Superfund:

Litigation Has Decreased and EPA Needs Better Information on Site Cleanup and Cost Issues to Estimate Future Program Funding Requirements

GAO-09-656: Published: Jul 15, 2009. Publicly Released: Aug 14, 2009.

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Under the Superfund program, the Environmental Protection Agency (EPA) places the most seriously contaminated sites on the National Priorities List (NPL). EPA may compel site cleanups by parties responsible for contamination, or conduct cleanups itself and have these parties reimburse its costs. The program is funded by a trust fund, which is largely supported by general fund appropriations. GAO was asked to examine (1) EPA's enforcement action outcomes and the factors parties consider in reaching these outcomes; (2) any trends in litigation to resolve Superfund liability; and (3) the program's status and costs. GAO obtained and analyzed Superfund program data from EPA, as well as data on Superfund litigation from cases filed in U.S. district courts. GAO also interviewed EPA officials and other Superfund experts

Through fiscal year 2007, 80 percent of EPA's completed enforcement actions resulted in agreements with responsible parties, and these actions yielded an estimated $29.9 billion in recovered costs, work commitments, and other results. While most of this value came from work commitments, responsible parties more often agreed to reimburse EPA for its cleanup costs than to conduct site work. EPA, the Department of Justice, and responsible parties make settlement decisions on the basis of site-specific characteristics, but generally also take into account (1) site cleanup costs, (2) the strength of the evidence of a party's liability for site contamination, and (3) the number and types of responsible parties identified, among other considerations. Superfund litigation--as measured by the number, duration, and complexity of cases--decreased from fiscal years 1994 through 2007, the period for which data were available. Over this period, the number of Superfund cases filed annually in U.S. district courts decreased by almost 50 percent. Also, litigation in federally-initiated cases decreased as settlements prior to filing cases in court were reached more often, shortening court time. Furthermore, cases became less complex as fewer defendants were involved. Litigation costs can be substantial, according to experts, and such costs may have decreased as a result of these trends. Litigation decreased because (1) fewer sites were listed on the NPL, and, as cleanups progressed, fewer sites required cleanup and parties had less reason to go to court; (2) EPA promoted settlements with responsible parties; and (3) the courts clarified several legal uncertainties. As of fiscal year 2007, EPA or responsible parties completed construction of remedial actions at about 70 percent of the nonfederal NPL sites, with program appropriations averaging about $1.2 billion annually. However, GAO identified Superfund program trends that make it difficult to predict future program costs. The number of sites added to the NPL each year has declined; EPA added over 400 sites in fiscal year 1983, but only 20 sites a year, on average, for fiscal years 1998 through 2007. The types of sites have also changed, as mining sites--among the most expensive sites to clean up--have been added to the NPL in greater numbers. At the same time, because of limitations in EPA's data, the extent to which NPL sites do not have viable parties to assist with cleanups and how this may impact EPA's cost recovery efforts are unclear. Further, while remedial actions have been completed or are underway at most NPL sites, data limitations make it difficult to quantify the amount of work remaining. Also, NPL sites that have not yet been cleaned up may be more complex and expensive. Finally, program appropriations and expenditures are declining, while EPA's costs for individual sites are increasing. However, EPA does not provide the Congress with sufficient information to make program funding decisions. For example, EPA does not provide aggregated information on the status and cost of work at sites not yet cleaned up or the extent to which it cannot identify viable parties. As a result, it is unclear how much funding for future cleanup activities will have to come from trust fund appropriations rather than from responsible parties.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: In a July 2009 report (GAO-09-656), GAO recommended that, to assist the Congress in making decisions about funding the Superfund program, EPA should assess the comprehensiveness and reliability of the data the agency collects and, where necessary, improve the data for the purposes of providing aggregated information on the following issues: (1) the status and cost of cleanups at individual sites, particularly complex and expensive sites; (2) the extent to which there are viable responsible parties at NPL sites; and (3) the potential financial impacts from EPA's inability to obtain reimbursement for agency cleanup costs from nonviable responsible parties. GAO found that key EPA Superfund data related to these issues were not consistently comprehensive, reliable, or capable of being aggregated to provide clear program-wide information. As a result, GAO found that EPA could not provide clear information on the amount of work remaining at Superfund sites overall or the potential financial liabilities faced by the government based on the extent of nonviable responsible parties, which could make it difficult for Congress to assess financial constraints faced by the Superfund program when making decisions about program funding or policy issues. In May 2011, EPA launched the Integrated Cleanup Initiative, an effort to identify and implement improvements to the agency's land cleanup programs. As part of this initiative EPA developed a new measure of Superfund site cleanup status representing remedial action projects completed. EPA began reporting aggregated data on this new measure in its fiscal year 2011 Superfund National Accomplishments Summary. In addition, EPA reported that it assessed the feasibility of developing estimates of the extent to which nonviable responsible parties might impact the cost recovery potential of current or future Superfund site cleanups. EPA reported that, based on its analysis, the agency would generally not feel the cost recovery impacts of nonviable responsible parties until a period of time beyond the current budget and strategic planning cycle. Consequently, EPA reported that, while it assessed the feasibility of improving the data it collects, the agency did not think it prudent to devote limited resources to developing additional estimates or data elements given competing fiscal pressures at this time. GAO recognizes the current budget realities faced by EPA and other federal agencies, and the steps EPA has taken to consider whether more comprehensive and reliable data could be developed to communicate the status of cleanups and potential future funding liabilities of the Superfund program. GAO also notes that, given the budget constraints faced by the federal government, continued efforts to consider how to improve the data provided to Congress on federal financial liabilities will be important in making future funding decisions concerning the Superfund program.

    Recommendation: To assist the Congress in making decisions about funding the Superfund program, the Administrator, EPA should assess the comprehensiveness and reliability of the data the agency collects and, where necessary, improve the data for the purpose of providing aggregated information on the following issues: (1) the status and cost of cleanups at individual sites, particularly complex and expensive sites; (2) the extent to which there are viable responsible parties at NPL sites; and (3) the potential financial impacts from EPA's inability to obtain reimbursement for agency cleanup costs from nonviable responsible parties.

    Agency Affected: Environmental Protection Agency

  2. Status: Closed - Implemented

    Comments: In a July 2009 report (GAO-09-656), GAO recommended that, to assist the Congress in making decisions about funding the Superfund program, EPA should assess the comprehensiveness and reliability of the data the agency collects concerning key issues related to the status and cost of site cleanups and that EPA should include such aggregated data in the agency's annual accomplishment reports. GAO found that key EPA data related to Superfund site cleanups were not consistently comprehensive, reliable, or capable of being aggregated to provide clear program-wide information. As a result, GAO found that EPA could not provide clear information on the amount of work remaining at Superfund sites overall, which could make it difficult for Congress to assess financial constraints faced by the Superfund program when making decisions about program funding or policy issues. In May 2011, EPA launched the Integrated Cleanup Initiative, an effort to identify and implement improvements to the agency's land cleanup programs. As part of this initiative EPA developed a new measure of Superfund site cleanup status representing remedial action projects completed. EPA began reporting aggregated data on this new measure in its fiscal year 2011 Superfund National Accomplishments Summary.

    Recommendation: The Administrator, EPA should aggregate data, as appropriate, to provide clear and complete information on these issues, and provide this information to the Congress in the agency's annual accomplishment reports.

    Agency Affected: Environmental Protection Agency

 

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