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WHAT IS SUPERFUND?

Superfund, officially The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), was enacted by Congress on December 11, 1980. This law created a tax on the chemical and petroleum industries and provided broad federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment. Over five years, $1.6 billion was collected and went to a trust fund for cleaning up abandoned or uncontrolled hazardous waste sites. CERCLA:

  • Establishes prohibitions and requirements concerning closed and abandoned hazardous waste sites;
  • Provides for liability of persons responsible for releases of hazardous waste at these sites; and
  • Establishes a trust fund to provide for cleanup when no responsible party can be identified.

The law authorizes two kinds of response actions:

  • Short-term removals, where actions may be taken to address releases or threatened releases requiring prompt response.
  • Long-term remedial response actions, that permanently and significantly reduce the dangers associated with releases or threats of releases of hazardous substances that are serious, but not immediately life threatening. These actions can be conducted only at sites listed on EPA's National Priorities List (NPL).

CERCLA also enables the revision of the National Contingency Plan (NCP). The NCP provides the guidelines and procedures needed to respond to releases and threatened releases of hazardous substances, pollutants, or contaminants. The NCP also establishes the NPL. CERCLA was amended by the Superfund Amendments and Reauthorization Act (SARA) on October 17, 1986.

Who cleans up a Superfund site?

The simple answer is that the responsible party pays for the cleanup. If the responsible party no longer exists, cannot be determined, or is unable to fund the cleanup, Superfund Trust fund money is used to complete the cleanup. However, the actual work involved in a Superfund cleanup can be very complex and require the efforts of many experts in science, engineering, public health, management, law, community relations and numerous other fields. In the case of the Silver Bow Creek/Butte Area Superfund site, the Principal Responsible Party is a group of 26 different corporate and government entities.

There are a number of groups within EPA and other government agencies that play a leading role in Superfund site cleanups. EPA has specialists spread out across the ten Superfund regions in the country who are responsible for cleanup activities, including Remedial Project Managers, On-Scene Coordinators, Community Involvement Coordinators, and Site Assessment specialists. National teams of specialists from the EPA, the U.S. Coast Guard, the U.S. Corps of Engineers, and Agency for Toxic Substances and Disease Registry take part in Superfund efforts, too.

Once a hazard has been identified and cleanup options have been studied for effectiveness and feasibility, the EPA determines what it believes to be the appropriate cleanup. The party responsible for the contaminants at the site is, in most cases, also responsible for cleanup costs.

More on hazardous waste

How do people get exposed to hazardous substances?

People are exposed in several ways:

  • contaminated air;
  • direct contact with hazardous waste;
  • contaminated drinking water;
  • fire or explosion;
  • the food chain;
  • contaminated ground water;
  • contaminated soil; and
  • contaminated surface water.

The sources of exposure vary depending on the site, and not all of these exposure threats exist at every site. That's why EPA scientists must assess a site and figure out the type of exposure threats that exist. Once they know that, the best way to protect the health of the surrounding community and environment can be determined and the cleanup can begin.

In addition to human health, the EPA considers impacts to the environment and wildlife (particularly endangered species).What is the difference between hazardous and other waste?

Ordinary waste, not specifically classified as hazardous, is defined by the EPA as any garbage, refuse, or sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material. Discarded material includes solid, liquid, semi-solid or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities.

Waste is hazardous when it is ignitable, corrosive or reactive (explosive). Also, if waste contains certain amounts of toxic chemicals, it is considered hazardous. There are 500 specific hazardous wastes as defined by the EPA. For more information, read the office of Solid Waste's fact sheet, What Makes a Waste Hazardous? on the EPA's site.

How does the EPA decide on a cleanup option?

The analysis of alternatives under review reflects the scope and complexity of site problems and alternatives being evaluated and considers the significance of factors within each criteria. The nine evaluation criteria are as follows:

(A) Overall protection of human health and the environment.
(B) Compliance with applicable or relevant and appropriate requirements (ARARs) under federal environmental laws and state environmental or facility siting laws.
(C) Long-term effectiveness and permanence.
(D) Reduction of toxicity, mobility or volume through treatment.
(E) Short-term effectiveness.
(F) Implementability. The ease or difficulty of implementing the alternatives must be assessed.
(G) Cost. The types of costs that shall be assessed include the following: (1) Capital costs, including both direct and indirect costs; (2) Annual operation and maintenance costs; and (3) Net present value of capital and O&M costs.
(H) State acceptance. Assessment of state concerns can't be completed until comments on the Feasibility Study are received. The state concerns include the following: (1) The state's position and key concerns related to the preferred alternative and other alternatives; and (2) State comments on ARARs or the proposed use of waivers.
(I) Community acceptance. This assessment includes determining which components of the alternatives interested persons in the community support, have reservations about, or oppose. This assessment may not be completed until comments on the proposed plan are received. (NOTE: This is separate and distinct from the public's ability to comment on the process or on what alternatives it wants implemented. Therefore, the public may comment at any time to the Governor and EPA!)

Can local citizens impact the EPA's decision?

Absolutely. The Superfund process allows for public input through scheduled meetings at critical points in the process, but anyone can write letters or e-mail the EPA and their state Governor and legislators at any point. Briefly, here are the steps followed to determine cleanup.

1. Designation. Site is determined to contain hazardous waste that poses a threat to human and/or environmental health.
2. The party responsible for the waste, the EPA and other groups collect data on impacts and study options for cleanup.
3. The potentially responsible party presents its findings to the EPA in what is called a Feasibility Study.
4. The Feasibility Study is reviewed by the EPA and the site's Technical Assistance Committee. These two groups compare the study to their own data and interpretations.
5. Questions and comments are submitted to the potentially responsible party by the EPA and TAC.
6. Taking these questions and comments into account, the potentially responsible party then issues a Feasibility Study to the EPA. This study includes a range of options for cleanup and proposes a specific option be selected by the EPA.
7. The EPA releases the Feasibility Study to the public.
8. At this point, the public is given a comment period. During that period, it is absolutely vital that local citizens express their views. State government and local community acceptance are two of the criteria strongly considered by the EPA. To facilitate public comment the EPA holds a series of meetings called scoping meetings.
9. Once the comment period closes (usually 4 to 6 weeks after it begins), the EPA reviews the public comments and creates a Proposed Plan.
10. Again, a series of meetings is held where the public and interested parties can comment on the Proposed Plan (though changes at this point are typically minimal and have more to do with implementation rather than substance).
11. After the comment period has ended, the EPA considers the comments, makes revisions as it deems necessary, and issues a record of decision.

Is the EPA's decision final?

Yes, and no. The decision process can be very involved and there are avenues for legal recourse, so it's difficult to be black and white in describing the finality of the EPA's decision. Superfund issues are often decided by federal courts.

If the EPA directs the responsible party to clean up the waste in a certain fashion, the responsible party is bound by law to comply. If the EPA determines that no cleanup is necessary or feasible, the responsible party is released from responsibility and cannot be held accountable in the future. Superfund, however, does provide for legal recourse. If the responsible party does not agree with the EPA's decision, the responsible party can refuse to comply. The result of this refusal is generally a lawsuit brought by the EPA to force the responsible party to act according to the EPA's decision. Conversely, if another party, for example a state government or public interest group, disagrees with the EPA's decision, that party can sue the EPA for violating its mission to protect the environment and hold accountable responsible parties.

Why would a potentially responsible party follow the EPA's decision if it doesn't have to?

If the EPA sues the responsible party for noncompliance and wins, the responsible party can be held accountable for treble damages - an amount equaling three times that of the projected cost of the EPA-selected cleanup for the site, plus all legal fees. This significant penalty was included to avoid frivolous suits caused by noncompliance.

How does EPA evaluate options?

There are nine EPA evaluation criteria applied to any possible cleanup option. The first two of these criteria have absolute weight, meaning that the others are considered only after these first two have been met.

Threshold Criteria (must be met).

  • Overall protection of human health and the environment - must attain level of protectiveness.
  • Compliance with state and federal standards and regulations. Where impossible to meet, a waiver may be considered.

Balancing Criteria (must be considered).

  • Long-term effectiveness and permanence of the remedy.
  • Reduction of toxicity, mobility and volume
  • Short-term effectiveness
  • Implementability (Is the remedy doable?)
  • Capital, operating and maintenance costs

Modifying Criteria (must also be considered).

  • State acceptance (acceptance of the plan by state officials and government leaders)
  • Community acceptance (What do residents in the immediate area want done with the river?)

    Nine Criteria to Evaluate a Site

The analysis of alternatives under review shall reflect the scope and complexity of site problems and alternatives being evaluated and consider the relative significance of the factors within each criteria.

(A) Overall protection of human health and the environment. Alternatives shall be assessed to determine whether they can adequately protect human health and the environment, in both the short- and long- term, from unacceptable risks posed by hazardous substances, pollutants, or contaminants present at the site by eliminating, reducing, or controlling exposures to levels established during development of remediation goals consistent with Sec. 300.430(e)(2)(i). Overall protection of human health and the environment draws on the assessments of other evaluation criteria, especially long-term effectiveness and permanence, short-term effectiveness, and compliance with ARARs.
(B) Compliance with ARARs. The alternatives shall be assessed to determine whether they attain applicable or relevant and appropriate requirements under federal environmental laws and state environmental or facility siting laws or provide grounds for invoking one of the waivers under paragraph (f)(1)(ii)(C) of this section.
(C) Long-term effectiveness and permanence. Alternatives shall be assessed for the long-term effectiveness and permanence they afford, along with the degree of certainty that the alternative will prove successful. Factors that shall be considered, as appropriate, include the following: (1) Magnitude of residual risk remaining from untreated waste or treatment residuals remaining at the conclusion of the remedial activities. The characteristics of the residuals should be considered to the degree that they remain hazardous, taking into account their volume, toxicity, mobility, and propensity to bioaccumulate. (2) Adequacy and reliability of controls such as containment systems and institutional controls that are necessary to manage treatment residuals and untreated waste. This factor addresses in particular the uncertainties associated with land disposal for providing long-term protection from residuals; the assessment of the potential need to replace technical components of the alternative, such as a cap, a slurry wall, or a treatment system; and the potential exposure pathways and risks posed should the remedial action need replacement.
(D) Reduction of toxicity, mobility, or volume through treatment. The degree to which alternatives employ recycling or treatment that reduces toxicity, mobility, or volume shall be assessed, including how treatment is used to address the principal threats posed by the site. Factors that shall be considered, as appropriate, include the following: (1) The treatment or recycling processes the alternatives employ and materials they will treat; (2) The amount of hazardous substances, pollutants, or contaminants that will be destroyed, treated, or recycled; (3) The degree of expected reduction in toxicity, mobility, or volume of the waste due to treatment or recycling and the specification of which reduction(s) are occurring; (4) The degree to which the treatment is irreversible; [[Page 73]] (5) The type and quantity of residuals that will remain following treatment, considering the persistence, toxicity, mobility, and propensity to bioaccumulate of such hazardous substances and their constituents; and (6) The degree to which treatment reduces the inherent hazards posed by principal threats at the site.
(E) Short-term effectiveness. The short-term impacts of alternatives shall be assessed considering the following: (1) Short-term risks that might be posed to the community during implementation of an alternative; (2) Potential impacts on workers during remedial action and the effectiveness and reliability of protective measures; (3) Potential environmental impacts of the remedial action and the effectiveness and reliability of mitigative measures during implementation; and (4) Time until protection is achieved.
(F) Implementability. The ease or difficulty of implementing the alternatives shall be assessed by considering the following types of factors as appropriate: (1) Technical feasibility, including technical difficulties and unknowns associated with the construction and operation of a technology, the reliability of the technology, ease of undertaking additional remedial actions, and the ability to monitor the effectiveness of the remedy. (2) Administrative feasibility, including activities needed to coordinate with other offices and agencies and the ability and time required to obtain any necessary approvals and permits from other agencies (for off-site actions); (3) Availability of services and materials, including the availability of adequate off-site treatment, storage capacity, and disposal capacity and services; the availability of necessary equipment and specialists, and provisions to ensure any necessary additional resources; the availability of services and materials; and availability of prospective technologies.
(G) Cost. The types of costs that shall be assessed include the following: (1) Capital costs, including both direct and indirect costs; (2) Annual operation and maintenance costs; and (3) Net present value of capital and O&M costs.
(H) State acceptance. Assessment of state concerns may not be completed until comments on the RI/FS are received but may be discussed, to the extent possible, in the proposed plan issued for public comment. The state concerns that shall be assessed include the following: (1) The state's position and key concerns related to the preferred alternative and other alternatives; and (2) State comments on ARARs or the proposed use of waivers.
(I) Community acceptance. This assessment includes determining which components of the alternatives interested persons in the community support, have reservations about, or oppose. This assessment may not be completed until comments on the proposed plan are received.

Related Links

Superfund FAQ

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Superfund Efforts CTEC is Working On

Upper Basin Cleanup Efforts

Stream side tailings/ Silver Bow Creek Cleanup

Butte Priority Soils Cleanup

Butte Mine Flooding/ Berkeley Pit Cleanup

Warm Spring Ponds Cleanup

West Side Soils Characterization Studies

Montana Pole &
Treating Site Cleanup


Lower Basin Cleanup Efforts

Opportunity Ponds and Smelter Hill Cleanup