Municipal contractors punctured the dump’s
clay lining multiple times. Chemical waste seeped into the ground,
contaminated the groundwater and made a gooey mess of the area. The
situation went from bad to full panic when, in 1978, the president of
the local homeowners association claimed the situation was sickening
Though no health effects ever were linked
with the leaking waste, Love Canal became synonymous with "disaster,"
prompting the Superfund law, a national program to identify and clean
up hazardous wastes sites across the country.
of locations across the country were designated as "hazardous waste
sites" — not because anyone’s health or the environment necessarily was
at risk, but so that every state could share in the federal dollars
porked out for clean-ups. Political science, rather than conventional
science, often steered the Superfund program.
itself soon became a disaster, in large part because of its imposition
of "retroactive liability" — the punishment of past, but at the time,
entirely legal, conduct.
If a site was deemed
by the EPA to pose a risk to human health — say, by divining as little
as a 0.01 percent increase in the risk of cancer to a hypothetical
person who, however implausibly, might one day subsist on a site’s most
contaminated soil and groundwater — then the owners and users of the
site could be held liable for the typically exorbitant, EPA-determined
clean-up costs. This was regardless of whether the wastes were disposed
of properly according to the law at the time of disposal.
the mid-1990s, retroactive liability fueled an explosion of costly and
time-consuming Superfund litigation. Only the lawyers cleaned up.
Little progress was made on actual site remediation.
Despite that heritage, the EPA apparently is now figuring out how to throw CO2 (and its emitters) under the Superfund train.
most likely will be a problem for coal-fired power plants — generators
of about half of America’s electricity — and other large industrial
facilities (to the extent that any still exist in the U.S.) that may be
forced by future greenhouse gas regulation to capture and sequester
Carbon capture and storage advocates
imagine that CO2 emissions will be transported from facilities by
pipeline to underground geological formations where they hope the gas
will be permanently stored.
But as recently reported in this column,
a report from the Congressional Research Service spotlighted the many
problems with underground CO2 sequestration, including leaking, which
could harm groundwater by acidifying it. Groundwater clean-up can be
extremely difficult and often was a key driver of expensive Superfund
Federal regulation of CO2 as a
"hazardous substance," whether under Superfund or some other law, may
bring a host of other problems. Once a substance is labeled or
regulated by one federal program, it automatically or inadvertently can
become eligible for additional regulation under other government
programs without further affirmative government action.
an example, the 1986 explosion at the Union Carbide plant in Bhopal,
India, prompted Congress to pass, and President Reagan to sign, the
Emergency Planning and Community-Right-to-Know Act, establishing a
program known as the Toxic Release Inventory, or TRI.
the TRI, makers, transporters and users of certain hazardous chemicals
are responsible for reporting what chemicals they store at their
facilities so local communities may be prepared in the event of
The list of chemicals initially
subject to TRI reporting was literally just thrown together from other
lists of industrial chemicals already regulated in some way, shape or
form. All of the listed chemicals were wrongly assumed to be
Phosphoric acid, for example,
which is used in colas and baked goods, was caught in the TRI snare and
added to the list of "toxic" chemicals subject to reporting. Even
though phosphoric acid is classified as "generally recognized as safe"
by the Food and Drug Administration and there was no evidence that
phosphoric acid had ever harmed anyone or the environment, it took a
decade and a court order for phosphoric acid users to compel an
ever-reluctant EPA to de-list the substance from the TRI.
may then understand, perhaps, how the federal government’s designation
of CO2 as a "hazardous substance" easily could turn into an unfortunate
unintended consequence, say, for the soft drink industry, which puts
CO2 in its products.
It’s enough to make you wonder why a company like PepsiCo belongs to the U.S. Climate Action Partnership,
an industry/environmental activist coalition leading the charge on
Capitol Hill to have CO2 branded as an environmental hazard.
Just don’t hold your breath to see how all this turns out — you just might become a Superfund site yourself.