GAO Finds Superfund Trust Fund Likely to Run Out of Funds this Month

September 05, 2003

Congress established the Superfund program in 1980 to clean up highly contaminated hazardous waste sites. Among other things, the law established a trust fund to help the Environmental Protection Agency (EPA) pay for cleanups and related program activities. The trust fund was financed primarily by three dedicated taxes until 1995, when the taxing authority expired; however, EPA continues to discover sites eligible for cleanup under the Superfund program. According to a report released Sept. 2, the trust fund likely run out of funds by the end of this fiscal year, which ends at the end of this month.

The General Accounting Office (GAO), the audit, evaluation, and investigative arm of Congress, was asked to examine the current status of the Superfund program, the factors guiding EPA’s selection of sites to be placed on its National Priorities List, and the program’s future outlook.

In considering changes to the program to address future challenges associated with the Superfund program’s fiscal uncertainty, GAO recommends that the Administrator, EPA, develop indicators that can be used to measure program performance.

The balance of the Superfund trust fund available for future appropriations has decreased significantly since 1996, while highly contaminated hazardous waste sites continue to be added to the National Priorities List (NPL), EPA’s list of the nation’s most contaminated sites. A decline in revenues to the trust fund has led the Superfund program to rely increasingly on appropriations from the general fund. In EPA’s fiscal year 2004 budget request for the Superfund program, the general fund appropriation would make up about 80 percent of the program’s total appropriation.

At the end of fiscal year 2002, the NPL had 1,233 sites in various stages of cleanup. EPA considers many factors in selecting from the sites that are eligible to be listed, the most prominent of which are the availability of alternative federal or state programs that could be used to clean up the site, the status of responsible parties associated with the sites, and the cost and complexity of the cleanup required.

As the Superfund program continues to add sites to the NPL and funding sources shift toward general fund appropriations, the effect of EPA’s actions to address future program challenges remains uncertain. Because Superfund lacks indicators to fully measure the outcomes of the program’s cleanup efforts, EPA has asked an advisory council to develop criteria by which to measure the program’s progress. However, it is unclear whether the advisory council will reach consensus on its recommendations, and its findings are not expected until December 2003, at the earliest. Performance indicators could help EPA and the Congress make the difficult funding, policy, and program decisions that the current budget environment demands.

The report is available on-line at

EPA Air Official Leaving Bush Administration to Join Southern Co.

The National Resources Defense Council (NRDC) reported that a week after the Environmental Protection Agency issued a final rule weakening the Clean Air Act New Source Review program, a high-level EPA air official will take a job at Southern Co., a company that lobbied heavily for the rule. John Pemberton, chief of staff to EPA's assistant administrator for air and radiation, Jeff Holmstead, will join the company as a senior executive.

John Walke, director of NRDC's Clean Air Project, said "Industry bought and paid for the Bush administration's assault on our clean air protections, so it's fitting that one of the nation's biggest polluters should reward this EPA official by putting him on its payroll."

Last week EPA announced a final rule affecting the Clean Air Act's "new source review" provision, which requires companies to install modern pollution control technologies in new plants and in old plants when they make modifications that significantly increase pollution. The new final rule will allow facilities to avoid installing pollution controls when they replace equipment - even if the upgrade increases pollution - as long as the cost of the replacement does not exceed 20 percent of the cost of major polluting equipment at their plants.

Southern Co. is a defendant in eight of 51 federal clean air enforcement cases prosecuting new source review violations. If the new "20 percent rule" had been in place previously, Southern Co.'s violations would have been legal.

Southern Co., which owns coal-fired power plants in the Southeast, lobbied intensively to against the clean air protections, enlisting the help of top Republican lobbyist Haley Barbour. Last year, NRDC uncovered a March 2001 email from an in-house Southern Co. lobbyist requesting that Vice President Cheney's energy plan recommend significantly weakening the new source review provision. The lobbyist also urged the Bush administration to reverse its position in ongoing enforcement cases against Southern and other utility company defendants. The final Cheney energy plan directed EPA to overhaul the new source review provision and directed the Justice Department to revisit the enforcement cases. EPA followed through last week by relaxing the provision.

New Emission Standard Covers 22 Industry Categories

On Aug. 25, EPA issued a final rule to reduce hazardous air emissions from miscellaneous organic chemical manufacturing facilities. The miscellaneous organic chemical manufacturing facilities rule requires emissions standards and alternative pollution prevention-based standards that will reduce toxic air emissions by 16,800 tons per year. This rule covers 22 categories of industrial facilities including those generally known as miscellaneous chemical production, polymers and resins, chlorinated paraffin production, rubber chemical production, polyester resin production and alkyd resin production. For more information, visit

EPA Air Quality Standard to Limit Air Toxics from Plastic Parts Coating Plants

On Aug. 29, EPA issued a final rule to reduce toxic air pollutant emissions from plastic parts and products surface coating operations. The plastic parts surface coating rule will affect approximately 202 existing facilities and another six facilities likely to be built in the next five years. These facilities will be required to limit air toxic emissions using control equipment or through pollution prevention techniques such as reformulating coatings to contain fewer toxic compounds. This rule will reduce toxic air emissions by 7,560 tons per year. Many of these air toxics are also ozone-forming compounds. For more information, see

MACT Standard Addresses Combustion Turbines

On Aug. 29, EPA issued requirements to reduce toxic air emissions from stationary combustion turbines. The stationary combustion turbines rule will affect new and reconstructed turbines used at facilities such as power plants, chemical and manufacturing plants and pipeline compressor stations. This rule will reduce emissions of a number of toxic air pollutants such as formaldehyde, toluene, acetaldehyde and benzene by 98 tons per year. For more information, visit

U.S. Requests Minn. Court Approve Amended Consent Decree in CAA Settlement with Gopher State Ethanol

The Department of Justice announced that it has requested the federal district court in Minnesota approve proposed amendments to the 2002 Clean Air Act settlement with Gopher State Ethanol, in St. Paul. The original Consent Decree was lodged with the Court on October 2, 2002, as one of 12 national settlements to mandate reductions in air pollution from ethanol manufacturing plants.

When the initial consent decrees were lodged, the U.S. provided an opportunity for the public to review all the proposed settlements, including the Gopher State deal. Residents of St. Paul who live near the facility raised a number of concerns regarding certain aspects of the settlement and provided written comments on the Decree. In addition, representatives of the community attended a January 8, 2003 meeting in St. Paul with federal and state officials to voice their concerns about the plant’s operation. As a result of the public input, the Plaintiffs elected to reopen the Consent Decree to strengthen certain aspects of the deal.

The Gopher State settlement, and the other 11 Minnesota deals, are the result of a state and federal effort which teamed together representatives of the Minnesota Pollution Control Agency, the state Attorney General’s Office, the EPA and DOJ.

According to Tom Sansonetti, Assistant Attorney General, “We worked with the community and with the Gopher State facility to get this settlement right for the citizens of St. Paul.” Sansonetti added that Gopher State has been cooperative throughout this process.

According to EPA Regional Administrator Tom Skinner, an important change is a restriction on the facility’s handling of “wet cake,” a by-product of the ethanol manufacturing process. “In an urban setting, the air pollution caused by this material is a problem,” Skinner said. “People in the community were concerned, and we’ve responded by restricting Gopher State’s reliance on the methods that create this by-product.”

On June 5, 2003, the United States lodged an Amended Consent Decree with the court that includes the agreed upon restrictions, and sought comments from the public on the revised settlement. The comments received are addressed in the government’s brief, which was filed with the Court on September 4, 2003.

The Amended Consent Decree addresses allegations made by state and federal regulators that volatile organic compounds (“VOC”) and carbon monoxide (“CO”) from feed dryers, cooling cyclones and ethanol loading operations have historically been underestimated by the ethanol industry. Recent testing of these units in Minnesota plants indicates that the emissions are well in excess of the 100 tons per year that is the threshold for “major sources” to be regulated under the Prevention of Significant Deterioration (“PSD”) provisions of the Clean Air Act. Since the facilities are now considered to be major sources, they are required to install best available control technology on all units that are significant sources of pollution throughout the plant. The facilities were mistakenly permitted as minor sources when they were built.

Under the settlement, Gopher State must operate a thermal oxidizer to reduce VOC emissions by 95% from the feed dryers, and meet, new more restrictive emission limits for nitrogen oxides (“NOx”), particulate matter (“PM”) , carbon monoxide (“CO”) and hazardous air pollutants. The primary sources of these emissions are the feed dryers, fermentation units, gas boilers, cooling cyclones, ethanol load-out systems, and fugitive dust emissions from facility operations.

On August 22, 2003, a federal judge in Urbana, Illinois approved the United States’ comprehensive settlement with grain industry giant Archer Daniels Midland (“ADM”), covering ethanol and oil seed operations at 52 plants in 16 states, including the former Minnesota Corn Processors facility. ADM is the largest ethanol manufacturer in the United States with approximately 50% of the market. The ADM Decree requires the same 95% reduction in VOC emissions from the ethanol processes that have been imposed on the small Minnesota dry mills.

EPA Clarifies Chlorine Production MACT Regs

EPA divided the chlorine production industrial source category into two subcategories to better account for differences in production methods and toxic emissions. The subcategories are: mercury cell chlor-alkali plants and chlorine production plants that do not rely upon mercury cells for chlorine production. Mercury cell chlor-alkali facilities emit mercury and mercury compounds into the air and are regulated by an air toxic regulation targeting those emissions. EPA is deleting from its list for control the subcategory of sources that do not utilize mercury cells to produce chlorine and caustic. EPA has determined that air emissions of these compounds from industrial facilities that produce chlorine are already below protective levels and provide an ample safety margin. For more information, see