry, 1986). These sites have grown over the years, thus raising the need for more funding.  Money in the fund cater for short-term and emergency cleanups under the removal program, long-term clean up under  the remedial program, program staff, site assessment activities before cleanup and program administration. Superfund also engages in environment related cleaning activities and this too costs money.

The projection of Superfunds funding needs indicate that the program will need more sources of funding as the days go by. First, the dumping sites are increasing at an alarming rate, meaning that the fund will need to work twice as hard. This of course will require more money.  Secondly, existing damp sites are moving from ordinary sites, to mega sites thus meaning that they will no longer require analysis or redesign by the fund. Rather, such will need Superfund to engage in remedial measures for the sites. Again, this will call for increased funding. On paper, the average cost of cleaning mega-sites is estimated as 50 million. In reality however, the clean up exercise is said to cost an average of 140 million.

In 2003, Superfunds remedial action program had a deficit of 175 million. As a result, 11 sites could not be attended to due to the shortfall. Five other sites requested for funding in the same year, but could not be provided for because there were no monies. The following year (2004), saw a repeat of the same. 19 sites that had been earmarked for construction were not constructed because, once again, there was no adequate funding.

Currently, EPA is given an approximate 1.2 billion by Congress each financial year.  This is however barely enough considering the immense work involved in the clean up activities. In view of this, the American recovery act 2009 gave a supplementary appropriation of 600 million dollar to Superfund to enhance its cleaning up activities. Of these funds, 582 million were allocated for the programs remedial actions, while 18million was set aside for use in headquarter and region activities.  9 million of the latter were held in reserve for use in future years, thus making the total amount advanced to the program 591 million.

The recovery act was cited as a way of promoting and protecting green jobs, while promoting a healthier environment by making cleanup activities on hazardous sites across the country possible.

Apart from the Act, Congress has realized the dwindling funds in the Funds accounts and the effect that this is having on the environment. As a result, the last three congresses have had bills introduced regarding increased government funding to the program or reinstatement of the Superfund tax. None of these debates have born much fruit.

In the Superfund State Contract, the program has a cost sharing agreement with states where remedial actions are carried out. The agreement requires a state to pay 10 percent cost of the total remedial actions. In the midst of the financial meltdown that hit most states beginning 2008 this requirement has been hard for the individual states. This meant that Superfund could only start projects which it could manage to complete without the 10 percent financial inputs from the beneficiary states.

The funding by congress is sometimes too stretched that EPA commences activities on some sites only to pause midway when the funds run out.  This poses more danger to the environment and human health than if the sites were left untouched.  To avoid such, EPA is encouraged by environmental analysts only to concentrate on high priority sites and handle the rest when funding is available. Congress too has been encouraged to consider supplementary funding to bail out EPA, when it is satisfied that the program has squeezed every dollar for the clean up exercises.

According to Porter (2007), EPA too has a responsibility of saving the superfund program some monies by revisiting sites that it has worked on before and determining whether new information or technology use can be employed to save the program some operating money.

In all this, and considering that Superfund has not been the recipient of enough government funding to meet its clean up obligations, Porter (2007) suggests that its time that EPA got a little creative in getting funding rather than relying entirely on government funding. One of the proposed ways is through partnering with local developers or other interest groups who might want to aid the program financially for purposes of making the environment better.  Brownfield sites can especially attract such goodwill from members of the public since they are valuable to communities once the cleanup is completed.

In addition to creative financing, Porter (2007) urges EPA to pursue joint venture between organizations and the program. A case in point is the joint army corps and EPA joint Urban Rivers Restoration Initiative.  This program brought together the Army corps, EPA and the state for purposes of restoring the qualities of water in eight contaminated urban rivers.

For now, it is apparent that Superfund is loosing the intensity which it started off with in the 1980s. Unfortunately, the pollution issues are not letting up, meaning that sooner or later a clean up strategy will have to be put in place. Since the program started listing sites for clean up, 1,579 sites have been placed on the Superfund cleaning list. By 2007, only 321 of these sites had been cleaned, rehabilitated and returned to the list. 712 more sites are classified as construction complete sites. Such classification means that such sites do not harbor tainted soils or toxic wastes any longer. As such, the program has installed pump-and-treat system, which eventually strips the sites off any remaining pollutants through ground water systems (Hogue, 2007). It is thus a matter of time before such sites are declared completely re-mediated and hence fit for human activity.

Most of the sites left in the Superfund list include closed-down smelters, mining sites, tanneries, landfills, military bases, energy department facilities and even river beds that have suffered pollution from industries located upstream. The clean up exercises are usually complex, time consuming and more so, fund intensive.

Conclusion
With the exception of 2009, when Superfund got a 600 million supplementary appropriation, the fund has been operating on a 1.2 billion budget since 2006.  The government has argued that this is enough money for Superfund to accomplish top priority cleanup activities that need to be done on pollution sites on annual bases.  As the government holds to its side of the argument, Superfund claimed that the funds only managed to move an average of 24 national priority list sites to the Construction completion status with such funding. Previously, the program managed to move an average of 42 sites annually. During the Clinton administration, congress funding to the Superfund program was more generous and statistics indicate that EPA was able to move an average of 79 sites annually to the construction Completion phase.

The reduced funding is clearly affecting the programs activities. Talk of reinstating the dedicated taxes is now rife, and even if the same does not succeed amidst the growing opposition, it is apparent that congress has realized the important role that Superfund plays in environment cleanup.  By 2007, Superfunds national priority list contained at least 110 sites, which were releasing toxic pollutants and human exposure to the same was not controlled.  This only means that Superfund can perform with additional funding and be able to neutralize the effects of such pollutants in the environment.