Superfund: An Assessment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), colloquially and quasi-officially known as Superfund, is primarily associated with long, costly cleanup projects which seek to prevent existing public health hazards from causing further harm in the future. To residents of communities like Upper Ringwood, New Jersey, reminders of the program and its failures are everywhere: in the food they eat, in the water they drink, in the air they breathe, in the soil beneath their feet; in the breathing strained by chronic illnesses many residents share; in the memories of brightly-colored chemical fires lit by Mafia hires and slabs of malleable auto paint sludge hauled from a Ford plant that used to color this small, rural Native American neighborhood on the outskirts of metropolitan New York City—and in the absence of residents who have fallen ill and died, or left and never returned. Since the early days of the Superfund program, after its passage more than forty years ago, the Ringwood Mines site has been a grim exemplar of the program’s shortcomings. Lax and credulous EPA oversight, greedy local governments, years of lying by Ford, and the omission of victims’ compensation from the original design of the Superfund program combined into a singularly toxic reality for hundreds living near the Ringwood Mines site.

The Superfund program holds polluters liable for cleanup, with state and federal governments assuming costs when polluters cannot be identified or cannot afford the costs of cleanup. In its original form as well as its current implementation, the Superfund program does not assign liability to polluters for harms they have already caused; as a public health measure it is almost entirely proactive, not reactive, leaving little remedy for the victims of industrial pollution other than a guarantee that the company or government agency which exposed them to dangerous pollutants will eventually be on the hook for cleanup if the polluted site is placed on the Superfund National Priorities List (NPL) by the EPA. However, the already-sickened victims of pollution have long been front and center in every aspect of the Superfund program, from CERCLA’s drafting to the present-day Superfund designation process—and an obscure 2010 amendment to the Social Security Act, not CERCLA, finally gave the federal government the authority to provide for those victims’ medical expenses.

Potential medical expenses associated with the Ringwood Mines site are impossible to quantify. Many of those expenses have already been incurred, for one—health problems date back to the earliest days of illegal dumping at the Ringwood Mines site in the 1960s. Ford’s choice of the site was no coincidence, either—before the Ringwood Mines site, Ford used another poor, predominantly Native American community as its dumping ground. In the 1950s and 1960s, the Rockland County, NY neighborhood known as the Meadows was, like Upper Ringwood, populated by many Ramapough Lenape families. To make matters worse for the Meadows, it lay just across the New York state line from the Mahwah, NJ plant which would later become the source of Ringwood’s ills—so in the years before Ford settled on Ringwood as its dumping ground of choice, the Meadows bore the brunt of the plant’s environmental damage, though Ford’s more disorganized waste dumping operation meant Ford sludge made its way up to roadsides, farmland, and forests far from Mahwah[1]. It was only after poisoning the Meadows (dangerously close to the Ramapo River, a major source of drinking water in the New York metropolitan area) that Ford turned its attention to one of New Jersey’s last remaining parcels of Native American land.

As is the case in many states, particularly those east of the Mississippi River, New Jersey’s original Indigenous peoples are few in number today as a result of 400 years of colonization, persecution, forced relocation, and forced assimilation. The Ramapough Lenape are among the few who remain—and for nearly half a century, the Ramapough Lenape Turtle Clan’s land in Ringwood, New Jersey has been deadly poisonous. Ringwood, like other nearby communities, once had productive iron mines thanks to rich deposits in the Ramapo Mountains. By the 1960s, those mines had been abandoned, becoming illegal toxic waste dumps. Ford Motor Company’s plant in neighboring Mahwah produced large quantities of hazardous waste, and the Ringwood mines, tucked away in a remote mountain settlement conveniently accessible from suburban Mahwah, were an attractive option for illicit dumping. From the late 1960s through the early 1970s, Ford enlisted the Mafia to dump toxic paint sludge and drums of hazardous chemicals from the Mahwah plant into the open mine shafts on the Ramapough Lenape’s land in Ringwood; by 1983, Ford had sold the site to another company for use as a landfill (bringing even more toxic waste to the land), the Mahwah plant had closed its doors, and the Ringwood Mines/Landfill Site had been one of the first sites to receive a designation on the National Priorities List under CERCLA. However, the damage had already been done to the Ramapough Lenape’s land—and the people living on it.

The problems in Ringwood began almost as soon as the illegal dumping did. The Ringwood Mines site had been an area for recreation, hunting, fishing, and farming for area residents, especially the Ramapough Lenape, for generations; beginning in 1965, the fields and pits where Upper Ringwood’s people found community and sustenance were progressively tainted by lead, benzene, arsenic, volatile organic compounds (VOCs), polychlorinated biphenyls (PCBs, a class of powerfully carcinogenic industrial chemicals now banned by federal law and international treaty), antifreeze, brake fluid, waste oil, various heavy metals, and other assorted contaminants[2]. In addition to the long-term contamination of soil, groundwater, flora, and fauna that occurred, during the period in which the mines were an active waste dumping site, contaminants were released into the air by the burning of chemicals and waste on-site. Fires were set deliberately by Ford to dispose of waste, and chemical reactions additionally led to spontaneous fires[3]. Mixed in with millions of gallons of liquid waste and chemical drums were scrap metal and car parts; many Ramapough, poor and struggling to find work, scavenged the site for scrap. Even acute exposure was hazardous; fumes from the fires choked the Ringwood air with foul smoke, and children who played at the site often returned home with nosebleeds[4], a telltale sign of exposure to hexavalent chromium, the highly toxic and carcinogenic heavy metal of Erin Brockovich fame. “Years later, many of them would suffer much worse,” intoned the Bergen Record in 2005, in the first of a series of investigative articles which would ultimately lead to Ringwood’s unprecedented relisting on the National Priorities List.

To hear the EPA tell it, Upper Ringwood simply isn’t that sick. While rates of various illnesses are elevated, EPA assessments have found that only one—lung cancer, specifically in male residents—reached statistical significance. But Upper Ringwood is small; statistical significance becomes progressively more difficult to achieve as sample sizes shrink. And the EPA’s assessments are detached by design, relying only on health statistics; a comprehensive door-to-door survey has never factored into the EPA’s evaluations of the Ringwood Mines site in the forty years since its initial designation on the National Priorities List. The very first survey of individuals in Ringwood did not begin until December 2015—and it was conducted by NYU, not the EPA. That survey became a study, published in 2020, finding elevated rates of a wide range of ailments among those who reported meeting more than one of five criteria for potential exposure to the site—including statistically significant elevated rates of asthma (in Native Americans only) and bronchitis (in both Native Americans and the overall population.)[5] In a 2022 lawsuit against Ford over the Ringwood disaster, the state of New Jersey claimed that land which Ford had gifted to the state—which they had done to dodge responsibility for contaminating a stream on the parcel of land which fed a local drinking water reservoir—was so polluted as to make its intended use as a state park dangerous to the people of New Jersey, forcing the state to close the land to the public.[6] And individual stories are even more disturbing: children born with rare autoimmune disorders, young adults stricken one after the other with illnesses most common in the elderly, too many middle-aged who never got the chance to grow old. All four of Fayelynn Van Dunk’s children have asthma, and two developed different rare illnesses which attack the body’s small blood vessels. Angie Van Dunk moved out of Ringwood altogether after her son’s bloodwork showed lead poisoning; independent testing had reported dangerous levels of lead and arsenic in the soil in her driveway. Arthur Van Dunk died of a pancreatic tumor so rare it bewildered his doctors at the Memorial Sloan-Kettering Cancer Center (The Ramapough Lenape of Upper Ringwood are descended from a small group of Dutch settlers, free Black people, and the indigenous Lenape; a few surnames, many of them Dutch—Van Dunk, DeGroat, DeFreese—are common among the tribe, which has intermarried for generations.) Beginning around the turn of the 21st century, Van Dunk Lane, a cul-de-sac on the southern end of the community, acquired a macabre secondary name: Cancer Row, for the illness that struck every single house on the block. The first death on Van Dunk Lane was Kelly DeGroat’s son, Collin Milligan, who died in 2001 not long after developing Ewing’s sarcoma, a rare bone cancer; the hospital visits and funerals spread like a virus. Pauline Wright, a young mother who hoped to be a schoolteacher, died of cancer three weeks after Collin. And when young Robert DeGroat (not Kelly’s son) developed thyroid cancer, he was the same age Collin Milligan had been at the time of his death: ten years old. The deaths galvanized the community[7], beginning a wave of lawsuits[8] against Ford initiated by residents which would continue for years, inspiring a documentary and later a 2022 lawsuit by the state of New Jersey—but only securing a settlement of $10 million from Ford, to be split among roughly 600 plaintiffs, despite the injuries at issue including many deaths, disabilities, and lifelong illnesses. Recovering damages for the harms to human health caused by pollution is exceptionally difficult even under state law, and such damages are absent from CERCLA entirely; there is only so much the Ramapough Lenape of Upper Ringwood could get using the traditional set of state and federal remedies, and it hardly begins to cover the true extent of the harms suffered by the community. Like most victims of pollution-related illness, the people of Upper Ringwood are on their own in shouldering the costs of treatment, and receive little in the way of damages for the lifelong suffering inflicted upon them by Ford’s toxic waste dumping.

§1881A of the Social Security Act was enacted in 2010 as a piece of the ACA, and at the time was covered[9] as just another pork-barrel provision inserted by a key Democratic senator. That wasn’t without good reason: §1881A made it into the Affordable Care Act at the behest of Montana Sen. Max Baucus, who had for years been trying, unsuccessfully, to secure federal help for the people of Libby, Montana, a town of roughly 2,600 which had suffered for decades from asbestos contamination so widespread that nearly one in ten Libby residents had died[10] from complications resulting from asbestos exposure by the time of §1881A’s enactment. As the chair of the Senate Finance Committee, Baucus had more say than almost any other senator over the drafting of the Affordable Care Act—and his amendment made his parochial concern very clear, specifically identifying Libby as eligible for §1881A’s benefits (though not by name, instead referencing the date on which Libby had received a certain EPA emergency declaration[11].) And indeed, Baucus’s §1881A only mandated the use of §1881A for Libby, so §1881A has functioned as a pork-barrel program (albeit one for a community obviously deserving of the aid) for Montana since its enactment. However, the text of §1881A goes far beyond Libby, even if its use thus far has been limited to that small mining town.

Baucus’s §1881A amendment, tying direct provision of federal aid in the form of age-blind Medicare eligibility to the Superfund program, is unusual in the context of the enacted text of the Superfund law (CERCLA). From its enactment, CERCLA has provided little in the way of aid to victims; aside from the actual cleanup of the millions of gallons of already-deposited paint sludge and toxic soil, the public health assessments which Upper Ringwood residents found implausibly rosy were the extent of the EPA’s duties under CERCLA. The actual mechanism of §1881A’s Medicare expansion authority is also quite vague: it relies on the president’s authority to declare a public health emergency under CERCLA §104(a), but such authority is ill-defined. §104(a) only mentions a public health emergency status once, when it states in subsection 4 that the President “may respond to any release or threat of release if in the President’s discretion, it constitutes a public health or environmental emergency,” without establishing a formal process for the declaration of a public health emergency or defining what may constitute such an emergency. The authority was so vague that it was never used before Libby, Montana (when its use was announced by the EPA, not directly by the president.)[12] While aid for victims was omitted from the final text of CERCLA, and from all future amendments other than the indirect modification made by the enactment of §1881A of the Social Security Act in 2010, victims of infamous pollution incidents were central to the passage of CERCLA itself. The person arguably most associated with the Superfund program in the public consciousness is not the president who signed CERCLA, Jimmy Carter, nor the congressman who authored it, then-Rep. and future New Jersey Gov. Jim Florio. The person termed “the mother of Superfund” by many is Lois Gibbs, a housewife who lived in the Love Canal neighborhood of Niagara Falls, New York when hazardous waste contaminated the community.[13] The community surveying which Superfund assessments today deliberately eschew—door-to-door interviewing, discussing the health troubles of individual residents rather than searching for outliers in public health agencies’ illness and death statistics—was the very thing which first prompted Gibbs to become an activist for Love Canal. Her door-to-door conversations taught her that her son falling ill was no coincidence, and that her intuition had been correct: the toxic waste buried under her son’s elementary school, which she had learned of from a newspaper article, really was poisoning the neighborhood, and something had to be done. She gathered petition signatures, badgered state agencies, and was elected the first president of the Love Canal Homeowners’ Association to coordinate the neighborhood’s response to its own poisoning, setting into motion a chain of events which would culminate in President Carter, after visiting Love Canal, signing CERCLA into law. Unfortunately, victim compensation did not make it through the drafting process to be included in the version of CERCLA Carter ended up signing, even though Gibbs and other victims were central to its passage—and even though the idea of federal law providing for victims of industrial pollution was of concern to the senators who drafted CERCLA.

Victim compensation featured prominently in the work of the Senate Environment and Public Works Committee at the time of CERCLA’s drafting, in large part thanks to the committee’s chair, Democrat Jennings Randolph of West Virginia. A long-tenured senator from West Virginia, serving in the midcentury era when coal was king, might not seem a likely contributor to groundbreaking environmental legislation. Jennings Randolph, however, was the chair of the Environment and Public Works Committee in the 95th and 96th Congresses, the first senator to chair the committee after its renaming from the Public Works Committee.[14] His vision for the nation’s environmental laws regarding toxic waste pollution and cleanup went further than CERCLA eventually would. More than a year before the Senate passed the final version of CERCLA, Randolph proposed the Hazardous Waste Post-Closure Liability Act, which would have amended existing law governing the disposal of hazardous waste to create a national trust fund, paid for by fees on operators of hazardous waste disposal facilities, and required facility operators to pay the first $5,000,000 in damages for claims stemming from waste releases before making the fund available.[15] In 1980, during the consideration of the package of post-Love Canal reforms that would become CERCLA, Randolph commissioned case studies[16] of existing compensation schemes for victims of hazardous waste and chemical releases under federal and state law; the final study examined sites in six states, including a Union Carbide dumping ground in rural southern New Jersey. Residents of an area with contaminated groundwater received minimal compensation for cleanup, and were ordered to seal their water wells at their own expense. In the end, residents were only compensated $1,000 each for the loss of their well water due to the contamination, and explicitly forfeited their right to any further claims regarding negative health effects (which were only briefly studied.) The study ultimately “conclude[d] that victims are often not compensated at all and, when they are, they are compensated inadequately,” and noted that settlement agreements commonly preclude future suits over “latent injuries”—long-term health problems which take months or years to emerge, like the asthma, cancer, and autoimmune disorders which continue to torment the residents of Upper Ringwood decades after the end of hazardous waste dumping on their land. In the context of Randolph’s original intent, and in the context of the public campaign which led to CERCLA’s passage, §1881A of the Social Security Act seems less like a pork-barrel program added to please a senior senator and more like the quiet beginnings of a remedy to CERCLA’s greatest shortcoming. §1881A has only been used for Libby, Montana, but an ambitious EPA and President committed to declaring public health emergencies at other Superfund sites, in partnership with a Social Security Administration committed to extending age-blind Medicare eligibility to environmental exposure affected individuals as authorized by §1881A, could turn CERCLA into a more complete means of addressing environmental injustice without requiring any further legislative action.
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[1] Toxic Legacy: Making a Wasteland, The Record/North Jersey Media Group
[2] https://semspub.epa.gov/work/02/212537.pdf
[3] NJ OAG complaint; Morgan v. Ford Motor Company complaint https://1.next.westlaw.com/Document/If819e413869f11dba10be1078cee05f1/Vi...(sc.RelatedInfo)&transitionType=Document&needToInjectTerms=False&docSource=c5e635ce2eae4342930cdd461434f2e7&ppcid=1c338f0aacef4f759b70b2c3d24e46b5
[4] Toxic Legacy: Making a Wasteland, The Record/North Jersey Media Group
[5] Meltzer, Avenbuan, Wu, Shah, Chen, Mann, Zelikoff, “The Ramapough Lunaape Nation: Facing Health Impacts Associated with Proximity to a Superfund Site,” Journal of Community Health, 2020. https://s3.documentcloud.org/documents/22063002/meltzer2020_article_ther...
[6] https://www.nj.gov/oag/newsreleases22/2022-06-16-COMPLAINT-NJDEPvFord-(Ringwood-Mines).pdf
[7] https://www.njspotlightnews.org/special-report/hazard-nj-toxic-contamina....
[8] https://www.nytimes.com/2006/01/19/nyregion/ramapough-tribe-sues-ford-ov... also Mann v. Ford, https://www.nj.com/entertainment/2011/07/mann_v_ford_preview_documentar....
[9] https://www.nytimes.com/2009/12/21/health/policy/21healthcare.html
[10] https://www.theguardian.com/world/2009/mar/08/usa-mining-libby-montana
[11] https://www.ssa.gov/OP_Home/ssact/title18/1881A.htm
[12] EPA press release announcing the June 17, 2009 emergency declaration regarding asbestos contamination in Libby, Montana, https://archive.epa.gov/epapages/newsroom_archive/newsreleases/0d16234d2....
[13] Greene, Ronnie. “From homemaker to hell-raiser in Love Canal,” Center for Public Integrity, April 16, 2013. https://publicintegrity.org/environment/from-homemaker-to-hell-raiser-in....
[14] Randolph, Jennings. Biographical Directory of the United States Congress. http://bioguide.congress.gov/scripts/biodisplay.pl?index=R000046.
[15] Remarks by Sen. Randolph Jennings on his proposal of the Hazardous Waste Post-Closure Liability Act in the Congressional Record, June 12, 1979. https://1.next.westlaw.com/Link/Document/FullText?findType=Y&pubNum=1769...(sc.DocLink).
[16] Committee Report, Senate Committee on the Environment and Public Works, May 1980. https://1.next.westlaw.com/Link/Document/FullText?findType=Y&pubNum=1769...(sc.DocLink).