Superfund: the ascendance of enabling myths

Journal of Economic Issues, June, 2003 by Mark Haggerty, Stephanie A. Welcomer

Industrial manufacturing, particularly in petroleum and chemical industries, has a history associated with hazardous waste disposal practices leading to highly contaminated sites. The evolution of the U.S. Superfund policy addressing the cleanup of these sites is an opportunity to examine principles upon which Superfund was founded and subsequent myths that emerged in response to the influence of powerful interests. Specifically, we analyze the processes undergirding espoused principles; comparing the correspondence between the principle and processes. We argue that originating principles of Superfund--"polluter pays" and the primacy of public health--were supported by processes but that as power structures changed, new processes were instituted that undermined these principles. As these destructive processes have been enacted, rhetorical calls continue to be made to Superfund's founding principles. These principles represented the democratic ideals of each citizen being equal (polluter pays) and deserving of the right to pursue life, liberty, and happiness (primacy of human health). As these principles have shifted from actively shaping processes to symbolic references rationalizing (but not reflecting) new processes, they have transformed into what William Dugger has called enabling myths (1980, 1995). Enabling myths are tools of social control functioning to rationalize the social hierarchy (Dugger 1989; Peach and Adkisson 1997). In this case, the status quo is the interests of the industrial manufacturers who gain by pushing the costs of cleanup to the wider citizenry.

Hazardous waste became a prominent issue beginning in the mid 1970s, when industrial waste was found to have contaminated various communities' water, land, and air (Love Canal; Times Beach; Valley of the Drums; Emelle, Alabama). Before the widespread publicity of cases such as these, producers of hazardous waste either stored it on site; put it in unlined storage ponds, deep wells, surface impoundments, or landfills; poured it down the drain; burned it; or used some other disposal technique (Green 1990, 1). Citizens demanded protection from contamination from hazardous substances and, in 1976, the Resource Conservation and Recovery Act (RCRA) was enacted. The RCRA called for strict regulation from cradle to grave of the generation, transportation and storage, and final treatment and disposal of hazardous waste (Wolf 1980). Because of the vast number of contaminated sites judged to pose "significant risk of imminent hazard" (Wolf 1980, 470), in 1980 Congress enacted the Comprehensive Environmental Response, C ompensation and Liability Act (CERCLA, or Superfund), which specified the procedures and funds to be used to clean up some of the nation's most contaminated sites. To fund the cleanups, Congress put an excise tax on industries thought to most likely create the hazards, oil and chemical industries. Later, under Ronald Reagan, a corporate environmental income tax was added.

Integral to cleanup is first being put on the National Priority List (NPL). "To decide whether to include a site on the NFL, EPA [U.S. Environmental Protection Agency] uses its hazard ranking system to review available data for the site and determine whether it presents high enough health or environmental risks to qualify for a long-term cleanup under CERCLA. If so, and the relevant state environmental agency agrees, EPA will include the site on the NFL" (GAO 1999, 2-3). Those responsible for cleaning up the site are those who polluted it with the hazardous substances, thus one of Superfund's founding creeds, "the polluter pays." The EPA identifies the potentially responsible parties (these PRPs can include almost anyone related to the site-owners, banks, insurers, municipalities, and waste haulers) and asks them to agree to clean the site. If the polluting entity fails to comply with this, the EPA can pay for the cleanup and then charge the polluter to pay for the costs plus penalties (sometimes as much as three times the cost of cleanup).

To enact the cleanup, the EPA or the responsible parties, in conjunction with the EPA, investigate the site's risks and possible remedies to redress those risks. The EPA then selects appropriate remedies, or a remedy, and subsequently either the EPA or responsible party designs the methods and technologies to be used. Upon completion of the remedy construction and control of known risks, the EPA designates the site as construction complete." This basically means that the remedies are in place but not necessarily that the cleanup is complete. Some sites, for instance, require regular monitoring to ensure that the remedy is working. "Once EPA, in conjunction with the state in which the site is located, has determined that the work at the site has achieved the desired cleanup goals, the site can be deleted from the NPL" (GAO 1999, 4).

Superfund's processes appeared to align closely with its principles by the mid to late 1990s. For instance, there was a substantial increase in the number of sites that were cleaned during this period, averaging a cleanup of eighty-five sites per year in 1997-99, and sites classified as potential Superfund sites were regularly added to the NPL. This alignment has changed and is traceable via the public record. To study the enabling of the "polluter pays" and public health myths, we examine discourse largely in government reports and testimony at Congressional Superfund-related hearings from 1995 through 2002. Our focus is on the wane of processes upholding the Superfund's founding democratic principles and the wax of processes securing benefits for particular industries. Costumed as democratic principles, these now myths enable a new guard to shift policy to reward its own interests, not the interests of the public. Though the changed processes indeed indicate a change of principles, open espousal of princip les favoring the few while hurting many would not be politically feasible; therefore, symbolic references to the Superfund's popular principles are intrinsic to this power shift.