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Controversial cleanup: Superfund and the implementation of U.S. hazardous waste policy
by Dianne Rahm In the late 1970s, the struggle of Niagara Falls residents living near Love Canal to escape their chemically poisoned homes alerted the U.S. public to the ticking time bomb called hazardous waste. Love Canal's images of lime-green chemical slime oozing into the basements of houses close to the canal cast a particularly vivid picture of the problem of toxic waste (Levine, 1982). Hooker Chemical Company dumped 21,800 tons of industrial wastes in Love Canal in the 1940s and 1950s. Following customary 1950s practice, Hooker covered the Canal containing the waste-filled drums with clay and then sold the land to the Niagara Falls Board of Education for $1. Residential housing and a school later were built over the site. By the mid-1970s, chemicals began seeping into the basements of the houses constructed on the site, the New York Commissioner of Health declared an emergency, and an evacuation was ordered. The Environmental Protection Agency (EPA) found itself without the legal authority to deal with the predicament (Battle & Lipeles, 1993). The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, or Superfund) was the governmental response (Skillern, 1995). While there was and is widespread public and political support for cleaning up the nation's hazardous waste sites, Superfund has been fraught with dissension and controversy from its inception. The CERCLA was passed in the last days of the 96th Congress in a reactive flurry over the Love Canal debacle. The CERCLA gave the federal government the authority to create the "Superfund" via a special tax on chemical and petroleum producers. The fund ensured that the government could act swiftly in the event of the discovery of toxic environmental contamination (CQ Almanac, 1980, p. 584). The CERCLA originally was authorized for 5 years. Under the Reagan administration, mismanagement characterized the program until the resignations of then-EPA Administrator Ann Buford and Superfund program Administrator Rita Lavelle. In 1985, Superfund lost its taxing authority, but transfers from the general treasury kept the program alive until the passage of the Superfund Amendments and Reauthorization Act of 1986 (SARA) which reauthorized the program through 1991 (CQ Almanac, 1986, p. 111). Since 1991, many attempts have been made to pass legislation fundamentally reforming and reauthorizing Superfund, but these efforts have ended in bitter and deep partisan disputes. The program has been kept alive through a series of stop-gap measures. A provision of the 1991 budget reconciliation bill kept Superfund afloat by reauthorizing the SARA for 3 years and providing a 4-year extension for the taxes that provide for the trust fund (CQ Almanac, 1990, p. 5). The taxes finally expired in 1995 (Freedman, 1997). The program continues to operate drawing on a trust fund surplus that the Congressional Budget Office estimates will be adequate to support operations through fiscal 2000 (CQ Almanac, 1996, pp. 4-13). Without a reauthorization bill, however, the future of the Superfund program is in serious question. Attempts to produce such a bill have been elusive. Why has seemingly straightforward hazardous waste public policy stirred so much controversy? Which features of Superfund and which facets of its implementation have created such dissension? This paper attempts to answer these questions. Drawing on information gathered through a series of personal interviews, this paper discusses the major issues at the core of the controversy over Superfund. The policy implications of Superfund program reform efforts and the ramifications for future hazardous waste policy are considered. Methods During 1997 and 1998, 78 interviews were conducted with individuals in the EPA, the Departments of Defense, Justice, and Energy and its contractors, as well as those working for legislative agencies and within state and local governments.(1) At each location individuals were interviewed regarding their interactions with and evaluation of the Superfund program and CERCLA processes. A structured three-part interview protocol was followed. Part one asked descriptive questions regarding the individual's assessment of the procedural operation of the Superfund program. Part two asked for an evaluation of the interrelation of stakeholders and government units in the CERCLA process. The last section of the protocol asked the interviewee to comment on the relative success or failure of the CERCLA process, the main problems they saw with the program or process, and possible solutions to them. Content analysis of interview data was undertaken in the following manner. Notes taken at interviews were transcribed later using a standard word processor. Having the data on computer allowed computer searching on keywords. Discussions using the same keywords were reread. Similar keywords and the interview data associated with their use were sorted manually or grouped into key themes. This searching and grouping process allowed the main issues to be distilled out of the in-depth interviews so that a more abbreviated and useful framework could be developed. Interviewees' opinions and perspectives on particular themes varied widely, but an agreement on the major issues was apparent. A typology of themes emerged, with discussions that are resonant with the current policy debate. The content analysis of the interview responses revealed that two primary factors (liability fairness and cleanup competence) captured much of the core of the dialog over Superfund. Further content analysis of responses falling in the cleanup competence category showed that three subclassifications (measuring cleanup success, intergovemmental relations, and cleanup standards) captured much of the detailed substance of interviewees' comments regarding cleanup competence. After providing a brief overview of the program, these categories and the insights gathered from those interviewed serve as the main structure of the discussion that follows. An Overview of Superfund The CERCLA created the Hazardous Substance Response Trust Fund by a tax imposed on petroleum and certain chemicals. This fund was renamed the Hazardous Substance Superfund by the SARA (Skillern, 1995). The fund pays for cleaning the most urgent sites when public health or the environment is immediately threatened and finances legal actions against polluters to recover cleanup costs. Superfund was not meant to be a public works program to pay for pollution cleanup; rather, the legislation specifies that probable responsible parties (PRPs) should be identified and bear the costs (United States Environmental Protection Agency, 1984). To implement the CERCLA, the EPA was required to revise the National Oil and Hazardous Substances Pollution Contingency Plan, which was first developed as required by the Clean Water Act (CWA) (Reagan, 1981). The resulting National Contingency Plan (NCP) provides guidelines and procedures for the government to respond under the CERCLA to releases of toxic and hazardous substances (Wagner, 1991). Superfund, under the NCP, defines two types of responses to a toxic substance that has been released into the environment: removals and remedial actions. Removals are emergency responses that must be completed within months. Remedial actions are long-term, generally expensive, permanent solutions for hazardous waste sites. A Superfund remedial action can be taken only if a site is on the National Priorities List (NPL). The primary mechanism for NPL listing is based upon how highly the site scores on the Hazardous Ranking System (HRS). In an attempt to get the nation's worst sites cleaned, the CERCLA also provided that each state might list a single site to the NPL regardless of its HRS score. Additionally, sites may be listed if the Agency for Toxic Substances and Disease Registry (ATSDR) of the United States Public Health Service issues a health advisory that recommends human evacuation and EPA concurs (United States Environmental Protection Agency, 1997b). EPA's original NPL containing 406 sites was published in 1983.(2) As of October 1997, the NPL contained 1,353 sites. The Core of the Controversy: Liability Fairness and Cleanup Competency Since the passage of the CERCLA in 1980, Superfund has been a lightning rod for faultfinding. Some criticisms of the program focus on deriding an all too expensive program run amuck with litigation and federal heavyhandedness. Superfund critics are a varied lot. Some hold sympathy for those who might come under Superfund's authority. Other critics are environmentalists who complain of an inefficient and ineffective program that makes painfully slow and inconsistent progress. Superfund has been granted no immunity from criticism, either from the right or the left. Why is Superfund so controversial? Detractors do not disagree with the fundamental goal of the program (i.e., cleaning up hazardous waste sites). Rather, they focus on the fairness of the CERCLA's liability provisions and the EPA's record of cleanup competency. Liability Fairness The manner in which the CERCLA and the courts have assigned liability for toxic waste site cleanups has been central to the criticism of Superfund. In many ways Superfund is quite unique in that it uses the harsher elements of tort law to compel PRPs to clean up hazardous waste sites. By design, the statute imposes strict liability, while joint and several liability has been imposed and upheld by the courts (Church & Nakamura, 1993; Kelly & Benedict, 1990; O'Leary, 1993). In many ways, Superfund's liability provisions are quite draconian in that anyone responsible for creating or adding to an NPL site is liable for the entire cost of the site cleanup. Superfund liability is not tied to fault or intent, and the EPA has no obligation to pursue all PRPs (Fogleman, 1992). The result is that the EPA usually targets a small number of "deep pockets" that contributed some waste to the site, even if they acted within the law at the time of the deposit (Harper & Adams, 1996). These parties, in turn, often try to recover some of their costs by suing other parties that the EPA did not target but who also put waste at the site (Battle & Lipeles, 1993; Skillern, 1995). Usually this results in a good deal of third-party litigation. Critics have suggested, perhaps not in jest, that Superfund is a "welfare program for lawyers." On large dump sites, where the number of third-party PRPs can reach into the hundreds, attorneys are heavily involved (Donovan, 1990). The liability provisions associated with Superfund are contentious because they might be considered to be both unfair and inefficient. Fairness concerns provoke sympathy for those who claim that they were following all the rules when the site was contaminated yet find themselves at financial risk years later (Allard, 1997). The liability system also is criticized as unfair, for it attacks winners and protects losers (Huber, 1988; Johnson, 1991). The EPA pursues only those PRPs with resources to fund a cleanup, and successful companies (winners) have the assets. Companies that have gone bankrupt (losers) are no longer players in the system and are off the hook. The successful companies pay the price, and in at least some sense are penalized for being successful. The liability provisions of Superfund also are controversial in that they themselves are alleged to be a cause for slow cleanup progress. That is, PRPs faced with the huge potential costs associated with cleanups may find it cheaper to pay attorneys to litigate rather than to undertake the cleanup (Mazmanian & Morell, 1992). The EPA prefers to negotiate settlements with PRPs rather than sue. This strategy, generally referred to as "enforcement first," emerged in the 1980s, when, after nearly a decade of ineffectiveness, the EPA changed its approach (Barnett, 1993). In early years, the EPA modeled its behavior on oil spill cleanup activities where the agency would identify a site, rush to perform cleanup, and then sue the polluter to recover cleanup costs. By the late 1980s, this approach was reassessed and replaced with enforcement first, whereby the EPA would avoid both fund-led cleanups and cost-recovery litigation. Under the enforcement first strategy, the EPA would first try to negotiate settlements with responsible parties to clean up sites voluntarily by themselves. Only if a settlement could not be negotiated would the EPA then threaten lawsuits to achieve compliance (Hird, 1994). The early program emphasis on fund-led cleanups using the oil spill model resulted by the mid-1980s in as many as 70% trust fund-supported cleanup actions. Under the enforcement first strategy, by 1997, 70% of cleanups were paid for by PRPs (Baucus, 1997). Cleanup Competency There are several dimensions to the controversy that surrounds the EPA's record of cleanup competency. A program outcome assessment, measuring how successful the program has been in meeting its stated cleanup goals, is one. Process issues also are important in assessing EPA's competency. Two process issues that are of particular importance include the record of the agency's intergovernmental relations and the agency's ability to set nationally consistent and scientifically sound cleanup standards. Measuring Cleanup Success Since the goal of Superfund is to clean hazardous waste sites, an outcome assessment of program success might include a count of those sites successfully cleaned. Often-cited statistics of NPL delistings show that few sites actually have been cleaned. As of April 1, 1997, the EPA had delisted only 141 sites from the NPL (United States Environmental Protection Agency, 1997a), a number that includes 7 sites that have been delisted because of deferral to other authorities rather than successful cleanup status. Even with the EPA's new policy, announced November 1995, to delist portions of NPL sites (United States Environmental Protection Agency, 1995), as of April 1997, only 4 partial delistings had been completed (United States Environmental Protection Agency, 1997a). Critics have called this record an abysmal failure (Kraft, 1996). While the numbers seem straightforward, as does the conclusion of an unsound program, in many ways Superfund has suffered from its own initial outcome assessment standards. What does it mean for a site to be cleaned? When Superfund was initiated, the outcome desired was that of successfully cleaned sites as denoted by "delisting" from the NPL. Anything short of delisting was by definition below the desired threshold. Technically, however, some remedies take years to work, and while they are working all that can be done is to monitor the process (for instance, groundwater contamination that is being handled by "pump and treat" technologies that simply must run for years or by natural attenuation processes). Given the originally desired Superfund outcome measure, these locations would remain on the NPL for a lengthy period of time and hence be counted as failures for a prolonged period. Recognizing this political problem, Superfund officials changed the outcome assessment gauge. In March 1993, the EPA announced a new metric with the introduction of the Superfund Construction Completion List (CCL). This list includes sites where the physical construction is complete even if final cleanup levels have not yet been attained, sites where the EPA has determined that no construction is necessary, and sites that may qualify for delisting from the NPL if no additional construction is required under other statutes such as the Resource Conservation and Recovery Act (RCRA) (United States Environmental Protection Agency, 1993). By the CCL accounting, there are nearly 498 sites where construction is complete, which would mean that over one-third of the NPL is a success story. If one includes the additional 475 sites on the NPL where cleanup construction is under way, the program begins to look considerably better. The EPA's data indicate that, of the 1,353 sites listed on the NPL as of October 1997, 1,170, or 83%, of those were where construction was complete, cleanup construction was in process, or interim cleanup actions had been taken (Baucus, 1997). The CCL was introduced to improve the success record of the program, yet the change of the metric (from NPL delisting to listing on the CCL) has in and of itself proved contentious. So, controversy continues, not only over the number of cleanups but over the correct indicator to be used to measure success. Intergovernmental Relations The CERCLA is distinct from most environmental legislation in that it does not delegate authority to the states. Congressional intent in writing the CERCLA reveals the perspective that federal authority is required to deal with hazardous waste sites. The involvement of other federal agencies, the states, and local governments, however, was expanded somewhat under the SARA insofar as the SARA mandated that Superfund involve state and local authorities in "substantial and meaningful" ways (United States Environmental Protection Agency, 1990). The SARA also required that federal facilities be listed on the NPL. Thus federal agencies, particularly the Departments of Defense (DOD) and Energy (DOE), became involved in identifying NPL sites located on federal facilities such as military bases, national laboratories, and weapons production plants. Despite the fact that neither the CERCLA nor the SARA designate state and local governments as primary agents, they are key stakeholders in the toxic waste cleanup process (International City/County Management Association, 1993). State and local governments bear a primary responsibility for maintaining the health and safety of the community; thus, they are often the first to identify hazardous waste sites within their jurisdictions. While it is not the typical course of action, sometimes state governments participate directly in Superfund remedial actions by taking the lead role in site cleanups. If the state chooses to do so, the state develops the plan, schedules, budgets, and contracts the implementation services. The state has responsibility to oversee the process, and the EPA monitors the state (United States Environmental Protection Agency, 1984). Local officials often get involved because they have the obligation to deal with frequently enraged citizens and to try to communicate scientific and technical risk assessment information.(3) States, local governments, and other federal agencies, however, are often involved in the Superfund process in a role that pits them against the EPA. In many cases, states, cities, counties, and other federal organizations have been targeted by the EPA as polluters and have had Superfund liabilities imposed on them. For state and local governments this often is because they have, by default, become the "owners" of abandoned industrial waste sites or because they are identified as PRPs for contaminated county or municipal landfills (Andrews, 1997; Glaser & Cherches, 1992; O'Leary, 1990). About 20% of Superfund sites are county or municipal landfills (United States Congress, Office of Technology Assessment, 1989), and about one-third of all Superfund sites involve a local government as a PRP (International City/County Management Association, 1993). Intergovernmental relations are complicated by other issues. For instance, Superfund puts state and local governments in an awkward position, for they may be forced to trade off the need for economic development, job creation, and retention as the EPA attempts to recover the cost of cleanup from companies even to the point of bankruptcy. While Administrator Browner's agency reforms have emphasized cooperating with the states, interaction between Superfund and the states is frequently adversarial. The EPA and the states often disagree over cleanup standards and selected remedies. Political shifts away from environmental protection within a number of the states magnify the difficulties in federal-state relations. Another contentious facet of Superfund program implementation has been the identification and listing of Superfund sites. Early in the program, state authorities were supportive of NPL listing and often identified the sites themselves. Superfund, however, rapidly came to be seen as more of a problem than a help. Objections were raised over the almost secretive manner in which Superfund worked. PRPs typically were given no advance notice, even if they were another unit of government. Finding out a site is proposed to be listed on the NPL by reading about it in the Federal Register did not win Superfund many accolades (Anderson, 1991). Over time, Superfund status came to be viewed as a stigma rather than as a federal assist with cleaning up hazardous waste sites (Kelly, 1991). Part of the taint was the volume of litigation often associated with Superfund actions that slowed the process of cleanup to a crawl. Some states found the cost-effectiveness of participating in the EPA site assessments to be so low that they reduced their participation. Other states, including Texas, California, and Minnesota, requested that the EPA not list many contaminated sites in the agency's database (National Governors Association, 1994). The Omnibus Consolidated Rescissions and Appropriation Act of 1996 made NPL listing even more difficult by requiring that none of the funds appropriated by Congress could be used by the EPA "... to list any additional facilities on the National Priorities List ... unless the Administrator receives a written request to propose for listing or to list a facility from the Governor of the State in which the facility is located..." (P.L. 104-134, 1996). While formal governors' concurrence is no longer necessary, informal pressure still exists and governors' actions have kept qualifying sites off the NPL. This is understandable, for while governors have an obligation to protect the health of the citizenry, they also are concerned about jobs and citizen satisfaction. An important source of resistance has been the very negative and vocal public reaction against having a Superfund site in their locality. Relationships between the EPA and other federal-level organizations also are sometimes strained. The DOE and the DOD are identified as PRPs for a large number of Superfund sites located on military installations and nuclear weapons production facilities. The EPA's jurisdiction with other federal agencies is far more restricted than with private sector PRPs or state and local governments. For remedial actions on federal facilities, the EPA must negotiate an Interagency Agreement with the particular agency through the Department of Justice. In this federal-federal context, the EPA has limited enforcement authority (Payne, 1998). Disagreements can occur regarding the level of detail needed, the appropriate remedy, and the schedule of cleanups. With an Interagency Agreement, the EPA concurs (or not) to the plan proposed by officials at the DOD or DOE site, but the EPA has far less direct authority. For removals on federal facilities, authority has been given to the DOD and the DOE as lead agencies (Federal Facilities Policy Group, 1995). Other organizational dynamics create tensions in EPA-DOD and EPA-DOE interactions. The DOE and DOD have long histories of agency independence and organizational secrecy. Coming into compliance and under the control of a regulatory agency has required substantial organizational changes. Shifting organizational missions so that environmental cleanup, and in many cases site closure, becomes the central focus is extremely difficult. Accepting the fact that the Cold War is over and coming to grips with the enormity of the environmental consequences of having built and deployed nuclear and chemical weapons is difficult for those who only a few short years ago saw themselves as national defense heroes (Federal Facilities Policy Group, 1995). Superfund sites located on federal facilities also present problems of overwhelming scale and complexity. The science and technology frequently do not yet exist to deal with the pollution, and the projected cleanup costs are astronomical. Additionally, at federal facilities typically there are multiple cleanups going on at the same time, with some being led by the federal government and others by the states. Frequently states with delegated RCRA authority are involved simultaneously in on-going RCRA oversight activities. Adversarial relations can result from dual regulators and overlapping lines of authority (United States Department of Energy, 1996, 1997). Cleanup Standards Superfund is a heavily decentralized program. The EPA itself is organized regionally, with a small headquarters office in Washington and 10 regional offices with relative autonomy. While the regions are somewhat dependent on the agency as a whole for resources and guidance, headquarters likewise is dependent on the regions for converting vague guidelines into sitespecific accomplishments. The relationship between the regions and EPA headquarters perhaps is described best as one of mutual need and, at the same time, tension (Barnett, 1994). Regional Superfund directors report to their regional EPA administrator, not to Superfund headquarters in Washington. Headquarters provides policy guidance, but authority rests in the regions. Regions set their own policies and may or may not choose to follow the guidance issued by headquarters. If one regional director "gets out in front" of headquarters on a policy, there is little that headquarters can do except adopt the policy as a national guideline. Regional policies often conflict, creating national inconsistency. Indeed, Superfund has been denounced heavily for this divergence across regions. The argument is that an accepted cleanup remedy and its associated cost in one region may vary greatly even given a similar site in another region. Critics interpret this regional incongruity as arbitrariness, concluding that decisionmaking within Superfund cannot be based on good and well-understood science if such variation exists between regions. EPA headquarters is trying to prevent this by providing "presumptive remedies" to the regions. These are boiler-plate responses the regions may use in specific situations both to speed investigations and to improve consistency of decisionmaking across the regions (National Governors Association, 1994). Yet there is some justification for regional inconsistency. Geographic variation is one explanation. For instance, a warehouse full of toxic drums located in the Northeast might be only feet away from surface water or groundwater, while that very same warehouse in the Southwest may pose far less of a water contamination risk. The remedy applied in one region, and the associated costs, will be considerably different than the one mandated in the other. Yet, both decisions could be based on sound science and valid risk assessment (United States Environmental Protection Agency, 1997b). Inconsistency may exist within, as well as across, regions. That is, the remedy selected and applied in one state might differ considerably from the remedy brought to bear at a comparable site in another state, even within the same region. This within-region variation is a result of the EPA's requirement, under the NCP, to comply with each state's "applicable or relevant, and appropriate requirements" (ARARs) (Revesz & Stewart, 1995; United States General Accounting Office, 1996a). Since there is divergence across the 50 states, with some states having more stringent environmental regulations than both the EPA and other states, the ARARs sometimes dictate distinct remedies. As the National Remedy Review Board has indicated, the Superfund program has been criticized because of too little consideration for cleanup costs (United States Environmental Protection Agency, 1996a). When Superfund was begun, the default expectation was site cleanup to residential standards. As the Browner administrative reforms have been implemented, cost effectiveness has risen in importance as a decisionmaking criterion for establishing cleanup requirements. The EPA's Brownfields Action Agenda is an example of this cost-consciousness. While typically not contaminated enough to be listed on the NPL, the Superfund program is promoting the redevelopment of abandoned and contaminated industrial properties through a series of Brownfields pilots that currently are under way. Each of these 2-year pilots has been granted up to $200,000 to bring together federal, state, and local governments as well as community groups to promote strategies for industrial standards-based environmental cleanup, redevelopment, and job creation and training in affected communities (Browner, 1997). The EPA's acceptance of the use of institutional controls and deed restrictions in certain sites also is indicative of the EPA's cost-consciousness. Institutional controls and deed restrictions can be used in cases for which the science and technology simply do not exist to provide a better solution to the problem or where the cost of implementing a viable solution would be prohibitive. This is particularly the case with federal facilities. The persistent problem of unexploded ordnance rising to the land's surface in decommissioned military weapons ranges is a case in point. Dealing with federal facilities housing the nation's nuclear contamination is another example. While controversial, permanently restricting the land use may well be the only practical solution for some sites. Declaring large land areas, formally used for nuclear weapons production, "national sacrifice zones" and adopting a goal of permanent containment rather than cleanup is a contested but seriously considered alternative. At several DOE sites, the future land use plans acknowledge and incorporate this option (Applegate & Sarno, 1997; Fernald Citizens Task Force, 1995; Washington State Department of Ecology & United States Environmental Protection Agency Region 10, 1989). Policy Implications Since the 1986 passage of the SARA, there have been many attempts to reauthorize a reformed Superfund. Efforts for reform have been particularly numerous in the last several Congresses. The 102nd Congress, for instance, introduced 26 bills related to Superfund, with 6 directly calling for fundamental changes in the CERCLA's liability provisions.(4) The 103rd Congress introduced 34 bills concerned with Superfund, with 13 calling for basic revision in Superfund's liability provision and improvements in the program's procedures.(5) Activity increased in the 104th Congress, with 57 Superfund-related bills introduced, 14 of which proposed restructuring the CERCLA to alter the liability provisions and improve cleanup efficiency.(6) The 105th Congress introduced 50 bills with a reference to Superfund, with 9 calling for comprehensive changes in the CERCLA's liability provisions and administrative procedures.(7) While none of these bills was passed into law, each contained proposals to reform the Superfund program. What suggestions for improving Superfund are being proposed? What would the likely consequences be, should they be implemented? One suggestion for liability relief argues against the entire notion of polluter liability. A common government liability, supported by revenue from a general tax, is suggested over the current scenario. This option, however, is not a probable outcome because neither the Congress nor the American public is likely to support the increased civic expenditure necessary to maintain the program through a general tax. The liability provisions in the CERCLA and the intent of Congress in writing those provisions emphasize the responsibility of polluters to pay for site cleanup. Even in the absence of intent or knowledge, the fact remains that polluters often obtained economic benefit from their actions. Evidence also suggests that the current liability scheme does not harshly impact the economy as a whole (Probst, Fuller, Litan, & Portney, 1995). Thus liability relief via complete removal of polluter liability, while discussed, does not seem a realistic outcome of a politically viable reauthorization. Proposals to modify liability provisions through proportional liability and orphan shares also have been put forward. Under these reforms, PRPs are liable only according to the proportion of waste they deposited. The EPA has partially implemented this approach by providing orphan shares; that is, using the fund to pay the share of bankrupt or missing parties so that identified PRPs have to pay only their fair share and do not have to resort to third-party litigation to recover costs. If the EPA has sole decisionmaking authority for determining proportional liability amounts, however, it is reasonable to assume that some PRPs might object to the proportional share that EPA denotes. Assuming that this is the case, then implementation of a proportional liability system itself might generate significant amounts of litigation. Moreover, adding a complicated procedural step to the front-end of the pipeline that stretches from site discovery to cleanup can only slow the process further. Liability relief for small-volume contributors also is another proposal under discussion (Probst & Portney, 1992). Implementing zero-dollar settlements with de minimis parties - those that have contributed very small quantities to sites - is a change put in place through Administrator Browner's reforms (United States General Accounting Office, 1996c). These zero-dollar settlements free a de minimis party from concern over third-party litigation, yet zero-dollar settlements still have administrative costs associated with them. Permanent relief for small contributors seems to be the answer to the dilemma but at the same time raises some considerable questions (United States Environmental Protection Agency, 1996b). What is the dividing line between a small-volume contributor who supposedly should be let off the hook and a polluter who should pay? Liability relief associated with the expansion of Brownfields is another issue that is being debated. Lenders already have received exclusion from liability (United States Environmental Protection Agency, 1992), but potential developers and owners of industrial sites want a similar promise of exclusion. Without removing the fear of potential Superfund liability, developing "greenfields" is far more prudent economically than redeveloping contaminated industrial sites. Nevertheless, restricting industrial activity to lands already contaminated, as opposed to allowing contamination of pristine lands, is an environmentally sound proposal. Improving cleanup competency is the second part of the reform debate. There are several proposals for how improved performance might be achieved. Often discussed are plans to devolve toxic waste cleanup efforts to the states and to cap or limit new additions to the NPL (United States General Accounting Office, 1996b). Those that support the notion of devolution suggest that several arguments weigh in favor of the states being more efficient and effective than the EPA in toxic waste cleanup (Kritz, 1997). They suggest that in performing the cleanup, there are significant cost differentials between the federal and state agencies. For instance, while states undertake many of the same technical operations as Superfund in site assessment and assignment of PRP liability, federal analysis is far more expensive. The costs, they suggest, are high in large part because the federal government must have extraordinary quality controls to meet litigation standards (McElfish & Pendergrass, 1993). The states, relying more heavily on cooperative strategies with PRPs than does Superfund, have fewer legal requirements that delay the federal government. Those that favor devolution of the program add that federal contracting procedures are cumbersome, slow the process, and are far more likely to promote accountability than efficiency (National Governors Association, 1994). While these arguments have merit, it is important to consider that benchmarking the states to the federal government in terms of efficiency and effectiveness may be unfair. The states do not select the large sites that are scientifically or politically difficult to clean, so there well may be no equal basis on which to compare federal with state performance. Even more difficult to evaluate is the nearly symbiotic relationship that exists between state and federal agencies, which actually promotes the observed level of state efficiency. State officials consciously use the threat of Superfund in negotiating with liable parties to gain "voluntary" compliance. Removing the federal threat through devolution of the program to the states likely would reduce voluntary compliance. This compliance removes much of the necessity for litigation, which makes the states appear more efficient and effective than they would be without the fear of Superfund. Efforts to devolve much of Superfund to the states also raise the issue of state willingness and capacity. Some states are unlikely to assume a delegated Superfund program, even with federal dollars attached. There are several reasons for this. First, many states are under extreme political constraints that simply do not permit an expanded state role. Secondly, those with strong state-based programs may not want the program because they already have delegated authority for other federal environmental programs and see no advantage in taking on the effort and perhaps expense of Superfund. Other states will not take Superfund because they lack the scientific and engineering capacity. The states already have tremendous responsibilities associated with toxic waste sites that do not qualify for NPL status, and there are more of those than the states can handle in the foreseeable future. Even if states have the political, organizational, and technical capacity to assume the program, still there are trans-border and federal facilities issues in which a federal Superfund has a central role to play. Critics of Superfund see capping or limiting additions to the NPL as a means of reducing the role of Superfund in the overall toxic waste cleanup effort. Unfortunately, by simply limiting the federal role in Superfund, Congress essentially would be creating a mandate to the states to clean all sites (Hosansky, 1995). Limiting what the federal government will do means that either the states pick up the responsibility or the job does not get done. While many proposals are being discussed in terms of a reformed hazardous waste public policy, there is one issue that is not getting the attention it should. Cleaning the environmental contamination created by the nation's nuclear weapons complex is the largest, most difficult, and most expensive Superfund task the nation faces. The shear size and scope of the problem and current estimates of projected costs(8) make this one of the most massive public works program ever undertaken by the U.S. government. Much time is spent in the reform discussion focusing primarily on private sector impacts. While these are of importance, far more policy debate needs to center on the improving cleanup competence at federal facilities. Conclusion On the surface, Superfund seems a simple and rational hazardous waste public policy, yet it has stirred much controversy since its inception and continues to do so. The deep extent of the conflict surrounding the program is revealing, for Superfund is neither the largest nor the most expensive of U.S. environmental programs. The contention stems not from the size and scope of the program, but rather from two primary sources. The first is that questions abound regarding the lack of fairness of the stringent liability provisions established by the enabling legislation. The second source of discontent centers on the less than glowing assessments of the bureaucratic implementation of the program. Attempts at reauthorization of the legislation address these complaints. Various solutions have been offered, yet none thus far has been adopted by Congress. Given the extent of the U.S. toxic waste problem, the reauthorization of Superfund is of considerable significance. How long Superfund will languish in political uncertainty is not apparent. What is clear, however, is that the cleanup of toxic waste sites in the United States remains today, as it did several decades ago, a politically highly charged issue in need of careful attention. Notes This research was funded in part by a grant from Iowa State University's Science, Technology, and Society Program. I am grateful for this support. I also acknowledge and thank the many individuals I interviewed at the EPA, the Departments of Defense, Energy, and Justice, as well as those working for legislative agencies and within state and local governments. 1 The following people were interviewed: Bob Meyers, Office of Emergency and Remedial Response, EPA (Headquarters); Robert DeMarco, Waste Management Administration, Maryland Department of the Environment; George Wyeth, Office of General Counsel, EPA (Headquarters); Earl Salo, Office of General Council, EPA (Headquarters); Paul Connor, EPA (Headquarters); Steve Luftig, Director, Office of Emergency and Remedial Response, EPA (Headquarters); Dave Evans, State Site Identification Center Office of Emergency and Remedial Response, EPA (Headquarters); Murray Newton, Region 1 & 9 Response Center, Office of Emergency and Remedial Response, EPA (Headquarters); Bill Brighton, Department of Justice, Environmental Enforcement Section, Washington, DC; Joshua M. Levin, Natural Resources Division, Environmental Defense Section, Department of Justice, Washington, DC.; Jim Woolford, EPA (Headquarters); Wendy Carney, Remedial Branch Chief 1, Superfund Division, EPA Region 5; John O'Grady, Project Manager, Superfund Division, EPA Region 5; John Isbell, Director of Public Works, City of Woodstock, Woodstock, IL; Joseph Dufficy, Early Action/Brown fields Manager, Superfund Division, EPA Region 5; William Muno, Director, Superfund Division, EPA Region 5; Lois Bitka, State Project Officer for Minnesota and Ohio, EPA Region 5; Alison Berkes, Counsel, House Subcommittee on Finance and Hazardous Materials, Commerce Committee; Kenneth J. Kopocis, Counsel, Subcommittee on Water Resources and Environment, Committee on Transportation and Infrastructure; Susan Bodine, Counsel, House Subcommittee on Water Resources and Environment, Committee on Transportation and Infrastructure; James Barnette, Counsel, House Commerce Committee; Lee Campbell, aide for Senator Robert Smith, chair of the subcommittee on Superfund, Waste Control and Risk Assessment, Committee on Environment and Public Works; Stewart Wisness, Director of Product Management Division, DOE, Richland Field Office; Patrick Wilison, Attorney, DOE, Richland Field Office; Rich Holton, Environmental Restoration Division Director, DOE, Richland Field Office; Paul Day, Project Manager, EPA Region 10; Douglas Sherwood, Hanford Project Manager, EPA Region 10; David Einan, Hanford Regional Project Manager; EPA Region 10; Dennis Faulk, Hanford Regional Project Manager, EPA Region 10; Pamela Innis, Hanford Regional Project Manager, EPA Region 10; George Sanders, Hanford Triparty Agreement Administrator, Environmental Assurance, Permits and Policy Office, DOE, Richland Field Office; Guy Schein, External Affairs, DOE, Richland Field Office; Frank Westrum, Assessment Coordinator Environmental Epidemiologist, Office of Environmental Health Assessment Services, Washington State Department of Health; Tim Nord, Toxics Cleanup Program Section Manager, Washington State Department of Ecology; Mary Burg, Toxics Cleanup Program Manager, Washington State Department of Ecology; Dan Silver, Deputy Director, Washington State Department of Ecology; Bub Loiselle, Unit Manager for Emergency Response/Site Cleanup, EPA Region 10; Catherine Krueger, Unit Manager for Site Cleanup, EPA Region 10; Anne Williamson, Unit Manager for Site Cleanup, EPA Region 10; Amber Wong, Unit Manager for Site Cleanup, EPA Region 10; Nancy Harding, Federal Facilities Manager, EPA Region 10; Bill Alkyre, Director, Office of Intergovernmental Relations, Washington State Department of Ecology; Randall Smith, Director, Office of Environmental Cleanup, EPA Region 10; Hank Sokolowski, Chief, Superfund Federal Facilities Branch, Hazardous Waste Management Division, EPA Region 3; Abe Ferdas, Acting Division Director, Hazardous Waste Management Division, EPA Region 3; Thomas Stolle, Brownfields Coordinator, Hazardous Waste Management Division, EPA Region 3; Jack Donnelly, Washington State Department of Ecology, Kennewick Field Office; Susan Dalls, Washington State Department of Ecology, Kennewick Field Office; Lee Stevens, Assistant Manager for Compliance and Support, DOE, Ohio Field Office; Kenneth Morgan, Public Affairs Director, Gary Stegner, Public Information Office Director, DOE, Fernald Area Office; Sue Walpole, Coordinator/Secretary of the Citizens Advisory Board, DOE, Fernald Area Office; John Applegate, Chair, Fernald Citizens Advisory Board; Jack R. Craig, Director, Fernald Environmental Management Project, DOE Fernald Area Office; Glenn Griffiths, Deputy Director, Fernald Environmental Management Project, DOE Fernald Area Office; Graham Mitchell, Chief, Office of Federal Facilities Oversight, EPA Ohio; Steve Slaten, The Rocky Flats Clean-Up Agreement Project Coordinator, DOE Rocky Hats Field Office; Shaun Bell, Environmental Attorney, DOE Rocky Flats Field Office; Charles Schermann, Arsenal Remedy Executions Manager, DOD Rocky Mountain Arsenal Field Office; Tim Rehder, EPA Rocky Flats Project Coordinator, EPA Region 8: Steve Tarlton, Rocky Flats Program Manager, Colorado Department of Public Health and Environment: Barbara Nabors, Arsenal Project Manager, Colorado Department of Public Health and Environment; Laura Williams, EPA Remedial Project Manager, EPA Region 8; Paul Grogger, Rocky Flats Citizens Advisory Board; Deanne Butterfield, Executive Director, The Rocky Flats Local Impacts Initiative; Jim Kinsinger, Rocky Flats Citizens Advisory Board; Tom Marshall, Rocky Flats Citizens Advisory Board; Robert W. Poe, Assistant Manager, Environment, Safety and Quality Office, DOE Oak Ridge Field Office; Peter Gross, Director, Technical Support Division, DOE Oak Ridge Field Office; Margaret Wilson, Deputy Group Leader, Oak Ridge Reservation Remediation Group, DOE Oak Ridge Field Office; Marty Schweitzer, Research Staff, Oak Ridge National Laboratory; Amy K. Wolfe, Research Staff, Oak Ridge National Laboratory; Bill Pardue, Oak Ridge Reservation Environmental Management Site Specific Advisory Board; Bob Peelle, Oak Ridge Reservation Environmental Management Site Specific Advisory Board; Frank Juan, Public Affairs Officer, DOE Oak Ridge Operations Office; Doug McCoy, Manager, Environmental Restoration Program, DOE Oversight Division, Tennessee Department of Environment and Conservation; Randy Young, Assistant Manager, Environmental Restoration Program, DOE Oversight Division, Tennessee Department of Environment and Conservation. 2 Sites below the NPL threshold, while still hazardous waste sites, are left to the states to clean up. Hundreds of thousands of sites do not rank highly enough on the HRS to be placed on the NPL. 3 The EPA offers financial assistance to local governments in the form of Technical Assistance Grants to hire contractors with expertise to help them understand and communicate technical details to the citizenry. 4 H.R. 5609, H.R. 139, H.R. 1643, S. 1086, H.R. 2216, and H.R. 2767 all propose some from of liability relief, including establishment of fault-based liability, lender liability relief, and municipal solid waste liability relief. 5 These include H.R. 3506, H.R. 3624, H.R. 4351, H.R. 3865, H.R. 4382, H.R. 540, H.R. 3800, H.R. 541, H.R. 4915, S. 1994, H.R. 4161, and H.R. 4916. 6 These include HR. 1901, H.R. 1616, H.R. 2801, H.R. 2210, H.R. 854, H.R. 855, H.R. 1969, H.R. 228, H.R. 2742, S. 607, H.R. 2256, S. 394, S. 1285, and H.R. 820. 7 These include S.8, H.R. 2086, H.R. 2485, H.R. 1157, H.R. 1158, H.R. 3000, H.R. 3595, H.R. 1878, and H.R. 2750. 8 Projected costs are from $200 billion to $1 trillion. 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