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1998 ELI Research Study: An Analysis of State Superfund Programs: 50-State Study, 1998 Update PRESS HERE to download for free!
The capabilities of States to clean up contaminated sites and to oversee others who clean up sites depend on many factors, including availability of funds to pay for cleanups and related activities, enforcement authorities, sufficient staff to implement the cleanup program, and cleanup standards or a process for determining when a cleanup is successful. Successful cleanup programs also are able to include the public in the process for making cleanup decisions. The Environmental Law Institute has studied and reported on these and other aspects of State cleanup programs in a series of reports beginning in 1989. Comparing information from the 1989, 1990, 1991, 1993, and 1995, reports with the 1997 data in this update of An Analysis of State Superfund Programs reveals that, collectively, the States have steadily increased their capabilities since 1989. Although this Study is organized by discrete program elements, States' cleanup programs should be evaluated holistically looking at how all the elements work together, not element by element. New Jersey, for example, despite having 138 fewer staff in 1997 than in 1995, a decrease of 21.2%, completed 235 more cleanups in 1997 than in 1995, an increase of 8.6%. Furthermore, virtually every State has increased its individual capability during this period. Chapter III describes the capabilities of the States at the end of the 1997 fiscal year and compares that information to prior years, particularly 1995. This Chapter provides an overview of States' capabilities and highlights developments in State cleanup programs as of the end of the States' fiscal year 1997 (FY97). The number of sites States identified as needing attention (i.e., some type of cleanup) continued to decline, to approximately 24,000 sites, from 30,000 sites in 1995 and a high of 40,000 sites in 1993. The number of known and suspected sites, a broader category that may include sites that have not yet been investigated, also declined to approximately 69,000 sites from 85,000 in 1995 and 100,000 in 1993. Aggregate program staff levels decreased slightly to 3,474 after increasing slightly from 3,394 in 1991 to a high of 3,585 in 1995 (the numbers are not exactly comparable as different States did not report staffing numbers in different years). Legal support was provided by an aggregate of 206 attorneys, compared to 211 in 1995, 247 in 1993, and 262 in 1991. State cleanup funds had an aggregate balance of $1.41B, a 2.5% decrease from $1.46B in 1995 and continuing the decline from the maximum of $2.43B in 1990. Forty-four (44) States reported spending $565.1M on cleanup activities during FY97, compared to 44 States reporting spending $386.1M in FY95 and $711.7M spent by 44 States in 1993. Thirty-nine (39) States reported obligating an additional $448M to be spent in the future, compared to $363.4M obligated by 38 States in 1995 and $459.2M obligated by 36 States in 1993. During FY97, 45 States reported adding $538.3M to their State cleanup funds, which did not quite offset the amount spent in 1997 (the numbers are not exactly comparable as a few States reported one figure but not the other). Additions to funds have varied considerably over the years, with a maximum of $957.3M added by 46 States in 1993 and $444.6M added by 46 States in 1995. The number of States that have standardized at least some of their cleanup standards by adopting regulations continues to increase, from only seven in 1991, to 19 in 1993, 24 in 1995 and 44 States in 1997. In addition, 17 States have broadened the criteria they use to set cleanup standards, with seven States adding groundwater standards and five States adding soil standards. Most States use a variety of criteria to determine cleanup standards, but over the past ten years a consensus seems to have developed about the most important criteria. Among the most commonly used criteria are: risk assessments for carcinogens and noncarcinogens (44 States); surface water quality criteria (42 States); drinking water standards (MCLs or MCLGs)(42 States); groundwater standards (39 States); soil standards (30 States) and future land use (41 States). Only Puerto Rico provided no information about cleanup criteria. A significant development has been the rapid adoption by States of future land use as a factor in determining cleanup levels to be achieved. Future land use was first mentioned as a factor in determining cleanup standards in 1995, when five States emphasized that they considered future land use as an important factor. In 1997, therefore, land use was added to the list of potential cleanup criteria, and 41 States reported that they consider land use in determining cleanup standards. If future land use is taken into consideration in determining cleanup levels, there must be some mechanism for assuring that land will continue to be used in a manner that is compatible with the cleanup. Land use then becomes an integral part of maintaining the protectiveness of the cleanup. The mechanisms for maintaining appropriate land uses are institutional controls, and include zoning, notices in deeds or property records, restrictions on use of property placed in the deed, and regulatory restrictions on the use of groundwater. Twenty-nine (29) States report using deed notices or deed restrictions as institutional controls, while at least five States report that they have no institutional controls in place. Virtually all States provide for public participation in decisions concerning hazardous substance cleanups and voluntary or brownfields cleanups, with some also providing for public participation in natural resource restoration projects. Forty-seven (47) States reported requiring some form of public participation. State enforcement and cost recovery provisions have remained relatively constant, however a few States have made changes to their liability standards. Forty-one (41) States have strict liability, 36 States use joint and several liability to allocate responsibility for costs among multiple responsible parties at a site, and 32 States use the combination of strict, joint and several liability. Eleven (11) of the States that use joint and several liability also allow responsible parties to enter into an allocation process or prove a divisible share of the total cost. Only five States specify proportional liability as the only allocation standard. Forty-three (43) States have retroactive liability under their State cleanup laws, the same as in 1995. Thirty-two (32) States report having independent State authority to recover for damage to natural resources at sites contaminated by hazardous substances. Only ten States reported having recovered for such damages, while 11 States reported having claims pending. Thirty-one (31) States have property transfer provisions, up from 25 in 1995, 23 in 1993 and 18 in 1991. Property transfer provisions are "laws, regulations, or policies that link the discovery, identification, investigation, cleanup, or disclosure of hazardous substance contamination to transfers of real property, or to transfers of ownership or control of such property." Forty-four (44) States now have voluntary cleanup programs, a substantial increase from the 31 States that had such programs in 1995, and 14 in 1993. At least two States that do not have voluntary cleanup programs nevertheless allow private parties to initiate voluntary cleanups. In addition, Louisiana has passed legislation establishing a program framework, but has not yet begun accepting sites. Most States apply the same cleanup standards to voluntary cleanups as they apply to State lead or enforcement cleanups. Most States encourage voluntary cleanups by offering some form of incentive to volunteers. At least 40 States provide some form of release from liability for future cleanup, but these releases vary widely in form and substance. States continue to create programs to facilitate cleanup and redevelopment of brownfields sites, including at least twelve new programs since 1995. Half of the States now report having specific brownfields programs, about half of which are in conjunction with their voluntary cleanup programs and about half of which are separate programs. Several other States target brownfields through other means. More than 600 cleanups are underway at brownfields sites, with the vast majority being in Illinois (439). In addition, although it could not provide a precise number (and thus was left out of Table V-25 and the 600 cleanups reported above) Minnesota reported having "several hundred" cleanups underway at brownfields sites. More important in terms of the ultimate goal is that the States report having commitments for redevelopment at 236 brownfields sites. These developments are merely some of the indicators of the breadth and vitality of activities being taken by States to protect human health and the environment from risks associated with sites contaminated by hazardous substances. More detailed information on these and other aspects of State hazardous substance cleanup programs is provided in the remaining chapters of this report.
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