Room for a View > Special Report
What Happened to the Superfund?
by Todd Paul; edited by Lorna Tychostup
Illustration by Jim Campbell

Many Americans are aware that the Bush administration has shifted the tax burden for the federal Superfund from polluting industries to ordinary citizens, and may abandon the program altogether; but New Yorkers may not realize that the state Superfund, a parallel program funded in 1986 with a $1.1 billion bond act, is also dying a slow death, the victim of a three-year legislative impasse between Governor Pataki and the state Assembly.

In theory, the federal Superfund cleans up large polluted sites, such as the Hudson River, while the state Superfund handles smaller sites, such as abandoned landfills and leaking gasoline tanks, which pose a health threat but may not rise to the attention of the national program.

But the state Superfund, which has cleaned up over 300 sites since its inception, went bankrupt in April, 2001, leaving hundreds of known toxic sites untouched.
The state Department of Environmental Conservation, which administers the state Superfund, can take action on new sites in emergency situations-for example, if it believes lives are in danger-and will continue cleanups already in progress. But the state Superfund is essentially stalled where new sites are concerned. Some 766 known sites, including 77 in the Hudson Valley, are now waitlisted, awaiting overdue funding.

"They are stalled right now," says Peter Constantakes of the DEC press office. "There's just not money to proceed with a full investigation.... The sites won't be cleaned up until funding is provided."

The Legacy of Love Canal
Both the federal and New York State Superfunds were created as a result of the infamous Love Canal incidents of the 1970s. Love Canal jolted Americans awake to the dangers of chemical dumps and landfills, and still serves as a textbook case illustrating the need for government intervention where public health is threatened.

The abandoned, 3,000-foot-long canal in the city of Niagara Falls was named after entrepreneur William T. Love, whose vision of a navigable waterway around the falls evaporated in the mid-1890s when he lost financial backing. The incomplete canal was sold at auction and soon became a dumping site.
The canal was used primarily by Hooker Chemical, which dumped nearly 42 million pounds of toxic chemicals there between 1942 and 1953, and then covered the mess with clay and dirt.

The chemical-filled canal was then sold to the Niagara Falls Board of Education for $1, along with a warning about buried chemicals and a disclaimer absolving Hooker Chemical of any further responsibility. The 99th Street School was built directly over the former landfill, and housing was developed around the site. Homeowners were not warned of the potential hazards.

From the late '50s to the early '70s, residents repeatedly complained of noxious odors and black sludge bubbling up in their yards and in the school playground. Children who played outdoors suffered from rashes and respiratory problems. The city, when it responded, used dirt to cover over the unidentified substances oozing out of the ground.

Eventually the city and county funded an investigation, with the result that PCBs, dioxin and other toxic chemicals were found in the air and soil, and in the sump pumps of area houses. The investigating company recommended remedial action, but none was taken until a series of articles by Michael Brown, a reporter for the Niagara Gazette newspaper, detailed the problem in 1978. Residents renewed their calls for action, the state Department of Health investigated, and activist/resident Lois M. Gibbs spearheaded a drive to close the 99th Street School, where her son attended kindergarten.

Finally, New York State Commissioner of Health, Robert M. Whalen, declared a medical state of emergency at Love Canal and ordered the immediate closure of the school. President Jimmy Carter declared the Love Canal area a federal emergency on August 7, 1978, a move that provided funds to permanently relocate the 239 families living in the first two rows of homes encircling the landfill. It was the first time in history that a federal disaster was declared as a result of human actions. Later studies led to the permanent relocation of all 900 residents of the area.

An informal study conducted by the EPA found that 11 of 36 Love Canal residents tested had developed chromosome damage, which is linked to birth defects. Of the fifteen babies born to Love Canal families between January 1979 and January 1980, the Love Canal Homeowner's Association reported that only two were normal. The others had birth defects or were stillborn. A survey conducted by the Love Canal Homeowners Association found that 56% of the children born from 1974 to 1978 had a birth defect.

These and other studies of the health of Love Canal residents have been criticized as unscientific, and there is an ongoing debate as to how dangerous the site really was and whether all the evacuations were necessary. One thing is certain: Love Canal led to a new public awareness of the prevalence of toxic chemical dumping and its potential dangers. Out of this awareness, the federal and state Superfunds were born.

Pollution and Politics
There's no lack of enthusiasm for the state Superfund. It's a popular and successful program lauded by all sides of the state's tripartite govenment. What appears to be lacking is the political will necessary to reach a funding agreement.

The governor has proposed a plan to fund the program, which has been bankrupt since April 1, 2001, with $90 million per year over a 20-year period. The state Senate has passed essentially the same legislation. But the state Assembly wants to give the fund $200 million per year for 10 years.

This might seem to be a distinction without much of a difference. But according to Mike Livermore, environmental campaigns director for NYPIRG, Pataki's plan ties Superfund money to weakened policy standards. Rather than returning polluted sites to their original condition-the current mandate of the state Superfund-the governor's proposal would establish new standards for assessing just how clean a polluted site must be.

For example, says Livermore, Pataki's plan would allow "engineering controls" to be put in place. This means that instead of removing all toxins, a polluter could, for example, simply leave pollutants in place and pave over the site, capping it in much the same way that landfills are capped. But toxins, says Livermore, should be put in hazardous waste landfills and monitored, not covered over and forgotten. Many environmentalists fear that such engineering controls would not keep toxins from seeping into groundwater and polluting wells.

In addition, Pataki's bill would establish three levels of safety, whereby more toxic waste could be tolerated at an industrial site, for example, than a commercial site or a residential site.

The governor says this is a realistic approach that would encourage the cleanup of more sites. Livermore disagrees, arguing that the Superfund is a pollution cleanup program, and that weakening cleanup standards would betray its original mandate. "The governor's bill completely guts the program," he says.
The governor's bill, as passed by the Senate, does include some new initiatives. For example, the bill would create technical assistance grants of up to $50,000 per site. This money would allow community groups to hire engineering firms to analyze and explain the problems of local waste sites to the community.
The governor's bill would also fund a new Brownfield remediation program.
By contrast, the Assembly bill is a straight Superfund funding bill. However, the Assembly plan would require companies to pay 75 percent of the costs of a new program, according to a Gannett report. Pataki's plan would split the costs between the state and industry.

Both bills would expand the types of sites covered by the Superfund.
NYPIRG supports the Assembly bill because it doesn't change cleanup standards, and because it would provide more money to the program in a shorter time.

The DEC likes the Pataki/Senate bill. "We think the governor's proposal is a strong proposal," says Constantakes. "Our position is that they should pass the governor's legislation."

DEC commissioner John P. Cahill has said that "it's time to consider land use" when deciding how clean a contaminated site needs to be. In a New York Times interview, Cahill stated that the current Superfund law uses "a one-size-fits-all standard; the goal is to be pristine." That goal he characterized as "laudable but impossible."

Both Pataki and Silver urge quick passage of a Superfund bill. But Pataki has been pushing the same bill for three years, and for three years the Assembly has declined to jump on board. A bipartisan bill, S.3338/ A.3609, introduced by Assemblyman Alexander B. Pete Grannis and Senator Kenneth P. LaValle, never made it out of committee this year.

At this point, the Assembly would have to return to Albany for a special session in order to pass more legislation. The chances that the state Superfund will return to solvency this year seem bleak.

To contact the governor on this issue, visit www.nypirg.org/enviro/superfund/gov.html.

Money Talks
Like the federal Superfund law, the state Superfund is based on the idea that the polluter pays whenever possible. And some environmental groups see Pataki's weaker cleanup standards as a gift to the corporations that have to pay for the cleanups.

John Stouffer, a lobbyist for the Sierra Club, has described the governor's proposal as "a concession to industry based on the desire of industry to pay less to clean up sites."

And a report by Citizen Action of New York states that Pataki, and other Republican lawmakers who seek to weaken Superfund cleanup standards, received the lion's share of campaign contributions from companies responsible for the pollution.

According to this report, 20 companies responsible for 170 polluted Superfund sites gave $446,703 to elected officials in New York during the 1999-2000 legislative session. Eighty percent of all Superfund site owner dollars went to Republican officials, according to the report.

Citizen Action estimates that these 20 companies, members of the New York State Business Council and New York Chemical Alliance, stand to save $1 billion if the Superfund's cleanup standards are weakened.

What It Means
So a few hundred polluted sites-of which 13 are in Ulster County, 33 in Dutchess, 5 in Columbia and 23 in Westchester-won't be cleaned up anytime soon. So what?

According to Dr. David Carpenter, director of the Institute for Health and the Environment at SUNY Albany, and professor of environmental health and toxicology, simply living near one of these sites can be hazardous to your health.
One year ago, Dr. Carpenter, aided by colleagues and graduate students, published a paper concluding that public health was compromised by Superfund sites in Buffalo and Niagara Falls. "We find really a striking elevation in thyroid disease and female genital disease, particularly endometriosis," says Carpenter, noting that the study controlled for other factors, such as education and income.

The primary culprit in this study was PCBs, a class of volatile organic chemicals that mimic hormones and are believed to be carcinogens. The Hudson River is polluted with PCBs as a result of then-legal dumping by General Electric in the 1970s; closer to home, dormitories at SUNY New Paltz had to be cleaned of PCBs after a transformer explosion in the 1990s.

Volatile organics have been connected with many diseases, even to lower IQ. "We certainly have a rationale to believe that, probably by breathing these things in.... There are a series of diseases that are not usually fatal but are very painful and disruptive," says Carpenter. The incidence of these diseases, according to his research and that of other investigators, is about 20 percent higher among people who live near PCB-contaminated sites.

"Hard data suggests that simply living near a Superfund site that contains persistent organic pollutants is hazardous to your health," says Carpenter, adding that this includes the Hudson River. "I am a very strong advocate for cleanup of Superfund sites."

Carpenter adds that he has a number of new papers coming out in the next few months, which he believes will influence the Superfund debate, although he can't discuss them publicly before they are published. Besides volatile organics, Carpenter and others are studying the health effects of exposure to other types of chemicals, and to metals, such as mercury and lead.

It can be hard to get access to data necessary for these studies. Dr. Carpenter uses hospital data which is reported to the state, but says, "I've run into a fair amount of opposition to even allowing me access to the data." Politicians, he notes, don't want people to fear to live in certain areas; and so while the information exists-the state has been collecting it for years-it is rarely analyzed or published.

Ironically, Carpenter says, New York probably has better knowledge of where contaminated sites are than any other state-but few citizens know about them.

To find out whether there is a toxic waste site near you, visit www.cmap.nypirg.org/Superfund/SuperfundMap.asp?Action=Start.

DID YOU KNOW...
The federal Superfund, established in 1980, has been criticized as slow, inefficient and plagued with litigation. Yet in its first 20 years, the program cleaned 757 major toxic sites and conducted thousands of actions to reduce threats to public health and the environment. Over 70 percent of the cleanups were conducted by the responsible parties.

However, these actions are expensive, costing on average $32 million at each site for cleanup costs alone (the Superfund also has a large administrative budget and spends a lot on litigation).

The law establishing the Superfund funded the program by taxing polluting industries such as mining, toxic chemical production, industrial manufacturing, and crude oil (oil companies have a special exemption from Superfund taxes on petroleum products). These industries have long fought the Superfund with lobbyists and lawyers. For example, General Electric, responsible for dumping 1.3 million pounds of PCBs into the Hudson River, challenged the Superfund law in court as part of its effort to avoid responsibility for a cleanup.

The original Superfund tax law expired in 1995. Since that time, the program has been operating on surplus funds. Congress has refused to renew the Superfund legislation since 1995, despite requests for renewal from every president except George W. Bush, who opposes the "polluter pays" system.

Cleanups have already slowed down. Currently, there are 1,238 federal Superfund sites in the country, 90 of which are in New York State. In the mid- to late-'90s, the EPA cleaned up an average of 86 sites per year nationwide. In 2003, it is planning to clean up 40 sites. The Bush administration has already designated 33 toxic waste sites in 18 states for cuts in financing under the Superfund cleanup program.

The Superfund is predicted to run out of money in 2004. Meanwhile, Bush's 2003 budget shifts 54 percent of the program's funding-$700 million which should have come from polluting corporations-to the general fund, where it will compete for priority with other elective programs, such as Social Security. The remainder of the Superfund's money in 2003 comes from the fast-dwindling surplus.

Without an infusion of cash-estimates range from $1.4 to $1.7 billion-the Superfund will either shut down, or continue to operate on taxpayer funding.
But don't corporate taxes eventually filter down to consumers as added costs anyway?

Yes, says Grant Cope, staff attorney for NYPIRG's national office. But such "pollution taxes," by incorporating cleanup costs into the price of products, help push the public toward more environmentally friendly alternatives.

For example, if a plastic serving spoon costs more than a wooden one because the plastic manufacturer has to pay a pollution tax, more people will buy the spoon made of wood, a biodegradable, renewable resource.

Bills to reauthorize Superfund taxes have been introduced in the Senate (S2596) and House (HR4060). But without presidential leadership the House is unlikely to act.

If you would like to urge the president to reauthorize the federal Superfund tax on polluting industries, visit www.waterkeeper.org/PBK/features/article_ge.html, and scroll to the bottom.

-Todd Paul