Credit: Dan Jeffrey from Flickr (CC BY-NC-ND 2.0)

Forty years after former New Jersey Congressman Jim Florio piloted the Superfund law through Congress and on to the desk of President Jimmy Carter, the reviews are mixed on whether it has succeeded in its goals of cleaning up toxic sites and making corporate polluters pay.

The law, which originally designated federal dollars and a special tax levied on the petrochemical industry to fund major cleanups across the country, has been hobbled by a reduction in funding, a reluctance by some Environmental Protection Agency administrators to hold polluters accountable for their contamination, and endless litigation over who should pay for cleaning up toxic sites.

One result is that fewer than a quarter of New Jersey’s Superfund sites — 35 out of about 150 that have been on the EPA’s list at various times since the law was passed in 1980 — have been cleaned up, and some of those have been capped to contain polluted material rather than fully remediated at a greater cost, advocates say.

They blame the low cleanup rate in part on Congress’s failure to renew the Superfund Tax on polluters that expired after the first 15 years of the program. The tax was designed to pay for the cleanup of so-called orphan sites — those whose owners had gone out of business or could not be traced — and to help the EPA take legal action in an effort to make other polluters pay for a cleanup.

For the last 25 years, the lower funding has limited the EPA’s ability to clean sites, and to go after corporate polluters, advocates say.

For its part, EPA said it often caps landfills that are the source of contamination, rather than attempting to move them.

“Large landfills are not dug up and moved to another community, but rather EPA takes steps to prevent waste form migrating using caps, liners, and leachate collection.” the agency said in a statement. “When sites have contamination that remains in place following site cleanup, for example capped sites, EPA performs Five-Year Reviews to ensure that the remedy remains protective.”

NJ’s long history of dirty industry

It’s a potent issue in a state whose long and largely unregulated industrial history has left it with the largest number of Superfund sites, and where many polluted industrial parcels threaten public health in America’s most densely populated state.

“We had about 100 years of industrialization. There were no laws, people were just randomly disposing of stuff,” said Florio, a Democrat who sat in the U.S. House of Representatives from 1972 to 1990. “There was a national awareness, and New Jersey was the center of it.”

In an interview ahead of Earth Day, Florio said that Superfund, officially called the Comprehensive Environmental Response, Compensation and Liability Act of 1980, was a “very strong law” that provides the authority and funding to clean up toxic sites.

But its effectiveness was immediately reduced by hostility from the incoming Reagan administration, leading Florio and his allies to pass the law just in time for Carter to sign it before he left office. Since then, its impact has varied according to the political will of successive administrations. Never, though, has it been subject to as much opposition as now from the Trump administration, whose environmental record, including rollbacks of regulations on emissions from power plants and automobiles, Florio called “horrendous.”

“The intent of the law is that there should be aggressive implementation to cleaning up these sites because they were hazardous to human health,” he said. “If we had had evenhanded intention of carrying out the law, and provided adequate funding, we would have had a lot more progress.”

Florio, governor of New Jersey from 1990 to 1994, said he had been “frustrated” by the law’s low success rate in New Jersey “for a very long period of time.”

Looking back at a spotty record

New Jersey currently has 114 Superfund sites, which are selected by a Hazard Ranking System, based on confirmed or potential releases of hazardous substances that may harm human health or the environment.

The sites include Brick Township Landfill, a once privately owned location that received up to 120,000 gallons of waste daily, including chemicals, according to its Superfund listing in 1982. The listing reported high concentrations of organic solvents in four monitoring wells, and noted that the underlying Kirkwood-Cohansey Aquifer supplied drinking water to some 57,000 residents.

By the 1990s, the landfill had created a contaminated underground plume of groundwater over about 470 acres, and in 2011 the EPA instructed the township to build an impermeable cap on the site to prevent further contamination.

In Sayreville, parts of the Atlantic Resources site earned Superfund listings in 1995 and 2002 after soil, groundwater and nearby marsh sediment were found to contain arsenic, chromium, cyanide, benzene and other contaminants from several companies whose products included epoxy resins, roofing materials, sealants and chemicals used to make pesticides.

The EPA’s actions at the site have included cleaning up dioxin and mercury spills and removing some 3,000 drums containing hazardous materials, the agency said in a 2017 report.

Some locations have been cleaned up and reused. They include a site at Edison Township where Chemical Insecticide Corp. made products from 1854 to 1970. Since the EPA cleaned up contaminated soil, sediment and groundwater there in 2005, it has been a dog park.

Boosting public awareness

Even if New Jersey’s nation-leading list of Superfund sites suggests little progress, some observers argue that the program has succeeded in raising public awareness and has led to the creation of state-based cleanup programs.

“We’re better off with it than without it,” said Ed Lloyd, a professor of environmental law at Columbia University. “It brought more attention to hazardous waste cleanups. After Superfund was enacted, it spurred a lot of state programs. It’s fair to say that the state programs have been more successful than Superfund in the percentage of sites that get cleaned up.”

Lloyd attributed Superfund’s slow progress in part to long-running and expensive litigation in which EPA tries to force companies to accept responsibility for contamination and its cleanup. For example, a landfill company might seek to shift the blame to every company that dumped waste there, creating protracted legal delays, he said.

Since the Superfund Tax on petrochemical companies expired in 1995, the loss of revenue has undermined the law’s principle of “polluter pays” and hurt the EPA’s ability to go after corporate polluters. It has also made it harder to clean up sites for which no responsible party can be found, Lloyd said.

Pushback from the business community

For the business community, Superfund has been a costly and bureaucratic program that at times has focused more on litigation than it has on cleaning up sites, said Bob Considine, a spokesman for the New Jersey Business and Industry Association.

The association urges its members to be good stewards of the environment, Considine said. But any that get involved with Superfund may find themselves bogged down in years of litigation over who is responsible for pollution, even in cases where there is no longer a responsible party.

He said New Jersey’s Site Remediation Program, using contractors called Licensed Site Remediation Professionals, has been more efficient at site cleanup than Superfund.

Jeff Tittel, director of the New Jersey Sierra Club, praised Superfund for allowing the public to get involved in cleanups through citizens’ advisory councils, but said the program has been weakened by corporate efforts to avoid responsibility for contamination, and by the EPA’s reluctance to fight every case in court.

“The responsible parties have been fighting every step of the way,” Tittel said. He cited a long-running fight over cleaning dioxin-laden sludge from 17 miles of the Passaic River at Newark, and said the EPA accepted a plan to cap the river bed rather than doing a full and more costly cleanup.

“We need to have an EPA that is willing to stand up to the polluters and force them to go through cleanup,” Tittel said. “When EPA backs away, it sets a standard for other companies to not go forward with the cleanup.”

Click here to read former Gov. Jim Florio’s views on the 50th anniversary of Earth Day.