GAO 

United States Government Accountability Office

Report to Congressional Requesters

SUPERFUND 

Litigation Has 

Decreased and EPA 

Needs Better 

Information on Site 

Cleanup and Cost 

Issues to Estimate 

Future Program 

Funding Requirements

July 2009 

GAO-09-656 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

July 2009

SUPERFUND

Litigation Has Decreased and EPA Needs Better 

Information on Site Cleanup and Cost Issues to 

Highlights of GAO-09-656, a report to Estimate Future Program Funding Requirements

congressional requesters 

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 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. 

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. 

View GAO-09-656 or key components.

For more information, contact John B. 

Stephenson at (202) 512-3841 or 

stephensonj@gao.gov. 
Page i GAO-09-656 

Contents 

Letter 1

Results in Brief 6 

Background 10 

EPA Resolves Most Enforcement Actions through Settlements with 

Responsible Parties, and Site-Specific Conditions Influence the 

Negotiation Process 23 

Superfund Litigation Decreased Due to a Number of Factors, 

According to Experts 37 

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 50 

Conclusions 79 

Recommendations for Executive Action 80 

Agency Comments and Our Evaluation 81 

Appendix I Objectives, Scope, and Methodology 87 

Appendix II Detailed Information on the Number, Duration, 

Complexity, and Outcomes of CERCLA Cases 102 

Appendix III Comments from the Environmental Protection 

Agency 119 

Appendix IV GAO Contact and Staff Acknowledgments 122 

Tables 

Table 1: Purpose, Source, Time Frame, and Scope of Data 

Collected and Analyzed for This Report 4

Table 2: Trust Fund Revenue in the Periods Before and After the 

Superfund Taxes Expired 11

Table 3: EPA Enforcement Actions, by Type of Process Followed 

and Outcome Achieved 22

Table 4: Types of EPA Enforcement Actions Taken at NPL Sites, 

Fiscal Years 1979 through 2007 25

 Superfund 
Table 5: Outcome of EPA Enforcement Actions at NPL Sites, Fiscal 

Years 1979 through 2007 27

Table 6: Outcome of EPA Enforcement Actions at NPL Sites, Fiscal 

Years 1979 through 2007, by Type of Site Work Sought 29

Table 7: Estimated Value of Superfund Enforcement Activities at 

NPL Sites, Fiscal Years 1979 through 2007 31

Table 8: Number and Percentage of CERCLA Cases Filed by Type 

of Plaintiff, Fiscal Years 1994 through 2007 39

Table 9: Number of Nonfederal NPL Sites, Including Megasites, by 

Type, Fiscal Years 1983 through 2007 55

Table 10: Number and Percentage of Nonfederal Sites Added to the 

NPL by Type, Fiscal Years 1983 through 2007 57

Table 11: EPA Average Expenditures per Site at Nonfederal NPL 

Sites, through Fiscal Year 2007 58

Table 12: Information on Responsible Parties Identified at 

Nonfederal NPL Sites 59

Table 13: Least and Most Advanced Stages of Cleanup at 

Nonfederal NPL Sites with One Operable Unit, as of Fiscal 

Year 2007 66

Table 14: Least and Most Advanced Stages of Cleanup at 

Nonfederal NPL Sites with Multiple Operable Units, as of 

Fiscal Year 2007 67

Table 15: Construction Complete Nonfederal NPL Sites by Site 

Type and Megasite Designation, through Fiscal Year 2007 70

Table 16: Categorization Examples of CERCLA Case Party Types 93

Table 17: CERCLA Cases Filed by U.S. District Court, Fiscal Years 

1994 through 2007 102

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 105

Table 19: CERCLA Cases Filed by Type of Plaintiff, Fiscal Years 

1994 through 2007 106

Table 20: Duration of CERCLA Cases by Type of Plaintiff, Fiscal 

Years 1994 through 2007 106

Figures 

Figure 1: Site Cleanup Process 13 

Figure 2: EPA Enforcement Process 18 

Figure 3: Outcomes of EPA Enforcement Actions and Processes 

Followed at NPL Sites, Fiscal Years 1979 through 2007 24 

Page ii GAO-09-656 Superfund
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 26 

Figure 5: Trends in CERCLA Cases Filed by Type of Plaintiff, Fiscal 

Years 1994 through 2007 38 

Figure 6: CERCLA Cases Filed by the Federal Government with 

Previously Negotiated Settlements, Fiscal Years 1994 

through 2007 40 

Figure 7: Average Number of Defendants per CERCLA Case, Fiscal 

Years 1994 through 2007 41 

Figure 8: Percentage of CERCLA Cases in Which Defendants 

Pursued Additional Parties, Fiscal Years 1994 through 

2007 42 

Figure 9: Number of Nonfederal Sites Added to the NPL, Fiscal 

Years 1983 through 2007 51 

Figure 10: Percentage of Nonfederal Sites Added to the NPL by 

Type, Fiscal Years 1983 through 2007 56 

Figure 11: Number of Nonfederal NPL Sites That Were Not 

Construction Complete, through Fiscal Year 2007, by Year of 

Site Listing 68 

Figure 12: EPA’s Superfund Program Appropriation, Fiscal Years 

1981 through 2007 72 

Figure 13: EPA Superfund Expenditures, Fiscal Years 1999 through 

2007 74 

Figure 14: Number of CERCLA Cases Filed by Duration and Type 

of Plaintiff, Fiscal Years 1994 through 2007 107 

Figure 15: Average Number of Defendants per CERCLA Case by 

Duration, Fiscal Years 1994 through 2007 108 

Figure 16: Average Number of Defendants per CERCLA Case by 

Type of Plaintiff, Fiscal Years 1994 through 2007 109 

Figure 17: Percentage of CERCLA Cases in Which Defendants 

Pursued Additional Parties by Type of Plaintiff, Fiscal 

Years 1994 through 2007 110 

Figure 18: Number of CERCLA Cases, by Outcome and Type of 

Plaintiff, Fiscal Years 1994 through 2007 111 

Figure 19: Percentage of CERCLA Cases, by Type of Outcome and 

Plaintiff, Fiscal Years 1994 through 2007 112 

Figure 20: Duration of CERCLA Cases by Outcome, Fiscal Years 

1994 through 2007 113 

Page iii GAO-09-656 Superfund
Figure 21: Percentage of Closed CERCLA Cases with Only 

Previously Negotiated Settlements or Minimal Litigation 

by Type of Plaintiff, Fiscal Years 1994 through 2007 114 

Figure 22: Percentage of Closed CERCLA Cases with Only 

Dismissals by Type of Plaintiff, Fiscal Years 1994 through 

2007 115 

Figure 23: Percentage of Closed CERCLA Cases with Dismissals 

That Had Possible Settlements, Fiscal Years 1994 through 

2007 116 

Figure 24: Percentage of Closed CERCLA Cases with Only 

Nonconsensual Judgments by Type of Plaintiff, Fiscal 

Years 1994 through 2007 117 

Figure 25: Percentage of Closed CERCLA Cases with Appeals by 

Type of Outcome, Fiscal Years 1994 through 2007 118 

Page iv GAO-09-656 Superfund
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 

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Page v GAO-09-656 Superfund
Page 1 GAO-09-656 

 

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, 1

 there were 1,569 NPL 

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. 

 Superfund 
 

sites. 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.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. 

 

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. 

Page 2 GAO-09-656 Superfund
 

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 2008.4

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,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 

 

4

GAO, Superfund: Funding and Reported Costs of Enforcement and Administration 

Activities, 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. 

Page 3 GAO-09-656 Superfund
 

almost 2,300 cases.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 

Source and time 

frame of data Scope of data collected and analyzed 

Information on 

the outcomes of 

EPA’s 

enforcement 

actions 

CERCLIS—fiscal years 

1979 through 2007a

Completed enforcement actions at 

proposed, final, and deleted NPL sites.b

Information on 

trends in litigation 

to resolve 

Superfund liability

PACER—fiscal years 

1994 through 2007 

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). 

Information on 

the status and 

costs of the 

Superfund 

program 

CERCLIS—fiscal years 

1983 through 2007c

IFMS—(1) overall 

program expenditures 

for fiscal years 1999 

through 2007 and (2) 

all site expenditures 

through fiscal year 

2007d

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. 

 

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. 

Page 4 GAO-09-656 Superfund
 

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. 

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 

Page 5 GAO-09-656 Superfund
 

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. 

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. 

Results in Brief 

Page 6 GAO-09-656 Superfund
 

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 mid1990s, 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 

Page 7 GAO-09-656 Superfund
 

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. 

Page 8 GAO-09-656 Superfund
 

• 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 

Page 9 GAO-09-656 Superfund
 

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. 

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;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.8

 Since that 

time, appropriations from the general fund have constituted the largest 

source of revenue for the trust fund, as table 2 shows. 

Background 

 

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. 

Page 10 GAO-09-656 Superfund
 

Table 2: Trust Fund Revenue in the Periods Before and After the Superfund Taxes 

Expired 

Constant 2007 dollars in millions 

Revenue sourcea

Fiscal years 1981-1995 

(percentage of total 

revenues) 

Fiscal years 1996-2007 

(percentage of total 

revenues)

Receipts from dedicated 

taxesb

$18,018 (68%) $936 (6%)

Appropriations from the 

general fundc

4,616 (17) 9,281 (59)

Interest 2,412 (9) 2,543 (16)

Fines, penalties, and 

recoveries 

1,634 (6) 2,906 (19)

Total $26,680 (100%) $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. 

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 

Page 11 GAO-09-656 Superfund
 

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,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 

 

9

EPA has 10 regional offices, each of which is responsible for executing agency programs 

within several states and, in some regions, territories. 

Page 12 GAO-09-656 Superfund
 

of funding needs.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.

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. 

through 

Figure 1: Site Cleanup Process 

Milestones

Phases Site Study Remedial Action Operations and Maintenance

Remedial

action

Remedial

investigation

Remedial

design

Source: GAO analysis based upon EPA data.

NPL Listing

Record of Decision

Construction Complete

Feasibility

study

Deletion from NPL

 

10EPA 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. 

11Of the more than 47,000 hazardous substance release sites it has identified, EPA has listed 

only 1,569 sites on the NPL. 

Page 13 GAO-09-656 Superfund
 

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 

Page 14 GAO-09-656 Superfund
 

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.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.13 The National 

Contingency Plan designates the secretaries of several departments—

as the Department of the Interior or the Department of Agriculture—

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. 

such 

who 

 

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 

12See 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. 

13Natural resources include, among other things, land, wildlife, air, water, and groundwater. 

Page 15 GAO-09-656 Superfund
 

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 

1990.14 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;15 (2) an act of 

war;16 and (3) the actions of a third party (other than an agency or a party 

 

14This act established provisions that expand the federal government’s ability to prevent 

and respond to oil spills, and provided resources for these activities. 

15The 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. 

16CERCLA’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).” 

Page 16 GAO-09-656 Superfund
 

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.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. 

 

17For 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. 

Page 17 GAO-09-656 Superfund
 

Figure 2: EPA Enforcement Process 

Milestones

Phases Site Study Remedial Action Operations and Maintenance

Source: GAO analysis based upon EPA data.

NPL Listing

Record of Decision

Construction Complete

Deletion from NPL

Search for responsible parties

Negotiations Negotiations

Search

Enforcement action

for site study work

Enforcement action for

remedial action work Newly

responsible

party discovered

Enforcement

action for cost

recovery

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.18 The 

search should also provide EPA with the evidence to establish the 

 

18To 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. 

Page 18 GAO-09-656 Superfund
 

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.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 

 

19EPA 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. 

Page 19 GAO-09-656 Superfund
 

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.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 

 

20While 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. 

Page 20 GAO-09-656 Superfund
 

determined by the courts to be equitable.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.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 

 

21Some 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 thenCongressman 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. 

22EPA 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. 

Page 21 GAO-09-656 Superfund
 

requires that agreements on conducting a remedial action take the form 

of a consent decree.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.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 

Outcome 

Process Consensual Nonconsensual 

Administrative Administrative order on consent Unilateral administrative order 

Judicial Consent decree Judgment 

Source: GAO analysis. 

 

23CERCLA 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. 

24These 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. 

Page 22 GAO-09-656 Superfund
 

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. 

EPA Resolves Most 

Enforcement Actions 

through Settlements 

with Responsible 

Parties, and SiteSpecific Conditions 

Influence the 

Negotiation Process 

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.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 

 

25As 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 nonNPL 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. 

Page 23 GAO-09-656 Superfund
 

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 

Source: GAO analysis of EPA data.

21%

79%

38% 62%

Enforcement outcome Enforcement process

Nonconsensual

Consensual

Administrative

Judicial

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. 

Page 24 GAO-09-656 Superfund
 

Table 4: Types of EPA Enforcement Actions Taken at NPL Sites, Fiscal Years 1979 

through 2007 

Number of times EPA 

has taken this action 

Percentage of times EPA 

has taken this action

Administrative order on consent 1,982 43

Consent decree 1,700 37

Unilateral administrative order 901 19

Judgment 59 1

Total enforcement actions 4,642 100

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. 

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. 

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. 

Enforcement Actions Often 

Result in the Performance of 

Site Work or Recovery of 

Agency Costs 

Page 25 GAO-09-656 Superfund
 

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 

1695

10% 1473

37%

32%

22%

Cost recovery (1,695)

Neither (469)

Both (1,005)

Site work (1,473)

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. 

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.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 

 

26According 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. 

Page 26 GAO-09-656 Superfund
 

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.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 

Consensual Nonconsensual Total Percentage consensual

Cost recovery 1,647 48 1,695 97

Site work 799 674 1,473 54

Both 989 16 1,005 98

Neither 247 222 469 53

Total 3,682 960 4,642 79

Source: GAO analysis of EPA data. 

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 

 

27An EPA official told us that these data may under report the full number of de minimis 

settlements. 

Page 27 GAO-09-656 Superfund
 

recovering agency costs.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 

 

28EPA 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. 

Page 28 GAO-09-656 Superfund
 

do the work itself, rather than issue a unilateral administrative order.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 

Consensual Nonconsensual Total Percentage consensual

Removal action 1,529 309 1,838 83

Site study 2,209 114 2,323 95

Remedial action 3,132 801 3,933 80

Other site work 288 66 354 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. 

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 

Value of EPA Enforcement 

Actions 

 

29EPA 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. 

Page 29 GAO-09-656 Superfund
 

billion to the Superfund program.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.31 Moreover, according to EPA’s 

estimates, the agency has recovered approximately 36 percent of its sitespecific costs over the life of the Superfund program.32 Responsible 

 

30This 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. 

31Information on other sources of revenue for the trust fund was provided in table 2 of this 

report. 

32There 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. 

Page 30 GAO-09-656 Superfund
 

parties’ payments for future site costs have also, in some cases, meant that 

EPA could use its appropriation for work at other sites.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 Amount 

Past costs recovered $5,104.5

Future costs obtained 2,222.9

Estimated value of responsible party work commitments 22,525.6

Penalties assessed 50.7

Total $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. 

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 

 

33According 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 sitespecific “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. 

Page 31 GAO-09-656 Superfund
 

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. 

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. 

Cost of Site Cleanup 

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 

Page 32 GAO-09-656 Superfund
 

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. 

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. 

Strength of EPA’s Evidence 

Regarding 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 

Page 33 GAO-09-656 Superfund
 

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. 

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. 

Number and Type of Other 

Responsible Parties 

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 

Page 34 GAO-09-656 Superfund
 

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. 

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: 

Other Considerations May 

Affect Liability Negotiations 

• 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 

Page 35 GAO-09-656 Superfund
 

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,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. 

 

34EPA 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. 

Page 36 GAO-09-656 Superfund
 

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. 

Superfund Litigation 

Decreased Due to a 

Number of Factors, 

According to Experts 

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 2007.35 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.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 

 

35Our 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. 

36Because 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. 

Page 37 GAO-09-656 Superfund
 

period, and table 8 shows the percentage of cases filed by different types 

of plaintiffs.37

Figure 5: Trends in CERCLA Cases Filed by Type of Plaintiff, Fiscal Years 1994 through 2007 

Number of cases

Fiscal year

Other plaintiff

State government

Federal government

Source: GAO analysis of data on cases filed in U.S. district courts.

0

50

100

150

200

250

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

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. 

 

37The 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 nonNPL 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. 

Page 38 GAO-09-656 Superfund
 

Table 8: Number and Percentage of CERCLA Cases Filed by Type of Plaintiff, Fiscal 

Years 1994 through 2007 

Plaintiff type Number of cases filed 

Percentage of total 

cases

Federal government 837 37

State government 286 13

Other plaintiff 

Local government 88 4

Private party 1,133 50

Other party 71 3

Unknown party 8 0

Total 2,423 106a

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. 

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 

Page 39 GAO-09-656 Superfund
 

approximately 3 months, compared with nearly 16 months for cases in 

which settlements were not reached prior to filing.38

Figure 6: CERCLA Cases Filed by the Federal Government with Previously 

Negotiated Settlements, Fiscal Years 1994 through 2007 

Percentage of federal plaintiff cases

Source: GAO analysis of data on cases filed in U.S. district courts.

Fiscal year

0

10

20

30

40

50

60

70

80

90

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

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 

 

38We 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. 

Page 40 GAO-09-656 Superfund
 

into the case decreased from approximately 18 percent to less than 5 

percent, as shown in figure 8.39

Figure 7: Average Number of Defendants per CERCLA Case, Fiscal Years 1994 

through 2007 

Average number of defendants per case

Source: GAO analysis of data on cases filed in U.S. district courts.

Fiscal year

0

5

10

15

20

25

30

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

 

39Both 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. 

Page 41 GAO-09-656 Superfund
 

Figure 8: Percentage of CERCLA Cases in Which Defendants Pursued Additional 

Parties, Fiscal Years 1994 through 2007 

 Percentage of cases

Source: GAO analysis of data on cases filed in U.S. district courts.

Fiscal year

0

3

6

9

12

15

18

21

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

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 

Page 42 GAO-09-656 Superfund
 

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.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. 

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 

Fewer Site Cleanups and Fewer 

Enforcement Actions Led to 

Less Litigation 

 

40These 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. 

Page 43 GAO-09-656 Superfund
 

new sites added to the NPL declined.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. 

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. 

Changes to EPA’s Enforcement 

Process Have Led to Less 

Litigation 

 

41While 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. 

Page 44 GAO-09-656 Superfund
 

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.42

 

42In 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. 

Page 45 GAO-09-656 Superfund
 

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 

Page 46 GAO-09-656 Superfund
 

in 1991.43 This order requires all federal agencies and their counsel to 

make reasonable efforts to achieve a settlement with parties before fil

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. 

ing a 

 

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.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.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 

Court Decisions Clarifying the 

Application of CERCLA Have 

Led to Less Litigation 

43Executive Order 12778 (1991). Executive Order 12988 (1996) revoked the earlier 

executive order, but contains an identical provision encouraging settlement. 

44In 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. 

45Cases 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). 

Page 47 GAO-09-656 Superfund
 

negligent.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.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.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.49 While EPA settlements establish 

 

46Cases 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). 

47Courts 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). 

48The 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). 

49For 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. 

Page 48 GAO-09-656 Superfund
 

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.50 Furthermore, DOJ officials expressed concern about the 

potential implications of a challenge to EPA’s use of unilateral 

administrative orders.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 

 

50Although 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. 

51In 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. 

Page 49 GAO-09-656 Superfund
 

establishing a parent company’s liability for the contamination caused by a 

company that it owns are challenging. 

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. 

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 

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. 

As figure 9 shows, the number of nonfederal sites added to the NPL has 

declined over time.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 2007.53

The Number of Sites Added to 

the NPL Has Declined Due to 

Several Factors 

 

52Unless otherwise noted, data analyzed for this section of the report only represents data 

on final and deleted nonfederal NPL sites. 

53By 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. 

Page 50 GAO-09-656 Superfund
 

Figure 9: Number of Nonfederal Sites Added to the NPL, Fiscal Years 1983 through 2007 

Number of sites

Fiscal year

Source: GAO analysis of EPA data.

0

50

100

150

200

250

300

350

400

450

1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

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. 

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.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. 

 

54Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Public 

Law 96-510 (Dec. 11, 1980), §105(8)(B). 

Page 51 GAO-09-656 Superfund
 

• 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.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,56 the Resource 

Conservation and Recovery Act (RCRA) Corrective Action program,57

and the Brownfields program,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 

 

55GAO, Superfund Program: Current Status and Future Fiscal Challenges, GAO-03-850

(Washington, D.C.: July 31, 2003). 

56Under 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. 

57Under 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. 

58EPA’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. 

Page 52 GAO-09-656 Superfund
 

actions at sites, and 72 percent of these actions were at sites that had 

not been listed on the NPL, according to EPA data.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.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.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. 

 

59Unlike 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. 

60According 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). 

61Conversely, 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. 

Page 53 GAO-09-656 Superfund
 

The types of sites added to the NPL have changed. EPA places sites into 

the following six broad categories: 

Types of Sites Now Added to 

the NPL May Require Greater 

EPA Cleanup Expenditures 

Than in the Past • 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.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. 

 

62These 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. 

Page 54 GAO-09-656 Superfund
 

Table 9: Number of Nonfederal NPL Sites, Including Megasites, by Type, Fiscal 

Years 1983 through 2007 

Site type 

Number 

of sites

Percentage 

of total sites

Number of 

megasites 

Percentage 

of site type

Percentage 

of total 

megasites

Manufacturing 491 35 64 13 42

Mining 33 2 11 33 7

Multiple 42 3 9 21 6

Other 198 14 17 9 11

Recycling 122 9 13 11 9

Waste 

management 

511 37 37 7 25

Total 1,397 100 151 11 100

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. 

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. 

Page 55 GAO-09-656 Superfund
 

Figure 10: Percentage of Nonfederal Sites Added to the NPL by Type, Fiscal Years 

1983 through 2007 

Percentage of sites

Waste management

Recycling

Other

Multiple

Mining

Manufacturing

Fiscal year

Source: GAO analysis of EPA data.

0

10

20

30

40

50

60

70

80

90

100

1983-1989

1990-1999

2000-2007

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. 

Page 56 GAO-09-656 Superfund
 

Table 10: Number and Percentage of Nonfederal Sites Added to the NPL by Type, Fiscal Years 1983 through 2007 

Fiscal years 1983 through 1989 Fiscal years 1990 through 1999 Fiscal years 2000 through 2007 

Site type 

Number of 

sites added 

Percentage of 

sites added

Number of 

sites added

Percentage of 

sites added

Number of sites 

added

Percentage of 

sites added

Manufacturing 233 27 203 54 53 35

Mining 12 1 1 0 20 13

Multiple 27 3 12 3 2 1

Other 108 12 43 11 47 31

Recycling 79 9 29 8 13 9

Waste 

management 

408 47 86 23 16 11

Total 867 100 374 100 151 100

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. 

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 

Page 57 GAO-09-656 Superfund
 

fiscal year 2007 averaged around $48.1 million.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 2000.64 Table 11 shows EPA’s 

average expenditures per site for different types of sites, as well as ove

for nonmegasites and megasites through fiscal year 200

rall 

7. 

Table 11: EPA Average Expenditures per Site at Nonfederal NPL Sites, through 

Fiscal Year 2007 

Constant 2007 dollars in millions 

Site type 

Number of 

sites

Average per site 

expenditures 

Average total site 

expenditures

Manufacturing 491 $12.0 $5,912.0

Mining 33 44.3 1,462.5

Multiple 42 7.8 328.7

Other 198 7.2 1,427.6

Recycling 122 9.1 1,115.3

Waste management 511 7.1 3,644.8

Total 1,397 9.9 13,891.0

Total nonmegasites 1,246 5.3 6,624.3

Total megasites 151 $48.1 $7,266.7

Source: GAO analysis of EPA data. 

 

63Data 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. 

64Other 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. 

Page 58 GAO-09-656 Superfund
 

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. 

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. 

EPA Does Not Have 

Comprehensive Data on the 

Extent of Orphan Shares at 

NPL Sites 

Table 12: Information on Responsible Parties Identified at Nonfederal NPL Sites 

Site type 

Number of 

sites with 

parties 

identified

Average 

number of 

parties 

identified

Number of 

sites without 

parties 

identified 

Percentage of 

sites without 

parties identified

Manufacturing 429 10 62 13

Mining 27 13 6 18

Multiple 40 123 2 5

Other 148 25 50 25

Recycling 115 201 7 6

Waste management 455 56 56 11

Total 1,214 71 183 13

Source: GAO analysis of EPA data. 

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.65 However, the 

 

65These 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. 

Page 59 GAO-09-656 Superfund
 

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.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.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.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. 

 

66We 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. 

67EPA 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. 

68In 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. 

Page 60 GAO-09-656 Superfund
 

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.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. 

A 

recover some of the money the party owes. However, EPA does not record 

 

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, EP

and DOJ officials noted, the federal government may still be able to 

69We 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. 

Page 61 GAO-09-656 Superfund
 

the balance this bankrupt party owes.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 

 

70In 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). 

Page 62 GAO-09-656 Superfund
 

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 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.71 In addition, about one-half of the 

Remedial Actions Have Been 

Implemented or Are Underway 

at Most NPL Sites, but the 

Amount of Work Remaining Is 

Unclear 

 

71Through 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. 

Page 63 GAO-09-656 Superfund
 

422 sites that were not construction complete had some remedial action 

underway at the end of fiscal year 2007.72

However, data on the construction complete status of sites do not provide 

a clear picture of the amount of work remaining at sites.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.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), 

 

72In 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. 

73In 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. 

74For 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. 

Page 64 GAO-09-656 Superfund
 

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.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.76

According to EPA’s data, of the 184 sites with 1 operable unit, the agency 

 

75Data 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. 

76EPA 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. 

Page 65 GAO-09-656 Superfund
 

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 

Most advanced stage of cleanup 

Least advanced 

stage of cleanup 

Remedial 

assessment 

not begun

Study 

underway

Remedy 

selected/design 

underwaya

Construction 

underway

Remedial 

assessment not 

begun 

10 3 1 2

Study underway 0 80 1 5

Remedy 

selected/design 

underwaya

0 0 38 16

Construction 

underway 

0 0 0 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. 

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 

Page 66 GAO-09-656 Superfund
 

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 

Most advanced stage of cleanup 

Least advanced 

stage of cleanup 

Remedial 

assessment 

not begun

Study 

underway

Remedy 

selected/design 

underwaya

Construction 

underway

Remedial 

assessment not 

begun 

1 4 8 26

Study underway 0 23 14 65

Remedy 

selected/design 

underwaya

0 0 12 67

Construction 

underway 

0 0 0 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. 

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. 

Page 67 GAO-09-656 Superfund
 

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.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. 

cal year 2007, according to 

Sites That Are Not 

Construction Complete May Be 

More Complex and Costly Than 

Sites That Are Construction 

Complete 

Figure 11: Number of Nonfederal NPL Sites That Were Not Construction Complete, through Fiscal Year 2007, by Year of Site Listing 

 Number of sites that were not construction complete

Fiscal year

Source: GAO analysis of EPA data.

0

10

20

30

40

50

60

70

80

90

1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

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. 

 

77EPA emphasized that the agency now uses a risk-based ranking method to prioritize 

funding of remedial actions. 

Page 68 GAO-09-656 Superfund
 

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.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 2007.79 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. 

 

78Alternatively, 68 percent of the other subcategories of sites in the “other” site type had 

reached construction complete. 

79In 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. 

Page 69 GAO-09-656 Superfund
 

Table 15: Construction Complete Nonfederal NPL Sites by Site Type and Megasite Designation, through Fiscal Year 2007 

Site type 

Number of NPL 

sites 

Number of sites 

construction complete

Percentage of sites 

construction complete 

Median number of years 

from site listing to 

construction complete

Manufacturing 491 307 63 9.5

Mining 33 7 21 10.5

Multiple 42 30 71 9.2

Other 198 119 60 9.1

Recycling 122 78 64 10.3

Waste management 511 434 85 11.5

Total sites by type 1,397 975 70 10.3

Total nonmegasites 1,246 919 74 10.1

Total megasites 151 56 37 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. 

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 

Page 70 GAO-09-656 Superfund
 

significant challenge these sites can pose during the cleanup process.80 Of 

the 48 nonfederal sediment sites EPA was tracking using these 

procedures, almost one-half were megasites.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. 

 

80EPA 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-R05-012 (Washington, D.C., Dec. 2005). 

81These data are based on the list of sites EPA was tracking as of May 2008. 

Page 71 GAO-09-656 Superfund
 

Overall, both EPA’s Superfund appropriation and program expenditures 

have declined. As we reported in July 2008,82 since fiscal year 1981, the 

annual appropriation to EPA’s Superfund program has averaged 

approximately $1.2 billion in nominal dollars.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. 

on. Figure 12 shows appropriation levels in 

Program Funding Has 

Decreased, While EPA’s 

Site Costs Have Increased; 

and Agency Reporting on 

Key Cost Indicators Is 

Insufficient 

Figure 12: EPA’s Superfund Program Appropriation, Fiscal Years 1981 through 2007 

Dollars in millions

Fiscal year

Appropriation in 2007 dollars

Nominal appropriation

Source: GAO analysis of appropriations laws and the President’s Budget Appendices.

0

500

1,000

1,500

2,000

2,500

3,000

1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007

 

82See GAO-08-841R. 

83Our 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. 

Page 72 GAO-09-656 Superfund
 

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 

2007.84 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.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. 

 

84We 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. 

85See GAO-08-841R for more detailed information on EPA’s expenditures for these 

activities. 

Page 73 GAO-09-656 Superfund
 

Figure 13: EPA Superfund Expenditures, Fiscal Years 1999 through 2007 

Constant 2007 dollars in millions

Source: GAO analysis of EPA data.

Fiscal year

Activities other than site cleanup

Removal

Remedial

0

200

400

600

800

1,000

1,200

1,400

1,600

1,800

2,000

1999 2000 2001 2002 2003 2004 2005 2006 2007

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. 

While EPA’s Superfund appropriation and expenditures have declined 

over time, the average amount EPA spent for individual sites has increased 

Page 74 GAO-09-656 Superfund
 

in recent years.86 For example, EPA spent an average of approximately 

$7.5 million at sites that reached EPA’s construction complete mileston

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. 

e in 

 

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 2004,87 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.88 Similarly, according to EPA annual reports for fiscal 

86These 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. 

87EPA, Office of Inspector General, Congressional Request on Funding Needs for NonFederal Superfund Sites, 2004-P-00001 (Washington, D.C., Jan. 2004). 

88A 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. 

Page 75 GAO-09-656 Superfund
 

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.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),90 and EPA’s 

own annual Superfund accomplishment reports. In 2004, the Inspector 

 

89Vapor 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. 

90NACEPT 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. 

Page 76 GAO-09-656 Superfund
 

General estimated that the Superfund program had a funding shortfall of 

$174.9 million in fiscal year 2003.91 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.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.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 

 

91See EPA, Office of Inspector General, 2004-P-00001. 

92See NACEPT, Final Report. 

93The 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). 

Page 77 GAO-09-656 Superfund
 

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.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 2004.95 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.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 

 

94See EPA, Superfund: Building on the Past, Looking to the Future. 

95The 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. 

96In 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. 

Page 78 GAO-09-656 Superfund
 

of sites with human exposure under control;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. 

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 

Conclusions 

 

97This 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. 

Page 79 GAO-09-656 Superfund
 

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. 

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: 

Recommendations for 

Executive Action 

• the status and cost of cleanups at individual sites, particularly complex 

and expensive sites; 

Page 80 GAO-09-656 Superfund
 

• 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. 

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. 

Agency Comments 

and Our Evaluation 

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 

Page 81 GAO-09-656 Superfund
 

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 

Page 82 GAO-09-656 Superfund
 

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 

Page 83 GAO-09-656 Superfund
 

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 http://www.gao.gov. 

Page 84 GAO-09-656 Superfund
 

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. 

John B. Stephenson 

Director, Natural Resources 

 and Environment 

Page 85 GAO-09-656 Superfund
 

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 

Page 86 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

Page 87 GAO-09-656 

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 2008.1

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 2007.2

 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; 

 

1

GAO, Superfund: Funding and Reported Costs of Enforcement and Administration 

Activities, GAO-08-841R (Washington, D.C.: July 18, 2008). 

2

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. 

 Superfund 
Appendix I: Objectives, Scope, and 

Methodology 

• 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.3

 During the course of 

 

3

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. 

Page 88 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

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 decisionmaking process behind enforcement actions, as well as parties’ responses 

to these actions, from a nonprobability sample of 10 Superfund sites.4

 To 

4

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. 

Page 89 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

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.5

 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. 

 

5

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. 

Page 90 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

We searched the PACER system for civil cases filed in U.S. district courts 

under a CERCLA cause of action.6

 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.7

 We searched district court records on a monthly 

basis, from the beginning of fiscal year 1994 through fiscal year 2007.8

 We 

confined our data collection effort to this period because, after analyzing the 

 

6

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. 

7

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. 

8

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. 

Page 91 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

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.9

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 2007.10

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;11 (2) the dates when the case was filed and then 

 

9

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. 

10The 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. 

11The nature of suit is a case-type classification used by the Administrative Office of the 

U.S. Courts. 

Page 92 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

closed or terminated;12 (3) the number of parties involved in the case as 

plaintiffs and defendants,13 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 Examples of party categorization 

Federal • federal agencies 

• military facilities and other government installations 

• individuals acting in their capacity as federal officials 

State • state agencies 

• the District of Columbia and agencies of the District of 

Columbia 

• individuals acting in their capacity as state officials 

Local government • 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 

Privatea • entities that appeared to be companies, businesses, or 

corporations 

• individuals that did not clearly belong in another category 

• pieces of property 

 

12The 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. 

13We 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. 

Page 93 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

Party type Examples of party categorization 

Otherb • 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 

Unknown • 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. 

Information we collected on the outcomes of cases included whether the 

case docket contained evidence of any of the following types of 

outcomes:14

• settlement (concurrent)—parties reached a settlement and the docket 

included evidence of the settlement concurrently with (or within a 

week of) the case filing; 

 

14We 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. 

Page 94 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

• 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;15

and 

• remand—the court remanded a case or individual claims to a state or 

local court. 

t 

in 

ncurrent 

n of 

tions in the collection and analysis of data from the PACER 

system. 

n 

 

Furthermore, we collected other information on case outcomes, such as 

whether (1) evidence indicated that parties may have reached a settlemen

on issues of liability but evidence was unclear about a final settlement 

the case docket (possibly indicating an out-of-court settlement) or (2) 

there was minimal evidence of litigation activity prior to a nonco

settlement.16 We then analyzed the data we collected to develop 

information on trends in CERCLA litigation. See below for a discussio

the limita

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 informatio

15A 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. 

16We 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. 

Page 95 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

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 o

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 k

court decisions have affected CERCLA litigation, as well as h

n 

ey 

ow some 

ongoing cases could affect CERCLA litigation in the future. 

PL 

ly, to 

 has 

identified responsible parties with CERCLIS data on NPL sites. 

as 

EPA also updated its system in fiscal year 2004 and, because of this, EPA 

 

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.17 Although the Superfund 

program began in fiscal year 1981, the first sites were not listed on the N

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. Final

gain insight into the status of the Superfund program, we compared 

CERCLIS enforcement data on the number of sites at which EPA

To analyze the costs of implementing Superfund program activities, we 

obtained EPA data on overall program expenditures—also referred to 

outlays—from the agency’s Integrated Financial Management System 

(IFMS) database.18 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. 

17To 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. 

18These data excluded reimbursable expenditures and expenditures related to the 

Brownfields program, transfers to other appropriations, and the 2002 Homeland Security 

Supplemental appropriation. 

Page 96 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

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 2007.19 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-fisc

1990 expenditures for inflation, which resulted in a range of values

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.

al year 

 for 

 

20 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; 

19These data included all appropriated site-specific Superfund expenditures except for 

reimbursable and Homeland Security Supplemental expenditures. 

20There 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. 

Page 97 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

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.21 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 

 

21The 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. 

Page 98 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

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).22 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.23

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) 

 

22To 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). 

23This 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.” 

Page 99 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

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, 

Page 100 GAO-09-656 Superfund
Appendix I: Objectives, Scope, and 

Methodology 

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. 

Page 101 GAO-09-656 Superfund
Appendix II: De

Number,

of CERCLA Cases 

tailed Information on the 

 Duration, Complexity, and Outcomes 

Page 102 GAO-09-656 

Appendix II: Detailed Information on the 

Number, Duration, Complexity, and 

Outcomes of CERCLA Cases 

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.1

 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. 

Information on the 

Number of Cases Filed 

Table 17: CERCLA Cases Filed by U.S. District Court, Fiscal Years 1994 through 2007 

District court 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Total

AK 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1

AL(M) 0 1 1 0 0 0 1 0 0 0 2 0 0 0 5

AL(N) 0 2 0 2 1 2 2 2 1 1 14 0 0 0 27

AL(S) 1 1 0 1 1 1 1 1 0 0 0 0 0 0 7

AR(E) 1 1 0 0 2 0 0 0 0 1 0 0 0 1 6

AR(W) 1 0 0 0 3 1 0 0 0 0 0 0 0 0 5

AZ 3 0 3 2 0 2 2 3 4 2 1 2 1 0 25

CA(C)a13 4 3 9 3 15 5 7 6 5 2 3 3 4 82

CA(E) 2 3 6 9 1 1 1 1 7 3 3 2 2 3 44

CA(N) 8 6 5 9 7 9 5 10 4 0 10 3 2 6 84

CA(S) 3 0 0 1 0 0 1 1 0 1 0 1 0 1 9

CO 9 5 10 9 7 6 7 12 4 3 3 5 3 3 86

CT 4 3 2 4 4 6 4 36 4 4 2 0 3 0 76

DC 1 1 1 1 0 1 2 1 2 1 1 3 1 1 17

DE 0 1 3 1 0 3 1 4 2 3 0 2 2 0 22

FL(M) 1 8 1 4 6 2 5 2 2 2 2 1 0 0 36

FL(N) 2 6 0 0 0 2 0 3 1 0 0 0 1 1 16

FL(S) 4 4 2 2 4 0 1 1 0 1 0 2 0 0 21

 

1

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. 

 Superfund 
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

District court 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Total

GA(M) 2 0 0 3 1 0 0 0 3 2 0 0 0 0 11

GA(N)a1 4 3 8 3 0 0 2 2 1 0 1 0 2 27

GA(S) 0 0 0 0 1 0 0 1 0 0 0 0 0 0 2

HI 0 0 0 0 1 1 0 0 0 0 0 1 0 4 7

IA(N) 1 0 2 1 2 0 1 1 0 0 0 0 1 2 11

IA(S) 1 3 2 1 2 0 2 0 0 1 0 0 1 1 14

ID 1 2 1 1 2 2 1 0 2 0 1 0 1 0 14

IL(C) 1 4 0 4 2 1 3 1 0 0 0 1 1 0 18

IL(N) 5 3 0 4 4 4 3 1 3 5 7 5 4 7 55

IL(S) 3 0 0 1 0 0 1 0 0 1 0 0 0 2 8

IN(N) 4 6 5 6 7 4 7 3 0 1 0 0 0 4 47

IN(S)b N/A N/A N/A N/A N/A N/A N/A N/A 2 1 1 3 0 3 10

KS 7 0 5 2 1 4 1 3 0 0 3 3 1 3 33

KY(E) 0 1 0 0 1 0 1 0 0 2 0 0 1 0 6

KY(W) 5 1 0 1 2 0 0 0 2 0 0 1 2 0 14

LA(E) 0 1 54 1 1 4 1 4 11 2 0 0 0 0 79

LA(M) 0 0 1 0 1 0 0 0 0 0 0 0 0 0 2

LA(W) 2 3 0 5 0 0 0 0 1 1 0 3 0 1 16

MA 4 2 4 8 5 3 5 1 2 4 4 1 2 4 49

MD 5 3 3 2 2 1 1 1 0 0 0 0 3 2 23

ME 2 1 0 0 1 2 0 0 2 1 0 0 1 1 11

MI(E)cN/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A

MI(W) 11 7 6 7 5 15 2 3 2 1 2 3 2 2 68

MNa5 3 8 1 2 1 1 3 1 1 2 0 1 0 29

MO(E) 1 4 1 3 1 2 1 1 3 3 1 2 0 0 23

MO(W) 1 4 1 2 1 1 0 3 1 2 2 1 0 3 22

MS(N) 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1

MS(S) 1 1 1 0 1 0 0 0 0 2 0 0 0 0 6

MT 0 0 0 1 1 2 0 1 1 0 0 0 0 0 6

NC(E) 1 3 1 0 0 0 0 2 1 0 3 0 0 0 11

NC(M) 1 2 0 1 1 0 1 1 0 0 0 0 0 0 7

NC(W) 4 0 2 4 2 0 1 0 1 0 0 1 0 0 15

ND 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1

NE 0 0 3 0 1 0 1 1 1 3 5 8 0 2 25

NH 4 5 3 2 1 3 1 6 3 1 0 0 1 2 32

NJ 6 17 9 6 8 7 1 10 6 8 8 3 2 5 96

NM 1 1 0 0 1 0 0 0 0 1 2 1 0 0 7

Page 103 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

District court 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Total

NV 0 0 0 0 0 0 0 0 1 0 0 0 0 1 2

NY(E) 2 0 3 3 1 2 4 2 1 2 2 2 1 3 28

NY(N) 12 4 3 2 7 8 2 2 0 4 1 1 3 2 51

NY(S) 3 2 2 2 3 2 1 2 2 0 1 1 0 2 23

NY(W) 7 4 4 6 6 2 4 7 2 2 1 4 3 0 52

OH(N) 7 3 5 4 4 1 3 0 2 4 1 1 1 1 37

OH(S) 3 3 7 5 4 2 4 3 0 3 1 1 0 2 38

OK(E) 0 0 0 0 0 0 2 0 0 0 0 0 0 0 2

OK(N) 0 0 0 1 0 0 1 1 0 1 2 1 2 0 9

OK(W) 0 0 0 0 0 0 0 0 0 0 0 0 0 3 3

OR 4 2 2 11 3 3 2 1 0 1 3 1 1 1 35

PA(E) 7 9 10 6 11 14 10 12 16 6 4 7 8 5 125

PA(M) 3 4 6 2 1 6 3 1 2 1 0 1 0 1 31

PA(W) 6 4 5 4 3 1 1 0 1 1 0 3 3 1 33

RI 1 3 4 3 1 1 3 0 1 5 2 3 1 2 30

SC 2 5 2 1 4 2 3 3 0 3 2 2 6 3 38

SD 0 0 0 1 0 0 0 0 1 0 0 0 0 0 2

TN(E) 2 1 1 1 1 0 0 1 2 0 1 2 0 0 12

TN(M) 0 0 0 0 2 1 0 2 1 0 0 1 0 0 7

TN(W) 1 0 0 0 2 2 0 0 0 0 0 0 0 0 5

TX(E) 1 1 0 0 0 1 2 4 2 2 0 1 1 0 15

TX(N) 1 4 1 4 4 2 2 2 0 0 1 1 2 0 24

TX(S) 1 3 6 1 8 5 5 4 7 5 5 4 6 3 63

TX(W) 0 0 1 0 0 0 0 2 0 0 1 0 0 1 5

UT 2 3 6 5 4 3 0 2 2 1 4 2 2 2 38

VA(E) 2 3 0 3 2 1 1 0 0 1 2 3 1 0 19

VA(W) 0 0 0 1 1 3 3 2 1 1 0 1 0 0 13

VT 0 0 0 2 1 2 1 0 0 0 0 0 0 0 6

WA(E) 0 1 0 4 4 1 2 1 1 0 2 2 0 1 19

WA(W) 8 8 3 6 5 6 12 3 7 5 4 7 5 4 83

WI(E) 4 8 6 2 1 0 3 5 1 1 1 0 2 0 34

WI(W)a0 1 1 0 0 0 0 0 1 0 1 2 0 1 7

WV(N) 0 0 0 0 1 0 1 1 0 5 1 0 0 0 9

WV(S) 0 1 0 0 0 1 0 0 1 0 0 2 0 0 5

WY 2 0 0 0 0 0 0 1 0 0 0 0 0 0 3

Total 214 204 230 209 187 180 149 197 142 125 124 118 91 111 2,281

Source: GAO analysis of data on cases filed in U.S. district courts. 

Page 104 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

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. 

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 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Total

Region 1 15 14 13 19 13 17 14 43 12 15 8 4 8 9 204

Region 2 30 27 21 19 25 21 12 23 11 16 13 11 9 12 250

Region 3 24 26 28 20 21 31 23 22 25 19 8 22 18 10 297

Region 4 28 40 14 28 33 12 16 21 16 14 24 11 11 6 274

Region 5 43 38 38 34 29 28 27 19 12 18 16 16 11 22 351

Region 6 8 14 63 12 20 13 13 17 21 13 11 11 11 9 236

Region 7 11 11 14 9 8 7 6 9 5 9 11 14 3 11 128

Region 8 13 8 16 16 12 11 7 16 8 4 7 7 5 6 136

Region 9 29 13 17 30 12 28 14 22 22 11 16 12 8 19 253

Region 10 13 13 6 22 14 12 17 5 10 6 10 10 7 7 152

Total 214 204 230 209 187 180 149 197 142 125 124 118 91 111 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. 

Page 105 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

Table 19: CERCLA Cases Filed by Type of Plaintiff, Fiscal Years 1994 through 2007 

Type of plaintiff 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Total

Federal 53 63 54 82 85 68 65 61 54 62 42 50 41 57 837

State 22 11 22 29 23 31 22 26 21 14 16 18 16 15 286

Other 

Local government 9 15 5 4 3 12 8 7 2 3 4 10 4 2 88

Private parties 137 120 154 96 81 68 62 109 69 48 65 45 37 42 1,133

Other parties 6 7 5 6 5 8 6 7 6 3 4 3 3 2 71

Unknown parties 1 0 2 0 0 0 1 3 0 0 1 0 0 0 8

Other subtotal 153 142 166 106 89 88 77 126 77 54 74 58 44 46 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. 

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 

Duration (months) 

Type of plaintiff Average Median

Federal government 14.5 4.9

State government 15.1 4.6

Other plaintiff 22.0 15.2

All cases 18.6 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. 

Page 106 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

Figure 14: Number of CERCLA Cases Filed by Duration and Type of Plaintiff, Fiscal 

Years 1994 through 2007 

Number of cases

Duration of cases

Other plaintiff

State government

Federal government

Source: GAO analysis of data on cases filed in U.S. district courts.

0

100

200

300

400

500

600

700

800

900

1,000

 Less than 

 6 months

 5 years or more

 2 to less than 

 5 years

 6 months to 

 less than 2 years

Page 107 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

Figure 15: Average Number of Defendants per CERCLA Case by Duration, Fiscal 

Years 1994 through 2007 

 Average number of defendants

Duration of cases

0

5

10

15

20

25

30

35

 5 years or more

 2 to less 

 than 5 years

 6 months to 

less than 2 years

 Less than 

 6 months

Source: GAO analysis of data on cases filed in U.S. district courts. 

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. 

Page 108 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

Figure 16: Average Number of Defendants per CERCLA Case by Type of Plaintiff, 

Fiscal Years 1994 through 2007 

Average number of defendants

Source: GAO analysis of data on cases filed in U.S. district courts.

Type of plaintiff

0

2

4

6

8

10

12

14

16

18

20

 Other 

plaintiff

 State 

 government

 Federal 

 government

Page 109 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

Figure 17: Percentage of CERCLA Cases in Which Defendants Pursued Additional 

Parties by Type of Plaintiff, Fiscal Years 1994 through 2007 

 Percentage of cases

Source: GAO analysis of data on cases filed in U.S. district courts. 

Type of plaintiff

0

2

4

6

8

10

12

14

16

18

 Other 

 plaintiff

 State 

 government

 Federal 

 government

Page 110 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

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 

 Number of cases

Source: GAO analysis of data on cases filed in U.S. district courts.

0

100

200

300

400

500

600

700

800

900

No outcome

Remand

Nonconsensual 

 judgment

Court dismissal

Voluntary 

 dismissal

Settlement (not 

 fully negotiated 

 prior to filing)

Previously 

 negotiated 

 

settlement

Outcome

Other plaintiff

State government

Federal government

 

a

b

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. 

Page 111 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

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. 

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. 

deral or state 

Figure 19: Percentage of CERCLA Cases, by Type of Outcome and Plaintiff, Fiscal Years 1994 through 2007 

78%

5%

11%

7%

15%

18%

29%

39%

10%

70%

11%

9%

Federal government State government Other plaintiff

Source: GAO analysis of data on cases filed in U.S. district courts.

Consensual outcomes only

Nonconsensual outcomes only

Both outcome types

Neither outcome type

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. 

Page 112 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

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 

0.0 0.5 1.0 1.5 2.0 2.5 3.0 3.5

No outcome

Remand 

Nonconsensual 

 judgment

Court dismissal

 Voluntary 

dismissal

 Settlement (not 

 fully negotiated 

 prior to filing)

 Previously 

negotiated 

settlement

Average duration in years

Outcome

a

b

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. 

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, 

Page 113 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

such as counterclaims or discovery activity recorded in the docket.2 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. 

ly 4 percent 

Figure 21: Percentage of Closed CERCLA Cases with Only Previously Negotiated Settlements or Minimal Litigation by Type of 

Plaintiff, Fiscal Years 1994 through 2007 

3%

53%

32%

12%

92%

3%

1%

4%

33%

26%

7%

33%

Federal government State government Other plaintiff

Source: GAO analysis of data on cases filed in U.S. district courts.

Only previously negotiated settlement

Only settlement with minimal litigation

Other outcomes

No outcomesa

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. 

 

2

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. 

Page 114 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

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. 

y being consolidated 

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 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 

Percentage of cases

Source: GAO analysis of data on cases filed in U.S. district courts.

Cases with only voluntary dismissals

Cases with only court dismissals

Cases with only voluntary and court dismissals

 Federal government State government Other plaintiff

0

5

10

15

20

25

Type of plaintiff

Note: This figure includes only those cases that were closed as of September 30, 2007. 

Page 115 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

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 

14%

86%

Source: GAO analysis of data on cases filed in U.S. district courts.

Cases with evidence of 

possible settlement

Cases without evidence of 

possible settlement

Note: This figure includes only those cases that were closed as of September 30, 2007. These cases 

include voluntary and/or court dismissals. 

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. 

Page 116 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

Figure 24: Percentage of Closed CERCLA Cases with Only Nonconsensual 

Judgments by Type of Plaintiff, Fiscal Years 1994 through 2007 

 Percentage of cases

Source: GAO analysis of data on cases filed in U.S. district courts.

0

1

2

3

4

5

Other plaintiff

 State 

 government

 Federal 

 government

Type of plaintiff

Note: This figure includes only those cases that were closed as of September 30, 2007. Some of 

these cases also include appeals. 

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. 

Page 117 GAO-09-656 Superfund
Appendix II: Detailed Information on the 

Number, Duration, Complexity, and Outcomes 

of CERCLA Cases 

Figure 25: Percentage of Closed CERCLA Cases with Appeals by Type of Outcome, 

Fiscal Years 1994 through 2007 

 Percentage of cases

Source: GAO analysis of data on cases filed in U.S. district courts.

0

5

10

15

20

25

 

Cases with only 

 consensual 

 outcomes

outcomes

 Cases with only 

 

 

nonconsensual

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. 

Page 118 GAO-09-656 Superfund
Appendix III: Comments from the Appendix III: Comments from the Environmental Protection Agency 

Environmental Protection Agency 

Page 119 GAO-09-656 Superfund 
Appendix III: Comments from the 

Environmental Protection Agency 

Page 120 GAO-09-656 Superfund
Appendix III: Comments from the 

Environmental Protection Agency 

Page 121 GAO-09-656 Superfund
Appendix IV: 

A

GAO Contact and Staff 

cknowledgments 

Page 122 GAO-09-656 

Appendix IV: GAO Contact and Staff 

Acknowledgments 

John B. Stephenson, (202) 512-3841 or stephensonj@gao.gov

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. 

 Superfund 

GAO Contact 

Staff 

Acknowledgments 

(360933) 
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