Hazardous waste in abandoned or deliberately uncontrolled landfills has been a major issue. Most toxic and hazardous substances are an inheritance of the worldwide chemical revolution following World War II (Rosenbaum 2020). The creation of synthetic chemicals continued at such a fast pace after 1945 that, by the mid-1960s, the American Chemical Society had registered more than four million chemicals (Rosenbaum 2020). After the discovery of Love Canal in 1978 escalated rapidly into a national media event dramatizing to Americans the danger of abandoned toxic wastes within the United States, Congress reacted by passing the Comprehensive Environmental Response Compensation, and Liability Act, also known as CERCLA (Rosenbaum 2020).
Today, more than 84 thousand chemicals are used daily in U.S. industry while at least 500 new chemicals are created annually; however, Congress would not develop a similar solution to CERCLA. A regulation similar to CERCLA would attempt to regulate an unreasonable amount of discrete, pervasive substances (Rosenbaum 2020). Moreover, regulation is delayed because of the need to acquire technical information, conduct research on the hazardousness of new chemicals and to secure from corporations highly guarded trade secrets (Rosenbaum 2020). Also, nearly all major regulatory action intended to limit the production, distribution, or disposal of chemical substances deemed toxic or hazardous by the government is subject to technical controversy, litigation and other challenges concerning the degree of risk associated with such substances and their suitability for regulation under the laws (Rosenbaum 2020). Crucially, opponents of solutions similar to CERCLA have been able to use all the opportunities provided by requirements for administrative due process and the federalized structure of regulation to politically challenge new acts (Rosenbaum 2020). All in all, it is enormously difficult to control hazardous substances once they are already released into the ecosystem.
Rosenbaum, Walter A. 2020. Environmental Politics and Policy, 11th ed. Los Angeles, California: Sage.
Comment by Chris Bonham:
Great synthesis of how CERCLA was developed and enacted after the discovery of the Love Canal hazardous waste dumpsite. I really have a hard time imagining how anyone would knowingly dispose of something potentially harmful to humans or the environment and just walk away. Rosenbaum (2020, 216) helped give me an idea of how vast and complicated the Superfund really is, having spent more than $32 billion so far as well as managing 1,392 current sites posted on the National Priority List with some 50,000 to 70,000 additional potential sites.
Of course the kicker in all of the work that needs to be done is the current presidential administration, which has reduced the work at Superfund sites to an all time low since its enactment in 1980 (Knickmeyer 2020). Knickmeyer (2020) reports that families and entire communities near Superfund sites are going to have to endure the hazardous conditions for longer due to the rollbacks in funding and staff. Mixing hazardous chemical into the natural environment is horrible in itself, yet when citizens health are being effected, clean-up efforts should be increasing not decreasing.
Knickmeyer, Ellen. 2020. “Toxic Superfund Cleanups Decline to More Than 30-year Low.” Accessed November 4, 2020. https://apnews.com/article/c1d827364ac630d53848ac3ec489788d.
Rosenbaum, Walter A. 2020. Environmental Politics and Policy, 11th ed. Thousand Oaks, California: Sage.
Comment by Professor Morgan:
Excellent analysis of the political realities of tackling such a complex issue. It points to the need for the precautionary principle since responding after the fact is proven to be so challenging.
Hi Professor Morgan,
I am a major fan of the precautionary principle.
Even though Sweden has dealt with the pollution from its industrialized neighbors, Los Angeles Times describes the nation as “a leader for almost half a century in research into the dangers of toxic compounds and efforts to protect its people and wildlife” (Cone 2005). After Sweden entered into the European Union (EU) in 1995, the organization’s policies have been significantly tightened. Sweden’s laws are “now the model for the European Union’s bans and restrictions on hundreds of chemicals found in everyday products, such as furniture, computers and hair sprays” (Cone 2005).
However, according to Alastair Iles, a postdoctoral scholar at UC Berkeley’s Energy and Resources Group, the major Sweden EU contribution called the precautionary principle is originally rooted in German philosophy. The tenants are based on vorsorgeprinzip, “translated as taking preventive action in the face of uncertainty” (Cone 2005). Instigated by fear, it was birthed from a 1986 German depiction of a society where unnecessary risk permeates all European grounds (Cone 2005).
Now, according to Bo Walstrom, senior international advisor at the Swedish Chemicals Inspectorate, “a scientifically based suspicion of risk is enough under Swedish law to act against a chemical. To avoid action, an industry must show beyond a reasonable doubt that the suspicion is unfounded and that their product is safe” (Cone 2005). It’s essentially a reversed burden of proof. In 1991, Sweden officially solidified the reversed burn of proof, combined with the substitution principle, into its own law. Sweden then used both to guide the EU’s regulation.
Cone, Marla. 2005. “Sweden Leads Ban on Toxins.” Los Angeles Times. Accessed November 6 2020.
Comment by Erin Cleere:
Thanks for raising the point from Rosenbaum about how the pace of creating new chemicals increased rapidly post-WWII. It seems as if that period also saw the rise of plastics that we’re dealing with the fallout of as well – not that there weren’t toxics before the late 40s and 50s, but that post-war boom brought on a number of issues that wouldn’t be recognized for decades. I saw Professor Morgan’s reference to the precautionary principle and your response about your strong support of it – which I also think is a much better approach than the consistently reactive tactics we use now. I feel like a broken record, but I hope we can start to shift more and more into a proactive approach instead of continuing to rely on reactive cleanups because, as you noted, it’s “enormously difficult” to deal with toxic substances once they permeate our environment and communities.
Original Post by Jenny Murphy:
CERCLA, also known as Superfund, was developed in 1980 to address the cleanup of hazardous substances that threaten human health, welfare, and the environment. Prior to CERCLA, toxic wastes were dumped in landfills, uncontrolled environments and abandoned (REISCH 2003). Incidents such as the Love Canal Tragedy in New York prompted CERCLA.
Love Canal was named after a land owner who dug a canal in an attempt to utilize the upper and lower Niagara Rivers to generate cheap electricity. When the idea failed, the area remained an empty canal. Eventually, the land was purchased by the Hooker Chemical Company and used as an industrial and municipal dump site. Later, the canal was covered in dirt and sold to the city for one dollar. By the 1950’s, the dump site was long forgotten and a school and 100 homes were built over the area. In 1978, a record rainfall event occurred reminding residents of its history. Corroding waste barrels came to the surface along with the toxic chemicals contained in them. Trees and gardens turned black and died, puddles of chemicals surfaced everywhere and children would come in from playing with chemical burns on their hands and faces. Miscarriages and birth defects were disturbingly high in the area, and cases of leukemia rose (Beck 1979). Unfortunately, this is just one example of the many reasons why CERCLA was enacted.
If events were to occur today as in the past I am not sure the same effort would be put in to mitigate the issues. A report written by the Center for Health, Environmental and Justice for the 35th anniversary of Superfund indicates that it is experiencing a decline in financial stability, fewer cleanups are occurring each year, and the program has been terribly mismanaged leading to a proposal to transfer responsibilities being considered (CHEJ 2015, 4).
The requirement for fees to be paid by polluters ended in 1995 and by 2003 the cleanup funds ran out and funding for the program was transferred to American taxpayers weakening Superfund’s response to toxic waste sites (CHEJ 2015, 5).
Inaction by the EPA has prompted a proposal for the Army Corps of Engineers to take over the program. A Superfund site known as West Lake Landfill in Missouri caught fire in 2011 and was still burning in 2015. The fire is within 1000 feet of abandoned radioactive waste. Radioactive contamination has been found in tress and groundwater off site of the landfill, but the EPA has continued to fail on making a decision on cleanup actions for the site (CHEJ 2015, 16).
It seems that the newness of CERCLA has worn off and politics have placed top concerns elsewhere. In 1997, CERCLA prompted 88 cleanup sites annually and by 2014, that number was reduced to just 8. Initially, there were 47,000 toxic sites identified and between 2009 and 2013, an average of 20 more per year were discovered (CHEJ 2015, 12-13). However, a lack of funding and a lack of concern has abandoned the effort to protect American citizens from the known toxicity of waste dump sites.
Beck, Eckardt. 2003. “The Love Canal Tragedy”. Accessed November 1, 2020. https://archive.epa.gov/epa/aboutepa/love-canal-tragedy.htmlLinks to an external site.
Center Health, Environment and Justice (CHEJ). 2015. “Superfund: Polluters Pay so Children Can Play”. Accessed November 1, 2020. http://chej.org/wp-content/uploads/Superfund-35th-Anniversary-Report1.pdfLinks to an external site.
Reisch, Mark. 2003. “Superfund: A Summary of the Law.” Congressional Research Service. February 24. https://www.everycrsreport.com/reports/RL31154.html
Excellent explanation of how the report written for the 35th anniversary of Superfund shows Congress would not develop a similar solution today considering the recent lack of attention towards the toxic waste issue. However, I did find the EPA’s Superfund Task Force ReportLinks to an external site. which is a document created to improve CERCLA’s design and implementation. After taking a look at the report, I see there still being a possibility that regulators can generate incentive to make the polluters pay for the cleanups. A company responsible for the toxic waste may be motivated to cleanup a site in order to bring independent financial gain or improve its public image. The Superfund program needs to work on how to show a company the site’s redevelopment value and integrate the reuse needs into cleanup activities. For example, in my hometown in Glenview, IL there is a RCRA Corrective Action Site which was a former naval air station that has been cleaned up and repurposed. The site is called The Glen. Investors gathered together to understand the town needed more housing, as well as restaurants and artistic entertainment. Now that the services are in place, people frequently attend the site and the business is thriving. Creating portfolios of these success stories and making them visible to every environmental cleanup’s key financial players is crucial. However, I could see a challenge arising as polluters may fear interacting with third parties to facilitate reuse because of the technical, financial and legal burdens that arise when that outside entity wants to build on a contaminated site. The report mentioned the EPA is looking to address liability issues that keep local governments from considering reuse. All in all, the report discussed measures to incentivize private investment by assisting in working around the bureaucracy.
Original Post by Jess Gilbert:
There were a few events that led to the creation and implementation of CERCLA. First, in 1976, Congress passed RCRA in response to public concerns over “midnight dumping” or the illegal dumping of toxic wastes. Congress also passed TSCA in the same year, allocating authority to the EPA to control the unreasonable release of toxic chemicals that could pose harm or risk of injury to public and environmental health (EPA 2020).
In 1977, New Jersey was the scene for a chemical-waste treatment facility that caught on fire. A simple spark from a welder’s torch set off a number of chemical reactions that not only sent drums of chemicals flying through the sky and blankets of black smoke covering the city, it also left 6 people dead and injured 35 others. The following year resulted in Love Canal, a much more highly publicized issue, and is often cited as the reason for the creation of CERCLA (EPA 2020; Rosenbaum 2020, 215). Love Canal was meant to be a “dream community” powered cheaply by hydroelectricity generated by a man-made canal situated between the upper and lower Niagara Rivers. This part of the dream was never realized and instead, the partially completed ditch was used to dump municipal and industrial chemicals starting in the 1920s. This site was not managed properly and after a year of record rainfall, chemicals began leaching into the soil and chemical drums were being uncovered in residents’ backyards. Both the environment and human health were affected in numerous and apparent ways (Beck 1979).
There was another explosion of toxic wastes in a different New Jersey city in 1980, and the fire burnt for about 10 hours. There were thick plumes of smoke, and ash was spread in an area encompassing nearly 15 miles. To protect residents immediately, schools were closed, and residents were encouraged to stay indoors with their windows and doors securely shut. CERCLA was passed later that year (EPA 2020).
I don’t think that CERCLA or anything similar would be passed with the combination of our current administration and Congress. The amount of time and money that is needed to enforce and carry out the demands of CERCLA would be seen as too burdensome for the current administration and would place too much of a burden on polluters to properly manage their waste. We have seen time and time again that the Trump administration has looked at many environmental regulations including efforts to promote clean water and clean air as “too burdensome” for industries and corporations to comply with. Thus, the administration has rolled back those regulations to make it easier for industries and corporations, and to save them money in the long run (Newburger 2019). I think a lot of the regulations around controlling toxic substances would be contested by the Trump administration as being too costly and too inefficient, despite any of the necessary good that they do to protect human health and the environment.
Beck, Eckardt C. 1979. “The Love Canal Tragedy.” EPA Journal, January. Accessed November 3, 2020. https://archive.epa.gov/epa/aboutepa/love-canal-tragedy.html.
EPA. 2020. “Superfund History – Printable Version.” United States Environmental Protection Agency, July 20. Accessed November 3, 2020. https://www.epa.gov/superfund/superfund-history-printable-version.
Newburger, Emma. 2019. “Trump is rolling back over 80 environmental regulations. Here are give big changes you might have missed in 2019.” CNBC, December 24. Accessed November 3, 2020. https://www.cnbc.com/2019/12/24/5-major-trump-climate-rollbacks-you-might-have-missed-in-2019.html.
Rosenbaum, Walter A. 2020. Environmental Politics and Policy. 11th ed. Thousand Oaks: CQ Press.
I agree the amount of money necessary to enforce CERCLA would seem too burdensome for the current administration. I found it interesting, the original $1.6 billion fund established by CERCLA to finance the cleanup of areas contaminated by improperly disposed toxic waste at its birth was 88% paid for by the oil and chemical industries and 12% paid for by the government (Miles n.d.). Considering the funding limitations presented by the governmental stakeholders in your initial post, what motivated the oil and chemical industries back in the day and is there anything today that would drive oil and chemical industries to devote such funds once again?
Further, CERCLA exceptionally navigated the legislative process, from introduction to passage, during the 96th Congress alone. This bill achieved in two years what other bills, some less controversial, achieved in decades (Miles n.d.). However, a unified government cannot explain on its own why CERCLA passed the 96th Congress. In fact, researchers have found that not all unified governments are the most productive at passing bills (Dodd and Schraufnagel 2009). The background section of of this articleLinks to an external site. explains how CERCLA made its way through the Carter administration. What lessons does the progression provide that are applicable to now?
Dodd, L. C., & Schraufnagel, S. 2009. “Reconsidering party polarization and policy productivity: A curvilinear perspective”. In L. C. Dodd (Ed.) & B. L. Oppenheimer (Ed.), Congress Reconsidered. Washington, DC: CQ Press.
Miles, Christian. n.d. “The Comprehensive Environmental Response, Compensation and Liability Act of 1980”. University of North Georgia.
Response by Jess Gilbert:
Thank you so much for your response and all of this additional information that you have shared! It doesn’t look like it was out of kindness that the oil and chemical industries paid 88% of the fund, it was mandated by taxes which I feel is the correct course of action considering the waste was being produced by these industries at large – taxpayers shouldn’t have to be burdened by paying for the cleanups themselves (though I’m sure private citizen tax money has probably been allocated to cleanups). I think that today, the oil and chemical industries would push back against having to pay such a large percentage into the fund. With today’s Congress, I think that these industries would have strong leverage to push that percentage down or generally weaken CERCLA regulations.
I think one of the biggest lessons to be learned from the creation and eventual approval of CERCLA is that policymakers didn’t give up. They conferred with industry professionals at points and continued to draft new legislation until they found versions that they liked and that President Carter and state governors even fully supported. Congress continued to try instead of setting the original bill aside and never looking at it again. What do you think?
I would agree with both of your answers! Well said