Can Superfund Be Reformed to Reduce the Misallocation of Resources?
Time 5 Minute Read
Categories: EPA, Policy, Waste

The Superfund program is much criticized for good reason on many grounds. It takes too long to investigate sites and decide on the appropriate cleanup. The costs for investigation and cleanup actions are excessive. The process is seemingly never-ending as contaminated sites languish on the National Priorities List for decades.

Streamlining the process is a worthwhile goal, but equally important would be reforms to promote remedy decisions that take account of the fact the resources are not unlimited. Money spent on cleanup is not available for another purpose. Unfortunately, because of its single-minded focus on often remote human health and ecological risks associated with exposures to chemical contaminants (usually based on highly conservative exposure assumptions), the Superfund program drives a lot of resources to cleanup that likely would be better allocated to another use.

Consider the example of sediments in an urban river contaminated from decades of storm-water runoff from throughout the watershed. Assume that a risk assessment concludes that the only “unacceptable” human health risk is to a “subsistence fisher”—that is, someone who eats fish from the river nearly every day. Under current Superfund practice, even if no one is currently engaged in such subsistence fishing, the possibility that someone may choose to do so in the future could justify a decision to undertake a far-ranging cleanup of the sediment. In many sediment cases, the parties who will be compelled by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the law behind the Superfund program, to pay for such cleanup will include public entities, such as a city that operates a storm sewer system that discharges to the river. It is reasonable to ask whether it is the best use of potentially hundreds of millions of dollars of taxpayer funds to conduct a massive cleanup solely to ensure that a few persons can engage subsistence fishing—assuming anyone actually would do so at all. The risk could be addressed instead by a fish consumption advisory, leaving the funds that otherwise would have been spent on sediment cleanup available for alternative uses that could provide a substantially greater benefit to more people, such as funding programs to provide food, health care, job training or even just removing trash from the river.

When the choice is framed this way, no doubt many persons would not choose to spend substantial resources on sediment cleanup for such little benefit compared to the much larger and more widely shared benefit of many alternative uses to which such resources might be allocated. A similar issue is presented by the example, often encountered at Superfund sites, of contamination of groundwater that is not currently being used, and likely never would be needed, for drinking water. The cost to reduce chemical concentrations below Maximum Contaminant Levels is often very high with only marginal real-world benefit compared to other uses for the resources in question.

Of course, the Superfund program is not intended or designed to allocate funds among all competing socially beneficial purposes. The selection of a remedy in practice is a choice between alternative cleanup options, not between cleanup and some other objective. Nonetheless, if scarce resources are to be allocated in a way that attempts to maximize general welfare, the remedy selection process should not be conducted in a vacuum that excludes all consideration of alternative socially beneficial uses for funds otherwise to be expended on cleanup. Recognizing that the selection of a remedy is in fact a choice to forego other uses for the money spent on cleanup, it seems only rational to apply some notion of proportionality to that decision, at least to ensure that cleanup costs are not obviously out-of-line with the risk to be addressed, particularly where public resources are directly involved.

Like the weather, everyone complains about the Superfund program, but nobody does anything about it. Perhaps that could change. In a memo issued on May 22, EPA Administrator Scott Pruitt established a task force charged with developing recommendations for improving the program, and he is currently considering the task force’s recommendations. The recommendations have not yet been made public, but one topic the task force was directed to address is the process for development and selection of remedial actions, “including to ensure that risk-management principles are considered in the selection of remedies.” Principles of risk management certainly could include a broader consideration of whether the risk mitigated by a particular cleanup is sufficiently meaningful to justify the costs, although it is not apparent that any such outcome is contemplated by the current reform initiative. There is also some question as to whether or to what extent such an approach could be reconciled with provisions of CERCLA that set standards for cleanup based on the strict application certain regulatory standards. Needless to say, an amendment to the statute would be a much bigger challenge than a change to EPA Superfund guidance, but that does not mean it is not worth considering.

And even if the task force were to suggest an approach that takes better account of the relative benefits of a particular cleanup compared to other possible uses for the resources in question, it would certainly encounter opposition from some quarters. For example, a group calling itself “The People's Task Force” issued a response to the May 22 Pruitt memo expressing general opposition to the suggested reforms and asserting in particular that “the focus of Superfund cleanup must place public health as a priority, when weighed against private interests and money.” While that sentiment is understandable when the “money” in question belongs to someone else, when it comes to public policy choices of the kind implicated by certain Superfund remedy decisions, the decision-making should recognize that we are not necessarily spending someone else’s money.

  • Partner

    Head of Hunton Andrews Kurth’s administrative law team, Eric is respected for his business-minded approach to environmental compliance and risk management. Eric has 30 years of experience advising clients on compliance ...


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