Superfund
Litigation Has Decreased and EPA Needs Better Information on Site Cleanup and Cost Issues to Estimate Future Program Funding Requirements Gao ID: GAO-09-656 July 15, 2009Under 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.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-09-656, Superfund: Litigation Has Decreased and EPA Needs Better Information on Site Cleanup and Cost Issues to Estimate Future Program Funding Requirements
This is the accessible text file for GAO report number GAO-09-656
entitled 'Superfund: Litigation Has Decreased and EPA Needs Better
Information on Site Cleanup and Cost Issues to Estimate Future Program
Funding Requirements' which was released on August 14, 2009.
This text file was formatted by the U.S. Government Accountability
Office (GAO) to be accessible to users with visual impairments, as part
of a longer term project to improve GAO products' accessibility. Every
attempt has been made to maintain the structural and data integrity of
the original printed product. Accessibility features, such as text
descriptions of tables, consecutively numbered footnotes placed at the
end of the file, and the text of agency comment letters, are provided
but may not exactly duplicate the presentation or format of the printed
version. The portable document format (PDF) file is an exact electronic
replica of the printed version. We welcome your feedback. Please E-mail
your comments regarding the contents or accessibility features of this
document to Webmaster@gao.gov.
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed
in its entirety without further permission from GAO. Because this work
may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this
material separately.
Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
July 2009:
Superfund:
Litigation Has Decreased and EPA Needs Better Information on Site
Cleanup and Cost Issues to Estimate Future Program Funding
Requirements:
GAO-09-656:
GAO Highlights:
Highlights of GAO-09-656, a report to congressional requesters.
Why GAO Did This Study:
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.
What GAO Found:
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.
What GAO Recommends:
To assist the Congress in making program funding decisions, GAO
recommends that EPA assess and improve the data it collects on the
status and cost of cleanups, the extent to which sites have viable
responsible parties, and the financial impacts of not being able to
identify such parties; and that EPA aggregate and provide these data to
the Congress. EPA agreed to assess data reported on program status and
costs, but did not agree to assess and report data on the extent of
viable responsible parties and the financial impacts if such parties
cannot be identified. GAO believes these data are essential to assess
EPA‘s future funding needs.
View [hyperlink, http://www.gao.gov/products/GAO-09-656] or key
components. For more information, contact John B. Stephenson at (202)
512-3841 or stephensonj@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
EPA Resolves Most Enforcement Actions through Settlements with
Responsible Parties, and Site-Specific Conditions Influence the
Negotiation Process:
Superfund Litigation Decreased Due to a Number of Factors, According to
Experts:
Differences in the Types of Sites on the NPL and Other Factors Make It
Difficult to Assess the Status of Superfund Site Cleanups and Program
Costs:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Detailed Information on the Number, Duration, Complexity,
and Outcomes of CERCLA Cases:
Appendix III: Comments from the Environmental Protection Agency:
Appendix IV: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Purpose, Source, Time Frame, and Scope of Data Collected and
Analyzed for This Report:
Table 2: Trust Fund Revenue in the Periods Before and After the
Superfund Taxes Expired:
Table 3: EPA Enforcement Actions, by Type of Process Followed and
Outcome Achieved:
Table 4: Types of EPA Enforcement Actions Taken at NPL Sites, Fiscal
Years 1979 through 2007:
Table 5: Outcome of EPA Enforcement Actions at NPL Sites, Fiscal Years
1979 through 2007:
Table 6: Outcome of EPA Enforcement Actions at NPL Sites, Fiscal Years
1979 through 2007, by Type of Site Work Sought:
Table 7: Estimated Value of Superfund Enforcement Activities at NPL
Sites, Fiscal Years 1979 through 2007:
Table 8: Number and Percentage of CERCLA Cases Filed by Type of
Plaintiff, Fiscal Years 1994 through 2007:
Table 9: Number of Nonfederal NPL Sites, Including Megasites, by Type,
Fiscal Years 1983 through 2007:
Table 10: Number and Percentage of Nonfederal Sites Added to the NPL by
Type, Fiscal Years 1983 through 2007:
Table 11: EPA Average Expenditures per Site at Nonfederal NPL Sites,
through Fiscal Year 2007:
Table 12: Information on Responsible Parties Identified at Nonfederal
NPL Sites:
Table 13: Least and Most Advanced Stages of Cleanup at Nonfederal NPL
Sites with One Operable Unit, as of Fiscal Year 2007:
Table 14: Least and Most Advanced Stages of Cleanup at Nonfederal NPL
Sites with Multiple Operable Units, as of Fiscal Year 2007:
Table 15: Construction Complete Nonfederal NPL Sites by Site Type and
Megasite Designation, through Fiscal Year 2007:
Table 16: Categorization Examples of CERCLA Case Party Types:
Table 17: CERCLA Cases Filed by U.S. District Court, Fiscal Years 1994
through 2007:
Table 18: CERCLA Cases Filed in U.S. District Courts, According to the
EPA Region Where the Courts Are Located, Fiscal Years 1994 through
2007:
Table 19: CERCLA Cases Filed by Type of Plaintiff, Fiscal Years 1994
through 2007:
Table 20: Duration of CERCLA Cases by Type of Plaintiff, Fiscal Years
1994 through 2007:
Figures:
Figure 1: Site Cleanup Process:
Figure 2: EPA Enforcement Process:
Figure 3: Outcomes of EPA Enforcement Actions and Processes Followed at
NPL Sites, Fiscal Years 1979 through 2007:
Figure 4: Percentage of EPA's Enforcement Actions at NPL Sites That
Resulted in the Performance of Site Work, the Reimbursement of Agency
Costs, Both, or Neither, Fiscal Years 1979 through 2007:
Figure 5: Trends in CERCLA Cases Filed by Type of Plaintiff, Fiscal
Years 1994 through 2007:
Figure 6: CERCLA Cases Filed by the Federal Government with Previously
Negotiated Settlements, Fiscal Years 1994 through 2007:
Figure 7: Average Number of Defendants per CERCLA Case, Fiscal Years
1994 through 2007:
Figure 8: Percentage of CERCLA Cases in Which Defendants Pursued
Additional Parties, Fiscal Years 1994 through 2007:
Figure 9: Number of Nonfederal Sites Added to the NPL, Fiscal Years
1983 through 2007:
Figure 10: Percentage of Nonfederal Sites Added to the NPL by Type,
Fiscal Years 1983 through 2007:
Figure 11: Number of Nonfederal NPL Sites That Were Not Construction
Complete, through Fiscal Year 2007, by Year of Site Listing:
Figure 12: EPA's Superfund Program Appropriation, Fiscal Years 1981
through 2007:
Figure 13: EPA Superfund Expenditures, Fiscal Years 1999 through 2007:
Figure 14: Number of CERCLA Cases Filed by Duration and Type of
Plaintiff, Fiscal Years 1994 through 2007:
Figure 15: Average Number of Defendants per CERCLA Case by Duration,
Fiscal Years 1994 through 2007:
Figure 16: Average Number of Defendants per CERCLA Case by Type of
Plaintiff, Fiscal Years 1994 through 2007:
Figure 17: Percentage of CERCLA Cases in Which Defendants Pursued
Additional Parties by Type of Plaintiff, Fiscal Years 1994 through
2007:
Figure 18: Number of CERCLA Cases, by Outcome and Type of Plaintiff,
Fiscal Years 1994 through 2007:
Figure 19: Percentage of CERCLA Cases, by Type of Outcome and
Plaintiff, Fiscal Years 1994 through 2007:
Figure 20: Duration of CERCLA Cases by Outcome, Fiscal Years 1994
through 2007:
Figure 21: Percentage of Closed CERCLA Cases with Only Previously
Negotiated Settlements or Minimal Litigation by Type of Plaintiff,
Fiscal Years 1994 through 2007:
Figure 22: Percentage of Closed CERCLA Cases with Only Dismissals by
Type of Plaintiff, Fiscal Years 1994 through 2007:
Figure 23: Percentage of Closed CERCLA Cases with Dismissals That Had
Possible Settlements, Fiscal Years 1994 through 2007:
Figure 24: Percentage of Closed CERCLA Cases with Only Nonconsensual
Judgments by Type of Plaintiff, Fiscal Years 1994 through 2007:
Figure 25: Percentage of Closed CERCLA Cases with Appeals by Type of
Outcome, Fiscal Years 1994 through 2007:
Abbreviations:
CERCLA: Comprehensive Environmental Response, Compensation, and
Liability Act:
CERCLIS: Comprehensive Environmental Response, Compensation, and
Liability Information System:
DOJ: Department of Justice:
EPA: Environmental Protection Agency:
IFMS: Integrated Financial Management System:
NACEPT: National Advisory Council for Environmental Policy and
Technology:
NPL: National Priorities List:
OCFO: Office of the Chief Financial Officer:
OECA: Office of Enforcement and Compliance Assurance:
OSWER: Office of Solid Waste and Emergency Response:
PACER: Public Access to Court Electronic Records:
RCRA: Resource Conservation and Recovery Act:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
July 15, 2009:
Congressional Requesters:
The Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) of 1980 established the Superfund program to protect human
health and the environment from the effects of hazardous substances.
Under the Superfund program--the federal government's principal program
to clean up hazardous waste sites--the Environmental Protection Agency
(EPA) has the authority to compel parties responsible for contaminating
these sites to clean them up, or to conduct cleanups itself and then
seek reimbursement from the responsible parties. In the past, EPA's
approach for enforcing CERCLA was criticized as leading to lengthy
negotiations and protracted litigation, resulting in high costs for the
government, as well as the responsible parties.
EPA places some of the most seriously contaminated sites on the
National Priorities List (NPL), and cleanups of these sites are
typically expensive and lengthy. Cleanup actions are managed by EPA's
Office of Solid Waste and Emergency Response (OSWER) and progress
through several steps: investigation and study; selection and design of
the cleanup method; and implementation of the cleanup, known as the
remedial action. Remedial actions--or remedies--are generally long-
term cleanups that aim to permanently and significantly reduce
contamination. EPA can also take removal actions at any time; these
actions are generally short-term or emergency cleanups to mitigate
immediate threats. When the remedial action phase is complete, all
immediate threats have been addressed, and all long-term threats are
under control, EPA generally considers the site to be "construction
complete." Most sites then enter into an operation and maintenance
phase in which the responsible party or the state maintains the remedy
while EPA conducts periodic reviews to ensure that the remedy continues
to protect human health and the environment. As of the end of fiscal
year 2007,[Footnote 1] there were 1,569 NPL sites.[Footnote 2] The
Superfund program is funded by annual appropriations from a trust fund;
historically, the trust fund was financed primarily by taxes on crude
oil and certain chemicals, as well as an environmental tax on
corporations. Since the authority for these taxes expired in 1995,
however, the general fund has been the largest source of revenue for
the trust fund.
EPA's Office of Enforcement and Compliance Assurance (OECA) is
responsible for Superfund enforcement, including identifying
responsible parties and taking enforcement actions against these
parties to compel them to clean up sites or reimburse EPA's costs.
During its enforcement actions, EPA attempts to reach an agreement--
known as a settlement--with responsible parties about who will perform
and/or pay for site cleanups. The Department of Justice (DOJ) assists
EPA in its efforts to enforce CERCLA by negotiating and, when
necessary, litigating on EPA's behalf.[Footnote 3] To begin litigation,
DOJ will file a complaint in U.S. district court against one or more
responsible parties, initiating a case against them. CERCLA cases may
require only minimal court involvement, as when EPA seeks a court's
approval for a previously negotiated settlement. Alternatively, cases
may be lengthy and complex; however, EPA may still reach an agreement
with the parties after some litigation. While many CERCLA cases are
filed by the federal government, states, private parties, and others
may also initiate litigation under the act for a variety of reasons,
including compelling others to contribute toward site cleanup costs.
In this context, you asked us to (1) identify the outcomes of EPA's
enforcement actions, and the factors federal and private parties
consider in reaching these outcomes; (2) examine the trends, if any, in
litigation to resolve Superfund liability; and (3) determine the status
and implementation costs of the Superfund program. You also asked that
we examine the costs of EPA's efforts to enforce and administer the
Superfund program, and we provided you with detailed data on these
activities in July 2008.[Footnote 4]
To understand the Superfund enforcement process, we reviewed applicable
statutes, regulations, and EPA guidance. We also interviewed officials
responsible for implementing and enforcing the Superfund program,
including officials in OSWER and OECA, and in DOJ's Environment and
Natural Resources Division. To provide information on the outcomes of
EPA's Superfund enforcement actions,[Footnote 5] as well as on the
program's status, we obtained and analyzed data from EPA's
Comprehensive Environmental Response, Compensation, and Liability
Information System (CERCLIS). Also, to provide information on the cost
of implementing the Superfund program, we analyzed program expenditure
data from EPA's Integrated Financial Management System (IFMS), and
interviewed officials with EPA's Office of the Chief Financial Officer.
We converted all dollar figures in the data we collected from the
CERCLIS and IFMS databases into constant 2007 dollars. To examine
trends in litigation to resolve Superfund liability, we conducted a
comprehensive analysis of cases filed under CERCLA in 88 out of the 94
U.S. district courts. We identified these cases by searching the Public
Access to Court Electronic Records (PACER) system for cases filed for
fiscal years 1994 through 2007, and as a result, developed a database
of almost 2,300 cases.[Footnote 6] We qualitatively analyzed the
docket--or record of activity--for each of these cases to obtain data
on their duration and outcome, as well as on the number and types of
parties involved. The purpose, source, time frame, and scope of the
data we collected and analyzed for this report are shown in table 1.
Table 1: Purpose, Source, Time Frame, and Scope of Data Collected and
Analyzed for This Report:
Purpose of data collection effort: Information on the outcomes of EPA's
enforcement actions;
Source and time frame of data: CERCLIS--fiscal years 1979 through
2007[A];
Scope of data collected and analyzed: Completed enforcement actions at
proposed, final, and deleted NPL sites.[B]
Purpose of data collection effort: Information on trends in litigation
to resolve Superfund liability;
Source and time frame of data: PACER--fiscal years 1994 through 2007;
Scope of data collected and analyzed: Cases filed in U.S. district
courts under CERCLA as identified by the cause of action listed in
PACER (includes cases filed by federal, state, and other parties
related to both NPL and non-NPL sites).
Purpose of data collection effort: Information on the status and costs
of the Superfund program;
Source and time frame of data: CERCLIS--fiscal years 1983 through
2007[C]; IFMS--(1) overall program expenditures for fiscal years 1999
through 2007 and (2) all site expenditures through fiscal year 2007[D];
Scope of data collected and analyzed: Program status data include
information on the number, type, and status of cleanup at final and
deleted nonfederal NPL sites; Program expenditure data include
Superfund expenditures except certain excluded categories, such as
transfers to other appropriations. Site expenditure data include site-
specific EPA expenditures at final and deleted nonfederal NPL sites
except for reimbursable and Homeland Security Supplemental
expenditures.
Source: GAO analysis.
[A] Data on Superfund enforcement outcomes start in fiscal year 1979
because the earliest Superfund enforcement action with a monetary value
was achieved in that year. An EPA official told us that, although this
outcome occurred before the Superfund program began, it was included as
a Superfund enforcement outcome because it concerned a site that was
later listed on the NPL.
[B] These data primarily represent EPA enforcement actions at
nonfederal NPL sites; however, enforcement actions against responsible
parties at a small number of federal facility NPL sites are also
included in the data. Overall, we did not assess EPA's efforts to
enforce site cleanups at federal facilities.
[C] Sites were first listed on the NPL in fiscal year 1983. Therefore,
while cleanup or enforcement actions were initiated at some sites prior
to fiscal year 1983, throughout this report we refer to fiscal year
1983 as the initial time frame for data collected on the number, type,
and status of cleanup of sites on the NPL.
[D] EPA could only provide data on site-specific expenditures prior to
fiscal year 1990 on an aggregated basis. Therefore, we could not
determine when the earliest of these expenditures were made. See
appendix I for more detail on our analysis of these data.
[End of table]
In addition, to obtain more detailed information on how the Superfund
enforcement process is implemented at individual sites, as well as the
factors that influence parties' decisions, we reviewed EPA enforcement
documentation from a nonprobability sample of 10 Superfund sites. We
selected these sites on the basis of a variety of characteristics, such
as geographic location, site type, number of responsible parties, and
value of enforcement actions taken. Finally, to help identify
contributing factors for the trends we found in our analysis of data on
EPA's enforcement actions, litigation to resolve Superfund liability,
and the program's status and costs, as well as to obtain information on
the factors that influence parties' decisions, we interviewed Superfund
program experts, including EPA and DOJ officials, attorneys that
represent responsible parties, and other subject matter experts. We
selected these individuals on the basis of a number of factors, such as
referral from other interviewees, the past efforts of these individuals
(or the organizations they represent) related to the Superfund program
or CERCLA enforcement, and representation of a variety of perspectives.
We also obtained and reviewed information on recent legal decisions and
ongoing cases that experts identified as significant to CERCLA
liability issues.
We evaluated the reliability of the data used in our analyses and
identified some potential limitations in the data used for this report.
For example, we found certain limitations in the extent to which EPA
data on the value of its enforcement actions represent the actual value
of these actions. Also, EPA noted that the agency currently has ongoing
data correction and updating efforts that could result in changes to
the data we analyzed for this report. In addition, we found evidence
that not all U.S. district court cases filed under CERCLA were
categorized as such--with a CERCLA cause of action--in the PACER
system. Despite these limitations, we determined that these data were
sufficiently reliable for presenting information on overall trends; we
also corroborated the overall trends through discussions with experts.
Where necessary, we note the potential limitations of these data in the
report. Appendix I provides a more detailed description of our scope
and methodology.
We conducted this performance audit from August 2007 to July 2009, in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
Results in Brief:
EPA's enforcement actions have resulted in an estimated $29.9 billion
in cost recoveries, commitments to conduct site work, and other
outcomes, according to EPA data through fiscal year 2007. Almost 80
percent of EPA's completed enforcement actions at NPL sites resulted in
agreements with responsible parties to perform or pay for site cleanup
work; experts told us that site-specific conditions and other key
considerations influence EPA's and others' decisions about how to
resolve liability issues. EPA, DOJ, and responsible parties are usually
interested in reaching agreement, according to experts we spoke with,
but they are more likely to agree that the responsible parties will
reimburse EPA for its cleanup costs than that the responsible parties
will conduct site work themselves. However, the estimated value of
responsible parties' commitments to conduct site work is significantly
higher than the estimated value of the agency costs EPA has recovered
through its enforcement actions. Experts told us that while EPA, DOJ,
and responsible parties make decisions about settling on the basis of
site-specific characteristics, parties generally take into account
certain key considerations regardless of particular site conditions.
First, parties consider the cost of site cleanup; they may be less
likely to settle quickly if costs are expected to be high. Second, EPA
and responsible parties evaluate the strength of the agency's evidence
establishing a party's liability for site contamination; when the
evidence of a responsible party's liability for a site seems tenuous,
the party may wait to settle until EPA discovers additional supporting
evidence. Finally, the number and types of responsible parties
identified is an important consideration in decisions to reach
settlement. For example, DOJ officials said it can be more difficult to
settle when some responsible parties are facing bankruptcy because
other responsible parties do not want to pay for the insolvent parties'
share of cleanup costs.
From fiscal years 1994 through 2007, Superfund litigation--as measured
by the number, duration, and complexity of CERCLA cases--decreased for
several reasons, according to experts, including a decline in the
number of sites being cleaned up, changes in EPA's enforcement process
that have encouraged settlements, and court decisions that have
clarified legal uncertainties. More specifically:
* Number, duration, and complexity decreased. The number of CERCLA
cases filed annually in U.S. district courts decreased by almost 50
percent, primarily because of a substantial reduction in the number of
cases filed by parties other than the federal or state governments,
such as businesses or private individuals. At the same time, the
duration of cases decreased as the federal government increasingly
negotiated settlements on CERCLA liability with responsible parties
prior to filing cases in court. The median length of time that cases
with previously negotiated settlements were before the court was
approximately 3 months, compared with nearly 16 months for cases
without such settlements. Furthermore, the complexity of CERCLA cases
decreased as the number of defendants involved in such cases and the
percentage of cases in which defendants pursued additional parties
declined. Although comprehensive data on CERCLA litigation costs are
not available, DOJ officials and responsible party attorneys said that
litigation costs can be substantial. As the amount of CERCLA litigation
decreased, the costs associated with this litigation may have also
decreased.
* Factors contributing to these trends. According to Superfund experts,
these trends have occurred for several reasons. First, the drop in
litigation may reflect that fewer NPL sites required cleanup, and so
parties may have had less reason to go to court. Fewer sites required
cleanup because, for example, fewer sites were listed on the NPL in
recent years, and the number of active NPL sites--those sites that had
yet to reach construction complete--decreased by about one-half between
fiscal years 1994 and 2007. Second, EPA changed its enforcement process
to further promote settlements with responsible parties, especially
settlements negotiated prior to filing a case in court. Following these
and other enforcement process changes in the mid-1990s, a greater
proportion of EPA's enforcement actions resulted in agreements with
responsible parties, and EPA and responsible parties more frequently
reached these agreements prior to filing litigation in court. Finally,
because the courts have clarified several initial uncertainties in the
law, parties have become more certain of the probable outcomes of
litigation and are, therefore, less likely to sue. However, as some
attorneys indicated, recent or upcoming court decisions may raise some
issues--such as the circumstances under which certain responsible
parties can recover costs from others or when liability for site
contamination can be apportioned among different parties--that could
affect the likelihood of litigation in the future.
While some trends in the Superfund program's status and implementation
costs are unclear because of limitations in EPA's data, we identified a
number of trends that could affect future program costs. However, EPA
does not provide the Congress with sufficient information to assess
program funding needs. Specifically:
* The number of sites added to the NPL each year has declined
significantly since the beginning of the program. However, the types of
sites added to the NPL have also changed in recent years. For example,
mining sites, which are among the most expensive types of sites to
clean up, have been added to the NPL in increasing numbers. At the same
time, trends in the extent to which NPL sites do not have viable
responsible parties to assist with site cleanup are unclear, in part,
because of limitations in EPA's data; making it difficult for the
agency to determine the potential impact of these trends on its cost
recovery efforts.
* Remedial actions have been completed or are underway at most NPL
sites; however, limitations in EPA's data on the status of cleanups at
individual sites make it difficult to aggregate these data to quantify
the amount of work remaining across all NPL sites. For example, one of
the methods EPA uses to track the progress of different parts of a
site's cleanup--called operable units--is with key milestones, such as
whether the site study or the remedial action is underway. While EPA
recommended that we use these data to provide information on the status
of site cleanups, these milestones provide only limited information on
the amount of work remaining at an operable unit because the scope and
type of work at operable units varies. For example, at one site, one
operable unit may involve cleaning up a portion of a river and, at the
same site, another operable unit may be for activities not directly
related to cleanup, such as providing drinking water to residents. Such
considerable differences in operable units make it difficult to use
EPA's operable unit milestone data to determine the amount of work,
overall, that needs to be completed at a site. In addition, because
certain types of sites take longer to clean up, the sites that remain
on the NPL and that are not construction complete may include more
complex and expensive sites. Moreover, even at some sites that are
designated as construction complete, EPA may incur additional costs to
address remaining site contamination.
* Superfund financial data show mixed trends: program appropriations
and expenditures are declining while the costs EPA incurs for
individual sites are increasing. From fiscal year 1999 through 2007,
both EPA's annual Superfund appropriation and its total expenditures
for remedial actions at Superfund sites decreased. However, during this
period, the average total amount EPA had spent per site by the time
individual sites reached the construction complete milestone increased
by an average of 13 percent each year. Nevertheless, EPA does not
provide the Congress with sufficient information to make funding
decisions about the Superfund program. In particular, EPA does not
provide information on the work remaining and cost of cleanups at sites
that are not construction complete, including complex and costly sites,
and the extent to which it cannot identify viable responsible parties
to assist with site cleanup. As a result, it is unclear how much
funding for future cleanup activities will have to come from Superfund
trust fund appropriations rather than from responsible parties.
To assist the Congress in making decisions about funding the Superfund
program, we are recommending that the Administrator, EPA, assess and
improve the comprehensiveness and reliability of the data the agency
collects on the status and cost of cleanups at individual sites
(particularly complex and expensive sites); the extent to which there
are viable responsible parties at sites; and the financial impacts if
EPA cannot identify viable responsible parties to assist in paying for
some or all of a site's cleanup. We are also recommending that the
Administrator, EPA, aggregate these data, as appropriate, to provide
clear and complete information on these issues, and provide this
information to the Congress.
In responding to a draft of this report, EPA noted that it agreed with
the report's findings with respect to trends in Superfund enforcement
and litigation, and recognized that both site-specific and aggregate
information are necessary to support congressional decision making. EPA
indicated that it agreed with our recommendation to assess and improve
the data it provides on the program's status and costs; although EPA
identified some potential limitations to doing this, based on the site-
specific nature of Superfund cleanups. EPA disagreed with our
recommendations to collect and provide aggregated data on the extent to
which there are viable responsible parties at sites and the financial
impacts if EPA cannot identify viable responsible parties to pay for
some or all of a site's cleanup costs. EPA stated that it believes
these data would be of limited value because they are subject to change
throughout the cleanup and enforcement process. However, we believe
these data are essential to assess EPA's future funding needs. EPA also
provided other comments suggesting clarification of certain aspects of
the report, as well as technical comments, which we incorporated, as
appropriate. See appendix III for EPA's written comments. DOJ and the
Administrative Office of the U.S. Courts did not provide written
comments on the draft report.
Background:
CERCLA was passed in late 1980, in the wake of the discovery of toxic
waste sites such as Love Canal, where housing was built upon a former
landfill for toxic chemicals, and residents began developing cancer and
other illnesses from the residual waste. Unlike some environmental
statutes, CERCLA did not regulate activity in order to prevent
contamination of the environment;[Footnote 7] rather, CERCLA created a
mechanism for responding to contamination that already exists. CERCLA
established a trust fund from which EPA receives annual appropriations
for Superfund program activities. The Superfund trust fund has received
revenue from four major sources: taxes on crude oil and certain
chemicals, as well as an environmental tax assessed on corporations
based upon their taxable income; appropriations from the general fund;
fines, penalties, and recoveries from responsible parties; and interest
accrued on the balance of the fund. In the program's early years,
dedicated taxes provided the majority of revenue to the Superfund trust
fund. However, in 1995, the authority for these taxes expired and has
not been reinstated.[Footnote 8] Since that time, appropriations from
the general fund have constituted the largest source of revenue for the
trust fund, as table 2 shows.
Table 2: Trust Fund Revenue in the Periods Before and After the
Superfund Taxes Expired:
Constant 2007 dollars in millions:
Revenue source[A]: Receipts from dedicated taxes[B];
Fiscal years 1981-1995 (percentage of total revenues): $18,018 (68%);
Fiscal years 1996-2007 (percentage of total revenues): $936 (6%).
Revenue source[A]: Appropriations from the general fund[C];
Fiscal years 1981-1995 (percentage of total revenues): $4,616 (17);
Fiscal years 1996-2007 (percentage of total revenues): $9,281 (59).
Revenue source[A]: Interest;
Fiscal years 1981-1995 (percentage of total revenues): $2,412 (9);
Fiscal years 1996-2007 (percentage of total revenues): $2,543 (16).
Revenue source[A]: Fines, penalties, and recoveries;
Fiscal years 1981-1995 (percentage of total revenues): $1,634 (6);
Fiscal years 1996-2007 (percentage of total revenues): $2,906 (19).
Revenue source[A]: Total;
Fiscal years 1981-1995 (percentage of total revenues): $26,680 (100%);
Fiscal years 1996-2007 (percentage of total revenues): $15,667 (100%).
Source: GAO analysis of data from the President's Budget Appendices.
Note: Totals may not add due to rounding.
[A] We did not include revenue from offsetting collections, because
these data were only available for selected years.
[B] The Superfund program continued to collect some taxes after the
authority expired as a result of adjustments to prior years' corporate
tax returns based on audits conducted by the Internal Revenue Service.
[C] In fiscal year 1981, the trust fund received an appropriation from
the Pollution Fund. We have included this money under the category of
appropriations for ease of presentation.
[End of table]
Since CERCLA was enacted, the Congress and EPA have made some
significant changes to the program, including the following:
* The Superfund Amendments and Reauthorization Act of 1986 gave EPA
additional enforcement authorities and statutory direction concerning
settlements, and required greater state and public participation in
site cleanup activities. The act also increased the potentially
available funds for the program by allowing additional taxes to be
collected for the trust fund, and by increasing the authorized level of
funding that the Congress could appropriate from the trust fund to the
Superfund program.
* In the mid-1990s, EPA undertook 62 reforms--collectively known as the
Superfund administrative reforms--to respond to criticism of the
Superfund program. These 62 reforms were intended to cover a range of
activities, such as (1) selecting more technologically advanced and
cost-effective cleanup remedies, (2) providing technical assistance so
that communities and tribes located near sites could better participate
in cleanup decisions, and (3) reducing the costs associated with
enforcing Superfund by, for example, expediting settlements with
certain types of responsible parties, such as those that contributed
small amounts of hazardous substances.
* A 1999 amendment to CERCLA defined the term "recyclable material" and
exempted certain parties who arranged for the recycling of these
materials from Superfund liability, provided certain conditions are
met. According to the amendment, one purpose of these exemptions was to
remove impediments to recycling that were unintended consequences of
the Superfund provisions.
* In 2002, the Small Business Liability Relief and Brownfields
Revitalization Act, among other things, limited the liability of
certain types of responsible parties and established the Brownfields
program--a federal grant program to assist with the redevelopment of
certain sites polluted (or potentially polluted) by hazardous
contaminants.
EPA's Process for Listing Superfund Sites on the NPL and Cleaning Them
Up:
Potentially hazardous sites are usually reported to EPA by a state
environmental agency, but sometimes local or tribal governments, other
federal agencies, individuals, or community groups also identify such
sites. The EPA regional office,[Footnote 9] often in conjunction with a
state environmental agency, evaluates the site to verify that hazardous
substances are present and to determine whether the site could be
addressed by other programs, such as state hazardous waste programs or
other federal authorities. Regional officials may decide not to include
a site for further assessment for a number of reasons, such as if the
site could be addressed by other programs, or if the officials make a
determination that no further cleanup action is necessary at the site.
Also, as part of the evaluation process, EPA uses its Hazard Ranking
System to numerically assess the potential of sites to pose a threat to
human health or the environment--sites that score at least 28.5 under
the Hazard Ranking System are eligible for NPL listing. EPA regions
then submit sites to EPA headquarters for possible listing on the NPL
on the basis of a variety of factors, including the severity of the
contamination and the urgency of the threat it poses. In 2002, EPA
established a committee of regional and headquarters personnel to
review regional submissions as part of the selection process. This
committee primarily considers risks to human health and the environment
and the urgency of the need for response; it also considers program
management factors, such as projected costs to the Superfund program
and the timing of funding needs.[Footnote 10] As a matter of policy,
EPA also seeks concurrence from the government of the state in which a
site is located. Sites that EPA decides to list on the NPL are proposed
for listing in the Federal Register for a 60-day public comment period.
Final listing decisions are also published in the Federal Register.
[Footnote 11]
Once EPA selects a site for the NPL, it initiates a process to
understand the extent of the contamination, decide on the actions that
will be taken to address that contamination, and implement those
actions. This process can take many years--or even decades--to
complete. Figure 1 outlines the process EPA typically follows, from
listing a site on the NPL through deletion of the site from the NPL.
Figure 1: Site Cleanup Process:
[Refer to PDF for image: illustration]
Milestone: NPL Listing.
Phase: Site Study;
* Remedial Investigation;
* Feasibility study;
Milestone: Record of Decision.
Phase: Remedial Action;
* Remedial design;
* Remedial action;
Milestone: Construction Complete.
Phase: Operations and Maintenance;
Milestone: Deletion from NPL.
Source: GAO analysis based upon EPA data.
[End of figure]
After a site is listed, EPA or a responsible party will conduct a two-
part study of the site: (1) remedial investigation, to characterize
site conditions and assess the risks to human health and the
environment, among other actions; and (2) feasibility study, to
evaluate various options to address the problems identified through the
remedial investigation. For example, EPA may determine that the soil at
a site is polluted with a hazardous chemical during the remedial
investigation and decide during the feasibility study that removing the
soil for off-site treatment represents the best way to clean the site.
These findings and decisions are documented in a record of decision.
Next, either EPA or a responsible party may initiate the remedial
action that was documented in the record of decision. Like the site
study, implementation of the remedial action is divided into two parts:
(1) remedial design, a further evaluation of the best way to implement
the chosen remedy; and (2) remedial action, the implementation of the
remedy selected. When physical construction of all remedial actions is
complete and other criteria are met, EPA deems the site to be
"construction complete." Most sites then enter into the operation and
maintenance phase, when the responsible party or the state maintain the
remedy, while EPA conducts periodic reviews to ensure that the remedy
continues to protect human health and the environment. For example, at
a site with soil contamination, the remedial action could consist of
building a cap over the contaminated soil, while the operation and
maintenance phase would consist of monitoring and maintaining the cap.
Eventually, when EPA determines, with state concurrence, that no
further remedial activities at the site are appropriate, EPA may delete
the site from the NPL. Although most sites progress through the cleanup
process in roughly the same way, EPA may take different approaches
based on site-specific conditions.
While appropriated resources from the Superfund trust fund are
available for remedial actions at sites that have been listed on the
NPL, EPA can also use these resources to conduct removal actions to
address site contamination at any site where there is an actual or
threatened release of a hazardous substance. CERCLA defines removal
actions to include necessary (1) actions in the event of a release or
threatened release of hazardous substances into the environment; (2)
actions to monitor, assess, and evaluate the release or threatened
release of hazardous substances; (3) disposal of removed material; and
(4) actions to otherwise prevent, minimize, or mitigate damage to
public health, welfare, or to the environment. CERCLA limits EPA
removal actions paid for with appropriations from the trust fund to
actions lasting 12 months or less and costing $2 million or less,
although these limits can be exceeded if EPA determines that conditions
for an exemption are met. Most removal actions have occurred at sites
not on the NPL.
Liability Under CERCLA:
Under CERCLA, liability stems from the release (or threatened release)
of hazardous substances into the environment from a facility. Many of
these concepts are defined broadly. For example, under CERCLA, a
"facility" includes, among other things, buildings, pipelines, lagoons,
ditches, storage containers, motor vehicles, or any sites where a
hazardous substance has come to be located. EPA also has to establish
some other facts to successfully recover costs or require cleanup
actions. To recover its costs, EPA's expenditures must not be
inconsistent with the National Contingency Plan.[Footnote 12] This
plan, which was revised pursuant to CERCLA, establishes the procedures
and standards for responding to releases of hazardous substances. To
compel cleanup, EPA must show that an "imminent and substantial
endangerment" may exist at the site that requires action on the part of
the responsible parties.
Parties may also be held liable under CERCLA for damages related to the
loss, injury or destruction of natural resources.[Footnote 13] The
National Contingency Plan designates the secretaries of several
departments--such as the Department of the Interior or the Department
of Agriculture--who manage or hold federal lands as "natural resource
trustees." State and tribal officials are also designated as trustees.
These trustees are authorized to sue, through the Attorney General,
responsible parties for the costs of assessing the damages to natural
resources, as well as the costs of restoration. EPA is not a natural
resource trustee; rather, the agency's role with respect to natural
resource damages is generally to notify and coordinate with the
trustees.
CERCLA explicitly identifies four types of parties that can be held
liable at a site, as well as some exemptions for parties meeting
certain characteristics. The four types of parties are (1) owners or
operators of a site; (2) former owners or operators of the site at the
time hazardous wastes were disposed of; (3) those who arranged for
disposal of hazardous substances (often called generators); and (4)
transporters of hazardous waste to the site. Exempted parties include,
among others: landowners who acquire contaminated property without
knowing, after appropriate research, about the hazardous substances at
the site; landowners who, after appropriate research, knowingly acquire
contaminated property and take reasonable steps to prevent any further
release of hazardous substances and cooperate fully with any response
actions; generators and transporters who contribute extremely small
amounts of waste to a site, known as de micromis parties; parties
involved in recycling certain materials; and parties who have obtained
certain federal permits to release hazardous substances. In addition,
releases comprised solely of crude oil, petroleum, pesticides, and
other specifically exempted substances are not subject to liability.
However, in some cases, cleanups of these substances may be taken under
other authorities, such as the Oil Pollution Act of 1990.[Footnote 14]
Finally, CERCLA's liability provisions are focused on releases of
hazardous substances, although EPA also has the authority to respond to
releases of pollutants and contaminants which may pose an imminent and
substantial danger.
Courts have held responsible party liability under CERCLA to be strict,
joint and several, and retroactive. Under strict liability, a party may
be liable for cleanup even though its actions were not considered
negligent. Because liability is joint and several, when the harm done
is indivisible, one party can be held responsible for the full cost of
the remedy even though other parties may have contributed to the
release of hazardous substances at the site. Retroactive liability
means that liability applies to actions that took place before CERCLA
was enacted.
Parties held responsible by EPA or sued by other parties can challenge
their CERCLA liability. Specifically, CERCLA provides responsible
parties with three statutory defenses to Superfund liability when
hazardous substances are released solely because of (1) an act of
God;[Footnote 15] (2) an act of war;[Footnote 16] and (3) the actions
of a third party (other than an agency or a party in a contractual
relationship with the responsible party), although the responsible
party must have taken due care and reasonable steps to prevent a
release. Responsible parties may also claim that too much time has
passed for EPA to bring an enforcement action against them. CERCLA
establishes specific statutes of limitations--that is, time limits--for
filing actions against responsible parties.[Footnote 17] Liable parties
may also seek to reduce their costs by arguing that they are not
subject to joint and several liability when the site contamination is
divisible among responsible parties, or that EPA's costs were
inconsistent with the regulations in the National Contingency Plan.
EPA's Enforcement Process:
EPA enforcement begins with the identification of potentially
responsible parties, usually early in the cleanup process; continues
throughout site cleanup; and often does not conclude until after the
site is declared construction complete, such as when the agency pursues
parties to recover its costs for implementing the site cleanup.
Although the process varies from site to site, the typical stages of
enforcement for an NPL site are shown in figure 2.
Figure 2: EPA Enforcement Process:
[Refer to PDF for image: illustration]
Milestone: NPL Listing.
Phase: Site Study;
* Search for responsible parties;
* Negotiations (carries over into next phase):
- Enforcement action for site study work;
- Enforcement action for remedial action work;
Milestone: Record of Decision.
Phase: Remedial Action;
* Search:
- Newly responsible party discovered;
- Negotiations (carries over into next phase);
Milestone: Construction Complete.
Phase: Operations and Maintenance;
* Negotiations:
- Enforcement action for cost recovery;
Milestone:Deletion from NPL.
Source: GAO analysis based upon EPA data.
[End of figure]
Search for responsible parties. EPA identifies responsible parties by,
among other actions, reviewing documentation related to the site;
conducting interviews with government officials or other knowledgeable
parties; performing historical research on the site, such as searching
for previous owners of the property; sampling soil or groundwater at
the site; and requesting additional information from relevant parties.
In addition to identifying the names of potentially responsible
parties, EPA attempts to obtain information on the type and amount of
hazardous substances shipped to a site by each party and any financial
constraints faced by the identified parties. These details help EPA
establish whether any parties should qualify for special types of
settlements, such as a de minimis settlement for a party who
contributed small amounts of waste, or an "ability to pay" settlement
for parties facing financial difficulties.[Footnote 18] The search
should also provide EPA with the evidence to establish the potential
liability of each party. Although the search typically begins no later
than EPA's efforts to list a site on the NPL, the discovery of new
parties at a site can occur at any point during, and even after, the
cleanup process is completed.
Negotiations. As with the search for responsible parties, negotiations
typically take place early in the site cleanup process, but can resume
at various points during the enforcement process. Formal negotiations
begin when EPA sends a "special notice letter" to parties. This letter
typically includes information about the site, the work necessary to
study or clean up the site, other responsible parties, and also
provides a draft settlement document to be used as a basis for
negotiations. The special notice letter also initiates a "negotiation
moratorium," or a period of time during which EPA is prohibited from
starting the site study or remedial action. EPA and the responsible
parties may use this time to reach agreement about how the necessary
site work will be conducted.
If negotiations are successful and parties settle with EPA to conduct
site work or reimburse agency costs, CERCLA authorizes EPA to provide
several benefits to the settling parties. EPA has the discretion to
provide parties with a "covenant not to sue," in which the federal
government promises not to pursue additional enforcement actions
against the parties for matters addressed by the settlement. In most
cases, settlements also include "reopeners," which allow EPA to take
new enforcement actions if it discovers new evidence of liability or
contamination after the initial settlement.[Footnote 19] CERCLA also
provides "contribution protection" to parties that settle with EPA.
That is, other parties cannot sue the settling parties for the costs
affiliated with the matters addressed by the settlement.
In cases involving the performance of site work, where EPA and the
responsible parties are unable to reach agreement, EPA may order the
parties to conduct the cleanup action. If the parties do not comply
with such orders, or for enforcement actions related to matters other
than site work, EPA may refer the case to DOJ for litigation. DOJ
officials then renew efforts to negotiate with responsible parties.
These efforts are known as "pre-filing negotiations" and are required
prior to all civil litigation the federal government brings.[Footnote
20] Negotiations continue after DOJ files a CERCLA case, even during a
trial.
Litigation Under CERCLA:
The federal government can litigate against responsible parties for
many reasons, including the following:
* Some parties may refuse to allow EPA access to a contaminated site or
may not provide EPA with information to assist in identifying
responsible parties or site hazards. CERCLA requires parties affiliated
with a site (whether responsible for contamination or not) to provide
EPA with access to the site and site information.
* EPA can litigate when parties refuse to comply with EPA
administrative orders, such as orders directing responsible parties to
conduct site work.
* EPA may use litigation to recover its costs, including those
associated with site work and program administration, as well as the
interest that has accrued on agency costs.
* Because certain agreements related to remedial actions, among others,
must be confirmed by the court, EPA must initiate a case in court to
file these agreements.
Parties other than the federal government--states, local governments,
private citizens, businesses, and others--can also initiate CERCLA
litigation. Many of these cases are known as "contribution claims,"
where a responsible party sues other identified parties to recover some
of the money it has spent to reimburse EPA for cleaning up a site. In
addition to these contribution claims, responsible parties incurring
cleanup costs may sue other responsible parties to recover some of
those costs. Because these suing parties are responsible, in part, for
the contamination, they cannot usually recover all of their costs, but
may recover an amount determined by the courts to be equitable.
[Footnote 21] In some instances, state governments, private parties,
and others may also initiate litigation under CERCLA against federal
agencies, and DOJ defends the federal agencies in such cases.
Litigation can take place over a considerable period of time, and
during any phase of the process, the parties to the litigation can
decide to reach a settlement. For example, during the discovery phase
of litigation, when parties to a lawsuit request and obtain information
from each other, such as the evidence that supports their claims or
defenses, parties may decide that, given the evidence and the potential
costs and risks of trial, it would be financially preferable to reach a
settlement rather than to proceed to a trial. A case may be broken into
several phases, including: (1) liability, or whether parties meet the
legal standard of having contributed to the release of hazardous waste;
(2) selection of a remedy, such as whether actions were consistent with
the National Contingency Plan; and (3) allocation of costs among
parties for contribution claims.
Documenting EPA Enforcement Actions:
Completed EPA enforcement actions can be documented in one of four
ways:
* Administrative orders on consent document the agreements EPA and
responsible parties reached to pay for cleanup actions or conduct site
work, such as site study and removal actions.[Footnote 22] These can
contain penalties for noncompliance and may be enforced by a judge.
* Consent decrees also document agreements between EPA and responsible
parties, but must be approved by the court. CERCLA requires that
agreements on conducting a remedial action take the form of a consent
decree.[Footnote 23]
* Unilateral administrative orders may require responsible parties to
conduct site work, among other things. These documents describe the
liability of the parties, the actions that must be taken, and the
penalties for noncompliance. CERCLA authorizes fines for each day of
noncompliance with a unilateral administrative order, as well as
damages of up to three times any funds spent by EPA as a result of the
parties' noncompliance, in addition to the costs of cleanup.
* Judgments result from cases filed in court, when a judge or a jury
determines the liability of a responsible party.
We have categorized enforcement actions as having consensual or
nonconsensual outcomes--that is, whether or not EPA was able to settle
with the responsible party.[Footnote 24] In addition, some outcomes are
achieved through either an administrative or judicial process. While
courts are involved in judicial actions, EPA can take administrative
actions on its own. Table 3 describes these categories.
Table 3: EPA Enforcement Actions, by Type of Process Followed and
Outcome Achieved:
Process: Administrative;
Outcome: Consensual: Administrative order on consent;
Outcome: Nonconsensual: Unilateral administrative order.
Process: Judicial;
Outcome: Consensual: Consent decree;
Outcome: Nonconsensual: Judgment.
Source: GAO analysis.
[End of table]
EPA Resolves Most Enforcement Actions through Settlements with
Responsible Parties, and Site-Specific Conditions Influence the
Negotiation Process:
Most of EPA's enforcement actions are resolved through a settlement
between the agency and responsible parties. In reaching these
settlements, EPA's and responsible parties' decisions are influenced by
site-specific characteristics and other key considerations, such as the
expected cost of site cleanup, the strength of EPA's evidence of
responsible party liability, and the number and type of other
responsible parties identified.
Most EPA Enforcement Actions Result in Agreements with Responsible
Parties for Conducting Site Work or Reimbursing the Agency's Costs:
Over the life of the Superfund program, according to EPA data, the
agency has completed at least one enforcement action at 1,160 sites, or
71 percent of all proposed, final, or deleted NPL sites.[Footnote 25]
At many sites, EPA has taken multiple enforcement actions. While the
median number of enforcement actions per site is 3, EPA has taken as
many as 68 enforcement actions at one site. At one site we reviewed--an
abandoned recycling facility--EPA files show that the agency used
multiple enforcement tools. According to agency documentation, EPA
issued a unilateral administrative order for a removal action to
maintain a stormwater treatment plant; an administrative order on
consent for site study work; two additional administrative orders on
consent to recover past and anticipated future site costs from parties
that contributed small amounts of waste to the site; a consent decree
for the performance of the remedial action; and three additional
enforcement actions for other aspects of site work or cost recovery.
EPA had identified 528 parties responsible for contamination at this
site.
From fiscal years 1979 through 2007, EPA completed 4,642 enforcement
actions at NPL sites, of which 3,682, or 80 percent, were consensual.
Moreover, EPA resolved negotiations with responsible parties through
administrative--rather than judicial--actions more than 60 percent of
the time. See figure 3.
Figure 3: Outcomes of EPA Enforcement Actions and Processes Followed at
NPL Sites, Fiscal Years 1979 through 2007:
[Refer to PDF for image: two pie-charts]
Enforcement outcome:
Consensual: 79%;
Nonconsensual: 21%.
Enforcement process:
Administrative: 62%;
Judicial: 38%.
Source: GAO analysis of EPA data.
[End of figure]
CERCLA explicitly encourages the government to settle with responsible
parties, "whenever practicable and in the public's interest." EPA and
DOJ officials, as well as attorneys we spoke with, agreed that reaching
a settlement is the preferred approach for resolving liability. For
example, some attorneys said that their clients tend to settle with EPA
because responsible parties are unlikely to succeed in avoiding
liability in litigation against the federal government.
As table 4 shows, administrative orders on consent are the most
frequently used enforcement action at NPL sites, accounting for 43
percent of actions completed over the period, followed by consent
decrees at 37 percent.
Table 4: Types of EPA Enforcement Actions Taken at NPL Sites, Fiscal
Years 1979 through 2007:
Administrative order on consent;
Number of times EPA has taken this action: 1,982;
Percentage of times EPA has taken this action: 43.
Consent decree;
Number of times EPA has taken this action: 1,700;
Percentage of times EPA has taken this action: 37.
Unilateral administrative order;
Number of times EPA has taken this action: 901;
Percentage of times EPA has taken this action: 19.
Judgment;
Number of times EPA has taken this action: 59;
Percentage of times EPA has taken this action: 1.
Total enforcement actions;
Number of times EPA has taken this action: 4,642;
Percentage of times EPA has taken this action: 100.
Source: GAO analysis of EPA data.
Note: The categories included in table 4 represent the types of
enforcement actions shown in EPA's enforcement outcome data. EPA also
documents some agreements as consent agreements and administrative cost
recoveries. However, because these documents were used infrequently and
have similar properties to administrative orders on consent, we have
combined these three enforcement outcomes for ease of communication.
[End of table]
As the table shows, EPA and the responsible party were often able to
reach agreement prior to a final judgment, with only one percent of
enforcement actions resulting in a final judgment since 1979. However,
EPA may have to go to court in many more instances, and the agency and
responsible parties may litigate for extended periods of time before
reaching a settlement. For example, according to EPA documentation, the
agency and two responsible parties were engaged in litigation over
liability for over 7 years at one site we reviewed. After the judge
issued an interim ruling in EPA's favor, the responsible parties
decided to settle with EPA, and the settlement was documented as a
consent decree.
Enforcement Actions Often Result in the Performance of Site Work or
Recovery of Agency Costs:
As figure 4 shows, a majority of EPA's enforcement actions at NPL sites
resulted in commitments from responsible parties either to reimburse
agency costs or to conduct site work, with only 22 percent related to
both.
Figure 4: Percentage of EPA's Enforcement Actions at NPL Sites That
Resulted in the Performance of Site Work, the Reimbursement of Agency
Costs, Both, or Neither, Fiscal Years 1979 through 2007:
[Refer to PDF for image: pie-chart]
Cost recovery (1,695): 37%;
Site work (1,473): 32%;
Both (1,005): 22%;
Neither (469): 10%.
Source: GAO analysis of EPA data.
Note: Data we obtained from EPA do not include outcomes related to the
recovery of EPA's future costs to oversee site work conducted by the
responsible party. Therefore, enforcement actions in this figure that
are identified as relating only to the performance of site work may
include provisions for the recovery of EPA's oversight costs.
Percentage does not add to 100 due to rounding.
[End of figure]
As the figure shows, 10 percent of enforcement actions did not result
in cost recovery or the responsible party's agreement to conduct site
work. Rather, EPA took these actions for other objectives, such as to
ensure access to a site or obtain requested information about a
facility to assist in the search for responsible parties. However, a
few of these actions--7 out of 469--did result in penalties levied
against the responsible party.[Footnote 26]
The likelihood of reaching a consensual enforcement action may be
influenced by whether EPA is seeking to recover its costs or to require
responsible parties to conduct site work. As table 5 shows, enforcement
actions seeking the recovery of EPA's costs were almost always
consensual. In part, the consensual nature of EPA's enforcement actions
for cost recovery may stem from EPA's policy toward de minimis parties,
those who contributed small amounts of waste to a site. EPA policy
indicates that agency officials focus their negotiations with de
minimis parties on obtaining past or anticipated future site costs from
these parties, rather than requiring site work. Of the 1,695 cost
recovery actions completed over the course of the Superfund program at
NPL sites, at least 438 were with de minimis parties, and all 438 were
consensual.[Footnote 27] Additionally, EPA noted that it may not be
prudent and cost-effective to attempt to recover costs when the
evidence of responsible party liability is tenuous. Thus, the outcomes
of the enforcement actions that EPA does take are more likely to be
consensual because experts told us that when EPA's evidence of
liability is strong, parties may be more likely to settle their
liability.
Table 5: Outcome of EPA Enforcement Actions at NPL Sites, Fiscal Years
1979 through 2007:
Cost recovery;
Consensual: 1,647;
Nonconsensual: 48;
Total: 1,695;
Percentage consensual: 97.
Site work;
Consensual: 799;
Nonconsensual: 674;
Total: 1,473;
Percentage consensual: 54.
Both;
Consensual: 989;
Nonconsensual: 16;
Total: 1,005;
Percentage consensual: 98.
Neither;
Consensual: 247;
Nonconsensual: 222;
Total: 469;
Percentage consensual: 53.
Total;
Consensual: 3,682;
Nonconsensual: 960;
Total: 4,642;
Percentage consensual: 79.
Source: GAO analysis of EPA data.
[End of table]
While almost all enforcement actions requiring both site work and cost
recovery resulted in consensual outcomes, only about one-half of the
enforcement actions requiring only site work were achieved through
consensual outcomes. If EPA is unable to reach an agreement with a
responsible party to both conduct site work and recover its costs, the
agency may issue a unilateral administrative order, which typically
only requires site work. Only 16 of EPA's 901 unilateral administrative
orders issued at NPL sites--less than 2 percent--included requirements
related to recovering agency costs.[Footnote 28] EPA may then attempt
to recover any costs through a separate enforcement action.
Finally, about one-half of the enforcement actions that required
neither site work nor reimbursement of agency costs were consensual.
These enforcement actions are more likely to be nonconsensual than some
other types of actions because of the types of issues these actions
address. For example, according to EPA policy and processes, the agency
should try to obtain initial oral or written consent for site access or
site information prior to taking enforcement actions. Consequently, EPA
may take enforcement action only when the party refuses EPA's request.
Approximately 75 percent of the 218 enforcement actions taken at NPL
sites that involved only site access or information requests were
nonconsensual. When parties deny access or information, it may be less
likely that EPA can resolve issues through consensual agreements. For
example, according to EPA documentation for one site we reviewed, EPA
had to sue two responsible parties for access to the site and
information about the facility. The parties refused to settle with EPA
prior to a trial. On appeal, the court eventually ruled that EPA should
be granted access to the site. However, this decision came nearly 5
years after EPA had proposed the site for the NPL. Agency documentation
indicated that, in the meantime, EPA's ability to clean up the site and
identify other responsible parties was delayed.
The type of site work to be performed and/or funded as a result of an
enforcement action may also affect the likelihood of achieving a
consensual outcome, as table 6 shows. Of the different enforcement
outcomes related to site work, those related to site study were
consensual more often than those related to other types of site work.
EPA officials indicated that they did not want to force reluctant
parties to conduct site studies because their work can influence the
selection of an appropriate remedial action. Therefore, when EPA cannot
reach agreement with responsible parties to conduct site study work,
the agency may choose to do the work itself, rather than issue a
unilateral administrative order.[Footnote 29] Over the life of the
Superfund program, only 3 percent of enforcement actions related to
site study were unilateral administrative orders.
Table 6: Outcome of EPA Enforcement Actions at NPL Sites, Fiscal Years
1979 through 2007, by Type of Site Work Sought:
Removal action;
Consensual: 1,529;
Nonconsensual: 309;
Total: 1,838;
Percentage consensual: 83.
Site study;
Consensual: 2,209;
Nonconsensual: 114;
Total: 2,323;
Percentage consensual: 95.
Remedial action;
Consensual: 3,132;
Nonconsensual: 801;
Total: 3,933;
Percentage consensual: 80.
Other site work;
Consensual: 288;
Nonconsensual: 66;
Total: 354;
Percentage consensual: 81.
Source: GAO analysis of EPA data.
Note: Because some enforcement actions result in multiple types of site
work, these numbers add to more than the total number of EPA
enforcement actions during this period. Additionally, other outcomes,
such as requirements granting EPA access to a site or recovering agency
costs could also be included in the data about enforcement actions
requiring site work.
[End of table]
Value of EPA Enforcement Actions:
As table 7 shows, according to EPA estimates, the agency's enforcement
actions at NPL sites have returned benefits valued at an estimated
$29.9 billion to the Superfund program.[Footnote 30] Although only 53
percent of enforcement actions required responsible parties to conduct
site work, these enforcement actions resulted in commitments to conduct
site work worth an estimated $22.5 billion, or 75 percent of the value
of EPA's enforcement actions. Furthermore, EPA's recoveries of past
costs, as well as penalties assessed, help to replenish the Superfund
trust fund. Since the authority to collect dedicated taxes for the
trust fund expired in 1995, fines, penalties, and recoveries have
provided the second largest source of income for the trust fund--about
19 percent of trust fund revenues--after appropriations from the
general fund.[Footnote 31] Moreover, according to EPA's estimates, the
agency has recovered approximately 36 percent of its site-specific
costs over the life of the Superfund program.[Footnote 32] Responsible
parties' payments for future site costs have also, in some cases, meant
that EPA could use its appropriation for work at other sites.[Footnote
33]
Table 7: Estimated Value of Superfund Enforcement Activities at NPL
Sites, Fiscal Years 1979 through 2007:
Constant 2007 dollars in millions:
Type of value: Past costs recovered;
Amount: $5,104.5.
Type of value: Future costs obtained;
Amount: $2,222.9.
Type of value: Estimated value of responsible party work commitments;
Amount: $22,525.6.
Type of value: Penalties assessed;
Amount: $50.7.
Type of value: Total;
Amount: $29,903.7.
Source: GAO analysis of EPA data.
Note: According to EPA, past costs recovered and future costs obtained
include both federal and state costs. Penalties include both statutory
and stipulated penalties. We did not evaluate the accuracy of these
estimates. Enforcement activity outcome values were adjusted to
constant 2007 dollars based on the completion date of the activity
outcome, not the date the amount was paid or the work conducted.
[End of table]
Site-Specific Characteristics and Key Considerations Influence EPA and
Responsible Parties' Decisions about How to Resolve Superfund
Liability:
According to agency officials and Superfund experts, site-specific
characteristics affect decisions about how to resolve Superfund
liability. For example, significant public concern over the cleanup of
one site we reviewed limited EPA's ability to recover a majority of its
past costs, according to agency documentation. Local communities
strongly advocated that the responsible party meet more stringent
standards in cleaning up the site than were originally proposed by EPA.
As a result, in its negotiations with the responsible party, EPA placed
more emphasis on meeting these standards than on recovering its past
costs. At another site, according to EPA documentation, responsible
parties manufactured munitions and explosives, packaged and distributed
chemicals, recycled waste solvents, and disposed of asbestos at various
times during the 40 years before the site was placed on the NPL. This
complex history, with several different sources of contamination, made
it difficult for EPA to negotiate with responsible parties, according
to agency documents. Although some of these parties agreed to conduct
the site cleanup, they did not agree to clean up the site's asbestos
contamination; other parties reimbursed only a portion of EPA's past
costs at the site, arguing that they were not responsible for this
contaminant. Finally, at a third site, according to EPA documentation,
some of the responsible parties challenged EPA's decision to list the
site on the NPL. This led to additional litigation by these parties,
and a judge's order compelling EPA to expedite its negotiations with
other responsible parties.
While site-specific characteristics generally influence how Superfund
liability is resolved, we identified some key considerations that the
parties routinely take into account: (1) site cleanup costs, (2) the
strength of EPA's evidence, (3) the number and type of other
responsible parties, and (4) other considerations that agency officials
and Superfund experts cited less frequently as affecting negotiations.
Cost of Site Cleanup:
In 7 of the 12 interviews we conducted with Superfund experts, the
experts identified anticipated site costs as an important consideration
during negotiations over Superfund liability. Some said high site costs
could lead to more difficult negotiations because both EPA and the
responsible parties have a lot at stake in the negotiations. EPA places
a higher priority on cases in which it hopes to recover more than
$200,000. However, at one site we reviewed, EPA was ultimately willing
to forgo suing a party for approximately $13 million of its past costs,
in part, because the responsible party was conducting a related cleanup
action anticipated to cost several hundred million dollars.
Several experts also noted that uncertainty about the costs or scope of
the cleanup could lead to more difficult negotiations. According to
attorneys at one law firm, sites with long-term operation and
maintenance requirements create "open-ended" liability for their
clients. Additionally, these attorneys said that disagreements about
the level of cleanup necessary--such as whether the site will be used
as an industrial park or a residential neighborhood, which can affect
the cleanup standards--create uncertainty. One state official we spoke
with agreed that responsible parties are less likely to litigate over
Superfund liability when they are certain about the costs of cleanup at
a site. As a result, state officials said that many states have
developed different approaches for identifying site cleanup
requirements, such as creating a list of standard approaches for a
variety of site contamination problems. In their view, these approaches
have helped reduce uncertainty about the scope of cleanup and the
associated costs.
Finally, EPA policy directs agency officials to evaluate the value of a
proposed settlement and determine how, if at all, the agency plans to
recoup any unreimbursed costs that remain after settlement. Attorneys
who represent responsible parties explained that, in deciding whether
to settle with EPA, these parties also evaluate whether they will be
able to recover some of their costs from parties not settling with the
agency.
Strength of EPA's Evidence Regarding Liability:
According to the attorneys we spoke with, the strength of EPA's
evidence is important to consider in negotiations over site liability.
For example, two attorneys told us a responsible party may choose not
to engage in early negotiations with EPA if the agency's evidence is
inconclusive; instead, the party may decide to wait for EPA to find
additional evidence. One attorney said that he typically advises
clients to resolve their liability with EPA as quickly as possible, but
pointed out that it could be worthwhile for responsible parties with
tenuous connections to Superfund sites to fight liability.
Similarly, EPA officials consider the strength of the agency's evidence
when negotiating with responsible parties. In EPA's key internal
enforcement documentation, officials must provide information about the
evidence the agency has tying each party to the site; the risks EPA
could face in litigation; and whether the agency's evidence could
withstand the scrutiny of a trial. EPA's documentation for some sites
stated a preference for settling with responsible parties--rather than
pursuing litigation against them in the hope of obtaining additional
site work commitments or recovering costs--because the evidence against
the parties was questionable or there were other risks to litigation.
For example, at one site, EPA documentation explained that there was
evidence of a particular contaminant; however, some parties identified
as associated with this site produced a similar, but distinctively
colored, contaminant that had not yet been found at the site. EPA
believed this distinction could be a risk in litigation. At another
site, EPA documentation noted that a contractor performing work at the
site stopped and re-started the work several times. Because of CERCLA's
provisions limiting the time EPA has to file cases against responsible
parties, responsible parties could try to use the first date at which
site work stopped in order to raise questions about EPA's claim for all
site costs. In both of these instances, EPA was able to reach
agreements with the responsible parties and avoid the risks of
litigation. EPA documentation for other sites showed the agency's
confidence in the strength of its evidence. For example, at one site,
EPA documents noted that the hazardous substances sent to the site were
well-documented in records maintained by site owners, which ensured
that EPA had strong evidence against the responsible parties
contributing these substances. According to agency documentation, this
evidence limited litigation risks and likely strengthened EPA's
negotiating position. In the responsible parties' settlement with EPA,
the parties committed to conducting one remedial action and reimbursing
EPA's costs for another remedial action at the site, as well as other
related costs.
Number and Type of Other Responsible Parties:
DOJ officials and attorneys we spoke with both identified the number
and type of responsible parties implicated at a site as important
considerations in how they approach negotiations on Superfund site
liability. For example, one attorney explained that the number of
parties identified is important because, at sites with few responsible
parties, each party will be responsible for a greater share of site
cleanup costs and higher expected costs could make it more difficult to
resolve liability. On the other hand, DOJ officials noted that it can
be difficult for a large number of responsible parties to organize
themselves to reach agreement with EPA. To assist in organization, EPA
encourages responsible parties to form steering committees to expedite
negotiations. In some instances, responsible parties will form multiple
groups of similar parties, such as those who contributed large amounts
of waste to a site and those who contributed only a small amount.
The involvement of certain types of responsible parties at a site can
also make a difference in negotiations with EPA. For example, some
experts noted that de minimis parties may have little experience with
Superfund, and early settlements to remove such parties from the
discussions can simplify future negotiations. In addition, DOJ
officials said parties facing bankruptcy may complicate negotiations
because it may be harder to negotiate with the remaining parties. For
example, bankrupt owners of one site were largely responsible for site
contamination, but could contribute only a minimal amount toward a
cleanup action expected to cost tens of millions of dollars. According
to agency documentation, some of the other responsible parties proposed
a settlement in which they were only responsible for a small percentage
of site costs, given the actions of the site owner and other identified
parties. Agency documents showed EPA rejected this proposal, but
identified the bankruptcy of the site owners as a significant inequity
at the site.
Finally, having local governments as responsible parties may affect
negotiations. According to one attorney, these governments can own
landfills or contribute to the contamination of rivers. In light of
local governments' unique responsibilities to provide sanitation
services, and the challenges they face in funding a cleanup action, EPA
policy establishes that, at certain types of sites, the regions may
seek between 20 and 35 percent of estimated site costs from local
governments; although, under joint and several liability, local
governments who are responsible parties could be held liable for all
site costs. One attorney criticized EPA's approach for holding these
parties liable because it may lead to confrontation with other
responsible parties, who may believe that the local government also
bears responsibility for site contamination.
Other Considerations May Affect Liability Negotiations:
Experts--as well as our review of site documentation--identified four
other considerations that may less frequently affect EPA's and the
responsible parties' approaches to negotiations over Superfund site
liability. Specifically:
* The potential for the settlement to set a precedent for future
negotiations. EPA explicitly considers precedent in its enforcement
actions. With regard to a few of the sites we reviewed, EPA
documentation noted that collecting all past site costs or all
anticipated future costs for oversight of site cleanup set a positive
precedent. Additionally, at one site, EPA documentation indicated that
responsible parties' agreements to implement a remedial action earlier
than required were important for their impact on EPA's future
negotiations with other responsible parties. Responsible parties can
also be concerned about the precedent of a settlement. For example, at
one site we reviewed, EPA documentation indicated that both the
responsible party identified at the site and the broader industry to
which that party belonged were interested in seeing how liability was
resolved, as an indication of how such cases were likely to be resolved
across the country.
* Public perception of a responsible party. Experts said responsible
parties may be concerned about their reputation in the local community.
In particular, experts from one professional organization noted if a
company plans to continue business in the area, it may not want to
appear recalcitrant; therefore, it would be more likely to enter into
an agreement to settle its liability. Also, these experts said
litigation over site liability adds additional stigma that parties
might be interested in avoiding. Finally, one attorney explained that
some responsible parties want to appear as "good corporate citizens,"
and may be more likely to settle with EPA.
* Enforcement under other federal laws. Federal laws other than CERCLA
were important for understanding how site liability was resolved at
many of the sites we reviewed. For example, according to EPA
documentation at one site, a responsible party filed for bankruptcy and
EPA was one of the claimants for penalties stemming from a violation of
a federal law other than CERCLA. This party had also negotiated a
consent decree for groundwater monitoring with EPA under a different
law. According to EPA documentation, agency officials believed that, in
litigation, the responsible party would challenge EPA's ability to
pursue liability under CERCLA because of these situations, though the
documentation indicated that the EPA officials disagreed with the
party's potential argument. As a result of these complicating factors,
the agency took several additional enforcement actions and, ultimately,
settled for a reduced amount of its past costs under CERCLA. At another
site, EPA documentation noted that negotiations were complicated by
pending legislation that would forgive a portion of the site costs for
the site's largest responsible party. Finally, at a third site, a party
resolved its liability under CERCLA at the same time that it conducted
work for related violations not under CERCLA.
* Likelihood that EPA will take on site work itself. Experts said
responsible parties have less incentive to settle if they believe that
they will not incur any costs by refusing. They will not incur costs if
EPA does not issue a unilateral administrative order or does not
proceed to conduct the site work itself. However, if EPA does issue an
order and a responsible party refuses to comply with it, the
responsible party may be subject to penalties of up to three times
EPA's costs to conduct site work. If the agency conducts the site work
itself, experts said the costs may be higher than if the responsible
parties had conducted the work. The parties in this instance would
likely be responsible for reimbursing EPA's costs. Some experts
explained that as the level of the Superfund trust fund has fallen in
recent years, EPA has lost some leverage in negotiations with
responsible parties. Without a healthy trust fund from which the
Congress may appropriate funds to EPA to conduct site work itself,
experts said, parties may have less incentive to take on the needed
site work. In recognition of this perceived leverage,[Footnote 34] EPA
officials noted that the agency allocates a portion of its
appropriation each year to be used in instances where responsible
parties are recalcitrant in order to induce such parties to settle.
Superfund Litigation Decreased Due to a Number of Factors, According to
Experts:
Superfund litigation--as measured by the number, duration, and
complexity of CERCLA cases--decreased from fiscal years 1994 through
2007, the period for which reliable data were available. These
decreases in litigation may have led to a decrease in associated costs.
According to experts, litigation decreased because fewer sites had
cleanups underway, EPA changed its enforcement process to further
encourage settlements, and court decisions clarified several initial
legal uncertainties, making parties less inclined to litigate. However,
some experts indicated that recent or upcoming court decisions may
raise issues that could affect the likelihood of litigation in the
future.
The Number, Duration, and Complexity of Superfund Cases Decreased:
According to our analysis of CERCLA cases, the number of cases filed
decreased by 48 percent, from 214 cases filed in fiscal year 1994 to
111 cases filed in fiscal year 2007.[Footnote 35] While the number of
cases filed by the federal and state governments remained relatively
constant over the period, the number of cases filed by other types of
plaintiffs, such as businesses or private individuals, decreased by 69
percent--from 142 to 44 cases.[Footnote 36] These cases accounted for
the majority of cases we reviewed. Attorneys and EPA officials we spoke
with confirmed this decreasing trend. Figure 5 shows trends in the
number of cases filed during this period, and table 8 shows the
percentage of cases filed by different types of plaintiffs.[Footnote
37]
Figure 5: Trends in CERCLA Cases Filed by Type of Plaintiff, Fiscal
Years 1994 through 2007:
[Refer to PDF for image: stacked vertical bar graph]
Fiscal year: 1994;
Number of cases, Federal government: 53;
Number of cases, State government: 19;
Number of cases, Other plaintiff: 142;
Number of cases, Total: 214.
Fiscal year: 1995;
Number of cases, Federal government: 63;
Number of cases, State government: 8;
Number of cases, Other plaintiff: 133;
Number of cases, Total: 204.
Fiscal year: 1996;
Number of cases, Federal government: 54;
Number of cases, State government: 18;
Number of cases, Other plaintiff: 158;
Number of cases, Total: 230.
Fiscal year: 1997;
Number of cases, Federal government: 82;
Number of cases, State government: 22;
Number of cases, Other plaintiff: 103;
Number of cases, Total: 207.
Fiscal year: 1998;
Number of cases, Federal government: 85;
Number of cases, State government: 17;
Number of cases, Other plaintiff: 85;
Number of cases, Total: 187.
Fiscal year: 1999;
Number of cases, Federal government: 68;
Number of cases, State government: 28;
Number of cases, Other plaintiff: 84;
Number of cases, Total: 108.
Fiscal year: 2000;
Number of cases, Federal government: 65;
Number of cases, State government: 13;
Number of cases, Other plaintiff: 71;
Number of cases, Total: 149.
Fiscal year: 2001;
Number of cases, Federal government: 61;
Number of cases, State government: 18;
Number of cases, Other plaintiff: 118;
Number of cases, Total: 197.
Fiscal year: 2002;
Number of cases, Federal government: 54;
Number of cases, State government: 13;
Number of cases, Other plaintiff: 75
Number of cases, Total: 142.
Fiscal year: 2003;
Number of cases, Federal government: 62;
Number of cases, State government: 9;
Number of cases, Other plaintiff: 54;
Number of cases, Total: 125.
Fiscal year: 2004;
Number of cases, Federal government: 42;
Number of cases, State government: 10;
Number of cases, Other plaintiff: 71;
Number of cases, Total: 123.
Fiscal year: 2005;
Number of cases, Federal government: 50;
Number of cases, State government: 11;
Number of cases, Other plaintiff: 57;
Number of cases, Total: 118.
Fiscal year: 2006;
Number of cases, Federal government: 41;
Number of cases, State government: 9;
Number of cases, Other plaintiff: 41;
Number of cases, Total: 91.
Fiscal year: 2007;
Number of cases, Federal government: 57;
Number of cases, State government: 10;
Number of cases, Other plaintiff: 44;
Number of cases, Total: 111.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: To avoid over counting, cases in figure 5 are categorized by the
type of plaintiff, as follows: cases with a federal government
plaintiff are counted as federal government cases; cases with a state
plaintiff and no federal plaintiff are counted as state cases; and
cases with neither a state nor federal government plaintiff are counted
as other plaintiff cases.
[End of figure]
Table 8: Number and Percentage of CERCLA Cases Filed by Type of
Plaintiff, Fiscal Years 1994 through 2007:
Plaintiff type: Federal government;
Number of cases filed: 837;
Percentage of total cases: 37.
Plaintiff type: State government;
Number of cases filed: 286;
Percentage of total cases: 13.
Plaintiff type: Other plaintiff: Local government;
Number of cases filed: 88;
Percentage of total cases: 4.
Plaintiff type: Other plaintiff: Private party;
Number of cases filed: 1,133;
Percentage of total cases: 50.
Plaintiff type: Other plaintiff: Other party;
Number of cases filed: 71;
Percentage of total cases: 3.
Plaintiff type: Other plaintiff: Unknown party;
Number of cases filed: 8;
Percentage of total cases: 0.
Plaintiff type: Total;
Number of cases filed: 2,423;
Percentage of total cases: 106[A].
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: In table 8, cases are categorized based on having at least one
plaintiff of a given type. Because some cases have more than one type
of plaintiff, the total number of cases is over counted. For example,
81 of the 286 cases listed with a state plaintiff also have a federal
plaintiff, and are, therefore, counted in both categories in this
table. Throughout the rest of the report, except as otherwise noted,
such cases are counted only as federal plaintiff cases.
[A] Percentage adds to more than 100 because some cases have more than
one type of plaintiff. Also, percentage does not add due to rounding.
[End of table]
Regardless of the type of party filing a case, the majority of cases
were filed against private parties: 96 percent of cases brought by the
federal government and 93 percent of cases brought by state governments
had private parties as defendants. The remaining cases were filed
against parties such as local governments, nonprofit organizations, and
state and federal agencies.
The duration of cases also decreased, in part, because a growing
proportion of the cases the federal government filed involved only
minimal litigation--and, therefore, less time--according to agency
officials, experts, and our analysis of the data. Court approval is
required for certain types of settlements, but to improve the
efficiency of Superfund enforcement and litigation, EPA and DOJ will
often negotiate settlements with responsible parties prior to filing
such cases in court. These cases increased from 51 percent of cases
filed by the federal government in fiscal year 1994 to 77 percent in
fiscal year 2007. Figure 6 shows the percentage of federal cases filed
with previously negotiated settlements over this period. Cases with
previously negotiated settlements typically required less time in
court. The median length of time cases with previously negotiated
settlements were before the court was approximately 3 months, compared
with nearly 16 months for cases in which settlements were not reached
prior to filing.[Footnote 38]
Figure 6: CERCLA Cases Filed by the Federal Government with Previously
Negotiated Settlements, Fiscal Years 1994 through 2007:
[Refer to PDF for image: line graph]
Fiscal year: 1994;
Percentage of federal plaintiff cases: 51.
Fiscal year: 1995;
Percentage of federal plaintiff cases: 52.
Fiscal year: 1996;
Percentage of federal plaintiff cases: 37.
Fiscal year: 1997;
Percentage of federal plaintiff cases: 48.
Fiscal year: 1998;
Percentage of federal plaintiff cases: 52.
Fiscal year: 1999;
Percentage of federal plaintiff cases: 57.
Fiscal year: 2000;
Percentage of federal plaintiff cases: 60.
Fiscal year: 2001;
Percentage of federal plaintiff cases: 43.
Fiscal year: 2002;
Percentage of federal plaintiff cases: 59.
Fiscal year: 2003;
Percentage of federal plaintiff cases: 53.
Fiscal year: 2004;
Percentage of federal plaintiff cases: 64.
Fiscal year: 2005;
Percentage of federal plaintiff cases: 68.
Fiscal year: 2006;
Percentage of federal plaintiff cases: 68.
Fiscal year: 2007;
Percentage of federal plaintiff cases: 77.
Source: GAO analysis of data on cases filed in U.S. district courts.
[End of figure]
Finally, the complexity of CERCLA cases, represented by the number of
defendants in cases and the number of cases in which defendants pursued
additional parties, decreased from fiscal years 1994 through 2007. The
average number of defendants per case decreased from approximately 23
defendants to 6, as shown in figure 7. In addition, the percentage of
cases in which one or more defendants pursued additional parties to
bring them into the case decreased from approximately 18 percent to
less than 5 percent, as shown in figure 8.[Footnote 39]
Figure 7: Average Number of Defendants per CERCLA Case, Fiscal Years
1994 through 2007:
[Refer to PDF for image: line graph]
Fiscal year: 1994;
Average number of defendants per case: 23.
Fiscal year: 1995;
Average number of defendants per case: 18.
Fiscal year: 1996;
Average number of defendants per case: 9.
Fiscal year: 1997;
Average number of defendants per case: 14.
Fiscal year: 1998;
Average number of defendants per case: 13.
Fiscal year: 1999;
Average number of defendants per case: 12.
Fiscal year: 2000;
Average number of defendants per case: 14.
Fiscal year: 2001;
Average number of defendants per case: 12.
Fiscal year: 2002;
Average number of defendants per case: 13.
Fiscal year: 2003;
Average number of defendants per case: 7.
Fiscal year: 2004;
Average number of defendants per case: 6.
Fiscal year: 2005;
Average number of defendants per case: 5.
Fiscal year: 2006;
Average number of defendants per case: 10.
Fiscal year: 2007;
Average number of defendants per case: 6.
Source: GAO analysis of data on cases filed in U.S. district courts.
[End of figure]
Figure 8: Percentage of CERCLA Cases in Which Defendants Pursued
Additional Parties, Fiscal Years 1994 through 2007:
[Refer to PDF for image: line graph]
Fiscal year: 1994;
Percentage of cases: 18.
Fiscal year: 1995;
Percentage of cases: 12.
Fiscal year: 1996;
Percentage of cases: 15.
Fiscal year: 1997;
Percentage of cases: 14.
Fiscal year: 1998;
Percentage of cases: 12.
Fiscal year: 1999;
Percentage of cases: 11.
Fiscal year: 2000;
Percentage of cases: 8.
Fiscal year: 2001;
Percentage of cases: 12.
Fiscal year: 2002;
Percentage of cases: 16.
Fiscal year: 2003;
Percentage of cases: 7.
Fiscal year: 2004;
Percentage of cases: 10.
Fiscal year: 2005;
Percentage of cases: 9.
Fiscal year: 2006;
Percentage of cases: 4.
Fiscal year: 2007;
Percentage of cases: 5.
Source: GAO analysis of data on cases filed in U.S. district courts.
[End of figure]
One factor in the decrease in the complexity of cases--based on the
number of cases where defendants bring additional defendants into the
case--is the growing proportion of cases filed with previously
negotiated settlements. From fiscal years 1994 through 2007, only 1
percent of such cases had defendants pursuing additional parties,
compared with 15 percent of cases that were not filed with such
settlements. Cases with previously negotiated settlements also rarely
result in outcomes other than the previously negotiated settlement,
such as a court dismissal or nonconsensual judgment, that could have
extended the length of litigation; less than 10 percent of cases filed
with a previously negotiated settlement resulted in such outcomes. See
appendix II for more detailed information on the outcomes of CERCLA
cases we analyzed.
These decreases in the amount, duration, and complexity of CERCLA
litigation suggest that the costs associated with such litigation--
which can be substantial, according to both DOJ officials and
responsible party attorneys--have decreased. However, comprehensive
data on CERCLA litigation costs are not available, particularly for
costs incurred by responsible parties and, therefore, we cannot
directly quantify changes in the costs associated with this litigation.
Nevertheless, attorneys with two firms noted that because responsible
parties are increasingly likely to settle out of court, a decline in
the number of cases filed by these parties has contributed to the
decrease in the number of new CERCLA cases. This decrease may have
resulted in lower overall CERCLA litigation costs. Furthermore, the
decreasing duration of cases as a result of previously negotiated
settlements has probably contributed to a decrease in costs. The time
spent in out-of-court negotiations, either among responsible parties or
with EPA, is typically less costly than the time spent in court,
according to attorneys we spoke with. For example, EPA and DOJ
officials and private attorneys said that the costs of the discovery
phase of litigation--when parties to a lawsuit may request and obtain
information from each other, such as evidence that supports their
claims or defenses--are particularly high. Finally, the decreasing
complexity of CERCLA cases--in particular, the decreasing number of
parties involved--has likely contributed to a decrease in total
litigation costs. EPA's expenditures for litigation, which decreased by
50 percent, from more than $50 million in fiscal year 1999 to $25
million in fiscal year 2007, provide further evidence of this trend.
[Footnote 40]
Superfund Litigation Has Decreased for Several Reasons:
According to agency officials and attorneys we interviewed, the number,
duration, and complexity of CERCLA cases decreased because of: (1)
fewer site cleanups and fewer enforcement actions over time, (2)
changes to EPA's enforcement process that promoted settlement with
responsible parties, and (3) court rulings that have clarified
uncertainties about how the law should be interpreted and applied.
Fewer Site Cleanups and Fewer Enforcement Actions Led to Less
Litigation:
From fiscal years 1994 through 2007, litigation decreased, in part,
because the government and private parties had fewer reasons to go to
court, according to experts. For example, some attorneys noted that
fewer sites were progressing through the Superfund cleanup process as
the number of new sites added to the NPL declined.[Footnote 41] Between
fiscal years 1994 and 2007, 320 sites were listed on the NPL, compared
with 1,244 sites for fiscal years 1983 through 1993. Furthermore, as
cleanups continued at sites, the number of active NPL sites--those
sites that had yet to reach construction complete--decreased by about
one-half from fiscal years 1994 through 2007.
In addition, the number of Superfund enforcement actions EPA completed
decreased by 44 percent between fiscal years 1994 and 2007. According
to EPA officials, with fewer sites being cleaned up, there were fewer
sites where EPA needed to take an enforcement action. The officials
also cited a slow but steady decline in the agency's enforcement budget
as a factor that may have contributed to fewer enforcement actions.
Furthermore, they noted that the agency was more likely to take certain
types of actions, such as enforcement actions against parties that
contributed small amounts of waste, earlier in the program.
Additionally, over time, some types of parties have received exemptions
to liability through amendments to CERCLA, which could reduce the
number of enforcement actions taken. EPA officials specifically cited
the exemptions included in the Superfund recycling equity amendments of
1999 as contributing to the decrease in CERCLA litigation.
Changes to EPA's Enforcement Process Have Led to Less Litigation:
Litigation also decreased because, through its Superfund administrative
reforms and other changes to its enforcement process, EPA further
promoted settlements with responsible parties, especially settlements
negotiated prior to filing a case in court. Before EPA initiated its
reforms in fiscal year 1993, 74 percent of its enforcement actions were
resolved consensually. In comparison, after fiscal year 1997, when
EPA's implementation of many of these reforms peaked, 84 percent of
enforcement actions were consensual. In particular, unilateral
administrative orders, which were the most common nonconsensual action
EPA took against parties, decreased from about 25 percent of EPA's
enforcement actions prior to fiscal year 1993 to approximately 14
percent after fiscal year 1997.
Agency officials said that changes in EPA's enforcement of the
Superfund program, such as those made through its administrative
reforms, encouraged parties to settle more often and earlier in the
enforcement process. According to agency documentation, EPA instituted
the following reforms, among others, to make the Superfund program work
faster, more fairly, and more efficiently:
* Orphan share compensation. When a responsible party cannot be found
or is insolvent, that share of the site cost is known as an orphan
share. In some instances, EPA offers settling parties compensation for
a portion of this share, which the parties would otherwise have to pay,
so that they are more willing to settle.
* De minimis settlements. These settlements provide protection from
additional liability for small waste contributors. EPA promoted the
early use of these settlements so that such parties could quickly
resolve their liability and avoid further involvement in site cleanup
or litigation. Eliminating these parties facilitates settlements among
the remaining parties at the site, according to EPA guidance and
attorneys representing responsible parties.
* Ability to pay settlements. EPA promoted the early use of these
settlements, which resolve the financial liability of responsible
parties at a reduced amount for those who demonstrate that they cannot
pay their full share of cleanup costs.
* Equitable issuance of unilateral administrative orders. Through this
reform, EPA expected to increase the likelihood of settlement and
reduce litigation by ensuring that unilateral orders were issued
equitably. EPA attempted to ensure this by requiring regions to
document that unilateral administrative orders had been issued to all
appropriate parties after considering their liability and financial
viability, as well as the extent to which they contributed to the
contamination at the site.
* Responsible party search pilots. EPA tested several techniques to
expedite and improve the process of searching for responsible parties.
[Footnote 42]
Several of EPA's reforms, such as the promotion of de minimis
settlements, encouraged the increased use of tools that the agency was
already equipped with; while others, such as orphan share offers, were
new tools for EPA to use to encourage settlements.
According to attorneys we spoke with, EPA's Superfund enforcement is
fairer because of the administrative reforms. As a result, several
attorneys said that responsible parties were more likely to settle with
EPA to conduct or fund site cleanup. However, two attorneys said that
the amount of compensation EPA offers to cover orphan shares is too
small to be effective in many cases. That is, the agency provides
compensation to settling parties for only a percentage of the costs it
has already spent cleaning up the site, or the total past and future
oversight costs (whichever is less). Therefore, whatever portion of the
orphan share is left to be cleaned up must be paid for by the settling
parties. One attorney noted that, because the amount EPA spends
cleaning up a site is likely to increase over time, its policy of only
offering compensation for past costs can actually discourage early
settlements since responsible parties may want to wait for the amount
of the offer to increase as EPA spends more money on cleanup.
In addition, through reforms, such as the equitable issuance of
unilateral administrative orders and the responsible party search
pilot, as well as efforts to share information regarding site
contamination among all responsible parties at a site, EPA encouraged
identification of and enforcement against all responsible parties.
Attorneys from two firms and DOJ officials said such changes in EPA's
enforcement process promoted less complex cases. According to attorneys
we spoke with, EPA's responsible party search process has become more
thorough, and the process is fairer now than in the program's earlier
years, when EPA was more likely to pursue only a few large responsible
parties. When EPA targets more of the potentially responsible parties
at a site, the parties may be less resistant to settling because they
are less likely to be held responsible for cleaning up waste
contributed by parties not included in the settlement.
While changes to EPA's enforcement process promoted more frequent
settlements, DOJ officials we spoke with also attributed the increase
in settlements negotiated prior to going to court to an executive order
issued in 1991.[Footnote 43] This order requires all federal agencies
and their counsel to make reasonable efforts to achieve a settlement
with parties before filing a complaint in civil court. DOJ officials
said that they send letters to all parties in CERCLA cases offering
them the opportunity to participate in negotiations prior to filing a
case, and that parties who take advantage of this offer can have
significantly lower costs associated with negotiation and litigation
than those who do not. In addition, they noted that when a party waits
to settle, the department has more time to build a case against it,
which can result in less favorable outcomes for the party.
Court Decisions Clarifying the Application of CERCLA Have Led to Less
Litigation:
Court decisions that clarified initial issues concerning the
application of CERCLA created more certainty among responsible parties
about the extent of their liability and led to fewer lawsuits,
according to experts.[Footnote 44] EPA and DOJ officials, as well as
several attorneys, told us that parties are less likely to enter into
protracted litigation when they are more certain of the probable
outcomes, and that the courts have reduced uncertainty by deciding on
some disputed aspects of Superfund liability. In particular, DOJ
officials and attorneys representing responsible parties noted that the
government's ability to recover all of its cleanup costs at a site from
one responsible party when the harm from contamination is indivisible--
known as joint and several liability--was established by federal courts
in the early years of the Superfund program.[Footnote 45] Consequently,
parties can assess with some certainty whether they could be held
liable for all cleanup costs at a site and, according to attorneys and
agency officials, they often decide to settle because of the threat of
joint and several liability. Similarly, courts have ruled that CERCLA
liability is strict, that is, the government and private parties can
hold responsible parties liable for the contamination they caused,
regardless of whether their conduct was negligent.[Footnote 46]
Finally, courts have consistently upheld the retroactive nature of
CERCLA liability, which means that parties can be held liable for the
cleanup of contamination from actions that occurred prior to the
enactment of CERCLA.[Footnote 47] DOJ officials attributed the success
of the Superfund program to the principles of joint and several,
strict, and retroactive liability.
However, several of the experts we spoke with indicated that recent or
upcoming court decisions may affect the certainty regarding some issues
and, thus, could affect future litigation trends. In particular, some
attorneys noted several unresolved issues concerning the circumstances
under which one responsible party can sue another for contribution or
cost recovery.[Footnote 48] They said that if parties believe their
ability to sue other parties for contribution or cost recovery is in
question, parties may be more reluctant to voluntarily clean up
contamination or be less willing to settle with the government. A few
attorneys also raised concerns about the scope of contribution
protection under CERCLA, and the extent to which CERCLA settlements
protect parties from liability under certain CERCLA provisions, as well
as other laws.[Footnote 49] While EPA settlements establish
contribution protection as a way to encourage parties to settle,
parties may have less incentive to settle if they have doubts about the
effectiveness of the protection. EPA officials stated that their key
concern with decisions in cases involving these issues is whether these
decisions maintain the benefits of settling with the government for
responsible parties. In addition, following a recent Supreme Court
decision regarding the conditions under which site contamination is
divisible under CERCLA--and, therefore, the liability is capable of
being apportioned among different parties, rather than each party being
held jointly and severally liable--parties may reassess their
willingness to litigate over divisibility issues, which could affect
future trends in Superfund litigation.[Footnote 50] Furthermore, DOJ
officials expressed concern about the potential implications of a
challenge to EPA's use of unilateral administrative orders.[Footnote
51]
Finally, successor and parent company liability are also unsettled
issues. According to a few experts, the circumstances under which
successor companies--companies that legally acquire or merge with
another company--can be held liable for contamination created by the
companies they succeed is still being debated in the courts. The
liability of parent companies, or companies that own and control
another company, is similarly unresolved, according to DOJ officials
and a few attorneys. The DOJ officials and one of the attorneys noted
that the requirements for establishing a parent company's liability for
the contamination caused by a company that it owns are challenging.
Differences in the Types of Sites on the NPL and Other Factors Make It
Difficult to Assess the Status of Superfund Site Cleanups and Program
Costs:
While the number of sites added to the NPL each year has declined
significantly since the Superfund program's early years, the types of
sites added in recent years are more costly to clean up, and may not
have viable responsible parties to perform or pay for the work.
Furthermore, even though remedial actions at most sites are completed
or underway, the amount of work remaining is unclear; and, given the
nature of sites that are not yet construction complete, the remaining
work may be more complex or costly. These changes have occurred even as
Superfund appropriations and expenditures have declined. However, EPA
does not provide the Congress with sufficient information to make
decisions about future funding needs of the Superfund program.
The Number and Types of Sites Added to the NPL Have Changed Over Time,
but Trends in Sites without Viable Responsible Parties Are Unclear:
We identified three factors that could affect EPA's ability to fund and
conduct site cleanups: (1) the number of sites on the NPL has declined
over time; (2) the types of sites added to the NPL may require greater
EPA expenditures for cleanup; and (3) fewer sites may have responsible
parties who can contribute to cleanup, although EPA data do not clearly
indicate the number of sites without viable responsible parties or the
value of the orphan shares at sites.
The Number of Sites Added to the NPL Has Declined Due to Several
Factors:
As figure 9 shows, the number of nonfederal sites added to the NPL has
declined over time.[Footnote 52] In 1983, the first year of the NPL,
EPA added over 400 sites, but EPA added only an average of 20 new sites
annually for fiscal years 1998 through 2007.[Footnote 53]
Figure 9: Number of Nonfederal Sites Added to the NPL, Fiscal Years
1983 through 2007:
[Refer to PDF for image: vertical bar graph]
Fiscal Year: 1983;
Number of Sites Added: 404.
Fiscal Year: 1984;
Number of Sites Added: 130.
Fiscal Year: 1985;
Number of Sites Added: 3.
Fiscal Year: 1986;
Number of Sites Added: 170.
Fiscal Year: 1987;
Number of Sites Added: 67.
Fiscal Year: 1988;
Number of Sites Added: 0.
Fiscal Year: 1989;
Number of Sites Added: 93.
Fiscal Year: 1990;
Number of Sites Added: 219.
Fiscal Year: 1991;
Number of Sites Added: 6.
Fiscal Year: 1992;
Number of Sites Added: 0.
Fiscal Year: 1993;
Number of Sites Added: 26.
Fiscal Year: 1994;
Number of Sites Added: 19.
Fiscal Year: 1995;
Number of Sites Added: 24.
Fiscal Year: 1996;
Number of Sites Added: 13.
Fiscal Year: 1997;
Number of Sites Added: 16.
Fiscal Year: 1998;
Number of Sites Added: 14.
Fiscal Year: 1999;
Number of Sites Added: 37.
Fiscal Year: 2000;
Number of Sites Added: 36.
Fiscal Year: 2001;
Number of Sites Added: 28.
Fiscal Year: 2002;
Number of Sites Added: 17.
Fiscal Year: 2003;
Number of Sites Added: 20.
Fiscal Year: 2004;
Number of Sites Added: 11.
Fiscal Year: 2005;
Number of Sites Added: 17.
Fiscal Year: 2006;
Number of Sites Added: 10.
Fiscal Year: 2007;
Number of Sites Added: 12.
Source: GAO analysis of EPA data.
Note: This figure does not include five sites that were proposed for
listing on the NPL, but which were deleted without being formally
listed. In addition, one site was listed on the NPL in fiscal year
1983, deleted from the NPL in fiscal year 1995, and then restored to
the NPL in fiscal year 2006. This site is counted among the sites
listed in fiscal year 1983 in figure 9. In addition, two sites were
listed on the NPL, withdrawn, and then relisted on the NPL. In the
figure, these sites are counted according to the year in which they
were first listed on the NPL, rather than the year in which they were
relisted. As a result, one site is counted among the sites listed in
fiscal year 1990, rather than among those listed in fiscal year 1998,
while the other site is counted among the sites listed in fiscal year
1997, rather than among those listed in fiscal year 2002.
[End of figure]
The decrease in the number of sites added to the NPL has occurred for
the following reasons:
* Legal requirements have changed. When the Superfund program began,
EPA was required under CERCLA to list, to the extent practicable, at
least 400 individual sites.[Footnote 54] However, the Superfund
Amendments and Reauthorization Act of 1986 struck that requirement.
Later, appropriations laws for fiscal years 1995 and 1996 effectively
prohibited EPA from proposing or listing a site on the NPL unless the
governor of the applicable state concurred. As a matter of policy, EPA
continues to request state support for listing sites on the NPL.
* Other cleanup programs have been used to clean up sites. According to
EPA officials and Superfund experts representing responsible parties,
state programs or other federal programs have been developed to clean
up sites. In the early years of Superfund, few other means were
available to address hazardous waste sites, particularly abandoned
sites. In 2003, we reported that EPA regional and state officials
considered the NPL a "last resort" for sites that cannot be addressed
through other programs.[Footnote 55] Most states have established
programs to help address hazardous waste sites, and EPA's policy is to
defer NPL listing for sites that can be effectively cleaned up under
these programs. Federal programs that assist with cleaning up hazardous
waste sites and that potentially reduce the need for sites to be listed
on the NPL include the Superfund Alternative Approach,[Footnote 56] the
Resource Conservation and Recovery Act (RCRA) Corrective Action
program,[Footnote 57] and the Brownfields program,[Footnote 58]
according to EPA officials.
* Removal actions may have helped clean up sites. According to a
responsible party attorney and a representative of a public interest
group, removal actions may address contamination issues at some sites
without listing the sites on the NPL. As of the end of fiscal year
2007, the agency or responsible parties had started over 10,000 removal
actions at sites, and 72 percent of these actions were at sites that
had not been listed on the NPL, according to EPA data.[Footnote 59]
* Waste handling practices may have helped prevent new sites from being
created. One Superfund legal expert and several responsible party
attorneys suggested that the number of sites listed on the NPL may have
declined because fewer new contaminated sites have been created. The
attorneys attributed this decline in the number of new sites, at least
partly, to improvements in waste handling practices.
* Funding constraints may have restrained EPA from listing sites.
Experts representing public interest groups, an association of state
agencies, and responsible parties stated that funding constraints may
have affected EPA's willingness to list a larger number of sites in
recent years. In particular, state agency representatives indicated
that, after EPA formed a headquarters group to review regional
recommendations for new NPL site listings, the number of sites listed
on the NPL each year decreased.[Footnote 60] The state agency
representatives attributed this decrease to the group's consideration
of whether funds would be available to clean up a proposed
site.[Footnote 61] EPA officials, however, told us that the cost of a
site's cleanup has not played a role in deciding whether to list a site
on the NPL.
Types of Sites Now Added to the NPL May Require Greater EPA Cleanup
Expenditures Than in the Past:
The types of sites added to the NPL have changed. EPA places sites into
the following six broad categories:
* Manufacturing sites. Wood preservation and treatment, metal finishing
and coating, electronic equipment, and other types of manufacturing
facilities.
* Mining sites. Mining operations for metals or other substances.
* "Multiple" sites. Sites with operations that fall into more than one
of EPA's categories.
* "Other" sites. Sites that often have contaminated sediments or
groundwater plumes with no identifiable source.
* Recycling sites. Battery, chemical, used oil recovery, or other types
of recycling operations.
* Waste management sites. Landfills and other types of waste disposal
facilities.
From fiscal years 1983 through 2007, more than 70 percent of the
nonfederal sites added to the NPL were either manufacturing or waste
management sites. In addition, about 11 percent of the sites added to
the NPL were megasites--sites at which actual or expected total cleanup
costs, including removal and remedial action costs, are expected to
amount to $50 million or more.[Footnote 62] Mining and "multiple" sites
represented the smallest categories of sites on the NPL, but were also
the categories of sites with the highest percentage of megasites. Table
9 shows the number and percentage of sites, as well as the number and
percentage of sites designated as megasites, in each of EPA's six
categories.
Table 9: Number of Nonfederal NPL Sites, Including Megasites, by Type,
Fiscal Years 1983 through 2007:
Site type: Manufacturing;
Number of sites: 491;
Percentage of total sites: 35;
Number of megasites: 64;
Percentage of site type: 13;
Percentage of total megasites: 42.
Site type: Mining;
Number of sites: 33;
Percentage of total sites: 2;
Number of megasites: 11;
Percentage of site type: 33;
Percentage of total megasites: 7.
Site type: Multiple;
Number of sites: 42;
Percentage of total sites: 3;
Number of megasites: 9;
Percentage of site type: 21;
Percentage of total megasites: 6.
Site type: Other;
Number of sites: 198;
Percentage of total sites: 14;
Number of megasites: 17;
Percentage of site type: 9;
Percentage of total megasites: 11.
Site type: Recycling;
Number of sites: 122;
Percentage of total sites: 9;
Number of megasites: 13;
Percentage of site type: 11;
Percentage of total megasites: 9.
Site type: Waste management;
Number of sites: 511;
Percentage of total sites: 37;
Number of megasites: 37;
Percentage of site type: 7;
Percentage of total megasites: 25.
Site type: Total;
Number of sites: 1,397;
Percentage of total sites: 100;
Number of megasites: 151;
Percentage of site type: 11;
Percentage of total megasites: 100.
Source: GAO analysis of EPA data.
Note: Three sites were added to the NPL in fiscal year 2007 without a
site type, according to EPA data. However, EPA indicated these sites
should be considered "other" sites. In addition, five sites were
proposed for the NPL, but were deleted without having been formally
listed on the NPL; these sites are included in table 9.
[End of table]
While recycling and "multiple" sites have represented a relatively
consistent percentage of sites added to the NPL over time, other types
of sites have fluctuated as a percentage of the sites added to the NPL.
For example, during the 1980s, 47 percent of the sites added to the NPL
were waste management sites, but the percentage of such sites added to
the NPL decreased to 23 percent of all sites added in the 1990s and 11
percent of all sites added since fiscal year 2000. Conversely, mining
and "other" sites, which totaled 14 and 12 percent of sites added in
the 1980s and 1990s, respectively, together grew to 44 percent of the
sites added to the NPL since fiscal year 2000. Figure 10 shows the
changes in the percentages of the different types of sites added to the
NPL between fiscal years 1983 and 2007, while table 10 provides
information on the number of sites in each site type included in these
percentages.
Figure 61: Percentage of Nonfederal Sites Added to the NPL by Type,
Fiscal Years 1983 through 2007:
[Refer to PDF for image: stacked vertical bar graph]
Fiscal years: 1983-1989;
Manufacturing: 26.8%;
Mining: 1.4%;
Multiple: 3.1%;
Other: 12.5%;
Recycling: 9.1%;
Waste management: 47.1%.
Fiscal years: 1990-1999;
Manufacturing: 54.3%;
Mining: 0.3%;
Multiple: 3.2%;
Other: 11.5%;
Recycling: 7.8%;
Waste management: 23.0%.
Fiscal years: 2000-2007;
Manufacturing: 35.1%;
Mining: 13.2%;
Multiple: 1.3%;
Other: 31.1%;
Recycling: 8.6%;
Waste management: 10.6%.
Source: GAO analysis of EPA data.
Note: No sites were added to the NPL during fiscal years 1988 and 1992.
The figure excludes five sites that did not have a final NPL listing
date in EPA's data. Also, one waste management site was listed on the
NPL in fiscal year 1983, deleted in fiscal year 1995, and restored to
the NPL in fiscal year 2006. This site is counted among the sites
listed in fiscal year 1983 in the figure. In addition, two
manufacturing sites were listed on the NPL, withdrawn, and then
relisted. In the figure, these sites are counted according to the year
in which they were first listed on the NPL, rather than the year in
which they were relisted. As a result, one site is counted among the
sites listed in fiscal year 1990, rather than among those listed in
fiscal year 1998, while the other site is counted among the sites
listed in fiscal year 1997, rather than among those listed in fiscal
year 2002.
[End of figure]
Table 10: Number and Percentage of Nonfederal Sites Added to the NPL by
Type, Fiscal Years 1983 through 2007:
Site type: Manufacturing;
Fiscal years 1983 through 1989: Number of sites added: 233;
Fiscal years 1983 through 1989: Percentage of sites added: 27;
Fiscal years 1990 through 1999: Number of sites added: 203;
Fiscal years 1990 through 1999: Percentage of sites added: 54;
Fiscal years 2000 through 2007: Number of sites added: 53;
Fiscal years 2000 through 2007: Percentage of sites added: 35.
Site type: Mining;
Fiscal years 1983 through 1989: Number of sites added: 12;
Fiscal years 1983 through 1989: Percentage of sites added: 1;
Fiscal years 1990 through 1999: Number of sites added: 1;
Fiscal years 1990 through 1999: Percentage of sites added: 0;
Fiscal years 2000 through 2007: Number of sites added: 20;
Fiscal years 2000 through 2007: Percentage of sites added: 13.
Site type: Multiple;
Fiscal years 1983 through 1989: Number of sites added: 27;
Fiscal years 1983 through 1989: Percentage of sites added: 3;
Fiscal years 1990 through 1999: Number of sites added: 12;
Fiscal years 1990 through 1999: Percentage of sites added: 3;
Fiscal years 2000 through 2007: Number of sites added: 2;
Fiscal years 2000 through 2007: Percentage of sites added: 1.
Site type: Other;
Fiscal years 1983 through 1989: Number of sites added: 108;
Fiscal years 1983 through 1989: Percentage of sites added: 12;
Fiscal years 1990 through 1999: Number of sites added: 43;
Fiscal years 1990 through 1999: Percentage of sites added: 11;
Fiscal years 2000 through 2007: Number of sites added: 47;
Fiscal years 2000 through 2007: Percentage of sites added: 31.
Site type: Recycling;
Fiscal years 1983 through 1989: Number of sites added: 79;
Fiscal years 1983 through 1989: Percentage of sites added: 9;
Fiscal years 1990 through 1999: Number of sites added: 29;
Fiscal years 1990 through 1999: Percentage of sites added: 8;
Fiscal years 2000 through 2007: Number of sites added: 13;
Fiscal years 2000 through 2007: Percentage of sites added: 9.
Site type: Waste management;
Fiscal years 1983 through 1989: Number of sites added: 408;
Fiscal years 1983 through 1989: Percentage of sites added: 47;
Fiscal years 1990 through 1999: Number of sites added: 86;
Fiscal years 1990 through 1999: Percentage of sites added: 23;
Fiscal years 2000 through 2007: Number of sites added: 16;
Fiscal years 2000 through 2007: Percentage of sites added: 11.
Site type: Total;
Fiscal years 1983 through 1989: Number of sites added: 867;
Fiscal years 1983 through 1989: Percentage of sites added: 100;
Fiscal years 1990 through 1999: Number of sites added: 374;
Fiscal years 1990 through 1999: Percentage of sites added: 100;
Fiscal years 2000 through 2007: Number of sites added: 151;
Fiscal years 2000 through 2007: Percentage of sites added: 100.
Source: GAO analysis of EPA data.
Note: No sites were added to the NPL during fiscal years 1988 and 1992.
The table excludes five sites that did not have a final NPL listing
date in EPA's data. Also, one waste management site was listed on the
NPL in fiscal year 1983, deleted in fiscal year 1995, and restored to
the NPL in fiscal year 2006. This site is counted among the sites
listed in fiscal year 1983 in the table. In addition, two manufacturing
sites were listed on the NPL, withdrawn, and then relisted. In the
table, these sites are counted according to the year in which they were
first listed on the NPL, rather than the year in which they were
relisted. As a result, one site is counted among the sites listed in
fiscal year 1990, rather than among those listed in fiscal year 1998,
while the other site is counted among the sites listed in fiscal year
1997, rather than among those listed in fiscal year 2002. In some
instances, percentages do not add due to rounding.
[End of table]
The changes in the types of sites added to the NPL since fiscal year
2000 were most significant for mining sites, as well as for certain
subcategories of sites included in EPA's "other" site type. Over 60
percent of the NPL mining sites were added between fiscal years 2000
and 2007. In addition, the number of sites listed on the NPL in EPA's
"other" category increased since fiscal year 2000. Within this
category, two types of sites were listed in greater numbers.
Specifically, groundwater plume and contaminated sediment sites with no
identifiable source together increased from 51 percent of the "other"
sites added to the NPL from fiscal years 1990 through 1999, to 57
percent of the "other" sites added between fiscal years 2000 and 2007.
Because EPA's costs differ depending on the type of site, changes in
the types of sites listed on the NPL since fiscal year 2000 could
affect Superfund program costs. For example, the amount EPA spent at
individual nonmegasites through fiscal year 2007 averaged over $5.3
million. However, the amount EPA spent at individual megasites through
fiscal year 2007 averaged around $48.1 million.[Footnote 63] Mining
sites, which are among the types of sites added to the NPL more
frequently in recent years, are also more likely to be megasites.
Through fiscal year 2007, EPA had spent, on average, more than three
times the amount per site at mining sites as at the next most expensive
type of site--manufacturing sites. In addition, while the number of
sites involving contaminated sediments with no identifiable source is a
small portion of sites on the NPL (eight sites), four of these sites
were megasites, and four of the eight sites were listed on the NPL
during or after fiscal year 2000.[Footnote 64] Table 11 shows EPA's
average expenditures per site for different types of sites, as well as
overall for nonmegasites and megasites through fiscal year 2007.
Table 11: EPA Average Expenditures per Site at Nonfederal NPL Sites,
through Fiscal Year 2007:
Constant 2007 dollars in millions:
Site type: Manufacturing;
Number of sites: 491;
Average per site expenditures: $12.0;
Average total site expenditures: $5,912.0.
Site type: Mining;
Number of sites: 33;
Average per site expenditures: $44.3;
Average total site expenditures: $1,462.5.
Site type: Multiple;
Number of sites: 42;
Average per site expenditures: $7.8;
Average total site expenditures: $328.7.
Site type: Other;
Number of sites: 198;
Average per site expenditures: $7.2;
Average total site expenditures: $1,427.6.
Site type: Recycling;
Number of sites: 122;
Average per site expenditures: $9.1;
Average total site expenditures: $1,115.3.
Site type: Waste management;
Number of sites: 511;
Average per site expenditures: $7.1;
Average total site expenditures: $3,644.8.
Site type: Total;
Number of sites: 1,397;
Average per site expenditures: $9.9;
Average total site expenditures: $13,891.0.
Site type: Total nonmegasites;
Number of sites: 1,246;
Average per site expenditures: $5.3;
Average total site expenditures: $6,624.3.
Site type: Total megasites;
Number of sites: 151;
Average per site expenditures: $48.1;
Average total site expenditures: $7,266.7.
Source: GAO analysis of EPA data.
Note: Table 11 includes only EPA expenditure data for nonfederal NPL
sites. At two sites, EPA's data did not show any expenditures as of the
end of fiscal year 2007. The analysis is based upon EPA data for all
appropriated site-specific Superfund expenditures through fiscal year
2007, except for reimbursable and Homeland Security Supplemental
expenditures.
[End of table]
EPA Does Not Have Comprehensive Data on the Extent of Orphan Shares at
NPL Sites:
According to EPA's data on responsible parties, the agency has
identified responsible parties at most sites. However, 13 percent--or
183 of the 1,397 nonfederal NPL sites--did not have any responsible
parties identified in EPA's data as of fiscal year 2007. Table 12
provides information on the extent to which EPA has identified
responsible parties at sites. Specifically, recycling and "multiple"
sites had the highest average number of responsible parties--201 and
123 parties per site, respectively; while manufacturing and mining
sites had the lowest average number of responsible parties--10 and 13
parties per site, respectively. Alternatively, "other" sites and mining
sites most often had no responsible parties identified--25 and 18
percent, respectively.
Table 12: Information on Responsible Parties Identified at Nonfederal
NPL Sites:
Site type: Manufacturing;
Number of sites with parties identified: 429;
Average number of parties identified: 10;
Number of sites without parties identified: 62;
Percentage of sites without parties identified: 13.
Site type: Mining;
Number of sites with parties identified: 27;
Average number of parties identified: 13;
Number of sites without parties identified: 6;
Percentage of sites without parties identified: 18.
Site type: Multiple;
Number of sites with parties identified: 40;
Average number of parties identified: 123;
Number of sites without parties identified: 2;
Percentage of sites without parties identified: 5.
Site type: Other;
Number of sites with parties identified: 148;
Average number of parties identified: 25;
Number of sites without parties identified: 50;
Percentage of sites without parties identified: 25.
Site type: Recycling;
Number of sites with parties identified: 115;
Average number of parties identified: 201;
Number of sites without parties identified: 7;
Percentage of sites without parties identified: 6.
Site type: Waste management;
Number of sites with parties identified: 455;
Average number of parties identified: 56;
Number of sites without parties identified: 56;
Percentage of sites without parties identified: 11.
Site type: Total;
Number of sites with parties identified: 1,214;
Average number of parties identified: 71;
Number of sites without parties identified: 183;
Percentage of sites without parties identified: 13.
Source: GAO analysis of EPA data.
[End of table]
Moreover, we found some evidence that the number of sites without
responsible parties may be increasing. Specifically, for fiscal years
1983 through 1989, 1990 through 1999, and 2000 through 2007, the
percentage of sites without responsible parties identified in EPA's
enforcement data increased from 10 to 14, and then 27 percent,
respectively.[Footnote 65] However, the usefulness of these data is
limited, in part, because the extent to which the data represent the
actual number of sites without viable responsible parties is unclear.
For example, EPA's data identifying individual sites without
responsible parties do not indicate whether the agency has not been
able to identify parties at these sites despite significant search
efforts, or whether EPA's search efforts are still in their early
stages. This distinction is important because the absence of
responsible parties in EPA's data may not indicate that the agency will
never identify responsible parties for a site.[Footnote 66] EPA may
take longer to identify and take enforcement action against responsible
parties at one site than at another. If EPA knows that a responsible
party might be liable for a site's cleanup, but the agency has not
taken certain actions against that party, the responsible party would
not be identified in EPA's database.[Footnote 67] Furthermore, recent
advances in forensic auditing of insurance claims and chemical
fingerprinting analyses may help to link responsible parties to sites
where previously it was not possible to do so. As a result, EPA may
eventually identify responsible parties at some of the sites where they
are not currently identified.[Footnote 68] At the same time, however,
EPA typically starts its search for responsible parties no later than
when a site is listed on the NPL. Moreover, some of the changes EPA
made to its enforcement process as part of its administrative reforms
were designed to identify responsible parties earlier in the search
process. Therefore, the longer a site has been on the NPL without
identifying any responsible parties, the less likely it may be that EPA
will identify parties for the site in the future.
In addition, we identified other problems with the comprehensiveness
and reliability of EPA's data on the responsible parties associated
with sites. Although EPA's data showed that the agency has identified
responsible parties at most sites, it does not have complete data on
how many sites have parties that were ultimately not viable or were
unable to pay for some of their cleanup costs. For example, EPA has
collected some data on the extent to which individual parties are not
viable or had limited ability to pay for their Superfund site
liability, but these data are incomplete. For some of these data, EPA
only collected the information to evaluate the implementation of its
administrative reforms, and according to the agency, the data are not
reliable prior to fiscal year 1996 or after fiscal year 2004. EPA
collects other data that provide information on the extent to which
there are not viable responsible parties at sites, but these data are
only reliable for sites that had a remedial action started since fiscal
year 2004, according to the agency. Furthermore, at 27 sites, EPA's
data did not identify any responsible parties, although the data showed
that EPA had taken enforcement actions.[Footnote 69] These sites
represent an additional 15 percent of sites for which EPA's data did
not identify any responsible parties. According to an OECA official,
EPA headquarters has been working with the regions to improve the
quality of the responsible party data.
Finally, whether or not EPA identifies responsible parties at sites,
its data cannot be used to determine the total value of the orphan
share at sites. For example, even when a responsible party declares
bankruptcy, EPA and DOJ officials noted, the federal government may
still be able to recover some of the money the party owes. However, EPA
does not record the balance this bankrupt party owes.[Footnote 70] For
example, EPA noted that it records the amount the bankrupt party owes
as determined by the bankruptcy court, rather than the difference
between the amount sought by the agency in the "proof of claim" it
files with the bankruptcy court and the amount allowed by the court. In
addition, EPA places a cap on the value of the orphan share it records
at sites. According to EPA officials, the total orphan share at a site
is all the orphan shares of individual nonviable parties. However,
because EPA's policy is to limit offers to compensate for orphan shares
to a maximum value of 25 percent of the future costs at a site, the
orphan share value that EPA records in its data is capped at this 25
percent maximum value. As a result, if the site's total orphan share
exceeds 25 percent of future site costs, EPA's data would not account
for the full value of this share.
The extent to which EPA's ability to identify viable responsible
parties to help fund or conduct site cleanups changes over time could
significantly affect the program. As noted earlier, EPA's cost
recoveries from responsible parties have provided the second largest
source of funding for the Superfund trust fund, in addition to
providing billions of dollars in estimated commitments for site work.
If EPA cannot identify responsible parties for an increasing number of
sites, or if an increasing number of parties identified at sites are
not financially viable, a greater proportion of cleanup activities may
need to be funded by EPA using its Superfund appropriation. Also, if
the trust fund receives less in reimbursements from cost recovery
actions against responsible parties, appropriations from the general
fund would need to increase in order to sustain the same level of
cleanup activity. According to both DOJ and EPA officials, as well as a
number of other Superfund experts we spoke with, the number of sites
without viable responsible parties or where parties cannot pay for all
of their cleanup costs is likely to increase, particularly as a result
of poor economic conditions. They pointed to a recent growth in the
number of cases filed in bankruptcy courts as evidence of this trend.
The DOJ officials also noted an increase in the number of settlement
agreements in which responsible parties state that financial issues
limit their ability to pay for all of their cleanup costs. In addition,
DOJ officials said that NPL sites are more likely to include sites
without viable responsible parties because states with active cleanup
programs often take on sites with responsible parties that are willing
to conduct cleanup efforts. Other experts also noted that the longer a
site remains on the NPL, the more likely it is that EPA will not be
able to identify viable responsible parties.
NPL Site Cleanups Are Progressing, but the Amount of Work Remaining Is
Unclear and May Be More Complex or Costly:
Although cleanup actions have been initiated at many sites, some sites
require additional efforts to address contamination, and the amount of
work remaining at sites where actions to construct a remedy have not
been completed is unclear. Furthermore, the sites that are not
construction complete may require more complex or costly cleanup
activities.
Remedial Actions Have Been Implemented or Are Underway at Most NPL
Sites, but the Amount of Work Remaining Is Unclear:
Remedial actions to address site contamination have been completed or
begun at most of the sites listed on the NPL since the beginning of the
Superfund program, according to EPA's data. As of fiscal year 2007,
approximately 70 percent of the 1,397 nonfederal NPL sites had reached
EPA's construction complete milestone.[Footnote 71] In addition, about
one-half of the 422 sites that were not construction complete had some
remedial action underway at the end of fiscal year 2007.[Footnote 72]
However, data on the construction complete status of sites do not
provide a clear picture of the amount of work remaining at sites.
[Footnote 73] For example, according to one Superfund expert, sites
with groundwater contamination can take a long time to clean up when
the remedy is to pump and treat the water or to simply allow
contaminants to degrade over time. Once a site reaches construction
complete, decades may still be required until remedial actions clean up
groundwater contamination to the selected standards, and continued
federal funding may be necessary to implement these actions. At sites
where the federal government, rather than a responsible party,
implemented the groundwater remedial action, and where continued
operation of the remedy is necessary to complete cleanup of ground or
surface water, sites may receive federal funding for up to 10 years
after the groundwater remedy is determined to be operational and
functional. In such situations, after 10 years of remedy operation or
upon completion of the remedial action (whichever is earlier),
responsibility for the site and any additional implementation costs,
are transferred to the state.[Footnote 74]
The progress of cleanup is even less clear for sites that are not
construction complete. Sites are often divided into smaller units
(operable units), by geography, pathways of the contamination (e.g.,
groundwater), or type of remedy. These operable units may move through
the Superfund cleanup process at different speeds, depending upon the
scope of work or type of remedy selected for each operable unit. In
addition, operable units may encompass significantly different scopes
of work even within the same site. For example, an operable unit might
be defined to account for certain activities not directly related to
site cleanup, such as community outreach or providing alternative
drinking water supplies in instances where a community's drinking water
has been contaminated. Alternatively, one Superfund expert noted that
an operable unit might be a large stretch of river or a small parcel of
land.
As a result of differences in the potential scope of work and remedies
selected at operable units, it is difficult to aggregate data on the
status of cleanups at individual operable units at sites to provide
information on the status of cleanups at NPL sites overall. For
example, one way that EPA records the progress of cleanup at sites is
according to the least and most advanced cleanup stages of sites'
operable units.[Footnote 75] Of the 422 nonfederal sites that were not
construction complete at the end of fiscal year 2007, 184 had 1
operable unit, while 238 had multiple operable units, ranging in number
from 2 to 23. However, even at sites with only 1 operable unit, it is
difficult to use EPA's data on the least and most advanced stages of
cleanup to determine the amount of work remaining at the site.[Footnote
76] According to EPA's data, of the 184 sites with 1 operable unit, the
agency had not begun remedial assessment at 10 sites, study was
underway at 80 sites, a remedy had been selected or design was underway
at 38 sites, and remedial construction was underway at 28 sites. While
these data provide some information on the status of cleanup actions at
these sites, they provide limited information on the amount of work
remaining. In addition, multiple cleanup actions may occur at a single
operable unit and, therefore, the least and most advanced stages of
cleanup might be different. In fact, at least 28 of the 184 sites with
only 1 operable unit had multiple actions ongoing at their operable
units as of the end of fiscal year 2007. These differences make it
difficult to use information on the least and most advanced stages of
cleanup to provide overall information on the status of cleanups at
these sites. Table 13 shows the status of the least and most advanced
stages of cleanup at the nonfederal NPL sites with one operable unit,
as of fiscal year 2007.
Table 13: Least and Most Advanced Stages of Cleanup at Nonfederal NPL
Sites with One Operable Unit, as of Fiscal Year 2007:
Least advanced stage of cleanup: Remedial assessment not begun;
Most advanced stage of cleanup: Remedial assessment not begun: 10;
Most advanced stage of cleanup: Study underway: 3;
Most advanced stage of cleanup: Remedy selected/design underway[A]: 1;
Most advanced stage of cleanup: Construction underway: 2.
Least advanced stage of cleanup: Study underway;
Most advanced stage of cleanup: Remedial assessment not begun: 0;
Most advanced stage of cleanup: Study underway: 80;
Most advanced stage of cleanup: Remedy selected/design underway[A]: 1;
Most advanced stage of cleanup: Construction underway: 5.
Least advanced stage of cleanup: Remedy selected/design underway[A];
Most advanced stage of cleanup: Remedial assessment not begun: 0;
Most advanced stage of cleanup: Study underway: 0;
Most advanced stage of cleanup: Remedy selected/design underway[A]: 38;
Most advanced stage of cleanup: Construction underway: 16.
Least advanced stage of cleanup: Construction underway;
Most advanced stage of cleanup: Remedial assessment not begun: 0;
Most advanced stage of cleanup: Study underway: 0;
Most advanced stage of cleanup: Remedy selected/design underway[A]: 0;
Most advanced stage of cleanup: Construction underway: 28.
Source: GAO analysis of EPA data.
[A] EPA tracks remedy selection--which occurs, for example, when a
record of decision is signed identifying the remedy for an operable
unit--separately from remedial design. However, because the record of
decision represents a point in time milestone rather than a phase of
the cleanup work, we chose to combine these two data points for this
analysis.
[End of table]
Similarly, for the 238 sites that were not construction complete but
had multiple operable units, it is difficult to aggregate EPA's data on
the least and most advanced stages of cleanup at sites to provide
information on the overall status of cleanups at sites. Table 14
provides information on the least and most advanced stages of cleanup
at nonfederal NPL sites with multiple operable units, as of fiscal year
2007. As shown in the table, many of the sites whose most advanced
operable unit was in the construction underway stage had operable units
at earlier stages in the cleanup process. For example, at 26 sites, the
status of cleanup at the most advanced operable unit was construction
underway, but the status of cleanup at the least advanced operable unit
was remedial assessment not begun. Additionally, at 65 sites, the
status of cleanup at the most advanced operable unit was construction
underway, but the status of cleanup at the least advanced operable unit
was study underway. As the table shows, there were only 18 of the 238
sites where the least and most advanced stages of cleanup of the
operable units at these sites was construction underway.
Table 14: Least and Most Advanced Stages of Cleanup at Nonfederal NPL
Sites with Multiple Operable Units, as of Fiscal Year 2007:
Least advanced stage of cleanup: Remedial assessment not begun;
Most advanced stage of cleanup: Remedial assessment not begun: 1;
Most advanced stage of cleanup: Study underway: 4;
Most advanced stage of cleanup: Remedy selected/design underway[A]: 8;
Most advanced stage of cleanup: Construction underway: 26.
Least advanced stage of cleanup: Study underway;
Most advanced stage of cleanup: Remedial assessment not begun: 0;
Most advanced stage of cleanup: Study underway: 23;
Most advanced stage of cleanup: Remedy selected/design underway[A]: 14;
Most advanced stage of cleanup: Construction underway: 65.
Least advanced stage of cleanup: Remedy selected/design underway[A];
Most advanced stage of cleanup: Remedial assessment not begun: 0;
Most advanced stage of cleanup: Study underway: 0;
Most advanced stage of cleanup: Remedy selected/design underway[A]: 12;
Most advanced stage of cleanup: Construction underway: 67.
Least advanced stage of cleanup: Construction underway;
Most advanced stage of cleanup: Remedial assessment not begun: 0;
Most advanced stage of cleanup: Study underway: 0;
Most advanced stage of cleanup: Remedy selected/design underway[A]: 0;
Most advanced stage of cleanup: Construction underway: 18.
Source: GAO analysis of EPA data.
[A] EPA tracks remedy selection--which occurs, for example, when a
record of decision is signed identifying the remedy for an operable
unit--separately from remedial design. However, because the record of
decision represents a point in time milestone rather than a phase of
the cleanup work, we chose to combine these two data points for this
analysis.
[End of table]
Furthermore, according to EPA officials, the agency is likely to
complete cleanup actions at the easiest operable units at a site first.
As a result, sites with operable units at early stages in the cleanup
process (or operable units with individual cleanup actions at early
stages in the cleanup process) could represent sites with more
difficult operable units or actions. These operable units or actions
could require relatively greater amounts of cleanup work in the future.
As a result of these differences, the data on the status of cleanup at
operable units, without details on the scope of the operable units and
the remedies selected, provide only limited information about the work
remaining at sites.
Sites That Are Not Construction Complete May Be More Complex and Costly
Than Sites That Are Construction Complete:
According to past EPA testimony, in the earlier years of the Superfund
program, the agency focused resources on sites that needed less
construction work and that were farther along in the cleanup process.
[Footnote 77] Consequently, the sites that have been on the NPL the
longest without reaching construction complete are likely to be more
complex and costly. About one-half of the 422 sites that were not
construction complete--219 sites--were listed on the NPL prior to 1994;
and 108 of these were added in fiscal years 1983 and 1984. Figure 11
shows the number of sites that had not yet reached construction
complete, as of fiscal year 2007, according to the year in which the
sites were listed.
Figure 11: Number of Nonfederal NPL Sites That Were Not Construction
Complete, through Fiscal Year 2007, by Year of Site Listing:
[Refer to PDF for image: vertical bar graph]
Fiscal year: 1983;
Number of sites that were not construction complete: 82.
Fiscal year: 1984;
Number of sites that were not construction complete: 26.
Fiscal year: 1985;
Number of sites that were not construction complete: 0.
Fiscal year: 1986;
Number of sites that were not construction complete: 29.
Fiscal year: 1987;
Number of sites that were not construction complete: 9.
Fiscal year: 1988;
Number of sites that were not construction complete: 0.
Fiscal year: 1989;
Number of sites that were not construction complete: 16.
Fiscal year: 1990;
Number of sites that were not construction complete: 44.
Fiscal year: 1991;
Number of sites that were not construction complete: 3.
Fiscal year: 1992;
Number of sites that were not construction complete: 0.
Fiscal year: 1993;
Number of sites that were not construction complete: 10.
Fiscal year: 1994;
Number of sites that were not construction complete: 8.
Fiscal year: 1995;
Number of sites that were not construction complete: 12.
Fiscal year: 1996;
Number of sites that were not construction complete: 5.
Fiscal year: 1997;
Number of sites that were not construction complete: 9.
Fiscal year: 1998;
Number of sites that were not construction complete: 11.
Fiscal year: 1999;
Number of sites that were not construction complete: 25.
Fiscal year: 2000;
Number of sites that were not construction complete: 26.
Fiscal year: 2001;
Number of sites that were not construction complete: 26.
Fiscal year: 2002;
Number of sites that were not construction complete: 15.
Fiscal year: 2003;
Number of sites that were not construction complete: 18.
Fiscal year: 2004;
Number of sites that were not construction complete: 10.
Fiscal year: 2005;
Number of sites that were not construction complete: 16.
Fiscal year: 2006;
Number of sites that were not construction complete: 10.
Fiscal year: 2007;
Number of sites that were not construction complete: 12.
Source: GAO analysis of EPA data.
Note: The figure is based on the 422 sites that had not reached
construction complete and/or had been deleted from the NPL as of the
end of fiscal year 2007. The figure does not include one site that was
listed on the NPL in fiscal year 1983, deleted from the NPL and
subsequently restored in fiscal year 2006. Although recent information
for this site (March 2009) indicates that EPA was in the process of
studying and selecting a remedy for a portion of the site, EPA data on
the status of cleanup at the site indicated the cleanup status was
construction complete. As a result, we did not include this site among
the 422 sites that were not construction complete. In addition, one
site was listed on the NPL in fiscal year 1997, withdrawn, and then
relisted in fiscal year 2002. This site had not reached construction
complete as of the end of fiscal year 2007 and is included in the
figure among the sites listed in fiscal year 1997.
[End of figure]
By the end of fiscal year 2007, fewer mining, sediment, and groundwater
sites--those sites that EPA and other experts indicated are among the
most complex and costly to address--had reached construction complete
than other types of sites. For example, mining sites had the lowest
percentage of sites reaching construction complete, about 21 percent,
although many of these sites were listed more recently. Among
contaminated sediment and groundwater plume sites with no identifiable
source, only about 55 percent had reached construction
complete.[Footnote 78] For sediment sites in particular, one Superfund
legal expert stated, the scope of a site's cleanup makes a significant
difference in the length of time it takes to address contamination at
the site because it is often difficult to understand the link between
the contamination and the environmental damage at such sites. As a
result, the scope of the cleanup at these sites often expands to
address a variety of issues, which increases the length of the cleanup
effort.
Moreover, megasites reached construction complete less often than
nonmegasites. Approximately 74 percent of nonmegasites had reached
construction complete while only 37 percent of megasites had reached
construction complete through 2007.[Footnote 79] In addition, the
median length of time for nonmegasites to progress from site listing to
construction complete was 10 years, compared with a median of about 15
years for megasites. As a result of these differences, the percentage
of NPL sites that were not construction complete and that were
megasites increased over time, from 12 percent of sites active at the
end of fiscal year 1989 to 23 percent of sites active at the end of
fiscal year 2007. Table 15 shows the number, percentage, and median
length of time it took for individual types of sites, nonmegasites, and
megasites to reach construction complete.
Table 15: Construction Complete Nonfederal NPL Sites by Site Type and
Megasite Designation, through Fiscal Year 2007:
Site type: Manufacturing;
Number of NPL sites: 491;
Number of sites construction complete: 307;
Percentage of sites construction complete: 63;
Median number of years from site listing to construction complete: 9.5.
Site type: Mining;
Number of NPL sites: 33;
Number of sites construction complete: 7;
Percentage of sites construction complete: 21;
Median number of years from site listing to construction complete:
10.5.
Site type: Multiple;
Number of NPL sites: 42;
Number of sites construction complete: 30;
Percentage of sites construction complete: 71;
Median number of years from site listing to construction complete: 9.2.
Site type: Other;
Number of NPL sites: 198;
Number of sites construction complete: 119;
Percentage of sites construction complete: 60;
Median number of years from site listing to construction complete: 9.1.
Site type: Recycling;
Number of NPL sites: 122;
Number of sites construction complete: 78;
Percentage of sites construction complete: 64;
Median number of years from site listing to construction complete:
10.3.
Site type: Waste management;
Number of NPL sites: 511;
Number of sites construction complete: 434;
Percentage of sites construction complete: 85;
Median number of years from site listing to construction complete:
11.5.
Site type: Total sites by type;
Number of NPL sites: 1,397;
Number of sites construction complete: 975;
Percentage of sites construction complete: 70;
Median number of years from site listing to construction complete:
10.3.
Site type: Total nonmegasites;
Number of NPL sites: 1,246;
Number of sites construction complete: 919;
Percentage of sites construction complete: 74;
Median number of years from site listing to construction complete:
10.1.
Site type: Total megasites;
Number of NPL sites: 151;
Number of sites construction complete: 56;
Percentage of sites construction complete: 37;
Median number of years from site listing to construction complete:
14.8.
Source: GAO analysis of EPA data.
Note: Five sites were declared construction complete and deleted
without having been formally listed on the NPL. For these sites, the
analysis of the median number of years it took to reach construction
complete is based on the dates when the sites were proposed for listing
on the NPL. Four sites were deleted from the NPL without reaching
construction complete, and for these sites, the median number of years
analysis is based on the dates when the sites were deleted from the
NPL. In addition, one site was declared construction complete, deleted,
and then restored to the NPL. The median number of years analysis for
this site is based on the dates when the site was originally listed on
the NPL and declared construction complete. For one other site that was
listed on the NPL, withdrawn, and then relisted before reaching
construction complete, the median number of years analysis is also
based on the dates when the site was originally listed on the NPL and
declared construction complete.
[End of table]
EPA has recognized the challenges posed by certain types of sites and
has taken a number of steps to address them. For example, EPA
implemented special procedures to track certain large sediment sites
because of the significant challenge these sites can pose during the
cleanup process.[Footnote 80] Of the 48 nonfederal sediment sites EPA
was tracking using these procedures, almost one-half were
megasites.[Footnote 81] Through the end of fiscal year 2007, EPA had
spent an average of $31.3 million at each of these sites; however, only
9 of these sites had reached construction complete. In addition,
because of the challenges mining sites pose to the Superfund program,
EPA established the Abandoned Mine Lands Team to identify and
coordinate alternative approaches to cleaning up these sites. However,
the extent to which EPA is unable to identify viable responsible
parties to assist with the cleanup of these and other NPL sites that
are not construction complete could affect the agency's ability to
maintain continued cleanup progress.
Program Funding Has Decreased, While EPA's Site Costs Have Increased;
and Agency Reporting on Key Cost Indicators Is Insufficient:
Overall, both EPA's Superfund appropriation and program expenditures
have declined. As we reported in July 2008,[Footnote 82] since fiscal
year 1981, the annual appropriation to EPA's Superfund program has
averaged approximately $1.2 billion in nominal dollars.[Footnote 83] In
recent years, however, congressional appropriations for the Superfund
program have declined when adjusted for inflation. Figure 12 shows
appropriation levels in nominal and constant dollars since fiscal year
1981.
Figure 12: EPA's Superfund Program Appropriation, Fiscal Years 1981
through 2007 (Dollars in millions):
[Refer to PDF for image: stacked vertical bar graph]
Fiscal year: 1981;
Nominal appropriation: $68;
Appropriation in 2007 dollars: $69.98.
Fiscal year: 1982;
Nominal appropriation: $200;
Appropriation in 2007 dollars: $179.83.
Fiscal year: 1983;
Nominal appropriation: $219;
Appropriation in 2007 dollars: $179.37.
Fiscal year: 1984;
Nominal appropriation: $410;
Appropriation in 2007 dollars: $309.16.
Fiscal year: 1985;
Nominal appropriation: $620;
Appropriation in 2007 dollars: $433.35.
Fiscal year: 1986;
Nominal appropriation: $900;
Appropriation in 2007 dollars: $594.4.
Fiscal year: 1987;
Nominal appropriation: $1,411.3;
Appropriation in 2007 dollars: $872.36.
Fiscal year: 1988;
Nominal appropriation: $1,128;
Appropriation in 2007 dollars: $641.5.
Fiscal year: 1989;
Nominal appropriation: $1,410;
Appropriation in 2007 dollars: $719.27.
Fiscal year: 1990;
Nominal appropriation: $1,575;
Appropriation in 2007 dollars: $718.28.
Fiscal year: 1991;
Nominal appropriation: $1,616.23;
Appropriation in 2007 dollars: $652.03.
Fiscal year: 1992;
Nominal appropriation: $1,600.13;
Appropriation in 2007 dollars: $590.36.
Fiscal year: 1993;
Nominal appropriation: $1,573.53;
Appropriation in 2007 dollars: $532.68.
Fiscal year: 1994;
Nominal appropriation: $1,465.85;
Appropriation in 2007 dollars: $454.94.
Fiscal year: 1995;
Nominal appropriation: $1,435;
Appropriation in 2007 dollars: $406.63.
Fiscal year: 1996;
Nominal appropriation: $1,313.4;
Appropriation in 2007 dollars: $340.46.
Fiscal year: 1997;
Nominal appropriation: $1,394.25;
Appropriation in 2007 dollars: $331.26.
Fiscal year: 1998;
Nominal appropriation: $1,500;
Appropriation in 2007 dollars: $334.12.
Fiscal year: 1999;
Nominal appropriation: $1,492;
Appropriation in 2007 dollars: $308.8.
Fiscal year: 2000;
Nominal appropriation: $1,400;
Appropriation in 2007 dollars: $256.24.
Fiscal year: 2001;
Nominal appropriation: $1,272.79;
Appropriation in 2007 dollars: $198.24.
Fiscal year: 2002;
Nominal appropriation: $1,309.29;
Appropriation in 2007 dollars: $175.52.
Fiscal year: 2003;
Nominal appropriation: $1,264.89;
Appropriation in 2007 dollars: $141.12.
Fiscal year: 2004;
Nominal appropriation: $1,258;
Appropriation in 2007 dollars: $105.09.
Fiscal year: 2005;
Nominal appropriation: $1,247.48;
Appropriation in 2007 dollars: $64.28.
Fiscal year: 2006;
Nominal appropriation: $1,253.62;
Appropriation in 2007 dollars: $25.08.
Fiscal year: 2007;
Nominal appropriation: $1,251.57;
Appropriation in 2007 dollars: $0.
Source: GAO analysis of appropriations laws and the President‘s Budget
Appendices.
[End of figure]
Similarly, EPA's expenditures on Superfund program activities declined
by 29 percent, or $1.8 billion to $1.3 billion, between fiscal years
1999 and 2007.[Footnote 84] During this period, EPA used approximately
77 percent of its Superfund expenditures for remedial and removal
activities. Most of the remainder of EPA's Superfund expenditures was
spent for enforcement and administration-related activities.[Footnote
85] However, EPA's expenditures on its remedial program declined by 37
percent from fiscal year 1999 through 2007, and accounted for the
majority of the decline in Superfund program expenditures during this
period. Figure 13 shows EPA's Superfund expenditures for fiscal years
1999 through 2007.
Figure 13: EPA Superfund Expenditures, Fiscal Years 1999 through 2007:
(Constant 2007 dollars in millions):
[Refer to PDF for image: stacked line graph]
Fiscal year: 1999;
Remedial: $1119;
Removal: $285;
Activities other than site cleanup: $387.
Fiscal year: 2000;
Remedial: $1086;
Removal: $268;
Activities other than site cleanup: $363.
Fiscal year: 2001;
Remedial: $973;
Removal: $240;
Activities other than site cleanup: $346.
Fiscal year: 2002;
Remedial: $853;
Removal: $247;
Activities other than site cleanup: $347.
Fiscal year: 2003;
Remedial: $874;
Removal: $248;
Activities other than site cleanup: $346.
Fiscal year: 2004;
Remedial: $838;
Removal: $275;
Activities other than site cleanup: $350.
Fiscal year: 2005;
Remedial: $750; 9; 8.92
Activities other than site cleanup: $339.
Fiscal year: 2006;
Remedial: $722;
Removal: $215;
Activities other than site cleanup: $321.
Fiscal year: 2007;
Remedial: $707;
Removal: $250;
Activities other than site cleanup: $319.
Source: GAO analysis of EPA data.
Note: These data exclude reimbursable expenditures and other
expenditures related to the Brownfields program, transfers to other EPA
appropriations, and the 2002 Homeland Security Supplemental
appropriation. Other Superfund expenditures related to homeland
security are included in various categories. The level of expenditures
in each category--but not the total--could vary based on whether
certain costs are classified as administration-related. Due to changes
in EPA's budget structure, EPA was unable to comparably categorize some
expenditures. These expenditures never accounted for more than 0.2
percent of annual expenditures. Over the entire period, these other
expenditures constituted 0.05 percent of Superfund expenditures.
[End of figure]
While EPA's Superfund appropriation and expenditures have declined over
time, the average amount EPA spent for individual sites has increased
in recent years.[Footnote 86] For example, EPA spent an average of
approximately $7.5 million at sites that reached EPA's construction
complete milestone in fiscal year 1999. EPA's expenditures increased to
an average of about $10.2 million in total expenditures per site at
sites reaching construction complete in fiscal year 2007. Although the
average amount EPA spent at sites reaching construction complete
between fiscal years 1999 and 2007 increased in some years and
decreased in others, overall, EPA's site expenditure data showed an
average annual increase of 13 percent per year during the period.
In addition to increases in the amount EPA spends at individual sites
that have reached construction complete in recent years, reports by EPA
and its Inspector General indicate that the agency has consistently
spent a relatively large percentage of its funds for site cleanup work
at a relatively small number of sites since fiscal year 2003. For
example, in 2004,[Footnote 87] the Inspector General reported that
approximately one-half of EPA's fiscal year 2003 funding for remedial
actions, non-time critical removals, and long-term response actions
went to 8 sites out of a total of 94 sites receiving funding.[Footnote
88] Similarly, according to EPA annual reports for fiscal years 2004
through 2008, the agency spent about one-half of its Superfund
obligations for construction and post-construction activities at
roughly 12 to 13 sites per year. It should be noted that not all sites
require funding for remedial action construction in any particular
year, and EPA may still be taking enforcement actions at a site to try
to obtain a responsible party commitment to conduct the remedial
action. Nevertheless, these data show that individual sites may require
a significant commitment of agency resources on an annual basis.
In addition to the greater complexity of cleanup for sites that have
not reached construction complete or were added more recently to the
NPL, Superfund experts cited a number of factors that have contributed
to EPA's increased site expenditures. For example:
* With scientific advances, EPA may be able to conduct more thorough
remedial investigation efforts, which could lead to more thorough
remedial actions and potentially higher costs.
* New contaminant issues or remedial technologies could lead to
increased site costs. For example, the intrusion of vapors into
buildings from contaminants is a new issue that could increase costs at
some sites.[Footnote 89]
* Rising construction costs have contributed to higher EPA
expenditures. In particular, according to an OSWER study, Superfund
site construction costs escalated by 37 percent in recent years.
* The number of sites for which EPA cannot identify viable responsible
parties to help pay for site cleanup activities has increased,
according to DOJ officials.
Because of these trends, EPA may be hampered in its efforts to start
new remedial actions at some sites or maintain the progress of cleanup
at others, according to EPA's Inspector General, the National Advisory
Council for Environmental Policy and Technology (NACEPT),[Footnote 90]
and EPA's own annual Superfund accomplishment reports. In 2004, the
Inspector General estimated that the Superfund program had a funding
shortfall of $174.9 million in fiscal year 2003.[Footnote 91]
Furthermore, according to the Inspector General's report, while EPA
regions indicated they had funding for the majority of sites for fiscal
year 2003, they did not have sufficient funding for some sites. For
example, two regions were only able to initially fence sites rather
than complete the removal of contaminated material, and construction
activities did not begin at 11 sites. According to the Inspector
General, when funding is insufficient, construction at NPL sites cannot
begin; cleanups are performed in a less than optimal manner; and/or
activities are stretched over longer periods of time.
Similarly, in April 2004, NACEPT reported that some NPL sites had
completed remedial designs, but that remedial actions at these sites
had slowed or had not yet begun because of insufficient funding,
according to information provided by EPA.[Footnote 92] For example, the
New Bedford Harbor megasite in New Bedford, Massachusetts, was ready
for remedy construction in April 2004, but because of funding
constraints, remedial action might be stretched out over 25 years,
which was not optimal in terms of achieving a cost-effective remedy or
for protecting public health and the environment.[Footnote 93]
NACEPT identified four key categories of information that would help
identify Superfund program trends: the (1) types of site conditions
that are driving EPA remedy decisions at NPL sites; (2) impediments to
cleanup progress at older sites, especially those listed on the NPL in
the early 1980s; (3) number and type of potential future NPL sites; and
(4) program expenditures and potential future costs. It noted that
these data were particularly important for megasites because of the
impact these sites could have on program funding needs and priorities.
To this end, NACEPT recommended that EPA improve the information and
data on the Superfund program and publish an annual report that
presents key data on, among other things, program progress,
expenditures, and anticipated costs. In addition, a 2004 EPA working
group stated that to more completely measure program success, EPA
should compare dollars actually recovered with dollars potentially
recoverable at sites with viable responsible parties.[Footnote 94]
According to the working group's report, as responsible parties
continually press the agency to exclude some past costs from recovery
by, for example, applying the agency's ability to pay or orphan share
compensation policies, EPA needs some way of ensuring that it is not
compromising too much on past cost claims.
In response, in part, to the NACEPT recommendations, EPA began
publishing annual reports of its Superfund program accomplishments,
starting in fiscal year 2004.[Footnote 95] In these reports, EPA
partially addressed the NACEPT recommendations. Specifically, EPA
reported that it was able to fund all 19 new construction projects that
were ready for funding in fiscal year 2007, but it reported a lack of
funding in other years since fiscal year 2005. For fiscal years 2005,
2006, and 2008, respectively, EPA reported that 9 out of 26, 6 out of
24, and 10 out of 26 new construction projects that were ready for
funding each year did not receive funding due to resource
constraints.[Footnote 96] These reports also provide information on
program outputs, such as the number of construction projects started or
continued; and program outcomes, such as the amount of responsible
party commitments EPA secured for site work, cost recovery, and
oversight costs; the number of sites with human exposure under control;
[Footnote 97] and the number of sites that are ready to return to
productive use.
While these reports provide some information on program progress and
financial constraints, they do not provide information on key
indicators of future program costs, or other data that would help EPA
more fully respond to the NACEPT report's recommendations. In
particular, these reports do not provide information on the number and
cleanup status of megasites (especially mining and sediment sites),
which could help indicate the types of conditions that are driving
EPA's remedy decisions at sites that were listed more recently, as well
as the impediments to cleanup progress at older sites. Additionally,
these reports do not provide information on the number of sites where
responsible parties are financially unable to help pay for cleanup
activities, or the potential impact on EPA's ability to carry out
cleanup activities when it cannot obtain reimbursement for agency
cleanup costs from responsible parties. Such information could help
indicate the factors that are driving program expenditures and
potential future costs.
Conclusions:
EPA's Superfund enforcement actions have generally resulted in
agreements with responsible parties that provided significant value to
the program, particularly in terms of responsible parties' commitments
to conduct site work. In addition, EPA's cost recoveries--historically,
amounting to roughly one-third of the agency's site expenditures--help
replenish the Superfund trust fund so that EPA has funds to clean up
other sites. Since the taxes dedicated to supporting the Superfund
trust fund expired, these recoveries--including fines and penalties--
have provided almost 20 percent of trust fund revenues. However, EPA's
ability to continue to recover its costs may be affected by the extent
to which responsible parties are able to pay for site cleanups. A
robust trust fund, whether replenished through cost recoveries or other
sources of funding, has helped EPA to conduct cleanup activities on its
own while continuing to use enforcement actions to encourage
responsible parties to settle their liability. Additionally, CERCLA-
related litigation and, potentially, its associated costs have declined
in recent years. In part, this downward trend resulted from EPA's
changes to the enforcement process to, among other things, encourage
parties to settle by providing compensation for orphan shares at sites.
However, an increasing number of sites with orphan shares, as well as
potential adjustments in parties' decision making about how to resolve
liability following recent or upcoming court decisions, could make it
more difficult for EPA to reach settlements with responsible parties to
pay for or conduct cleanup work.
Although a strong trust fund is important for EPA's continued ability
to enforce the Superfund program and clean up sites, EPA and others
have reported financial constraints on these efforts. To help assess
these financial constraints, EPA needs comprehensive and reliable data
that can be aggregated to provide information on key issues, such as
the (1) status and cost of cleanups at sites that are not construction
complete, particularly sites where cleanup is likely to be complex and
expensive; (2) extent to which sites lack responsible parties capable
of paying for some or all of a site's cleanup activities; and (3)
financial impacts of having EPA shoulder these sites' cleanup costs.
However, EPA's current data on these issues are not consistently
comprehensive, reliable, or capable of being aggregated to provide
clear program-wide information. For example, EPA's data on the status
of individual site cleanups cannot be aggregated to provide clear
information on the amount of work remaining at sites overall. In
addition, because EPA does not have comprehensive and reliable data on
how many individual sites lack viable responsible parties or the total
value of the orphan share at sites, the agency cannot aggregate its
data to provide clear information on trends in the extent to which
sites lack viable responsible parties. Also, without this information,
EPA cannot determine the financial impacts that the absence of viable
parties could have on the agency's future cost recovery efforts.
Information on these key issues is important for EPA to effectively
plan the future course of the Superfund program, and the Congress needs
such data to help it make more informed decisions about program funding
and policy issues.
Recommendations for Executive Action:
To assist the Congress in making decisions about funding the Superfund
program, we are recommending that the Administrator, EPA, 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:
* the status and cost of cleanups at individual sites, particularly
complex and expensive sites;
* the extent to which there are viable responsible parties at NPL
sites; and:
* the potential financial impacts from EPA's inability to obtain
reimbursement for agency cleanup costs from nonviable responsible
parties.
We are also recommending that the Administrator, EPA, aggregate these
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 Comments and Our Evaluation:
We provided EPA, DOJ, and the Administrative Office of the U.S. Courts
with a draft of this report for review and comment. DOJ and the
Administrative Office of the U.S. Courts had no comments on the draft
report, although the Administrative Office of the U.S. Courts provided
one technical clarification which we incorporated into the report. In
its written comments, EPA agreed with our recommendation to review the
agency's data on site cleanup status and costs and determine what
additional aggregate information would be meaningful to provide to the
Congress; however, EPA disagreed with our recommendations to provide
aggregate data on the extent to which there are viable responsible
parties at sites and the potential financial impacts of EPA's inability
to obtain reimbursement for agency cleanup costs from nonviable
responsible parties. EPA did not specifically address our
recommendation to provide any additional aggregated information to the
Congress in its annual accomplishment reports.
In commenting on our recommendation to provide aggregated data on site
cleanup status and costs, EPA recognized that both site-specific and
aggregate information are necessary to support congressional decision
making. EPA indicated that it has made significant efforts to provide
information to the public on individual site cleanups through the
Superfund site profile pages available on the agency's Web site. EPA
also noted that there are limitations in the extent to which site-
specific data can or should be aggregated because of the complexity and
diversity of individual site cleanups. We agree that EPA's Superfund
site profile pages provide valuable information about individual sites.
However, this information cannot be used to evaluate programmatic
trends without a labor intensive process of collecting and analyzing
data from potentially over 1,000 individual sites. Moreover, certain
data central to understanding the status and future cost of Superfund
site cleanups (particularly EPA-led cleanups)--such as estimates of the
amount of work or funding needed to reach cleanup goals--are not
available on EPA's Web site. EPA noted that some of this information
may be sensitive on a site-specific basis. However, even data that is
on EPA's Web site, such as the cleanup status of sites' operable units,
cannot be easily aggregated to provide information on program trends.
Therefore, to assess programmatic trends as it makes future funding
decisions, it is important that EPA provide the Congress with
aggregated data beyond what is available on the agency's Web site. In
this report, we recognize that there are challenges to compiling
aggregated data on cleanup status, given the differences between sites
and the way response actions are carried out. We also recognize that
EPA has made progress in developing measures that provide information
on the extent to which contamination at sites has been addressed. At
the same time, additional improvement in EPA's measures is necessary to
provide the Congress with data to understand the amount and cost of
remaining site work.
In disagreeing with our recommendations to provide aggregated data on
the extent to which there are viable responsible parties and the
potential financial impacts of nonviable responsible parties, EPA
stated that such data would likely be of limited value because they are
subject to change throughout the cleanup and enforcement process, and
that information on compromises made pursuant to the agency's orphan
share policy alone does not allow it to make accurate predictions of
future cost recoveries. We disagree with EPA's comment that this
information would be of limited value. The Congress needs a more
comprehensive understanding of EPA's future funding liabilities for
site cleanups as it considers various proposals, such as whether to
reinstate taxes to support the Superfund program. Key determinants of
EPA's future funding liabilities include both the amount of work
remaining at sites and estimates of how much of this work EPA will
likely need to pay for using its Superfund appropriation. Furthermore,
the private sector and other federal agencies have taken steps to
estimate their environmental liabilities; we believe that a better
understanding of EPA's future Superfund funding needs is essential as
well.
In this regard, data on the extent to which sites that lack viable
responsible parties and the potential financial impacts to EPA when
responsible parties cannot pay for some or all of their cleanup
obligations are critical elements for estimating EPA's future funding
needs. We recognize in this report that the Superfund enforcement
process is a complex, lengthy, and iterative process. However, this
does not preclude efforts to collect and aggregate these data, as many
of the data elements EPA currently collects and reports on other
aspects of the Superfund program also change and must be updated
regularly. In addition, while future economic conditions and
enforcement outcomes are uncertain, EPA already has or could develop
certain information that would form the basis of such a data collection
effort. For example, at some sites, cleanup actions have been completed
and the statute of limitations on cost recovery and other enforcement
efforts may have passed. Data on the number of nonviable responsible
parties and unrecovered costs at these sites could form the basis of an
historical trend analysis. Also, as part of the enforcement process,
EPA collects information from responsible parties about whether they
claim to have a limited ability to pay for cleanup costs. This
information, among other data, such as better data on the value of
compromises made pursuant to EPA's orphan share policy and the outcome
of actions pursued against parties in bankruptcy courts, could help the
agency estimate future potentially unrecoverable costs. We recognize
that these data would be sensitive at the site-specific level and,
therefore, we recommend that they be published only on an aggregated
basis. We also recognize that aggregated data on the issues would--at
best--be estimates and would likely need to be presented in terms of
ranges to account for the uncertainties associated in the underlying
data and methodological assumptions. However, we believe that on an
aggregated level, these data would serve as important indicators of
EPA's potential funding needs to continue to ensure cleanup at
nonfederal NPL sites.
EPA stated that it agreed with our findings with respect to trends in
Superfund enforcement and litigation. However, EPA suggested that we
clarify language in the report discussing the number of enforcement
actions that result in responsible party work commitments or cost
recovery, as compared to the estimated monetary value of these
outcomes. EPA noted that the estimated value of responsible parties'
work commitments substantially exceeds that of the agency's cost
recoveries. We agree with EPA's comment, and while our methodology was
focused on evaluating the frequency with which different outcomes were
achieved, we made a number of changes to reflect that the value of
responsible parties' work commitments was greater than EPA's recovered
costs.
EPA also stated that the report inaccurately describes the relationship
between the Superfund trust fund and the level of annual appropriations
for Superfund program activities. We agree with EPA that the balance of
the trust fund has not significantly affected appropriations to the
Superfund program. However, we disagree with EPA's comment that we have
mischaracterized the relationship between the trust fund and
appropriations to the Superfund program. When we refer to the balance
of the trust fund in this report, we refer to the dedicated amount
potentially available to be appropriated to the Superfund program.
Since the balance of the trust fund has diminished to almost zero, it
would be difficult for the Congress to increase the level of funding
for the Superfund program because any additional appropriations must
compete with other programs or uses of the general fund. Conversely, if
the trust fund balance was substantial, the Congress could increase the
Superfund program appropriation without increasing use of the general
fund. The lack of a substantial trust fund balance may also present
challenges in negotiations with recalcitrant responsible parties
because of a perception that, due to competition for funds, the
Congress is unlikely to substantially increase the level of the
Superfund appropriation, which would allow EPA to take on additional
cleanup work.
In addition, EPA suggested that we clarify references to the experts
from which we gathered information for this report. In this report, we
sometimes refer to these individuals collectively as Superfund experts,
while in other instances, we refer to the experts more specifically,
depending upon their positions and backgrounds if we determined that
these might have significant bearing on the information they provided.
We believe this approach is appropriate, given that all of the
individuals we spoke with were, in various ways, experts on the
Superfund program and/or CERCLA enforcement, and many were attorneys.
Also, because of the variety of experts that we contacted, if we
referred to the specific background of each individual for each
statement he or she made, we believe the report would be unnecessarily
cumbersome to read.
Finally, EPA provided a number of other technical comments and
clarifications, which we incorporated, as appropriate. EPA's written
comments are presented in appendix III.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution of it until 30
days from the date of this report. At that time, we will send copies of
this report to the Administrator of EPA, the Attorney General of the
United States, the Director of the Administrative Office of the U.S.
Courts, and appropriate congressional committees. In addition, the
report will be available at no charge on our Web site at [hyperlink,
http://www.gao.gov].
If you or your staffs have any questions about this report, please
contact me at (202) 512-3841 or stephensonj@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. Key contributors to this report are
listed in appendix IV.
Signed by:
John B. Stephenson:
Director, Natural Resources and Environment:
List of Requesters:
The Honorable James M. Inhofe:
Ranking Member:
Committee on Environment and Public Works:
United States Senate:
The Honorable John Thune:
United States Senate:
The Honorable John Campbell:
House of Representatives:
The Honorable Charles W. Dent:
House of Representatives:
The Honorable Mark Steven Kirk:
House of Representatives:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
This appendix provides information on the scope of work and the
methodology used to examine the (1) outcomes of the Environmental
Protection Agency's (EPA) enforcement actions, and the factors
considered by federal and private parties in reaching these outcomes;
(2) trends, if any, in litigation to resolve Superfund liability; and
(3) status and implementation costs of the Superfund program. As
requested, we also provided detailed information on the costs of
Superfund enforcement and administration activities in July 2008.
[Footnote 98]
To identify the outcomes of EPA's enforcement actions, we first
reviewed EPA's process for enforcing the Superfund program, including
applicable statutes, regulations, and EPA guidance. We also interviewed
officials responsible for implementing and enforcing the Superfund
program, including officials in EPA's Office of Solid Waste and
Emergency Response (OSWER), and Office of Enforcement and Compliance
Assurance (OECA); as well as officials with the Department of Justice's
(DOJ) Environment and Natural Resources Division.
We obtained and analyzed data for fiscal years 1979 through 2007 on the
outcomes of EPA's enforcement actions from EPA's Comprehensive
Environmental Response, Compensation, and Liability Information System
(CERCLIS). We generally limited our analyses to the results of
completed actions taken at sites proposed for, listed on, or deleted
from the National Priorities List (NPL), as of the end of fiscal year
2007.[Footnote 99] We collected data starting from fiscal year 1979
because the earliest Superfund enforcement action with a monetary value
was achieved in that year. An EPA official told us that, although this
outcome occurred before the Superfund program began, it was included
among EPA's Superfund enforcement outcomes because it concerned a site
that was later listed on the NPL. Key variables for which we collected
these data included:
* the site at which the enforcement action was taken;
* the type of action taken, such as whether EPA settled with or issued
an order to a responsible party;
* the date when the action was completed;
* the type of outcome that resulted from the action, such as whether
the action included cost recovery or site work (and what type of site
work);
* EPA's estimated value of the action, such as the amount of costs to
be recovered or the estimated value of site work to be performed; and:
* the responsible parties identified for individual sites.
To analyze these data, we worked with OECA officials to determine
whether the processes used to take different types of actions should be
considered administrative or judicial processes, and whether the
outcomes of different types of actions should be considered consensual
or nonconsensual. On the basis of this classification, we developed
information on the extent to which EPA has used different types of
processes and actions and achieved different types of outcomes
concerning parties' liability for Superfund site cleanups.
Additionally, we used EPA data on the estimated value of its
enforcement actions at NPL sites to calculate the value of EPA's
enforcement outcomes for fiscal years 1979 through 2007. These data
included the values of past costs recovered, future costs obtained,
responsible parties' work commitments, and penalties that resulted from
individual enforcement actions, although we did not evaluate the
accuracy of EPA's estimates.[Footnote 100] During the course of our
review, EPA told us that it continually corrects and updates its
Superfund enforcement outcome data. The version of the data that we
analyzed for this report was updated through June 2008. However,
because of EPA's ongoing effort to update the data, future analysis of
this database may not match our results.
To obtain information on the factors that parties consider in resolving
liability, we conducted 12 interviews with a variety of Superfund
experts. We selected these experts on the basis of a number of factors,
such as referrals from other interviewees, the past efforts of the
individuals (or the organizations they represent) related to the
Superfund program or Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) enforcement, and
representation of a variety of perspectives. In addition to EPA and DOJ
officials, the Superfund experts we interviewed included
representatives of:
* two professional organizations with knowledge of Superfund litigation
and practice--the American Bar Association and the Environmental Law
Institute;
* three law firms that represent responsible parties in Superfund
litigation;
* three public interest groups--Earthjustice, the Natural Resources
Defense Council, and Resources for the Future;
* one industry group--the Superfund Settlements Project; and:
* an organization of state waste officials--the Association of State
and Territorial Solid Waste Management Officials.
To obtain additional information on the types of actions EPA has taken
to enforce the Superfund program, as well as to gain greater insight
into the factors that influence EPA's and other parties' decisions on
how to resolve CERCLA liability, we reviewed key documents detailing
the decision-making process behind enforcement actions, as well as
parties' responses to these actions, from a nonprobability sample of 10
Superfund sites.[Footnote 101] To select these sites, we identified a
pool of sites (1) that were not federal facilities, (2) where EPA had
identified one or more responsible parties, and (3) which had reached
construction complete during or after 1995. From this pool, we selected
sites on the basis of the highest, average, and lowest values in terms
of the number of responsible parties identified and the ratio of the
monetary value of the enforcement outcome to enforcement expenditures.
We then requested enforcement documentation for our sample of sites
based on the number and type of enforcement actions taken at the sites;
the extent to which the sites represented a variety of site types
(e.g., recycling, manufacturing, or mining); site location (by EPA
region); date the site reached construction complete; and total EPA
spending at the site.
To examine trends in litigation to resolve Superfund liability, we
created a database of litigation related to CERCLA, using data
collected from the Public Access to Court Electronic Records (PACER)
system.[Footnote 102] We conducted this effort because one of the
congressional requesters' original interests was in the amount of
funds, including legal fees, spent by EPA and the private sector
related to enforcing CERCLA. However, comprehensive data on the costs
of litigation would be difficult to obtain, particularly because data
for the private sector would be proprietary. Therefore, we determined
that data on trends in the extent of CERCLA litigation would be the
best information we could obtain for indicating the overall direction
of trends in the cost of such litigation. We determined that the PACER
system provided access to the most comprehensive set of cases that we
could use to identify trends.
We searched the PACER system for civil cases filed in U.S. district
courts under a CERCLA cause of action.[Footnote 103] We collected data
for 88 of the 94 U.S. district courts, which represented nearly all of
the courts for the 50 states and the District of Columbia.[Footnote
104] We searched district court records on a monthly basis, from the
beginning of fiscal year 1994 through fiscal year 2007.[Footnote 105]
We confined our data collection effort to this period because, after
analyzing the date ranges for each court's PACER-accessible data, we
determined that fiscal year 1994 was the first full fiscal year for
which almost all district courts' records were searchable through the
PACER system.[Footnote 106]
As a result of our monthly searches of the PACER system, as well as
data provided by the Administrative Office of the U.S. Courts and
district court officials, we compiled a database of 2,281 cases filed
under a CERCLA cause of action in U.S. district courts from fiscal
years 1994 through 2007.[Footnote 107] We then analyzed the docket--or
record of activity--for each of these cases to obtain basic information
about the cases, as well as data on their duration, complexity, and
outcome. The case information we collected included (1) data on the
docket number and case title, the district court in which the case was
filed, and the cause of action and nature of suit under which the case
was filed;[Footnote 108] (2) the dates when the case was filed and then
closed or terminated;[Footnote 109] (3) the number of parties involved
in the case as plaintiffs and defendants,[Footnote 110] and whether the
parties were federal, state, local government, private, other, or
unknown entities; (4) whether parties in the case filed a third party
complaint against other parties; and (5) whether parties in the case
appealed an issue to a U.S. Court of Appeals. Table 16 provides
examples of how we categorized parties listed in the case dockets we
analyzed.
Table 16: Categorization Examples of CERCLA Case Party Types:
Party type: Federal;
Examples of party categorization:
* federal agencies;
* military facilities and other government installations;
* individuals acting in their capacity as federal officials.
Party type: State;
Examples of party categorization:
* state agencies;
* the District of Columbia and agencies of the District of Columbia;
* individuals acting in their capacity as state officials.
Party type: Local government;
Examples of party categorization:
* local governments;
* agencies of local governments, including public works departments,
county road commissions, police and fire departments, among others;
* individuals acting in their capacity as local officials.
Party type: Private[A];
Examples of party categorization:
* entities that appeared to be companies, businesses, or corporations;
* individuals that did not clearly belong in another category;
* pieces of property.
Party type: Other[B];
Examples of party categorization:
* Native American groups;
* parties that appeared to be nonprofit organizations;
* multi-jurisdictional and/or quasi-public parties, such as regional
transportation, sanitation, water or sewerage districts, ports and
airports;
* educational institutions, religious groups, hospitals, and landfills,
among others.
Party type: Unknown;
Examples of party categorization:
* parties listed as John Doe or Jane Doe;
* parties listed as ABC or XYZ corporation.
Source: GAO analysis.
Note: We classified parties in the types presented in table 16 based
upon how they were recorded in the party listing section of the docket.
[A] The private party category was the default party type. Unless there
was reason to believe that a party was not a private party, based upon
the way it was listed in the docket, we counted parties as private
parties.
[B] Some types of parties we placed in the other category represent
parties that could belong in more than one of the other categories. For
example, some educational institutions might be private, while others
might be affiliated with state or local governments.
[End of table]
Information we collected on the outcomes of cases included whether the
case docket contained evidence of any of the following types of
outcomes:[Footnote 111]
* settlement (concurrent)--parties reached a settlement and the docket
included evidence of the settlement concurrently with (or within a week
of) the case filing;
* settlement (nonconcurrent)--parties reached a settlement and the
docket included evidence of the settlement more than a week after the
case filing;
* dismissal (court)--the court dismissed parties or claims, not as a
result of a settlement, such as when a court granted a defendant's
motion to dismiss claims against it;
* dismissal (voluntary)--a plaintiff dismissed parties or claims
voluntarily and not as a result of a settlement;
* nonconsensual judgment--the court or jury made a judgment on
liability (not accompanied by a settlement), or the court granted a
motion for summary judgment or declared a party to be in
default;[Footnote 112] and:
* remand--the court remanded a case or individual claims to a state or
local court.
Furthermore, we collected other information on case outcomes, such as
whether (1) evidence indicated that parties may have reached a
settlement on issues of liability but evidence was unclear about a
final settlement in the case docket (possibly indicating an out-of-
court settlement) or (2) there was minimal evidence of litigation
activity prior to a nonconcurrent settlement.[Footnote 113] We then
analyzed the data we collected to develop information on trends in
CERCLA litigation. See below for a discussion of the limitations in the
collection and analysis of data from the PACER system.
To help identify contributing factors for the trends in litigation, we
discussed our preliminary findings with Superfund experts, focusing on
why the number, duration, and complexity of CERCLA cases decreased from
fiscal years 1994 through 2007. In particular, we obtained information
on how certain factors, such as EPA efforts to promote settlements with
responsible parties before filing a case in court, as well as court
rulings on CERCLA liability issues, affected CERCLA litigation. We also
discussed how trends in the amount, duration, and complexity of CERCLA
litigation relate to the costs of such litigation. Finally, we
discussed how certain key court decisions have affected CERCLA
litigation, as well as how some ongoing cases could affect CERCLA
litigation in the future.
To determine the status of the Superfund program, we collected and
analyzed data on final and deleted nonfederal NPL sites from EPA's
CERCLIS database. These data included the dates of NPL site listings to
identify trends in the number of sites that were added to the NPL from
fiscal years 1983 through 2007, and data on site types to identify
changes in the types of sites added to the NPL over time.[Footnote 114]
Although the Superfund program began in fiscal year 1981, the first
sites were not listed on the NPL until fiscal year 1983 and, therefore,
we considered this to be the initial time frame for NPL site data we
obtained and analyzed. In addition, to analyze the status of site
cleanups, we used data on key milestones for operable units and sites
identified in EPA's CERCLIS database, including remedial assessment not
begun, study underway, remedy selected, design underway, construction
underway, and construction complete. Finally, to gain insight into the
status of the Superfund program, we compared CERCLIS enforcement data
on the number of sites at which EPA has identified responsible parties
with CERCLIS data on NPL sites.
To analyze the costs of implementing Superfund program activities, we
obtained EPA data on overall program expenditures--also referred to as
outlays--from the agency's Integrated Financial Management System
(IFMS) database.[Footnote 115] EPA budget staff grouped expenditures
into major categories, such as remedial and removal, based on their
knowledge of the program. We limited our scope to fiscal years 1999
through 2007 because EPA changed the way it accounted for certain
budget items in fiscal year 1999, which made it difficult to obtain
consistent data prior to that year. EPA also updated its system in
fiscal year 2004 and, because of this, EPA budget officials created a
crosswalk between the two time periods to ensure expenditure data were
consistent.
In addition, we obtained and analyzed IFMS data on EPA's site-specific
expenditures at final and deleted nonfederal NPL sites for fiscal years
1990 through 2007.[Footnote 116] Site-specific expenditures prior to
fiscal year 1990 were not readily available by fiscal year. For these
expenditures, EPA incorporated data as a single amount when it went to
the current IFMS system. As a result, we developed an approach to
adjust pre-fiscal year 1990 expenditures for inflation, which resulted
in a range of values for expenditures at Superfund sites. For the
minimum value, we assumed that all pre-fiscal year 1990 expenditures
were made in fiscal year 1989. For the maximum value, we assumed that
all pre-fiscal year 1990 expenditures were made in the year the site
was proposed for the NPL.[Footnote 117] We averaged these values to
present information on site expenditures in this report.
To determine the sources of funding that support the Superfund trust
fund, we reviewed the President's Budget Appendices for fiscal years
1983 through 2009. These documents contain actual budget information
from fiscal year 1981--the first year of the Superfund program--through
fiscal year 2007. We reviewed these data with EPA budget experts to
confirm their accuracy. We use nominal dollars when we refer to
appropriated amounts. It is our policy to present what has actually
been enacted or proposed at the time, what is reported in budget
documents, or both. In contrast, for our analyses of the value of
outcomes from EPA's enforcement activities, as well as EPA's Superfund
program and site-specific expenditures, we converted all dollar figures
into constant 2007 dollars.
Finally, we discussed the status of the Superfund program and its
implementation costs during our interviews with Superfund experts. From
these interviews, we obtained information on contributing factors for
trends we identified in the Superfund program's status and costs. We
also reviewed relevant documents, such as the Superfund Program
Implementation Manual; prior evaluations of the Superfund program, such
as reports from GAO, EPA, the agency's Inspector General, and others;
information related to recent legal decisions and ongoing cases
identified by experts; and interviewed agency officials in the Office
of the Chief Financial Officer (OCFO).
To ensure the reliability of the data we used for this report, we
reviewed the two relevant EPA databases: (1) CERCLIS, from which
enforcement outcome and NPL site data were drawn, and (2) IFMS, from
which expenditure data were drawn. For both data sources, we
interviewed EPA officials about the methods the agency uses to ensure
data reliability, manually and electronically reviewed the data, and
compared the data with other published sources. For example, we
compared expenditure data provided by EPA with agency obligation data
and found that the data were somewhat similar for the years in which we
had both sets of data--obligations ranged from 5 percent higher than
expenditures to 16 percent lower than expenditures during fiscal years
2004 through 2007. We also followed up with EPA officials from OSWER,
OECA, and OCFO with specific questions resulting from this review.
To understand the reliability and completeness of the data we collected
from the PACER system, we interviewed officials with the Administrative
Office of the U.S. Courts, as well as officials with seven federal
district courts that collectively accounted for more than 25 percent of
the cases identified during our review.[Footnote 118] We asked these
officials about the collection, processing, and maintenance of case
file data available through the PACER system. On the basis of these
interviews, we determined that the information in case dockets would
provide a complete and accurate record of the proceedings in a case,
and we did not evaluate the accuracy of the entries to the individual
dockets we collected and analyzed.
While the district court officials agreed that the PACER system
provides complete, reliable access to case data, some officials also
thought it possible that searching for cases by cause of action could
miss certain cases if a CERCLA-related case was labeled with a non-
CERCLA cause of action. To evaluate the extent to which this might
occur, we tested our PACER search methodology by searching for all
cases filed under an "Environmental Matters" nature of suit, and then
examining non-CERCLA cases to determine if the words "CERCLA" or
"Superfund" appeared in the text of the case docket. Using this
methodology, we searched a nonrandom sample of 14 months out of the
study period, from fiscal years 1994 through 2007 (or 8.3 percent of
the 168-month study period).[Footnote 119] On the basis of this test,
we estimate that our search methodology may undercount the number of
CERCLA cases by about 15 percent because the cases were not listed in
PACER as having a CERCLA cause of action.[Footnote 120] However, we did
not evaluate whether these other cases, in which the words "CERCLA" or
"Superfund" appeared, actually were CERCLA cases.
DOJ officials indicated that while the trends we identified through our
review of CERCLA litigation represented their understanding of the
trends in litigation based on their professional experience, the number
of federal cases we identified in recent years was lower than was
represented in data maintained by the department. As a result, we
performed an additional test of the reliability of our PACER search
methodology. We collected data from DOJ on federal CERCLA cases filed
from fiscal years 1998 through 2007 and found that our database did not
include approximately 30 percent of the cases in DOJ's data. To
determine why these cases were not listed with a CERCLA cause of action
in the PACER system, we reviewed case documents for cases filed from
fiscal years 2005 through 2007. The average percentage difference in
the number of cases in DOJ's data, compared with our data, was slightly
higher over this 3-year period, at about 32 percent. However, through
our review of case documents and additional information DOJ officials
provided, we found that almost one-half of the cases that were in DOJ's
data but not in ours for fiscal years 2005 through 2007 should not have
been identified as a result of our search of the PACER system because
they (1) were filed in district courts for the U.S. territories, (2)
were filed in bankruptcy court, or (3) involved other differences in
the way DOJ collects its data compared with our methodology for
identifying CERCLA cases. For the remaining cases that were in DOJ's
data but not in ours for the 3-year period, it appeared as though
either the court or the attorney filing the case had made an error in
labeling the cause of action, based on information in case documents.
From these tests, we determined that it is likely that our search
methodology did not identify all of the cases related to CERCLA that
were filed in U.S. district courts for fiscal years 1994 through 2007.
Furthermore, while the courts or attorneys may have made errors that
caused CERCLA cases to be listed in PACER without a CERCLA cause of
action, courts or attorneys may also have made errors that resulted in
cases being listed under a CERCLA cause of action that were not
actually related to CERCLA. To evaluate the likelihood that this
occurred, we assessed the number of cases that were filed by "pro se"
plaintiffs--individuals not represented by an attorney--which we
believed might be an indicator of errors because individuals
representing themselves might have less knowledge about how to file
cases than an attorney. We found that 3 percent of the cases listed
under a CERCLA cause of action in PACER were filed by "pro se"
plaintiffs. We did not review court documents for these cases to
determine if the cases were, in fact, related to CERCLA. Despite the
potential that the CERCLA cases we identified might not represent the
exact number of cases related to CERCLA from fiscal years 1994 through
2007 because of court errors or other factors, we believe that our
methodology likely identified a large majority of the CERCLA cases
filed in U.S. district courts during this period. Therefore, we
determined that these data represent a reliable basis from which to
analyze overall trends in CERCLA litigation during this period.
Finally, to further assess the reliability of the data we collected and
analyzed, we discussed our preliminary findings during the interviews
we conducted with Superfund experts. The experts generally indicated
that the results of our analyses of enforcement outcomes, CERCLA
litigation, and program status reflected their experience, or they
provided explanations for the trends we observed. As a result of these
efforts, we concluded that the data we collected and analyzed were
sufficiently reliable for the purposes of this report. Where necessary
in the report, we note potential limitations of these data.
We conducted this performance audit from August 2007 to July 2009, in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
[End of section]
Appendix II: Detailed Information on the Number, Duration, Complexity,
and Outcomes of CERCLA Cases:
Information on the Number of Cases Filed:
Tables 17, 18, and 19 provide detailed information on the number of
cases filed under a Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) cause of action, in fiscal years 1994
through 2007, by the U.S. district court and geographic area--the
Environmental Protection Agency (EPA) region--in which they were filed,
and by the type of plaintiff that filed them. All three tables show a
decline in the total number of CERCLA cases filed over the period. See
appendix I for more information on how we developed these data and the
potential limitations in our methodology for identifying and analyzing
cases.
Table 17: CERCLA Cases Filed by U.S. District Court, Fiscal Years 1994
through 2007:
District court: AK;
1994: 0;
1995: 0;
1996: 0;
1997: 0;
1998: 0;
1999: 0;
2000: 0;
2001: 0;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 1;
Total: 1.
District court: AL(M);
1994: 0;
1995: 1;
1996: 1;
1997: 0;
1998: 0;
1999: 0;
2000: 1;
2001: 0;
2002: 0;
2003: 0;
2004: 2;
2005: 0;
2006: 0;
2007: 0;
Total: 5.
District court: AL(N);
1994: 0;
1995: 2;
1996: 0;
1997: 2;
1998: 1;
1999: 2;
2000: 2;
2001: 2;
2002: 1;
2003: 1;
2004: 14;
2005: 0;
2006: 0;
2007: 0;
Total: 27.
District court: AL(S);
1994: 1;
1995: 1;
1996: 0;
1997: 1;
1998: 1;
1999: 1;
2000: 1;
2001: 1;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 7.
District court: AR(E);
1994: 1;
1995: 1;
1996: 0;
1997: 0;
1998: 2;
1999: 0;
2000: 0;
2001: 0;
2002: 0;
2003: 1;
2004: 0;
2005: 0;
2006: 0;
2007: 1;
Total: 6.
District court: AR(W);
1994: 1;
1995: 0;
1996: 0;
1997: 0;
1998: 3;
1999: 1;
2000: 0;
2001: 0;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 5.
District court: AZ;
1994: 3;
1995: 0;
1996: 3;
1997: 2;
1998: 0;
1999: 2;
2000: 2;
2001: 3;
2002: 4;
2003: 2;
2004: 1;
2005: 2;
2006: 1;
2007: 0;
Total: 25.
District court: CA(C)[A];
1994: 13;
1995: 4;
1996: 3;
1997: 9;
1998: 3;
1999: 15;
2000: 5;
2001: 7;
2002: 6;
2003: 5;
2004: 2;
2005: 3;
2006: 3;
2007: 4;
Total: 82.
District court: CA(E);
1994: 2;
1995: 3;
1996: 6;
1997: 9;
1998: 1;
1999: 1;
2000: 1;
2001: 1;
2002: 7;
2003: 3;
2004: 3;
2005: 2;
2006: 2;
2007: 3;
Total: 44.
District court: CA(N);
1994: 8;
1995: 6;
1996: 5;
1997: 9;
1998: 7;
1999: 9;
2000: 5;
2001: 10;
2002: 4;
2003: 0;
2004: 10;
2005: 3;
2006: 2;
2007: 6;
Total: 84.
District court: CA(S);
1994: 3;
1995: 0;
1996: 0;
1997: 1;
1998: 0;
1999: 0;
2000: 1;
2001: 1;
2002: 0;
2003: 1;
2004: 0;
2005: 1;
2006: 0;
2007: 1;
Total: 9.
District court: CO;
1994: 9;
1995: 5;
1996: 10;
1997: 9;
1998: 7;
1999: 6;
2000: 7;
2001: 12;
2002: 4;
2003: 3;
2004: 3;
2005: 5;
2006: 3;
2007: 3;
Total: 86.
District court: CT;
1994: 4;
1995: 3;
1996: 2;
1997: 4;
1998: 4;
1999: 6;
2000: 4;
2001: 36;
2002: 4;
2003: 4;
2004: 2;
2005: 0;
2006: 3;
2007: 0;
Total: 76.
District court: DC;
1994: 1;
1995: 1;
1996: 1;
1997: 1;
1998: 0;
1999: 1;
2000: 2;
2001: 1;
2002: 2;
2003: 1;
2004: 1;
2005: 3;
2006: 1;
2007: 1;
Total: 17.
District court: DE;
1994: 0;
1995: 1;
1996: 3;
1997: 1;
1998: 0;
1999: 3;
2000: 1;
2001: 4;
2002: 2;
2003: 3;
2004: 0;
2005: 2;
2006: 2;
2007: 0;
Total: 22.
District court: FL(M);
1994: 1;
1995: 8;
1996: 1;
1997: 4;
1998: 6;
1999: 2;
2000: 5;
2001: 2;
2002: 2;
2003: 2;
2004: 2;
2005: 1;
2006: 0;
2007: 0;
Total: 36.
District court: FL(N);
1994: 2;
1995: 6;
1996: 0;
1997: 0;
1998: 0;
1999: 2;
2000: 0;
2001: 3;
2002: 1;
2003: 0;
2004: 0;
2005: 0;
2006: 1;
2007: 1;
Total: 16.
District court: FL(S);
1994: 4;
1995: 4;
1996: 2;
1997: 2;
1998: 4;
1999: 0;
2000: 1;
2001: 1;
2002: 0;
2003: 1;
2004: 0;
2005: 2;
2006: 0;
2007: 0;
Total: 21.
District court: GA(M);
1994: 2;
1995: 0;
1996: 0;
1997: 3;
1998: 1;
1999: 0;
2000: 0;
2001: 0;
2002: 3;
2003: 2;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 11.
District court: GA(N)[A];
1994: 1;
1995: 4;
1996: 3;
1997: 8;
1998: 3;
1999: 0;
2000: 0;
2001: 2;
2002: 2;
2003: 1;
2004: 0;
2005: 1;
2006: 0;
2007: 2;
Total: 27.
District court: GA(S);
1994: 0;
1995: 0;
1996: 0;
1997: 0;
1998: 1;
1999: 0;
2000: 0;
2001: 1;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 2.
District court: HI;
1994: 0;
1995: 0;
1996: 0;
1997: 0;
1998: 1;
1999: 1;
2000: 0;
2001: 0;
2002: 0;
2003: 0;
2004: 0;
2005: 1;
2006: 0;
2007: 4;
Total: 7.
District court: IA(N);
1994: 1;
1995: 0;
1996: 2;
1997: 1;
1998: 2;
1999: 0;
2000: 1;
2001: 1;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 1;
2007: 2;
Total: 11.
District court: IA(S);
1994: 1;
1995: 3;
1996: 2;
1997: 1;
1998: 2;
1999: 0;
2000: 2;
2001: 0;
2002: 0;
2003: 1;
2004: 0;
2005: 0;
2006: 1;
2007: 1;
Total: 14.
District court: ID;
1994: 1;
1995: 2;
1996: 1;
1997: 1;
1998: 2;
1999: 2;
2000: 1;
2001: 0;
2002: 2;
2003: 0;
2004: 1;
2005: 0;
2006: 1;
2007: 0;
Total: 14.
District court: IL(C);
1994: 1;
1995: 4;
1996: 0;
1997: 4;
1998: 2;
1999: 1;
2000: 3;
2001: 1;
2002: 0;
2003: 0;
2004: 0;
2005: 1;
2006: 1;
2007: 0;
Total: 18.
District court: IL(N);
1994: 5;
1995: 3;
1996: 0;
1997: 4;
1998: 4;
1999: 4;
2000: 3;
2001: 1;
2002: 3;
2003: 5;
2004: 7;
2005: 5;
2006: 4;
2007: 7;
Total: 55.
District court: IL(S);
1994: 3;
1995: 0;
1996: 0;
1997: 1;
1998: 0;
1999: 0;
2000: 1;
2001: 0;
2002: 0;
2003: 1;
2004: 0;
2005: 0;
2006: 0;
2007: 2;
Total: 8.
District court: IN(N);
1994: 4;
1995: 6;
1996: 5;
1997: 6;
1998: 7;
1999: 4;
2000: 7;
2001: 3;
2002: 0;
2003: 1;
2004: 0;
2005: 0;
2006: 0;
2007: 4;
Total: 47.
District court: IN(S)[B];
1994: N/A;
1995: N/A;
1996: N/A;
1997: N/A;
1998: N/A;
1999: N/A;
2000: N/A;
2001: N/A;
2002: 2;
2003: 1;
2004: 1;
2005: 3;
2006: 0;
2007: 3;
Total: 10.
District court: KS;
1994: 7;
1995: 0;
1996: 5;
1997: 2;
1998: 1;
1999: 4;
2000: 1;
2001: 3;
2002: 0;
2003: 0;
2004: 3;
2005: 3;
2006: 1;
2007: 3;
Total: 33.
District court: KY(E);
1994: 0;
1995: 1;
1996: 0;
1997: 0;
1998: 1;
1999: 0;
2000: 1;
2001: 0;
2002: 0;
2003: 2;
2004: 0;
2005: 0;
2006: 1;
2007: 0;
Total: 6.
District court: KY(W);
1994: 5;
1995: 1;
1996: 0;
1997: 1;
1998: 2;
1999: 0;
2000: 0;
2001: 0;
2002: 2;
2003: 0;
2004: 0;
2005: 1;
2006: 2;
2007: 0;
Total: 14.
District court: LA(E);
1994: 0;
1995: 1;
1996: 54;
1997: 1;
1998: 1;
1999: 4;
2000: 1;
2001: 4;
2002: 11;
2003: 2;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 79.
District court: LA(M);
1994: 0;
1995: 0;
1996: 1;
1997: 0;
1998: 1;
1999: 0;
2000: 0;
2001: 0;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 2.
District court: LA(W); 1994: 2; 1995: 3; 1996: 0; 1997: 5; 1998: 0;
1999: 0; 2000: 0; 2001: 0; 2002: 1; 2003: 1; 2004: 0; 2005: 3; 2006: 0;
2007: 1; Total: 16.
District court: MA;
1994: 4;
1995: 2;
1996: 4;
1997: 8;
1998: 5;
1999: 3;
2000: 5;
2001: 1;
2002: 2;
2003: 4;
2004: 4;
2005: 1;
2006: 2;
2007: 4;
Total: 49.
District court: MD;
1994: 5;
1995: 3;
1996: 3;
1997: 2;
1998: 2;
1999: 1;
2000: 1;
2001: 1;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 3;
2007: 2;
Total: 23.
District court: ME;
1994: 2;
1995: 1;
1996: 0;
1997: 0;
1998: 1;
1999: 2;
2000: 0;
2001: 0;
2002: 2;
2003: 1;
2004: 0;
2005: 0;
2006: 1;
2007: 1;
Total: 11.
District court: MI(E)[C];
1994: N/A;
1995: N/A;
1996: N/A;
1997: N/A;
1998: N/A;
1999: N/A;
2000: N/A;
2001: N/A;
2002: N/A;
2003: N/A;
2004: N/A;
2005: N/A;
2006: N/A;
2007: N/A;
Total: N/A.
District court: MI(W);
1994: 11;
1995: 7;
1996: 6;
1997: 7;
1998: 5;
1999: 15;
2000: 2;
2001: 3;
2002: 2;
2003: 1;
2004: 2;
2005: 3;
2006: 2;
2007: 2;
Total: 68.
District court: MN[A];
1994: 5;
1995: 3;
1996: 8;
1997: 1;
1998: 2;
1999: 1;
2000: 1;
2001: 3;
2002: 1;
2003: 1;
2004: 2;
2005: 0;
2006: 1;
2007: 0;
Total: 29.
District court: MO(E);
1994: 1;
1995: 4;
1996: 1;
1997: 3;
1998: 1;
1999: 2;
2000: 1;
2001: 1;
2002: 3;
2003: 3;
2004: 1;
2005: 2;
2006: 0;
2007: 0;
Total: 23.
District court: MO(W);
1994: 1;
1995: 4;
1996: 1;
1997: 2;
1998: 1;
1999: 1;
2000: 0;
2001: 3;
2002: 1;
2003: 2;
2004: 2;
2005: 1;
2006: 0;
2007: 3;
Total: 22.
District court: MS(N);
1994: 0;
1995: 0;
1996: 0;
1997: 0;
1998: 0;
1999: 0;
2000: 0;
2001: 0;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 1;
2007: 0;
Total: 1.
District court: MS(S);
1994: 1;
1995: 1;
1996: 1;
1997: 0;
1998: 1;
1999: 0;
2000: 0;
2001: 0;
2002: 0;
2003: 2;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 6.
District court: MT;
1994: 0;
1995: 0;
1996: 0;
1997: 1;
1998: 1;
1999: 2;
2000: 0;
2001: 1;
2002: 1;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 6.
District court: NC(E);
1994: 1;
1995: 3;
1996: 1;
1997: 0;
1998: 0;
1999: 0;
2000: 0;
2001: 2;
2002: 1;
2003: 0;
2004: 3;
2005: 0;
2006: 0;
2007: 0;
Total: 11.
District court: NC(M);
1994: 1;
1995: 2;
1996: 0;
1997: 1;
1998: 1;
1999: 0;
2000: 1;
2001: 1;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 7.
District court: NC(W);
1994: 4;
1995: 0;
1996: 2;
1997: 4;
1998: 2;
1999: 0;
2000: 1;
2001: 0;
2002: 1;
2003: 0;
2004: 0;
2005: 1;
2006: 0;
2007: 0;
Total: 15.
District court: ND;
1994: 0;
1995: 0;
1996: 0;
1997: 0;
1998: 0;
1999: 0;
2000: 0;
2001: 0;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 1;
Total: 1.
District court: NE;
1994: 0;
1995: 0;
1996: 3;
1997: 0;
1998: 1;
1999: 0;
2000: 1;
2001: 1;
2002: 1;
2003: 3;
2004: 5;
2005: 8;
2006: 0;
2007: 2;
Total: 25.
District court: NH;
1994: 4;
1995: 5;
1996: 3;
1997: 2;
1998: 1;
1999: 3;
2000: 1;
2001: 6;
2002: 3;
2003: 1;
2004: 0;
2005: 0;
2006: 1;
2007: 2;
Total: 32.
District court: NJ;
1994: 6;
1995: 17;
1996: 9;
1997: 6;
1998: 8;
1999: 7;
2000: 1;
2001: 10;
2002: 6;
2003: 8;
2004: 8;
2005: 3;
2006: 2;
2007: 5;
Total: 96.
District court: NM;
1994: 1;
1995: 1;
1996: 0;
1997: 0;
1998: 1;
1999: 0;
2000: 0;
2001: 0;
2002: 0;
2003: 1;
2004: 2;
2005: 1;
2006: 0;
2007: 0;
Total: 7.
District court: NV;
1994: 0;
1995: 0;
1996: 0;
1997: 0;
1998: 0;
1999: 0;
2000: 0;
2001: 0;
2002: 1;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 1;
Total: 2.
District court: NY(E);
1994: 2;
1995: 0;
1996: 3;
1997: 3;
1998: 1;
1999: 2;
2000: 4;
2001: 2;
2002: 1;
2003: 2;
2004: 2;
2005: 2;
2006: 1;
2007: 3;
Total: 28.
District court: NY(N);
1994: 12;
1995: 4;
1996: 3;
1997: 2;
1998: 7;
1999: 8;
2000: 2;
2001: 2;
2002: 0;
2003: 4;
2004: 1;
2005: 1;
2006: 3;
2007: 2;
Total: 51.
District court: NY(S);
1994: 3;
1995: 2;
1996: 2;
1997: 2;
1998: 3;
1999: 2;
2000: 1;
2001: 2;
2002: 2;
2003: 0;
2004: 1;
2005: 1;
2006: 0;
2007: 2;
Total: 23.
District court: NY(W);
1994: 7;
1995: 4;
1996: 4;
1997: 6;
1998: 6;
1999: 2;
2000: 4;
2001: 7;
2002: 2;
2003: 2;
2004: 1;
2005: 4;
2006: 3;
2007: 0;
Total: 52.
District court: OH(N);
1994: 7;
1995: 3;
1996: 5;
1997: 4;
1998: 4;
1999: 1;
2000: 3;
2001: 0;
2002: 2;
2003: 4;
2004: 1;
2005: 1;
2006: 1;
2007: 1;
Total: 37.
District court: OH(S);
1994: 3;
1995: 3;
1996: 7;
1997: 5;
1998: 4;
1999: 2;
2000: 4;
2001: 3;
2002: 0;
2003: 3;
2004: 1;
2005: 1;
2006: 0;
2007: 2;
Total: 38.
District court: OK(E);
1994: 0;
1995: 0;
1996: 0;
1997: 0;
1998: 0;
1999: 0;
2000: 2;
2001: 0;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 2.
District court: OK(N);
1994: 0;
1995: 0;
1996: 0;
1997: 1;
1998: 0;
1999: 0;
2000: 1;
2001: 1;
2002: 0;
2003: 1;
2004: 2;
2005: 1;
2006: 2;
2007: 0;
Total: 9.
District court: OK(W);
1994: 0;
1995: 0;
1996: 0;
1997: 0;
1998: 0;
1999: 0;
2000: 0;
2001: 0;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 3;
Total: 3.
District court: OR;
1994: 4;
1995: 2;
1996: 2;
1997: 11;
1998: 3;
1999: 3;
2000: 2;
2001: 1;
2002: 0;
2003: 1;
2004: 3;
2005: 1;
2006: 1;
2007: 1;
Total: 35.
District court: PA(E);
1994: 7;
1995: 9;
1996: 10;
1997: 6;
1998: 11;
1999: 14;
2000: 10;
2001: 12;
2002: 16;
2003: 6;
2004: 4;
2005: 7;
2006: 8;
2007: 5;
Total: 125.
District court: PA(M);
1994: 3;
1995: 4;
1996: 6;
1997: 2;
1998: 1;
1999: 6;
2000: 3;
2001: 1;
2002: 2;
2003: 1;
2004: 0;
2005: 1;
2006: 0;
2007: 1;
Total: 31.
District court: PA(W);
1994: 6;
1995: 4;
1996: 5;
1997: 4;
1998: 3;
1999: 1;
2000: 1;
2001: 0;
2002: 1;
2003: 1;
2004: 0;
2005: 3;
2006: 3;
2007: 1;
Total: 33.
District court: RI;
1994: 1;
1995: 3;
1996: 4;
1997: 3;
1998: 1;
1999: 1;
2000: 3;
2001: 0;
2002: 1;
2003: 5;
2004: 2;
2005: 3;
2006: 1;
2007: 2;
Total: 30.
District court: SC;
1994: 2;
1995: 5;
1996: 2;
1997: 1;
1998: 4;
1999: 2;
2000: 3;
2001: 3;
2002: 0;
2003: 3;
2004: 2;
2005: 2;
2006: 6;
2007: 3;
Total: 38.
District court: SD;
1994: 0;
1995: 0;
1996: 0;
1997: 1;
1998: 0;
1999: 0;
2000: 0;
2001: 0;
2002: 1;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 2.
District court: TN(E);
1994: 2;
1995: 1;
1996: 1;
1997: 1;
1998: 1;
1999: 0;
2000: 0;
2001: 1;
2002: 2;
2003: 0;
2004: 1;
2005: 2;
2006: 0;
2007: 0;
Total: 12.
District court: TN(M);
1994: 0;
1995: 0;
1996: 0;
1997: 0;
1998: 2;
1999: 1;
2000: 0;
2001: 2;
2002: 1;
2003: 0;
2004: 0;
2005: 1;
2006: 0;
2007: 0;
Total: 7.
District court: TN(W);
1994: 1;
1995: 0;
1996: 0;
1997: 0;
1998: 2;
1999: 2;
2000: 0;
2001: 0;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 5.
District court: TX(E);
1994: 1;
1995: 1;
1996: 0;
1997: 0;
1998: 0;
1999: 1;
2000: 2;
2001: 4;
2002: 2;
2003: 2;
2004: 0;
2005: 1;
2006: 1;
2007: 0;
Total: 15.
District court: TX(N);
1994: 1;
1995: 4;
1996: 1;
1997: 4;
1998: 4;
1999: 2;
2000: 2;
2001: 2;
2002: 0;
2003: 0;
2004: 1;
2005: 1;
2006: 2;
2007: 0;
Total: 24.
District court: TX(S);
1994: 1;
1995: 3;
1996: 6;
1997: 1;
1998: 8;
1999: 5;
2000: 5;
2001: 4;
2002: 7;
2003: 5;
2004: 5;
2005: 4;
2006: 6;
2007: 3;
Total: 63.
District court: TX(W);
1994: 0;
1995: 0;
1996: 1;
1997: 0;
1998: 0;
1999: 0;
2000: 0;
2001: 2;
2002: 0;
2003: 0;
2004: 1;
2005: 0;
2006: 0;
2007: 1;
Total: 5.
District court: UT;
1994: 2;
1995: 3;
1996: 6;
1997: 5;
1998: 4;
1999: 3;
2000: 0;
2001: 2;
2002: 2;
2003: 1;
2004: 4;
2005: 2;
2006: 2;
2007: 2;
Total: 38.
District court: VA(E);
1994: 2;
1995: 3;
1996: 0;
1997: 3;
1998: 2;
1999: 1;
2000: 1;
2001: 0;
2002: 0;
2003: 1;
2004: 2;
2005: 3;
2006: 1;
2007: 0;
Total: 19.
District court: VA(W);
1994: 0;
1995: 0;
1996: 0;
1997: 1;
1998: 1;
1999: 3;
2000: 3;
2001: 2;
2002: 1;
2003: 1;
2004: 0;
2005: 1;
2006: 0;
2007: 0;
Total: 13.
District court: VT;
1994: 0;
1995: 0;
1996: 0;
1997: 2;
1998: 1;
1999: 2;
2000: 1;
2001: 0;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 6.
District court: WA(E);
1994: 0;
1995: 1;
1996: 0;
1997: 4;
1998: 4;
1999: 1;
2000: 2;
2001: 1;
2002: 1;
2003: 0;
2004: 2;
2005: 2;
2006: 0;
2007: 1;
Total: 19.
District court: WA(W);
1994: 8;
1995: 8;
1996: 3;
1997: 6;
1998: 5;
1999: 6;
2000: 12;
2001: 3;
2002: 7;
2003: 5;
2004: 4;
2005: 7;
2006: 5;
2007: 4;
Total: 83.
District court: WI(E);
1994: 4;
1995: 8;
1996: 6;
1997: 2;
1998: 1;
1999: 0;
2000: 3;
2001: 5;
2002: 1;
2003: 1;
2004: 1;
2005: 0;
2006: 2;
2007: 0;
Total: 34.
District court: WI(W)[A];
1994: 0;
1995: 1;
1996: 1;
1997: 0;
1998: 0;
1999: 0;
2000: 0;
2001: 0;
2002: 1;
2003: 0;
2004: 1;
2005: 2;
2006: 0;
2007: 1;
Total: 7.
District court: WV(N);
1994: 0;
1995: 0;
1996: 0;
1997: 0;
1998: 1;
1999: 0;
2000: 1;
2001: 1;
2002: 0;
2003: 5;
2004: 1;
2005: 0;
2006: 0;
2007: 0;
Total: 9.
District court: WV(S);
1994: 0;
1995: 1;
1996: 0;
1997: 0;
1998: 0;
1999: 1;
2000: 0;
2001: 0;
2002: 1;
2003: 0;
2004: 0;
2005: 2;
2006: 0;
2007: 0;
Total: 5.
District court: WY;
1994: 2;
1995: 0;
1996: 0;
1997: 0;
1998: 0;
1999: 0;
2000: 0;
2001: 1;
2002: 0;
2003: 0;
2004: 0;
2005: 0;
2006: 0;
2007: 0;
Total: 3.
District court: Total;
1994: 214;
1995: 204;
1996: 230;
1997: 209;
1998: 187;
1999: 180;
2000: 149;
2001: 197;
2002: 142;
2003: 125;
2004: 124;
2005: 118;
2006: 91;
2007: 111;
Total: 2,281.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: We excluded cases filed in the courts of the U.S. territories, as
well as the U.S. Federal Claims Court, from our analysis. For states
with multiple district courts, the courts are distinguished by
geographic location, as shown by the letter in parentheses: (C) is
central, (M) is middle, (E) is eastern, (W) is western, (N) is
northern, and (S) is southern.
[A] For these district courts, we could not obtain case data based our
search of the PACER system. However, the Administrative Office of the
U.S. Courts provided a list of CERCLA cases filed in the federal
district courts for the Central District of California, the Northern
District of Georgia, and the District of Minnesota during the period of
our study, using similar search criteria to ours and data provided to
the Administrative Office of the U.S. Courts from the districts. In
addition, an official in the federal district court for the Western
District of Wisconsin provided a list of CERCLA cases filed in that
district.
[B] The federal district court for the Southern District of Indiana did
not record cause of action data in a searchable form in the PACER
system until July 2002 and, therefore, the table does not include cases
filed in this district before July 2002.
[C] This table does not include cases from the federal district court
for the Eastern District of Michigan because the court did not record
case data in PACER with the necessary information for our search
methodology, and neither the Administrative Office of the U.S. Courts
nor district court officials could provide data on CERCLA cases filed
in this district.
[End of table]
Table 18: CERCLA Cases Filed in U.S. District Courts, According to the
EPA Region Where the Courts Are Located, Fiscal Years 1994 through
2007:
EPA region: Region 1;
1994: 15;
1995: 14;
1996: 13;
1997: 19;
1998: 13;
1999: 17;
2000: 14;
2001: 43;
2002: 12;
2003: 15;
2004: 8;
2005: 4;
2006: 8;
2007: 9;
Total: 204.
EPA region: Region 2;
1994: 30;
1995: 27;
1996: 21;
1997: 19;
1998: 25;
1999: 21;
2000: 12;
2001: 23;
2002: 11;
2003: 16;
2004: 13;
2005: 11;
2006: 9;
2007: 12;
Total: 250.
EPA region: Region 3;
1994: 24;
1995: 26;
1996: 28;
1997: 20;
1998: 21;
1999: 31;
2000: 23;
2001: 22;
2002: 25;
2003: 19;
2004: 8;
2005: 22;
2006: 18;
2007: 10;
Total: 297.
EPA region: Region 4;
1994: 28;
1995: 40;
1996: 14;
1997: 28;
1998: 33;
1999: 12;
2000: 16;
2001: 21;
2002: 16;
2003: 14;
2004: 24;
2005: 11;
2006: 11;
2007: 6;
Total: 274.
EPA region: Region 5;
1994: 43;
1995: 38;
1996: 38;
1997: 34;
1998: 29;
1999: 28;
2000: 27;
2001: 19;
2002: 12;
2003: 18;
2004: 16;
2005: 16;
2006: 11;
2007: 22;
Total: 351.
EPA region: Region 6;
1994: 8;
1995: 14;
1996: 63;
1997: 12;
1998: 20;
1999: 13;
2000: 13;
2001: 17;
2002: 21;
2003: 13;
2004: 11;
2005: 11;
2006: 11;
2007: 9;
Total: 236.
EPA region: Region 7;
1994: 11;
1995: 11;
1996: 14;
1997: 9;
1998: 8;
1999: 7;
2000: 6;
2001: 9;
2002: 5;
2003: 9;
2004: 11;
2005: 14;
2006: 3;
2007: 11;
Total: 128.
EPA region: Region 8;
1994: 13;
1995: 8;
1996: 16;
1997: 16;
1998: 12;
1999: 11;
2000: 7;
2001: 16;
2002: 8;
2003: 4;
2004: 7;
2005: 7;
2006: 5;
2007: 6;
Total: 136.
EPA region: Region 9;
1994: 29;
1995: 13;
1996: 17;
1997: 30;
1998: 12;
1999: 28;
2000: 14;
2001: 22;
2002: 22;
2003: 11;
2004: 16;
2005: 12;
2006: 8;
2007: 19;
Total: 253.
EPA region: Region 10;
1994: 13;
1995: 13;
1996: 6;
1997: 22;
1998: 14;
1999: 12;
2000: 17;
2001: 5;
2002: 10;
2003: 6;
2004: 10;
2005: 10;
2006: 7;
2007: 7;
Total: 152.
EPA region: Total;
1994: 214;
1995: 204;
1996: 230;
1997: 209;
1998: 187;
1999: 180;
2000: 149;
2001: 197;
2002: 142;
2003: 125;
2004: 124;
2005: 118;
2006: 91;
2007: 111;
Total: 2,281.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: EPA regions 2 and 9 include district courts for the U.S.
territories, which we excluded from our analysis.
[End of table]
Table 19: CERCLA Cases Filed by Type of Plaintiff, Fiscal Years 1994
through 2007:
Type of plaintiff: Federal;
1994: 53;
1995: 63;
1996: 54;
1997: 82;
1998: 85;
1999: 68;
2000: 65;
2001: 61;
2002: 54;
2003: 62;
2004: 42;
2005: 50;
2006: 41;
2007: 57;
Total: 837.
Type of plaintiff: State;
1994: 22;
1995: 11;
1996: 22;
1997: 29;
1998: 23;
1999: 31;
2000: 22;
2001: 26;
2002: 21;
2003: 14;
2004: 16;
2005: 18;
2006: 16;
2007: 15;
Total: 286.
Type of plaintiff: Other: Local government;
1994: 9;
1995: 15;
1996: 5;
1997: 4;
1998: 3;
1999: 12;
2000: 8;
2001: 7;
2002: 2;
2003: 3;
2004: 4;
2005: 10;
2006: 4;
2007: 2;
Total: 88.
Type of plaintiff: Other: Private parties;
1994: 137;
1995: 120;
1996: 154;
1997: 96;
1998: 81;
1999: 68;
2000: 62;
2001: 109;
2002: 69;
2003: 48;
2004: 65;
2005: 45;
2006: 37;
2007: 42;
Total: 1,133.
Type of plaintiff: Other: Other parties;
1994: 6;
1995: 7;
1996: 5;
1997: 6;
1998: 5;
1999: 8;
2000: 6;
2001: 7;
2002: 6;
2003: 3;
2004: 4;
2005: 3;
2006: 3;
2007: 2;
Total: 71.
Type of plaintiff: Other: Unknown parties;
1994: 1;
1995: 0;
1996: 2;
1997: 0;
1998: 0;
1999: 0;
2000: 1;
2001: 3;
2002: 0;
2003: 0;
2004: 1;
2005: 0;
2006: 0;
2007: 0;
Total: 8.
Type of plaintiff: Other subtotal;
1994: 153;
1995: 142;
1996: 166;
1997: 106;
1998: 89;
1999: 88;
2000: 77;
2001: 126;
2002: 77;
2003: 54;
2004: 74;
2005: 58;
2006: 44;
2007: 46;
Total: 1,300.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: Cases are categorized in this table based on having at least one
plaintiff of a given type. Because some cases have more than one type
of plaintiff, the number of cases is over counted. For example, 81 of
the 286 cases listed with a state plaintiff also have a federal
plaintiff and are, therefore, counted in both categories in this table.
[End of table]
Information on Case Duration:
Table 20 and figures 14 and 15 provide information on the duration of
CERCLA cases filed in fiscal years 1994 through 2007, by the type of
plaintiff and by the number of defendants in the case. Cases with
federal and state plaintiffs were typically shorter in duration than
cases filed by other plaintiffs, while cases with more defendants were
typically longer in duration. The following information on case
duration is based on our analysis of both open and closed cases.
Approximately 92 percent of cases filed from fiscal years 1994 through
2007 were closed as of the end of fiscal year 2007. Analysis of only
closed cases revealed no substantial differences in case duration.
Table 20: Duration of CERCLA Cases by Type of Plaintiff, Fiscal Years
1994 through 2007:
Type of plaintiff: Federal government;
Duration (months): Average: 14.5;
Duration (months): Median: 4.9.
Type of plaintiff: State government;
Duration (months): Average: 15.1;
Duration (months): Median: 4.6.
Type of plaintiff: Other plaintiff;
Duration (months): Average: 22.0;
Duration (months): Median: 15.2.
Type of plaintiff: All cases;
Duration (months): Average: 18.6;
Duration (months): Median: 10.2.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: We measured case duration from the date the docket indicated that
the case was filed in court through the date the docket indicated the
case was closed or terminated. For those cases that were not closed or
terminated as of September 30, 2007, we measured duration from the date
of filing through September 30, 2007.
[End of table]
Figure 14: Number of CERCLA Cases Filed by Duration and Type of
Plaintiff, Fiscal Years 1994 through 2007:
[Refer to PDF for image: stacked vertical bar graph]
Duration of cases: Less than 6 months;
Federal government: 448;
State government: 116;
Other plaintiff: 337.
Duration of cases: 6 months to less than 2 years;
Federal government: 219;
State government: 51;
Other plaintiff: 486.
Duration of cases: 2 to less than 5 years;
Federal government: 133;
State government: 23;
Other plaintiff: 323.
Duration of cases: 5 years or more;
Federal government: 37;
State government: 15;
Other plaintiff: 90.
Source: GAO analysis of data on cases filed in U.S. district courts.
[End of figure]
Figure 15: Average Number of Defendants per CERCLA Case by Duration,
Fiscal Years 1994 through 2007:
[Refer to PDF for image: vertical bar graph]
Duration of cases: Less than 6 months;
Average number of defendants: 11.
Duration of cases: 6 months to less than 2 years;
Average number of defendants: 8.
Duration of cases: 2 to less than 5 years;
Average number of defendants: 16.
Duration of cases: 5 years or more;
Average number of defendants: 31.
Source: GAO analysis of data on cases filed in U.S. district courts.
[End of figure]
Information on Case Complexity:
Figures 16 and 17 provide information on the complexity of CERCLA cases
filed in fiscal years 1994 through 2007, by the type of plaintiff.
Complexity is measured by the number of defendants and the percentage
of cases in which defendants pursue additional parties. While the
average number of defendants varied somewhat between different
plaintiff types, the percentage of cases in which defendants pursued
additional parties was higher in cases filed by other plaintiffs than
it was for federal or state plaintiff cases.
Figure 16: Average Number of Defendants per CERCLA Case by Type of
Plaintiff, Fiscal Years 1994 through 2007:
[Refer to PDF for image: vertical bar graph]
Type of plaintiff: Federal government;
Average number of defendants: 13.
Type of plaintiff: State governments;
Average number of defendants: 18.
Type of plaintiff: Other plaintiffs;
Average number of defendants: 11.
Source: GAO analysis of data on cases filed in U.S. district courts.
[End of figure]
Figure 17: Percentage of CERCLA Cases in Which Defendants Pursued
Additional Parties by Type of Plaintiff, Fiscal Years 1994 through
2007:
[Refer to PDF for image: vertical bar graph]
Type of plaintiff: Federal government;
Average number of defendants: 8.
Type of plaintiff: State governments;
Average number of defendants: 7.
Type of plaintiff: Other plaintiffs;
Average number of defendants: 15.
Source: GAO analysis of data on cases filed in U.S. district courts.
[End of figure]
Information on Case Outcomes:
Figure 18 provides information on the outcomes of CERCLA cases filed
from fiscal years 1994 through 2007. Previously negotiated settlements
were more common among federal plaintiff cases, while voluntary and
court dismissals were more common among cases filed by other
plaintiffs. Some of the following information on case outcomes is based
on analyses of both open and closed cases. In some instances, analysis
of only closed cases was more appropriate, such as when analyses looked
at whether cases only had certain outcomes. However, overall, our
analyses of only closed cases revealed no substantial differences with
the outcomes of all cases, including those that were still open as of
the end of fiscal year 2007.
Figure 18: Number of CERCLA Cases, by Outcome and Type of Plaintiff,
Fiscal Years 1994 through 2007:
[Refer to PDF for image: stacked vertical bar graph]
Outcome: Previously negotiated settlement;
Federal government: 438;
State governments: 69;
Other plaintiffs: 7.
Outcome: Settlement (not fully negotiated prior to filing);
Federal government: 284;
State governments: 84;
Other plaintiffs: 441.
Outcome: Voluntary dismissal;
Federal government: 92;
State governments: 30;
Other plaintiffs: 582.
Outcome: Court dismissal;
Federal government: 102;
State governments: 23;
Other plaintiffs: 270.
Outcome: Non-consensual judgment;
Federal government: 55;
State governments: 27;
Other plaintiffs: 447.
Outcome: Remand[A];
Federal government: 0;
State governments: 2;
Other plaintiffs: 92.
Outcome: No Outcome[B];
Federal government: 57;
State governments: 20;
Other plaintiffs: 100.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: Cases that include more than one type of outcome are counted in
more than one category. Therefore, this figure over counts the total
number of cases.
[A] This outcome occurs when the district court sends back, or remands,
a case to the court in which the case originated.
[B] Cases can result in no outcome in our analysis for a number of
reasons, including the following: the parties may not have reached any
final outcomes in a case that was still open as of the end of fiscal
year 2007; the parties may have reached only outcomes not relating to
liability, such as gaining access to a site; or, a case may have ended
by being consolidated with another case before any outcomes were
reached.
[End of figure]
Figure 19 provides information on the extent to which cases reached
consensual or nonconsensual outcomes. Most cases filed by the federal
or state governments resulted in only consensual outcomes, while cases
filed by other plaintiffs more often resulted in nonconsensual or both
outcome types when compared to the cases filed by the federal or state
governments.
Figure 19: Percentage of CERCLA Cases, by Type of Outcome and
Plaintiff, Fiscal Years 1994 through 2007:
[Refer to PDF for image: three pie-charts]
Federal government:
Consensual outcomes only: 78%;
Nonconsensual outcomes only: 5%;
Both outcome types: 11%;
Neither outcome type: 7%.
State government:
Consensual outcomes only: 70%;
Nonconsensual outcomes only: 9%;
Both outcome types: 11%;
Neither outcome type: 10%.
Other plaintiff:
Consensual outcomes only: 39%;
Nonconsensual outcomes only: 18%;
Both outcome types: 29%;
Neither outcome type: 15%.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: Consensual outcomes include settlements (both previously
negotiated settlements and those not negotiated prior to case filing)
and voluntary dismissals. Nonconsensual outcomes include court
dismissals and nonconsensual judgments. Cases with neither type of
outcome may have no outcomes of any kind, no liability-related
outcomes, or they may have a remand. Some cases with only consensual
outcomes may have had appeals that were over procedural issues. In
addition, some cases with only consensual outcomes may have had
nonconsensual outcomes that were reversed on appeal and, therefore, the
nonconsensual outcomes were not recorded as final outcomes. We did not
record outcomes that occurred in the U.S. Courts of Appeals. Because we
incorporated all cases in this analysis, including those that were
still open as of the end of fiscal year 2007, this figure may overstate
the percentage of cases with only consensual or only nonconsensual
outcomes, as additional outcomes may have occurred in the period after
our analysis. In some instances, percentages do not add due to
rounding.
[End of figure]
Figure 20 provides information on the duration of cases by the outcomes
reached in the cases. Cases that included previously negotiated
settlements were substantially shorter, on average, than other cases.
The longest cases were those that included nonconsensual judgments.
Figure 20: Duration of CERCLA Cases by Outcome, Fiscal Years 1994
through 2007:
[Refer to PDF for image: horizontal bar graph]
Outcome: Previously Negotiated Settlement;
Average duration in years: 0.4.
Outcome: Settlement (not fully negotiated prior to filing);
Average duration in years: 2.4.
Outcome: Voluntary Dismissal;
Average duration in years: 2.5.
Outcome: Court Dismissal;
Average duration in years: 2.5.
Outcome: Non-consensual Judgment;
Average duration in years: 3.3.
Outcome: Remand[A];
Average duration in years: 0.4.
Outcome: No Outcome[B];
Average duration in years: 1.1.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: Cases that include more than one type of outcome are counted in
more than one category. Therefore, this figure over counts the total
number of cases.
[A] This outcome occurs when the district court sends back, or remands,
a case to the court in which the case originated.
[B] Cases can result in no outcome in our analysis for a number of
reasons, including the following: the parties may not have reached any
final outcomes in a case that was still open as of the end of fiscal
year 2007; the parties may have reached only outcomes not relating to
liability, such as gaining access to a site; or, a case may have ended
by being consolidated with another case before any outcomes were
reached.
[End of figure]
Figure 21 provides information on the percentage of closed cases with
minimal litigation. Cases with minimal litigation are those whose only
outcomes were either (1) previously negotiated settlements or (2)
settlements in cases in which there was no evidence of adversarial
actions, such as counterclaims or discovery activity recorded in the
docket. While 65 percent of closed federal plaintiff cases and 59
percent of closed state plaintiff cases were classified as having
minimal litigation, only 4 percent of cases filed by other plaintiffs
fell into this category.
Figure 21: Percentage of Closed CERCLA Cases with Only Previously
Negotiated Settlements or Minimal Litigation by Type of Plaintiff,
Fiscal Years 1994 through 2007:
[Refer to PDF for image: three pie-charts]
Federal government:
Only previously negotiated settlement: 53%;
Only settlement with minimal litigation: 12%;
Other outcomes: 32%;
No outcomes[A]: 3%.
State government:
Only previously negotiated settlement: 33%;
Only settlement with minimal litigation: 26%;
Other outcomes: 33%;
No outcomes[A]: 7%.
Other plaintiff;
Only previously negotiated settlement: 1%;
Only settlement with minimal litigation: 3%;
Other outcomes: 92%;
No outcomes[A]: 4%.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: Cases with only previously negotiated settlements are those in
which the only outcomes were settlements for which the case docket
included settlement evidence within a week of the case filing. Cases
with only settlements with minimal litigation are cases in which the
only outcomes were settlements, in some cases accompanied with
voluntary dismissals, in which no adversarial actions were recorded in
the docket (such as counterclaims or motions to dismiss the plaintiff's
claims). Cases in the other outcomes category were those cases with
outcomes such as court dismissals or judgments, or settlements and
voluntary dismissals with evidence of adversarial activity in the
docket, such as counterclaims or motions to dismiss the plaintiff's
claims. This figure includes only those cases that were closed as of
September 30, 2007. Of the 837 federal plaintiff cases in our data set,
780 were closed as of this date. Of the 205 state plaintiff cases, 192
were closed, and of the 1,236 cases filed by other plaintiffs, 1,123
were closed. Percentages may not add due to rounding.
[A] Closed cases can have no outcomes in our analysis if, for example,
they end by being consolidated with another case before outcomes are
reached, they are administratively closed without dismissals or other
outcomes, or they only result in outcomes not related to liability.
[End of figure]
Figure 22 provides information on the percentage of closed cases
resulting in only voluntary or court-ordered dismissals. Although our
analysis did not track outcomes according to individual parties or
claims, these cases may represent instances where the plaintiff was
unable to get the relief it sought in filing the case and either
dismissed the case voluntarily or the case was dismissed by the court.
Cases filed by federal or state governments resulted in dismissals with
no other outcomes much less often than those filed by other plaintiffs.
Figure 22: Percentage of Closed CERCLA Cases with Only Dismissals by
Type of Plaintiff, Fiscal Years 1994 through 2007:
[Refer to PDF for image: multiple vertical bar graph]
Source: GAO analysis of data on cases filed in U.S. district courts.
Type of plaintiff: Federal government;
Percentage of cases with only voluntary dismissals: 1.9%;
Percentage of cases with only court dismissals: 0.6%;
Percentage of cases with only voluntary and court dismissals: 0.3%.
Type of plaintiff: State governments;
Percentage of cases with only voluntary dismissals: 3.6%;
Percentage of cases with only court dismissals: 3.6%;
Percentage of cases with only voluntary and court dismissals: 1%.
Type of plaintiff: Other plaintiffs;
Percentage of cases with only voluntary dismissals: 20.7%;
Percentage of cases with only court dismissals: 10.4%;
Percentage of cases with only voluntary and court dismissals: 4.6%.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: This figure includes only those cases that were closed as of
September 30, 2007.
[End of figure]
Figure 23 provides information on the percentage of closed cases with
dismissals in which there was some evidence of a settlement that was
not clearly recorded in the docket. Because plaintiffs other than the
government are not subject to CERCLA's requirement that certain
settlements (e.g., consent decrees) be approved by a court, this
analysis provides some indication of the extent to which cases with
voluntary or court dismissals may have also had out-of-court
settlements that resolved liability issues between parties.
Figure 23: Percentage of Closed CERCLA Cases with Dismissals That Had
Possible Settlements, Fiscal Years 1994 through 2007:
[Refer to PDF for image: pie-chart]
Cases without evidence of possible settlement: 86%;
Cases with evidence of possible settlement: 14%.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: This figure includes only those cases that were closed as of
September 30, 2007. These cases include voluntary and/or court
dismissals.
[End of figure]
Figure 24 provides information on the percentage of closed cases whose
only outcomes were nonconsensual judgments, by type of plaintiff. The
percentage of cases with such outcomes did not substantially vary among
the different types of plaintiffs.
Figure 24: Percentage of Closed CERCLA Cases with Only Nonconsensual
Judgments by Type of Plaintiff, Fiscal Years 1994 through 2007:
[Refer to PDF for image: vertical bar graph]
Type of plaintiff: Federal government;
Percentage of cases: 3.6%.
Type of plaintiff: State governments;
Percentage of cases: 4.2%.
Type of plaintiff: Other plaintiffs;
Percentage of cases: 3%.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: This figure includes only those cases that were closed as of
September 30, 2007. Some of these cases also include appeals.
[End of figure]
Figure 25 provides information on the percentage of closed cases with
appeals by whether the outcomes in the case were consensual or
nonconsensual. Cases with only nonconsensual outcomes were much more
likely to have appeals than those with only consensual outcomes.
Figure 25: Percentage of Closed CERCLA Cases with Appeals by Type of
Outcome, Fiscal Years 1994 through 2007:
[Refer to PDF for image: vertical bar graph]
Cases with only consensual outcomes: 2%;
Cases with only nonconsensual outcomes: 21%.
Source: GAO analysis of data on cases filed in U.S. district courts.
Note: This figure includes only those cases that were closed as of
September 30, 2007. Appeals may occur on grounds related to liability
outcomes or because of procedural issues. In addition, some cases with
only consensual outcomes may have had nonconsensual outcomes that were
reversed on appeal and, therefore, the nonconsensual outcomes were not
recorded as final outcomes. We did not record outcomes that occurred in
the U.S. Courts of Appeals.
[End of figure]
[End of section]
Appendix III: Comments from the Environmental Protection Agency:
United States Environmental Protection Agency:
Office Of Enforcement And Compliance Assurance:
Washington, D.C. 20460:
June 26, 2009:
Mr. John B. Stephenson:
Director, Natural Resources and Environment:
Government Accountability Office:
Washington, DC 20548:
Dear Mr. Stephenson:
Thank you for the opportunity to comment on the draft report entitled
"Superfund: Litigation Has Decreased and EPA Needs Better Information
on Site Cleanup and Cost Issues to Estimate Future Program Funding
Requirements (GAO09-656)." We appreciate the collegial working
relationship and dialogue with GAO as this report was developed. We
also want to commend GAO for undertaking this important study with
respect to trends in CERCLA litigation and enforcement. We believe it
shows the effectiveness of both the Superfund enforcement program and
the Superfund enforcement reforms implemented since the mid-1990's to
reduce third party CERCLA litigation and associated costs.
I am responding on behalf of the Office of Enforcement and Compliance
Assurance (OECA) as well as the Office of Solid Waste and Emergency
Response (OSWER) and the Office of the Chief Financial Officer (OCFO),
whose comments have been incorporated into this consolidated EPA
response. Below are our most significant comments on the report. Other
technical comments are included in the attachment.
EPA appreciates the importance of informing and educating the public
about our commitment to, and our progress toward, environmental
cleanup. We also recognize that both site-specific and aggregate
information are necessary to support congressional decisionmaking. We
have made significant efforts to provide uniform information to the
public on the status of site cleanups. The Superfund Site Progress
Profiles, available at Superfund's webpage [hyperlink,
http://cfpub.epa.gov/supercpad/cursites/srchsites.cfm] encapsulate, in
a standardized manner, cleanup status and risks at all NPL sites, and
include Operable Unit (OU)-specific information about cleanup actions
accomplished and underway. Any interested party may find much more
detailed site information available from EPA Regional Offices via
attached links. The Superfund website and our annual report also
provide aggregate information on Superfund programmatic
accomplishments. We note, however, that EPA does not make site-specific
cost data available to the pub] c, primarily due to the sensitivity of
cost recovery efforts, including negotiations with private parties for
both past and future response work, but also due to fair competition
policies that affect EPA's contract award process.
With respect to the report's recommendation to consider ways to develop
aggregated information related to cleanup costs, EPA will review the
full range of information and determine what additional aggregate
information on cleanup status and costs would be meaningful to provide
to assist congressional and public reviewers. However, we also note, as
does he GAO study, the challenge of describing the multiple facets of
the Superfund program in a concise fashion that can assist decision-
makers, given the wide variety of data regarding the cleanup status of
Superfund sites. Although the highly diverse nature of Superfund sites
and their cleanup experience has often limited the value of aggregate
data for management, EPA agrees that data aggregation is necessary to
communicate broad programmatic direction, however, aggregating future
cost information can be unintentionally misleading, because it tends to
exclude consideration of these uncertainties. Likewise, concise
descriptions of site cleanup efforts have been hindered by a multi-
stage cleanup process that often takes place through multiple iterative
and simultaneous actions. With these significant limitations in mind.
EPA will examine if there are ways to better present responsible and
reliable analyses to explain our work.
EPA does not agree, however, with the report's recommendation to
provide aggregate data on the extent to which there are viable
responsible parties at these sites as well as the likelihood of
obtaining reimbursement for agency cleanup costs from nonviable
responsible parties. Such data are likely to be of limited value
because they reflect a snapshot in time and are subject 0 change
throughout the cleanup and enforcement process. Given the complexity of
each sate and the potential range of PRPs, determining whether a site
has viable, liable responsible parties is a long, complex and iterative
process with PRPs identified and their financial status assessed and
reassessed throughout. While EPA may make settlement compromises
pursuant to the Orphan Share Policy, information on orphan share alone
does not allow EPA to make accurate predictions of future costs
recoveries.
Overall, we agree with the findings of this report with respect to
trends in Superfund enforcement and litigation, but have identified
several issues that we believe require clarification. or that should be
presented in a more complete context so that the reader fully
understands the result: that the Superfund enforcement program has
achieved. For example, in the Highlights portion of the draft, the
statement "Responsible Parties more often agreed to reimburse EPA for
its cleanup costs than to conduct the work themselves," is misleading.
Although the total number of individual settlements/enforcement actions
for cost recovery exceeds settlements/enforcement actions requiring
PRPs to conduct response work, the estimated dollar value of the work
performed by PRPs substantially exceeds the amount PRPs have agreed to
reimburse EPA. As shown in Table 7 on Page 31, through FY2007 PRPs
agreed to conduct $22.5 Billion in future response work at NPL sites as
compared to the $7.3 Billion in commitments to reimburse EPA for past
and future response costs. We believe that this information should be
included in the Highlights section as well as in the "Results in Brief'
section en page 7 and the "Conclusions" section on page 79 in order to
provide context.
There are several instances in the draft report that inaccurately
describe the relationship between the Superfund Trust Fund and the
funding level appropriated annually from the "Trust Fund to support the
Superfund program. Specifically, the balance in the Superfund Trust
Fund does not affect the funds available for current or future annual
appropriations. Therefore, it cannot serve as a reliable indicator to
responsible parties of EPA's ability to fund future cleanup actions.
For example, in FY 1995, prior to the tax expiration on December 31.
1995, the Superfund Trust Fund end-of-year balance of $3.7 billion was
well above the FYs 1995 and 1996 annual appropriation levels from the
Trust Fund of $1.4 billion and $1.3 billion, respectively. In addition.
in FY 2004, after the end-of-year FY 2003 balance was $0. the FYs 2004
and 2005 annual appropriation levels from the Trust Fund were $1.3
billion and $1.2 billion, respectively. To maintain comparable annual
appropriations, the General Fund share of the appropriation was
increased to offset the Trust Fund share of the appropriation. A chart
to compare the annual appropriation level to the Trust Fund end-of-year
balance is included in the technical comments in the attachment as well
as other related comments to clarify the relationship between the
Superfund Trust Fund and the annual appropriation from the Trust Fund
to fund the Superfund program
Lastly, throughout this report GAO often uses the term "lawyers" and
"experts" when quoting someone interviewed for the report. In some
cases GAO is very specific in identifying the party as an "EPA
attorney" or "private bar lawyer" or "EPA expert" and in other cases
uses the general terminology without identifying where that "lawyer" or
"expert" works. We believe that GAO should be clear whether an attorney
or expert referred to in the report works for the private sector, or
the federal government.
In closing, notwithstanding the concerns described above, we believe
that there is substantial useful information in the report and applaud
GAO for looking into these very important subjects. If you have any
questions or concerns regarding our comments or responses to
recommendations, EPA would be happy to meet with you prior to GAO
finalizing this report. We hope to build off of the cooperative nature
in which this review was performed and look forward to continuing to
work with GAO to improve the Superfund program.
Sincerely,
Signed by:
Catherine R. McCabe:
Principal Deputy Assistant Administrator:
Attachment:
cc:
Mathy Stanislaus, OSWER:
Maryann Froehlich, OCFO:
Elliott Gilberg, OSRE:
Jim Woolford, OSRTI:
David Bloom, OCFO:
Gwendolyn Spriggs, OECA:
Johnsie Webster, OSWER:
[End of section]
Appendix IV: GAO Contact and Staff Acknowledgments:
GAO Contact:
John B. Stephenson, (202) 512-3841 or stephensonj@gao.gov:
Staff Acknowledgments:
In addition to the individual named above, Vincent P. Price, Assistant
Director; Tim Bazzle; Miles Ingram; Krista Loose; Christopher Murray;
Ira Nichols-Barrer; and Kathleen Padulchick made key contributions to
this report. Elizabeth Beardsley, Michele Fejfar, Richard Johnson, and
Carol Herrnstadt Shulman also made important contributions.
[End of section]
Footnotes:
[1] For this report, we collected and analyzed data through fiscal year
2007 because that was the most current information at the time we
initiated our work.
[2] This number includes 1,397 nonfederal NPL sites, as well as 172
federal facilities that EPA had listed on the NPL, as of fiscal year
2007. Of the 1,397 nonfederal NPL sites, 306 sites had been deleted
from the NPL once they no longer posed a threat to human health or the
environment. The number of deleted sites does not include one site that
was deleted from the NPL but was subsequently restored. Of the 172
federal facility NPL sites, 15 sites had been deleted from the NPL.
These are sites owned and operated by federal agencies, such as the
Departments of Defense, Energy, and the Interior. Cleanups of these
facilities are funded by the responsible agency (and not by EPA's
Superfund appropriation); and enforcement of CERCLA with respect to
federal agencies is handled differently than the process for other
parties. Throughout this report, we excluded federal facilities from
our analyses, except where otherwise noted. In particular, in reporting
enforcement outcomes, we include enforcement against responsible
parties even if the action concerned a federal facility.
[3] Throughout this report, we refer to litigation as an EPA
enforcement action; however, the agency cannot initiate litigation
itself, but must make a referral to DOJ, which, by statute and
executive order, has sole control of federal CERCLA litigation.
[4] GAO, Superfund: Funding and Reported Costs of Enforcement and
Administration Activities, [hyperlink,
http://www.gao.gov/products/GAO-08-841R] (Washington, D.C.: July 18,
2008).
[5] We limited our data collection and analysis to EPA's completed
enforcement actions; that is, actions that EPA took against responsible
parties that had reached a final outcome, such as issuing a unilateral
administrative order or agreeing to a settlement. Throughout this
report, when we use the term "enforcement actions," we are referring to
completed enforcement actions.
[6] When a federal party or any other party files a complaint, it cites
the cause of action--that is, the legal theory--it believes provides
the legal basis for its claim. Cases filed under a CERCLA cause of
action include cases filed to resolve liability for NPL site cleanups,
as well as to resolve liability for cleanups of sites not on the NPL.
We excluded cases filed in the four district courts for the U.S.
territories, as well as cases filed in the U.S. Federal Claims Court;
we were also unable to obtain any data for one additional court. We
limited our analysis to fiscal years 1994 through 2007 because data
from earlier years were not consistently available through the PACER
system. In addition, we could not obtain complete data for all U.S.
district courts directly through the PACER system for fiscal years 1994
through 2007. For three district courts, we obtained data on case
filings from the Administrative Office of the U.S. Courts, which
administers the PACER system. For one district court, we obtained data
from court officials. For one other court, we could only obtain data
starting in July 2002.
[7] CERCLA may help to prevent pollution by establishing that parties
may be held liable for site contamination, which provides parties with
incentives to properly manage hazardous substances so as to avoid
liability.
[8] The budget proposed by the administration for fiscal year 2010
includes a provision to reestablish a tax to support the Superfund
program. Additionally, bills introduced in the 111TH Congress would
impose a royalty on mining on federal lands--which would allow the
federal government, as landowner, to share in the value of the mine's
production--that would be used, in part, to support cleanup actions at
abandoned mines; 33 NPL sites are identified as being mining sites.
[9] EPA has 10 regional offices, each of which is responsible for
executing agency programs within several states and, in some regions,
territories.
[10] EPA indicated that only the OSWER Assistant Administrator is
delegated the authority to make listing decisions. According to EPA,
the purpose of the committee is to share information in an effort to
promote national consistency.
[11] Of the more than 47,000 hazardous substance release sites it has
identified, EPA has listed only 1,569 sites on the NPL.
[12] See 59 FR 47416. The National Oil and Hazardous Substances
Pollution Contingency Plan, referred to as the National Contingency
Plan, is published in the Federal Register and can be found in the Code
of Federal Regulations at 40 CFR Part 300.
[13] Natural resources include, among other things, land, wildlife,
air, water, and groundwater.
[14] This act established provisions that expand the federal
government's ability to prevent and respond to oil spills, and provided
resources for these activities.
[15] The act of God defense has rarely arisen in CERCLA cases. Courts
have rejected the defense in association with heavy rainfalls, storms,
a hurricane, and an unprecedented cold spell, among other situations.
[16] CERCLA's act of war defense has been raised only rarely. One court
has characterized the defense as "intended to cover releases occurring
solely because of war (i.e. bomb dropped during a war on mining site
and hazardous substances are released)."
[17] For costs associated with removal actions, cases generally must be
brought within 3 years of the completion of the action. For costs
associated with remedial actions, cases must be brought within 6 years
from the start of construction of the action. EPA can avoid these rules
by negotiating "tolling agreements" with responsible parties, which
effectively freezes the statute of limitations for a certain period of
time.
[18] To qualify parties as de minimis, CERCLA authorizes EPA to use its
judgment as to whether the hazardous substances contributed by parties
are minimal in amount and toxicity in comparison to other substances at
the site. CERCLA requires EPA to offer settlements to such parties.
CERCLA also generally exempts from liability de micromis parties--those
who contributed less than 110 gallons of liquid waste or 200 pounds of
solid waste and meet other specified criteria.
[19] EPA includes several types of reopeners, referred to as a
"reservation of rights," in its settlements. For example, EPA may
pursue additional work or cost recovery from the settling party when
new information or previously unknown conditions indicate that the
selected remedy is not protective of human health or the environment.
Other situations where EPA could continue to pursue a party include
violations of the settlement, additional liability outside the site,
liability for natural resource damages (if not addressed by the
settlement), criminal liability, and violations of federal or state law
in the course of conducting the cleanup action.
[20] While CERCLA authorizes some criminal penalties, such as those
associated with various notification and recordkeeping requirements and
the making of false statements, the actions we discuss in this report
are largely civil actions.
[21] Some courts have used a set of six factors to aid in allocating
response costs among responsible parties in contribution claims. These
factors, proposed in 1980 by then-Congressman Al Gore as an amendment
to CERCLA, were not enacted but have, nonetheless, been used by some
courts to determine equitable contribution. The "Gore factors" include
such issues as the ability to distinguish between waste contributed by
each party, the amount and toxicity of each party's waste, and the
degree of cooperation by each party with federal or state officials.
Other courts have applied additional or other factors.
[22] EPA also documents some agreements as consent agreements and
administrative cost recoveries. However, because these documents were
used infrequently and have similar properties to administrative orders
on consent, we have combined these three enforcement outcomes for ease
of communication.
[23] CERCLA also requires that any cost recovery agreements related to
a site where total site costs are expected to exceed $500,000 be
approved by DOJ, though these agreements do not necessarily need to be
approved by the court.
[24] These categorizations refer only to the form of the outcome. We
recognize that, in some cases, a "consensual" outcome may be the result
of intense and perhaps even acrimonious negotiations. EPA also noted
that some parties prefer to receive and comply with a unilateral
administrative order, which is typically considered a nonconsensual
outcome.
[25] As of the end of fiscal year 2007, there were 1,569 final and
deleted NPL sites, as well as 66 sites that were proposed for listing
on the NPL. According to EPA data, enforcement actions were taken at 38
sites proposed for the NPL, but not yet listed; enforcement actions
were also taken at 11 federal facilities. In general, EPA actions to
enforce CERCLA with respect to federal agencies follow a different
process and we did not review these kinds of actions. In addition, 5
percent of these enforcement actions were taken before a site was
listed on the NPL, including one action taken in fiscal year 2006 at a
site that was not proposed for listing until fiscal year 2008. While
EPA can take enforcement action at non-NPL sites, we did not include
such enforcement actions in our analysis. We limited our data
collection and analysis for this section of the report to completed
enforcement actions at proposed, final, and deleted NPL sites. That is,
enforcement actions analyzed for this report include actions that EPA
took against responsible parties that had reached a final outcome, such
as issuing a unilateral administrative order or agreeing to a
settlement. However, an EPA official noted that some judgments may be
under appeal or the parties may be negotiating in bankruptcy court. EPA
officials said the agency has taken an enforcement action for at least
95 percent of those sites where it was able to identify responsible
parties who could afford to pay for or conduct remedial actions.
[26] According to EPA, penalties have also been levied in other
enforcement actions that do contain provisions for the recovery of site
costs or conducting site work.
[27] An EPA official told us that these data may under report the full
number of de minimis settlements.
[28] EPA noted that some unilateral administrative orders related to
site work may contain provisions to reimburse EPA for its future costs
to oversee the responsible party. However, EPA does not track how often
these provisions are included in its unilateral administrative orders,
though agency officials indicated that many orders may include such
provisions.
[29] EPA noted that, in 2005, it clarified agency policies related to
the issuance of unilateral administrative orders for site study work
and encouraged agency officials to consider their use in situations
where agreements cannot be reached with responsible parties. However,
EPA confirmed that it was the agency's past practice to conduct site
study work itself, rather than issue an order.
[30] This total, which is based on EPA data, is an estimate of the
value of EPA's enforcement activities for a variety of reasons. First,
the value of the responsible parties' work commitments represents only
the projected cost of the activities these parties agree to perform.
According to EPA guidance, these estimates are expected to range from
less than 30 percent to more than 50 percent of the actual project
cost, and responsible parties are not required to provide EPA with
information on the actual costs of implementing Superfund site response
actions. Second, according to agency officials, the value of EPA's past
costs recovered, future costs obtained, and penalties assessed is based
on enforcement documents, such as settlement agreements, and may not
represent the amount a responsible party actually paid. Third, this
total does not represent the value of EPA's enforcement outcomes as
amended over time. An EPA official stated that the agency only recently
incorporated specific data on enforcement action amendments in its
database. However, the official said that, historically, EPA
headquarters worked with the regions to update data in CERCLIS when
amendments to actions were significant. Fourth, the total is an
estimate because the data do not include payments for future EPA
oversight of work conducted by responsible parties or interest payments
from responsible parties who arrange to pay EPA over time. Finally, EPA
may assist states in taking enforcement actions for which the state is
considered the lead enforcement authority, according to EPA's data. The
results of such actions are not included in the total we present in
this report.
[31] Information on other sources of revenue for the trust fund was
provided in table 2 of this report.
[32] There are some sites where EPA has spent a considerable amount of
money that it may recover, but had not yet completed its enforcement as
of the end of fiscal year 2007. At other sites, EPA data indicated the
agency was able to recover significantly more from responsible parties
than its data identified as having been spent at specific sites.
Because these sites may represent data irregularities, we did not
calculate a per-site average recovery, but, rather, identified a
percentage recovered on the basis of total site expenditures and total
past costs recovered.
[33] According to EPA, in a few situations it is more appropriate that
responsible parties not be involved in performing work at a site. In
such cases, EPA may negotiate a "cash out" agreement with the
responsible party to pay an appropriate amount of estimated site costs
in advance of the work being done. In some cases, these funds are
deposited into site-specific "special accounts," which can only be used
for work at that site by EPA or a responsible party capable and willing
to perform the work. This is in contrast to recoveries of past costs or
penalties, which are usually deposited into the trust fund and, if
reappropriated by the Congress to the Superfund program, can be used at
any NPL site.
[34] EPA noted that the annual appropriation for the Superfund program
determines the funds available, not the balance of the Superfund trust
fund. However, we have found that the balance of the trust fund affects
the funds available for future appropriations and, therefore, may
provide an indicator to responsible parties of EPA's ability to fund
future cleanup actions.
[35] Our analysis included civil cases filed in 88 of 94 U.S. district
courts that were categorized as having a CERCLA cause of action from
fiscal years 1994 through 2007. This analysis does not capture cases
filed in state or local courts, or bankruptcy courts. In addition, our
search methodology may have missed certain cases filed in federal
courts involving CERCLA claims, but which were categorized with a
different primary cause of action. See appendix I for a more detailed
discussion of the potential limitations of our search methodology.
Also, see appendix II for more information on the results of this
analysis.
[36] Because cases can have more than one type of plaintiff, we
categorized cases, as follows, to avoid over counting the total number
of cases filed. Federal government cases are those in which at least
one plaintiff represented the federal government. State government
cases are those in which at least one plaintiff represented a state
government, but no plaintiff represented the federal government. Cases
categorized as having other plaintiffs are those in which neither the
federal nor a state government was a plaintiff. As shown in table 8,
the large majority of other plaintiffs are private parties, such as
businesses or private individuals.
[37] The data presented in this section are substantively different in
scope than data presented in other sections of this report. For
example, cases brought by the federal government include enforcement
actions taken by EPA against responsible parties at NPL and non-NPL
sites. In responding to a draft of this report, DOJ officials noted
that they are more frequently involved with enforcement actions for
removal actions (which can occur at non-NPL sites) than for remedial
actions (taken only at NPL sites). In addition, CERCLA cases we
identified during our search of the PACER system may include cases
brought by DOJ on behalf of other federal agencies that are natural
resource trustees, such as the Department of the Interior or the
Department of Agriculture, for natural resource damages claims.
Furthermore, cases filed by states or other parties may include cases
related to NPL and non-NPL sites, and may also include cases these
parties filed against federal agencies.
[38] We measured case duration from the date the docket indicated that
the case was filed in court through the date the docket indicated the
case was closed or terminated. For those cases that were not closed or
terminated as of September 30, 2007, we measured duration from the date
of filing through September 30, 2007. The data showed a similar trend
in the duration of cases when only closed cases were considered. Our
analysis of case duration does not account for any time spent
negotiating out of court prior to filing the case. See appendix II for
more information on the results of this analysis.
[39] Both of these indicators--fewer defendants per case and fewer
cases with defendants who bring in additional defendants--are also
associated with shorter cases, according to agency officials and our
analysis of court data.
[40] These expenditures include money spent establishing EPA's
Superfund claims when a responsible party files for bankruptcy, filing
a judicial action charging criminal violation of CERCLA, preparing a
case for referral to DOJ, and assisting the department in pursuing
cases against responsible parties. Most DOJ activities funded by
Superfund are coded as litigation expenditures in our analysis. The
department provides information to EPA regarding the activities it
carries out related to the Superfund program; however, because of
differences in how EPA and the department code various activities,
costs for some nonlitigation activities, such as the negotiation of
settlements, may be included in this category.
[41] While one attorney cited fewer NPL sites as a potential
explanation for the decrease in litigation, we acknowledge that this
provides only a partial justification for the decrease because parties
may initiate CERCLA litigation concerning NPL or non-NPL sites. As a
result of data limitations, we did not assess the extent to which the
CERCLA cases we identified through our search of the PACER system
related to NPL versus non-NPL sites.
[42] In addition to changes to EPA's enforcement process, the
administrative reforms included changes to its approach to cleaning up
sites, assessing risks at sites, involving the public, and redeveloping
contaminated sites. For a detailed description of the reforms and their
impact on the Superfund program, see GAO, Superfund: Extent to Which
Most Reforms Have Improved the Program Is Unknown, GAO/RCED-00-118
(Washington, D.C.: May 12, 2000). Although we found a difference in the
frequency with which EPA was able to reach a settlement with
responsible parties before and after the implementation of the agency's
administrative reforms, we did not assess the impact of any individual
reform.
[43] Executive Order 12778 (1991). Executive Order 12988 (1996) revoked
the earlier executive order, but contains an identical provision
encouraging settlement.
[44] In addition to cases shaping how the statute would be applied with
respect to liability, courts upheld CERCLA against various
constitutional challenges in a series of cases in the 1980s.
[45] Cases interpreting liability under CERCLA to be joint and several
include United States v. Chem-Dyne Corp. (S.D. Ohio 1983), State of
Colo. v. ASARCO, Inc. (D. Colo. 1985), U.S. v. Northeastern
Pharmaceutical & Chemical Co., Inc. (8TH Cir. 1986), State of N.Y. v.
Shore Realty Corp. (2d Cir. 1985), and U.S. v. Dickerson (D. Md. 1986).
Recently, the Supreme Court upheld the principle of joint and several
liability as the general rule; see Burlington N. & Santa Fe Ry. Co. v.
United States (U.S. 2009).
[46] Cases interpreting CERCLA liability as strict include U.S. v.
Miami Drum Services, Inc. (S.D. Fla. 1986), U.S. v. Conservation
Chemical Co. (W.D. Mo. 1984), U.S. v. Price (D.N.J. 1983), and U.S. v.
Northeastern Pharmaceutical and Chemical Co., Inc. (W.D. Mo. 1984).
[47] Courts have upheld CERCLA's imposition of liability for actions
that occurred prior to the statute, finding that the Congress intended
CERCLA to apply retroactively. For example, see United States v. Dico,
Inc. (8TH Cir. 2001), and United States v. Olin Corp. (11TH Cir. 1997).
As to liability for natural resource damages, however, CERCLA provides
that there is no liability when the release of hazardous substances and
the resulting damages that occurred were "wholly before" CERCLA was
enacted. See In re Acushnet River and New Bedford Harbor: Proceedings
re Alleged PCB Pollution (D. Mass. 1989).
[48] The Supreme Court decisions in Cooper Industries, Inc. v. Aviall
Services Inc. (2004), and United States v. Atlantic Research Corp.
(2007), addressed the question of whether responsible parties, in
particular circumstances, can bring contribution or other claims under
specific provisions of CERCLA. However, according to DOJ officials,
these cases did not resolve all of the issues in this area and there is
a significant amount of litigation. See, for example, W.R. Grace & Co.
- Conn. v. Zotos International, Inc. (2d Cir. 2009); Kotrous v. Goss-
Jewett Co. (9TH Cir. 2008); and ITT Industries, Inc. v. BorgWarner,
Inc. (6TH Cir. 2007).
[49] For example, the Supreme Court held in United States v. Atlantic
Research Corp. that a particular CERCLA contribution protection
provision operates to block claims, but in a comment to the decision,
the Court suggested that the contribution protection provision does not
affect other claims. This comment raised questions about whether
parties that enter into settlement agreements would receive protection
against other claims under CERCLA. Another issue that attorneys with
one firm raised is whether CERCLA's contribution protection operates to
block state law claims.
[50] Although CERCLA provides joint and several liability, courts have
long held that apportionment is proper when there is a reasonable basis
for determining the contribution of each cause to the site
contamination. In Burlington N. & Santa Fe Ry. Co. v. United States
(U.S. 2009), the Supreme Court upheld the district court's
apportionment in a factually unique case and based on "detailed
findings" by the district court. The case is notable because, until
now, there have been few cases where courts found the harm to be
divisible so as to avoid the general rule of joint and several
liability. According to DOJ officials, as this case was just decided,
it is too early to determine whether it will have a significant impact
on the enforcement of the Superfund program.
[51] In General Electric v. Johnson (D.D.C. 2005), the district court
for the District of Columbia rejected a constitutional challenge to the
unilateral administrative order provisions of CERCLA, holding that, on
their face, they comport with due process requirements. In a subsequent
ruling in the same case, General Electric v. Jackson (D.D.C. 2009), the
court upheld EPA's use of unilateral administrative orders against a
challenge that the agency's pattern and practice of using those orders
violated responsible parties' constitutional right to due process. The
case is now on appeal to the U.S. Court of Appeals for the District of
Columbia Circuit. Similar issues have been raised in another case, City
of Rialto v. U.S. Dep't of Defense (C.D. Cal. Nov. 29, 2007 and Feb. 5,
2008); now on appeal to the U.S. Court of Appeals for the 9TH Circuit.
[52] Unless otherwise noted, data analyzed for this section of the
report only represents data on final and deleted nonfederal NPL sites.
[53] By the end of fiscal year 2007, EPA had proposed 61 nonfederal
sites that it either decided not to list, or had not yet determined
whether to list on the NPL.
[54] Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, Public Law 96-510 (Dec. 11, 1980), §105(8)(B).
[55] GAO, Superfund Program: Current Status and Future Fiscal
Challenges, [hyperlink, http://www.gao.gov/products/GAO-03-850]
(Washington, D.C.: July 31, 2003).
[56] Under the Superfund Alternative Approach, EPA seeks to achieve
responsible party CERCLA cleanup of sites that are eligible for, but
are not listed on, the NPL. Superfund trust fund appropriations cannot
be used for remedial actions at these sites and, therefore, a
responsible party must be willing to perform the remedial action.
According to a September 2007 EPA evaluation, 22 sites had cleanup
agreements established using the Superfund Alternative Approach, and 40
other sites might be possible candidates for this approach.
[57] Under the RCRA Corrective Action program, EPA requires RCRA-
regulated facilities to investigate and clean up releases of hazardous
waste. Such cleanups are conducted under the authority of RCRA, rather
than CERCLA. These RCRA corrective action authorities were enhanced in
1984.
[58] EPA's Brownfields program assists in assessing and cleaning up
abandoned, idled, or underused industrial and commercial facilities.
According to an OSWER official, the Brownfields program is reserved for
sites that are relatively less contaminated than Superfund sites, and
that have a greater potential for rehabilitation. Brownfields sites may
be cleaned up under CERCLA, RCRA, or state voluntary programs.
[59] Unlike other data presented in this section, the data on removals
include both federal and nonfederal facilities because we did not
obtain data on whether non-NPL sites are federal or nonfederal
facilities. These data include all removal actions that were started,
though not necessarily completed, prior to the end of fiscal year 2007.
[60] According to a 2004 report by the National Advisory Council for
Environmental Policy and Technology, an advisory committee discussed,
but did not reach a consensus recommendation on, the role that cost
should play in decisions to list sites on the NPL. Some members of the
committee believed that cost should not be used to limit or expand the
number or types of sites listed on the NPL, as they believed the NPL
should represent true national priorities--sites that meet the
eligibility criteria and that require Superfund program resources to
address. Other committee members believed that, over time, EPA is
responsible for matching the size of the Superfund program to the level
of funding provided. See National Advisory Council for Environmental
Policy and Technology, Final Report, (Washington, D.C., April 2004).
[61] Conversely, one expert we interviewed was critical of EPA's
approach to listing sites for not giving adequate consideration to
funding. The expert stated that by listing sites on the NPL, EPA was
committing to potentially spending hundreds of millions of dollars on
cleanup work without identifying where the money for this work would
come from.
[62] These costs would include both EPA costs, as well as costs paid by
responsible parties for site cleanup. EPA's data classified sites as
megasites, as well as potential megasites; however, we grouped both
megasites and potential megasites together for purposes of this report.
[63] Data on EPA's site expenditures are based on an estimated range of
the value of these expenditures in fiscal year 2007 dollars. These data
were calculated based on a range of values because EPA could not
provide site expenditure data prior to fiscal year 1990 on a yearly
basis. Rather, expenditures for all years prior to fiscal year 1990
were reported as fiscal year 1989 expenditures. To adjust these data to
fiscal year 2007 dollars, we estimated a range of values for the pre-
fiscal year 1990 expenditures based on when sites were proposed for
listing on the NPL.
[64] Other types of sites with a high likelihood of being megasites
include sites with radioactive products (categorized as manufacturing
sites), and mine tailings disposal sites (categorized as waste
management sites). Respectively, 64 and 44 percent of these types of
sites were listed as megasites, although most of these sites were
listed earlier in the Superfund program.
[65] These percentages represent the number of nonfederal sites that
did not have responsible parties identified in EPA's data, out of the
total number of nonfederal sites listed in each time period as follows:
89 out of 867 sites listed from fiscal years 1983 through 1989, 52 out
of 374 sites listed from fiscal years 1990 through 1999, and 41 out of
151 sites listed from fiscal years 2000 through 2007. In addition, one
site without a final listing date also did not have responsible parties
identified in EPA's data.
[66] We did not obtain information from EPA about the status of the
agency's efforts to identify responsible parties at the 183 sites that
did not have responsible parties identified in EPA's data.
[67] EPA records a responsible party in its CERCLIS database as being
associated with an individual site following any one of three actions:
if the party (1) was issued a general or special notice letter of its
potential liability under CERCLA, (2) was issued an order or referred
for litigation to perform a cleanup action or reimburse response costs,
or (3) entered into a settlement to perform a cleanup or pay for a
response action.
[68] In 2004, an EPA working group recommended, among other things,
that EPA explore alternative sources of funding for Superfund site
activities, including the investigation of old insurance policies that
might cover site costs. See EPA, Superfund: Building on the Past,
Looking to the Future (Washington, D.C., April 2004). According to EPA,
following this recommendation the agency established a working group to
examine these issues and developed a mechanism to assist regions in
conducting insurance research. As a result, in some instances, the
agency has made successful claims against insurance policies.
[69] We accounted for these sites in our analysis of the number of
sites for which EPA's data did not show any identified responsible
parties by adjusting the data based on the assumption that responsible
parties had been identified at sites where EPA's data showed that an
enforcement action had been taken. However, we did not adjust the data
for nine additional sites that did not have any responsible parties
identified, but where there was an indication in EPA's data that the
enforcement action taken included a prospective purchaser agreement--an
agreement in which EPA promises not to sue the purchaser of a
contaminated site in exchange for that party's agreement to perform
cleanup work or provide funds toward cleaning up the site.
[70] In 2005, we reported that the extent to which businesses filing
for bankruptcy had environmental liabilities was unknown because
neither the federal government nor other sources collected this
information. However, we found that in seeking to hold liable
businesses responsible for their cleanup obligations, EPA faced
challenges, including the ability of businesses to legally organize or
restructure in ways that can limit their future expenditures for
cleanups. Furthermore, we found that EPA could better ensure that
bankrupt and other financially distressed businesses meet their cleanup
obligations by making greater use of existing authorities. For example,
at the time of the 2005 report, EPA had not implemented a 1980
statutory mandate under CERCLA to require businesses handling hazardous
substances to provide assurance of their financial responsibility. We
reported that requiring such assurance could help reduce the risk that
the general public would have to assume financial responsibility for
cleanup costs. See GAO, Environmental Liabilities: EPA Should Do More
to Ensure That Liable Parties Meet Their Cleanup Obligations, GAO-05-
658, (Washington, D.C.: Aug. 17, 2005). EPA officials indicated that
the agency has increased the financial assurance requirements included
in its settlement agreements by, for example, requiring responsible
parties to provide external assurances--rather than self-assure--that
they have the resources to complete agreed-upon work. However, a
representative of one public interest group stated that EPA still does
not have sufficiently thorough financial assurance requirements. In a
recent decision, the federal district court for the Northern District
of California ordered EPA to publish a list of classes of facilities
for which financial assurance requirements will be required. This list
is one of three requirements in section 108(b) of CERCLA related to
ensuring that facilities involved with hazardous substances would
remain financially responsible for any substances that were improperly
disposed. See Sierra Club, et al v. Johnson, et al (N.D. Cal. 2008).
[71] Through the end of fiscal year 2007, 306 nonfederal sites had been
deleted from the NPL. One additional site was deleted, but was
subsequently restored to the NPL. Almost all of the deleted sites
reached EPA's construction complete milestone prior to deletion;
however, according to EPA, four sites were deleted and referred to
other authorities without being declared construction complete. Because
these sites are no longer active on the NPL, we counted them together
with the sites considered construction complete for purposes of
analysis.
[72] In the case of the one site that was declared construction
complete, deleted from the NPL, and then subsequently restored, EPA
data on the status of cleanup at the site indicated that the cleanup
status was construction complete and not deleted as of the end of
fiscal year 2007. As a result, we did not include this site among the
422 sites that were not construction complete. However, more recent
information for this site (March 2009) indicates that EPA was in the
process of studying and selecting a remedy for a portion of the site.
[73] In 2003, we reported that EPA acknowledged the limitations of the
usefulness of construction completions as a measure of NPL site
progress because, among other reasons, construction completions neither
measure nor characterize the impacts of cleanup efforts on human health
and the environment. To address future challenges associated with the
Superfund program, we recommended that EPA develop indicators that
could be used to measure program performance. EPA has developed some
additional indicators, such as measuring the number of sites ready to
return to productive use; however, these measures do not provide
information on the amount of work remaining at sites.
[74] For remedial actions funded by EPA, where a long-term action is
not necessary, EPA transfers the responsibility and cost of the
operation and maintenance phase to the state when the site reaches
construction complete and the remedy is determined to be operating and
functional.
[75] Data on the least and most advanced stages of cleanup at operable
units is not the only data that EPA has at its disposal to track the
progress of cleanups at sites. Furthermore, EPA stated that the agency
does have a clear understanding of the status of cleanup actions at
sites. We did not assess whether EPA could provide detailed information
on the cleanup status at individual sites; however, we found no
information that would indicate EPA could not provide more detailed
information if requested. Our purpose in obtaining and analyzing data
on the least and most advanced stages of cleanup at operable units was
to determine what information is available at an aggregated level that
would provide congressional decision makers and others with an
understanding of the status of cleanups at all sites. For this
analysis, EPA officials recommended we use these data due to the extent
of "anomalies" and "irregularities" in other data we considered
analyzing to provide information on the status of cleanups.
[76] EPA noted that some operable units at sites that are not
construction complete may be in the post-construction phase, where
construction is complete at the operable unit, but the site itself has
not reached construction complete. EPA stated that data on the operable
units at sites in the post-construction phase would provide a more
complete picture of the status of cleanup at these sites. EPA did not
provide these data; rather, agency officials indicated that data on the
post-construction status of operable units is available on site profile
pages for individual sites on EPA's Web site. These profile pages
provide more detailed information on, among other things, the status of
work at individual sites and the types of cleanup actions being
implemented.
[77] EPA emphasized that the agency now uses a risk-based ranking
method to prioritize funding of remedial actions.
[78] Alternatively, 68 percent of the other subcategories of sites in
the "other" site type had reached construction complete.
[79] In some cases, the data showed a relationship in the extent to
which megasites and other types of sites had not reached construction
complete as of fiscal year 2007. For example, 38 percent of the mining
sites and 26 percent of the groundwater plume or contaminated sediment
sites with no identifiable source that had not reached construction
complete were megasites.
[80] EPA defines contaminated sediment sites as sites with sand, soil,
organic matter, or other materials that accumulate on the bottom of a
water body and contain toxic or hazardous materials. The challenges
posed by these sites include, among others, a potentially large number
of contamination sources which may be difficult to control; the
difficulty of cleanup in an aquatic environment, which often may be
more complex from an engineering perspective, and may be more costly
than cleaning up contamination in other areas; and widespread
contamination. Many Superfund cleanups address contaminated sediments
as one component of the cleanup of an entire site. At sites that EPA
has identified as Tier 1 sites, or where the sediment action will
address more than 10,000 cubic yards or more than 5 acres of
contaminated sediment, EPA is requiring additional consultation during
the remedy selection process. EPA's list of Tier 1 sites does not
include sites where EPA is still investigating contaminated sediment,
but has not yet determined whether cleanup is needed. As a result, it
may not include sediment sites added to the NPL more recently. EPA also
established the Contaminated Sediments Technical Advisory Group to
monitor the progress of, and provide advice regarding, a small number
of large, complex, or controversial contaminated sediment Superfund
sites, identified as Tier 2 sites. See EPA, Contaminated Sediment
Remediation Guidance for Hazardous Waste Sites, EPA 540-R-05-012
(Washington, D.C., Dec. 2005).
[81] These data are based on the list of sites EPA was tracking as of
May 2008.
[82] See [hyperlink, http://www.gao.gov/products/GAO-08-841R].
[83] Our guidance recommends we present budget numbers in nominal terms
to match what has actually been enacted or proposed at the time, what
is reported in budget documents, or both, rather than adjusting for
inflation.
[84] We limited our analysis of EPA's overall expenditures on Superfund
program activities to fiscal years 1999 through 2007 because EPA
changed the way it accounted for certain budget items in fiscal year
1999, which made it difficult to obtain consistent data prior to that
year.
[85] See [hyperlink, http://www.gao.gov/products/GAO-08-841R] for more
detailed information on EPA's expenditures for these activities.
[86] These data represent the amount EPA has spent to clean up sites,
rather than total site costs. We were unable to obtain data on total
site costs because responsible parties are not required to report the
amount they spend to clean up sites to EPA. EPA noted that instead of
individual site costs increasing, an alternative explanation for EPA's
rising costs is that EPA is financing more cleanup work than it has in
the past. This, in fact, could be another explanation for EPA's rising
costs. As we noted earlier in this section, the number of NPL sites
without viable responsible parties to assist with cleanup may have
increased in recent years, although it is unclear from EPA data. Some
Superfund experts cited an increase in orphan sites or orphan shares at
sites as a contributing factor to increased EPA site expenditures over
time.
[87] EPA, Office of Inspector General, Congressional Request on Funding
Needs for Non-Federal Superfund Sites, 2004-P-00001 (Washington, D.C.,
Jan. 2004).
[88] A non-time critical removal action is a removal action the agency
determines does not need to be implemented within the next 6 months.
According to the Inspector General's report, EPA regions annually
request funding for remedial actions on a site-specific basis. Regions
enter cost estimates into CERCLIS, and complete project evaluation
forms for ongoing and new start projects with estimated costs of
$600,000 or more. New construction starts are evaluated by the National
Risk Based Priority Panel--a group of senior headquarters and regional
officials whose analysis is used by management to make funding
decisions--and the Inspector General's report noted that in the past,
EPA has emphasized funding of ongoing construction over new
construction projects. According to EPA, the agency then requests
funding for a specific fiscal year as part of the President's annual
appropriations request. Because this funding request is for a specific
fiscal year, EPA indicated that it does not include an assessment of
out-year funding needs. We did not evaluate EPA's processes for
budgeting and funding prioritization for this report.
[89] Vapor intrusion involves the migration of vapors emitted from
chemicals in buried wastes or contaminated groundwater through the
ground and into the airspace of buildings at a site.
[90] NACEPT is an independent federal advisory committee that provides
recommendations to the EPA Administrator on a broad range of
environmental issues. The Superfund Subcommittee of NACEPT was formed
in June 2002 to consider the role of the NPL, Superfund megasites, and
Superfund program performance measures in the context of other federal,
state, and tribal programs.
[91] See EPA, Office of Inspector General, 2004-P-00001.
[92] See NACEPT, Final Report.
[93] The New Bedford site was listed on the NPL in fiscal year 1983,
and is 1 of the 48 nonfederal NPL sites EPA has designated as Tier 1
contaminated sediment sites. As of the end of fiscal year 2007, the
site had been divided into three operable units, the most advanced of
which had remedial construction underway. The least advanced of these
operable units was still in the study underway phase. Through fiscal
year 2007, EPA had spent approximately $135.9 million on the site.
According to EPA, to help expedite the cleanup process, the site is
projected to receive between $25 and $35 million of the $600 million in
additional funding provided for the Superfund program under the
American Recovery and Reinvestment Act of 2009, Public Law 111-5, Title
VII (2009).
[94] See EPA, Superfund: Building on the Past, Looking to the Future.
[95] The Superfund Amendments and Reauthorization Act of 1986, Public
Law 99-499 (Oct. 17, 1986), §212 required EPA to submit annual reports
on the progress of implementing the Superfund program including, among
other things, an estimate of the amount of resources necessary to
complete program implementation. However, this reporting requirement
was terminated, effective May 15, 2000, pursuant to the Federal Reports
Elimination and Sunset Act of 1995, Public Law 104-66, as amended.
[96] In EPA's report for fiscal year 2004, the agency reported data
somewhat differently than in the other years, as the report did not
specifically state how many new construction projects at sites were not
funded. Rather, EPA's report indicated that the agency obligated funds
for 27 new construction projects; however, 19 sites that were ready for
construction did not receive funding due to resource constraints.
[97] This is reported under EPA's Site-Wide Human Exposure measure,
which is an indicator designed to document human health protection on a
site-wide basis by measuring the agency's progress in controlling
unacceptable human exposures to contamination at a Superfund site.
[98] GAO, Superfund: Funding and Reported Costs of Enforcement and
Administration Activities, [hyperlink,
http://www.gao.gov/products/GAO-08-841R] (Washington, D.C.: July 18,
2008).
[99] These data included EPA (or federal-lead) actions at proposed,
listed, and deleted NPL sites, as of the end of fiscal year 2007. In
addition, according to an EPA official, in some instances, states take
the primary lead in an enforcement action, and EPA generally plays only
an advisory role in these actions. The official stated that the agency
excludes the outcomes of these enforcement actions from its
accomplishment reporting and, therefore, we excluded them from our
analysis.
[100] We consider EPA data on the monetary value of its enforcement
activities to be estimates for several reasons. First, the value of the
responsible party work commitments reported by EPA is an estimated
value--or projected cost--of the activities these parties agree to
perform and does not represent the actual amount of money spent by
responsible parties at sites as a result of EPA's enforcement
activities. Second, the value of EPA's past costs recovered, future
costs obtained, and penalties assessed are values taken from
enforcement documents, such as settlement agreements, and may not
represent the actual amount of money paid by a responsible party.
Third, the values reported in EPA's data do not consistently represent
the value of EPA's enforcement outcomes as amended over time. An EPA
official stated that the agency only recently added an amended
enforcement action outcome in its database. Historically, the official
said, EPA regions did not inform EPA headquarters of all modifications
to their settlement agreements and orders; although he stated that EPA
headquarters did work with the regions to update these data in CERCLIS
when modifications were significant. Fourth, the values reported in
EPA's data do not include payments for future EPA oversight of work
conducted by responsible parties or interest payments from responsible
parties who arrange to pay EPA over time. Finally, EPA may assist
states in taking enforcement actions, the results of which are not
included in the total we present in this report.
[100] We requested and received information for 15 sites; however, on
the basis of the limited information available for some sites, among
other reasons, we reviewed enforcement documentation for only 10 sites.
Key documents we requested and reviewed included agency decision
memorandums for settlements and administrative actions, as well as
documents referring actions to DOJ for judicial enforcement. We
identified these documents as being the most likely to provide
information on the factors influencing EPA's and other parties'
decisions about how to resolve site liability by reviewing additional
files for other sites and through our review of EPA guidance. We did
not verify the accuracy of the information contained in these
documents.
[101] The PACER system is operated by the Administrative Office of the
U.S. Courts, which is the central support agency for the Judicial
Branch. The PACER system provides users with access to documents
related to cases filed in federal courts.
[102] We identified cases with a CERCLA cause of action by searching
for civil cases with a cause of action listed in PACER that began with
the digits "42:96." We did not search for criminal cases or cases filed
in bankruptcy courts. In addition, we did not search for cases in state
or local courts, although litigation related to liability for the
cleanup of Superfund sites may be filed in those courts. Moreover, we
relied upon the cause of action listed in PACER for identifying CERCLA
cases and, therefore, our methodology did not include those cases filed
under multiple causes of action, including CERCLA, but which were
categorized in PACER under a different cause of action. Trends in such
litigation would not be represented in the data we collected and
analyzed. In addition, data we collected from the PACER system does not
solely represent litigation over NPL sites because the federal
government, state governments, and other parties may initiate
litigation under CERCLA related to both NPL and non-NPL sites.
[103] We excluded the federal district courts for the District of Guam,
the District of the Northern Mariana Islands, the District of Puerto
Rico, and the District of the Virgin Islands from our analysis. We also
excluded the U.S. Federal Claims Court, which has a unique and specific
jurisdiction that does not include Superfund claims. Finally, we were
unable to obtain data for the federal district court for the Eastern
District of Michigan because the court did not make case data available
to PACER searches based on the cause of action during our study period,
and neither Administrative Office of the U.S. Courts nor district court
officials could provide any data on CERCLA cases filed in this
district.
[104] We conducted our search on a monthly basis for each court because
of the limitations of the PACER system, which allows users to search
for cases under specific causes of action a maximum of 1 month and
district at a time. For four district courts, we could not obtain case
data based on cause of action searches of the PACER system. An official
with the Administrative Office of the U.S. Courts provided a list of
CERCLA cases filed in the federal district courts for the Central
District of California, the Northern District of Georgia, and the
District of Minnesota during the period of our study, using similar
search criteria to ours and data the office receives from the
districts. The official cautioned that since the cause of action field
is not a required data element of the data the office collects, there
may have been additional CERCLA cases in these districts that the
office's search did not identify. In addition, an official in the
federal district court for the Western District of Wisconsin provided a
list of CERCLA cases filed in that district. District court staff
compiled the list using three methods: (1) searching Westlaw for case
information that included a CERCLA statute number, as well as the names
of judges who presided in the federal district court for the Western
District of Wisconsin; (2) speaking to experienced clerks and judges in
the court who would be responsible for Superfund cases and who could
identify cases by memory; and (3) searching for cases filed under an
"Environmental Matters" nature of suit, and reviewing the complaints
for these cases to identify cases filed under a CERCLA cause of action.
According to the district court official, this search methodology
identified the majority of CERCLA cases that had been filed in the
district, although he noted that additional cases (most likely cases
filed earlier in the period of our study) may have been missed.
[105] Two district courts did not participate in the PACER system
during the entire period of our study: the federal district court for
the Northern District of West Virginia began participating in the PACER
system in January 1994, and the federal district court for the Southern
District of Indiana began participating in the PACER system in April
2002. A court official for the federal district court for the Northern
District of West Virginia said that when the district began
participating in the PACER system, it uploaded case filings back to the
beginning of fiscal year 1994 into the system. Therefore, our search
methodology would identify all cases filed under a CERCLA cause of
action in the district back to the beginning of fiscal year 1994.
However, an official with the federal district court for the Southern
District of Indiana stated that the district did not record cause of
action data in a searchable form in the PACER system until July 2002.
Therefore, data on CERCLA cases filed in the district prior to July
2002 were unavailable.
[106] The cases we analyzed for this report did not include cases that
were active during fiscal years 1994 through 2007, but which were filed
prior to fiscal year 1994. In addition, some cases that were filed
between fiscal year 1994 and 2007 were closed and then reopened during
this time period. Such cases were identified more than once during our
monthly searches of the PACER system; however, we only included one of
each of these cases in our database. In addition, some cases were filed
under a CERCLA cause of action with a "mc," or miscellaneous,
designation. We excluded such cases from our analysis, because these
cases were less likely to represent litigation about CERCLA liability.
Finally, some cases were transferred from one district court to
another. For such cases, to avoid over counting the number of cases
filed, we only counted them in the original district court in which
they were filed.
[107] The nature of suit is a case-type classification used by the
Administrative Office of the U.S. Courts.
[108] The date when a case is closed or terminated does not necessarily
represent the date when all activity in a case stops. Docket entries
could be made after the date a case is closed or terminated to record
payment of costs by responsible parties, among other reasons. We
generally identified the dates when a case was filed, and then closed
or terminated, based on the dates recorded at the top of the docket. We
measured case duration from the date the docket indicated that the case
was filed in court through the date the docket indicated the case was
closed or terminated. For those cases that were not closed or
terminated as of September 30, 2007, we measured duration from the date
of filing through September 30, 2007. Our analyses of case duration
included both open and closed cases as we identified no significant
differences in trends in the duration of all of these cases as compared
to only closed cases.
[109] We excluded duplicate entries of parties recorded exactly the
same in the docket within the same category of party (i.e., plaintiffs
or defendants). We also excluded all parties listed as cross-,
counter-, or consolidated parties.
[110] We recorded outcomes that related to the resolution of liability
in a case, such as the outcome of a motion to dismiss or a motion for
summary judgment. We did not record outcomes of other types of
nonliability related motions, such as procedural motions, and motions
for attorney fees or court costs. Also, we did not track outcomes
related to individual claims or parties. Rather, we recorded outcomes
related to any claim or party in a case that occurred in the district
court. As a result, some outcomes may have been recorded which
represent the outcomes of non-CERCLA claims that were included as part
of a complaint filed with a CERCLA cause of action. For cases that were
transferred from one federal district court to another, we counted the
cases together as one case (i.e., we counted the outcomes in the case
prior to and following transfer of the case as occurring in the case as
originally filed). For these cases, we counted the duration as the
filing date of the original case and the closed or terminated date of
the case after it was transferred. For cases that were consolidated
with other cases, we generally counted outcomes in each case, unless
there was a clear indication that an outcome applied to only one of the
consolidated cases. As a result, our analysis may include some double
counting of case outcomes in certain instances. For cases that were
removed to a federal district court from a state or local court, as
well as for cases that were remanded to a state or local court, we only
counted case outcomes that occurred during their period of activity in
the federal courts. We identified no significant differences in trends
in the outcomes of all cases, as compared with only closed cases.
[111] A default judgment is a judgment in favor of the plaintiff when
the defendant has not filed a meaningful response to pleadings within
the time allowed or failed to appear before the court.
[112] We defined cases as having minimal evidence of litigation prior
to nonconcurrent settlement as cases where (1) there was clear evidence
that a nonconcurrent settlement was reached that resolved the liability
issues in the case, and (2) the entries in the docket were limited to
nonadversarial activities, such as providing parties with notice of the
legal action, establishing legal representation, or filing motions to
delay the proceedings while settlement negotiations were ongoing. If a
docket included evidence of more adversarial types of activity, such as
depositions or other discovery activities, motions to dismiss or
motions for summary judgment, or the filing of counter-, cross-, or
third party claims, we did not count a case as having minimal evidence
of litigation.
[113] To identify Superfund site types, we relied on EPA's primary site
type classification, which grouped sites as manufacturing, mining,
recycling, waste management, "multiple," and "other" types of sites.
[114] These data excluded reimbursable expenditures and expenditures
related to the Brownfields program, transfers to other appropriations,
and the 2002 Homeland Security Supplemental appropriation.
[115] These data included all appropriated site-specific Superfund
expenditures except for reimbursable and Homeland Security Supplemental
expenditures.
[116] There were some NPL sites that were not proposed for listing
prior to fiscal year 1990, but had expenditures during this earlier
period. At these sites, we assumed expenditures prior to fiscal year
1990 were made in fiscal year 1989.
[117] The seven district courts for which we interviewed court
officials included the federal district courts for the Northern
District of California, the Western District of Michigan, the Eastern
District of Pennsylvania, the District of Connecticut, the Western
District of Washington, the District of Colorado, and the District of
New Jersey.
[118] To reduce potential bias in our nonrandom sample, we sampled
alternate years and months throughout the 168-month study period, from
fiscal year 1994 to 2007, to ensure that our test searches would
encompass any broad changes in the way cases were filed over time, or
yearly cyclical patterns. Sample years and months searched included:
1993 (November, December), 1995 (March, April), 1997 (January,
February), 1999 (May, June), 2001 (July, August), 2003 (September,
October), and 2005 (November, December).
[119] This percentage represents a possible error rate for CERCLA cases
filed under an "Environmental Matters" nature of suit. We did not
include other natures of suit in our test searches because officials
with the Administrative Office of the U.S. Courts indicated that this
was the nature of suit under which a CERCLA case would most likely be
filed. In compiling our database of CERCLA litigation, we found that 80
percent of the cases filed under a CERCLA cause of action were filed
under an "Environmental Matters" nature of suit. Overall, almost 95
percent of the cases filed under a CERCLA cause of action were filed
under only four different natures of suit including "Environmental
Matters."
[120] Data presented in this appendix include cases identified from our
search of the Public Access to Court Electronic Records (PACER) system.
To identify CERCLA cases, we relied upon the cause of action recorded
in the PACER system. Unlike some data presented in this report, the
data we collected from the PACER system was not limited to National
Priorities List (NPL) sites or to actions taken by the federal
government. Thus, the CERCLA cases we analyzed include cases related to
NPL and non-NPL sites. In addition, cases we analyzed include
litigation stemming from EPA's enforcement actions against responsible
parties, litigation brought by the Department of Justice (DOJ) on
behalf of natural resource trustees, and litigation brought by other
parties.
[121] Parties in such cases may have engaged in extensive negotiations
prior to filing a case in court; however, experts we spoke to indicated
that out-of-court negotiations are generally less expensive than
litigating a case.
[End of section]
GAO's Mission:
The Government Accountability Office, the audit, evaluation and
investigative arm of Congress, exists to support Congress in meeting
its constitutional responsibilities and to help improve the performance
and accountability of the federal government for the American people.
GAO examines the use of public funds; evaluates federal programs and
policies; and provides analyses, recommendations, and other assistance
to help Congress make informed oversight, policy, and funding
decisions. GAO's commitment to good government is reflected in its core
values of accountability, integrity, and reliability.
Obtaining Copies of GAO Reports and Testimony:
The fastest and easiest way to obtain copies of GAO documents at no
cost is through GAO's Web site [hyperlink, http://www.gao.gov]. Each
weekday, GAO posts newly released reports, testimony, and
correspondence on its Web site. To have GAO e-mail you a list of newly
posted products every afternoon, go to [hyperlink, http://www.gao.gov]
and select "E-mail Updates."
Order by Phone:
The price of each GAO publication reflects GAO‘s actual cost of
production and distribution and depends on the number of pages in the
publication and whether the publication is printed in color or black and
white. Pricing and ordering information is posted on GAO‘s Web site,
[hyperlink, http://www.gao.gov/ordering.htm].
Place orders by calling (202) 512-6000, toll free (866) 801-7077, or
TDD (202) 512-2537.
Orders may be paid for using American Express, Discover Card,
MasterCard, Visa, check, or money order. Call for additional
information.
To Report Fraud, Waste, and Abuse in Federal Programs:
Contact:
Web site: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]:
E-mail: fraudnet@gao.gov:
Automated answering system: (800) 424-5454 or (202) 512-7470:
Congressional Relations:
Ralph Dawn, Managing Director, dawnr@gao.gov:
(202) 512-4400:
U.S. Government Accountability Office:
441 G Street NW, Room 7125:
Washington, D.C. 20548:
Public Affairs:
Chuck Young, Managing Director, youngc1@gao.gov:
(202) 512-4800:
U.S. Government Accountability Office:
441 G Street NW, Room 7149:
Washington, D.C. 20548:
