Stimulating the Future of Superfund: Why the American Recovery and Reinvestment Act Calls for a Reinstatement of the Superfund Tax to Polluted Sites in Urban Environments

Author:Braunson Virjee
Position:J.D. candidate, May 2012, at American University Washington College of Law
The “polluter pays” pr inciple is a cornerstone of env i-
ronmental polic y and rational izes S uperfund cleanup
efforts.1 However, the expiration of Superfund taxes has
undermined these efforts in urban environments.2 The American
Recovery and Reinves tment Act of 2009 (“ARRA”) has pro-
vided stimulus funds to create jobs and reinvigorate cleanups.3
These temporary funds have demonstrated that, given sufficient
financial res ources, Superfund remai ns a viab le s olution to
urban pollution.4 Superfund taxes should be reinstated long-term
to ensure the vitality of the nation’s urban areas.
In response to the Love Canal disaster and corresponding support
of the polluter pays principle, Congress passed the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(“CERCLA”). CERCLA and its subsequent amendments created
polluter liability and established the Superfund trust to finance the
cleanup of “orphan sites” where responsible parties were unknown,
insolvent, or disbanded.5 Taxes generated from the chemical and
petroleum industries that benefit from contaminating products6 sup-
plied the trust with approximately $1.5 billion annually.7
In 1995, however, Congress allowed the Superfund tax to
expire, and the trust balance fell from $3.8 billion in 1996 to zero
in 2003.8 Instead of polluters paying, the U.S. Treasury has since
subsidized cleanups, and financial allocation to Superfund has dra-
matically fallen.9 A plunge in the pace of Superfund cleanups10 has
followed reduced funding,11 resulting in few initiated cleanups, as
well as a slower rate of completion. For example, the EPA com-
pleted eighty-nine cleanups in 1999, but a mere nineteen in 2009.12
This slowing has dramatically affected the nation’s urban areas.
One in four Americans lives within one mile of a Superfund site,13 and
this rate increases with the inclusion of contaminated sites that, due to
shrunken budgets, are not even given Superfund designation.14 The
result is that urban-dwelling Americans are exposed to polluted sites,
compromising their health, economic livelihoods, and well-being. Of
distinctive concern is the health of children. Lower-cost housing that
surrounds orphan sites attracts younger families and single parents.15
Today, over ten million children live within four miles of Superfund
sites.16 This statistic is especially alarming because children are most
vulnerable to arsenic, DDT, and brain-damaging toxins found in the
soil and water around these sites.17
Lingering pollution sites also cause lasting economic and social
impacts on urban communities. Many inner-city sites are remnants of
prosperous manufacturing activity that has since departed, leaving a dis-
advantaged population behind.18 Reinvestment in these sites fails due
to cleanup uncertainty; lenders and investors refuse to back projects,19
leaving ideal inner city sites with pre-existing industrial zoning vacant
Stimulating the Future oF SuperFunD:
why the american recovery anD reinveStment act callS For a reinStatement
oF the SuperFunD taX to polluteD SiteS in urban environmentS
by Braunson Virjee*
* Braunson Virjee is a J.D. candidate, May 2012, at American University Wash-
ington College of Law.
and polluted.20 Instead, developers move outside the cities, compromis-
ing pristine land in rural and suburban areas21 and leaving behind lower
property values, lower tax revenues, unemployment, visual blight, and
health concerns for urban dwellers.22 In turn, these declines lead to poorly
funded schools, fewer services, low quality housing, and higher crime
rates.23 As unfunded orphan sites remain, urban neighborhoods suffer.
Last year, however, ARRA gave much needed relief, allocat-
ing Superfund $600 million “to protect and promote green jobs and a
healthier environment by furthering cleanup activities.24 The immedi-
ate impact has been substantial. The EPA was able to begin construc-
tion at twenty-six new Superfund sites and increase operations at another
twenty-five ongoing cleanups.25 Since the ARRA’s passage in February
2009, the EPA has also completed projects at over twenty sites.26
Stimulus funding has also produced success stories in urban
environments. Superfund is removing arseni c from five hun-
dred homes in Minneapolis,27 stripping pesticides, heavy metals,
polychlorinated biphenyls (“PCBs”), and volatile organic com-
pound (“VOCs”) from waterways in Brooklyn and Queens,28 and
dredging the Sacramento River for mining byproduct that, when
removed, will provide California cities with 200,000 additional
megawatt hours of clean electricity each year.29 So too has stim-
ulus money targeted social and economic concerns, creating as
many as three hundred jobs at the aforementioned California site
alone.30 Stimulus funds, however, offer only temporary relief.
The measurable effect of ARRA funding demonstrates that Super-
fund can make a significant difference in blighted urban environments
when adequate funding is made available. Reinstating the Superfund
tax would permanently provide these resources, holding those who
benefit from pollution responsible for damage to urban victims.
The conditions are ripe for reinstatement. The BP Deepwa-
ter Horizon spill, akin to Love Canal, has drawn recent attention
to the polluter pays principle,31 and Congress has already intro-
duced two bill s that would reinstate CER CLA taxes through
2019.32 Additionally, both the Obama Administration and EPA
have advocated congressional reinstatement.33
With these procedural pieces in place, the time to act is now.
The ARRA stimulus and subsequent cleanup demonstrate that
Superfund can produce tangible results if allocated sufficient
resources. ARRA’s success warrants reinstatement of the Super-
fund tax to ensure that polluter-generated revenues finally grant
relief to urban areas struggling amid neglected Superfund sites.
Endnotes: Stimulating the Future of Superfund on page 65