GOVERNMENT

Cities Fight To Avoid Superfund Liability for Municipal Landfills

Firms hit with site cleanup believe cities should pay share of cost while cities argue that industry is responsible for hazardous nature of landfills

David J. Hanson, C&EN Washington

A change made in the Superfund law in 1986 that allows responsible par­ties in waste cleanup actions to sue to collect expenses from third parties is developing into a big headache for many towns and cities.

Reasoning that city trash is at least part of the problem at Superfund sites, companies that are paying mil­lions of dollars for site cleanup be­lieve cities should pay a share of the cost. The cities that are being sued, however, strongly contend that in­dustry is responsible for the hazard­ous nature of these landfills, saying municipalities were never meant to be a party to most Superfund actions.

This growing standoff between municipal governments and indus­try was the subject of a recent hear­ing held by the Senate Subcommit­tee on Superfund, Ocean & Water Protection, chaired by Frank R. Lau­tenberg (D.-N.J.). Lautenberg, to­gether with Sen. Timothy E. Wirth (D.-Colo.), has introduced a bill, S. 1557, that would protect municipali­ties from most third-party actions arising from Superfund cleanups.

According to Lautenberg, "This bill will fine tune the Superfund statute to block opportunistic and costly lawsuits by large corporate polluters against such innocent enti­ties as the nation's cities and towns, and others when they have simply hauled garbage to a landfill."

However, according to testimony by Rohm & Haas general counsel

John Subak for the Chemical Manu­facturers Association, "When munic­ipalities face liability for sending municipal solid waste to a Super-fund site, they are being treated no differently than any other parties under the law."

Subak says when Superfund was reauthorized in 1986, Congress heard many complaints from potentially re­sponsible parties about the harshness of the law's joint and several liability provision. To address those com­plaints, Congress added a section that specifically allows any responsible party to sue for contributions from any other person that is liable or may be liable. "It is then left to the courts to apportion liability among all the responsible parties, based on equita­ble factors," Subak told the subcom­mittee. "This right to contribution is a legal right specifically recognized by Congress."

That right is designed to address situations in which some parties agree to settle with the Environmen­tal Protection Agency on cleanup of Superfund sites, while othe'r parties potentially responsible for waste at a site refuse to help meet the costs. These situations usually result in large chemical companies bearing far greater portions of cleanup ex­penses than their proportion of haz­ardous waste at a site warrants. Un­til the 1986 amendments, they had no way to recover any costs from parties that did not take part in the settlement.

Since municipalities and other or­ganizations did contribute to the wastes in Superfund landfills, indus­trial responsible parties are turning to them to recover remediation ex­penses. This unexpected turn of events has frightened and angered the towns and communities involved because they are faced with literally millions of dollars of liability that

they did not expect, and cannot af­ford, to pay. They have banded to­gether and formed a group, the American Communities for Cleanup Equity (ACCE), to support legislation to remove their potential liabilities. The group has compiled a list of 14 pending or threatened lawsuits in­volving municipalities and Super-fund sites. Its spokesmen painted a grim picture of the problems it faces at the hearing.

Donald G. Poss, city manager of Blaine, Minn., for example, told the subcommittee, "We in Minnesota have defensively participated with approximately 100 corporate respon­sible parties in the bizarre process of negotiating cost sharing responsibil­ities. The process is completely dom­inated and directed by the larger corporations; when the course of the game didn't suit them, they took their bat and ball home until they got their way. Meanwhile, a com­mittee of lawyers salivate at the prospect of suing those who do not agree to pay their allocated tribute."

The members of ACCE claim that they can neither afford to pay the cleanup costs nor defend themselves from the third-party lawsuits. They admit that garbage and sewage sludge contains small amounts of hazardous substances because of such things as nail polish remover and paint thinner. But "no one can seri­ously believe that Congress intended to hold individual citizens liable for millions of dollars in cleanup costs when they take out their trash to the curb or flush their toilets," argued Boyd G. Condie, a city council mem­ber from Alhambra, Calif.

EPA, CMA contends, has ignored the liability of municipalities in Su­perfund negotiations, even though the actual volume of waste that has to be cleaned up may consist almost entirely of municipal trash and gar-

16 August 26, 1991 C&EN

Lautenberg: opponents would frustrate

bage. Cities that were owners and operators of landfills that are now Superfund sites do fall into the lia­bility scheme. But in the case of the 20 to 25% of Superfund sites that were privately owned but used ex­tensively by cities as landfills, "EPA has chosen not to deal with the con­troversial issue of municipal liabili­ty, preferring instead to pursue a limited number of deep pockets," Subak testified.

EPA says it is trying to improve its policies. Assistant administrator for solid waste and emergency response Don R. Clay says a three-part pro­gram is under way to help munici­palities. A national meeting will be held to define allocation issues and propose solutions. Second, EPA is ex­pected to propose national guidelines for allocating cleanup costs attribut­able to municipal solid wastes. And third, a model settlement agreement for municipalities will be developed under which they can settle their lia­bility and receive statutory contribu­tion protection against third-party suits.

Responding to EPA's initiatives, Edward Lloyd of the New Jersey Public Interest Research Group says the new program could work. He suggests that EPA develop some kind of generic nonbinding alloca­tion of responsibility regarding mu­nicipal garbage that rejects indus­try's theories that municipalities should pay cleanup costs on the to­

tal volume of garbage they sent to dumps. The alloca­tion, however, should be flexible enough to include municipalities in third-party suits if EPA deter­mines that the cities had placed large amounts of hazardous waste in the dumps.

Critics of industry see ef­forts to bring municipali­ties into the Superfund mo­rass as a thinly veiled at­tempt to gut the program's liability system. "Some op­ponents of a strong Super-fund program would like nothing better than to frus­trate Superfund cleanups and the program itself,"

cleanups Lautenberg says. "We should not permit enemies

of the Superfund program to exploit taxpayers in a cynical quest to bring the program to its knees."

The New Jersey Public Interest Research Group, which says it is a nonpartisan advocacy organization, charges that major chemical and in­surance companies are trying to re­cruit new allies in the fight against Superfund. "They want to squeeze the municipalities for money to push them to attack the Superfund program," Lloyd told the subcom­mittee. "Their theory is that these more likable folks will become out­raged and join the big polluters as a front for the campaign to change the 'polluter pays' principle."

"The fact that industry engages the power and prestige of the feder­al judicial system to force submis­sion from its victims is nothing less than outrageous," says Gerald B. Lu­cas, first selectman of Killingworth, Conn. He says he does not believe that "Congress intended to clean up toxic dumps with funds extorted from municipal government, small businesses, the Girl Scouts, and indi­vidual taxpayers by the petrochemi­cal industry." Stil^ he concedes that recent court decisions in Connecti­cut and California say the third-par­ty lawsuits against cities are valid.

According to CMA, the problem is with the Superfund law itself. "It does not matter how dilute that per­son's waste may have been. It does not matter that the concentration of

hazardous substance in that person's waste stream is extremely low. It does not matter that the hazardous substance in that person's waste is unrelated to the primary environ­mental problem at the site. Is this fair? Of course not. But it is the law," says Rohm & Haas' Subak. "Munici­palities say they want recognition that the 'fair share' of liability at a Superfund site is sometimes very small. So do many industrial poten­tially responsible parties. CMA's members know how frustrating and costly it is to be a small-volume con­tributor at a site where studies and negotiations go on for years."

Subak points out that EPA has stated that such commonly discard­ed items as household cleaners, au­tomotive products, paint thinners, and pesticides all contribute to haz­ardous waste problems, including leaching into groundwater. Meth­ane gas, which can be formed by de­composition of municipal waste, is also considered a serious environ­mental problem. Much of the mon­ey spent at a Superfund site is ex­pended on capping many acres of landfill, almost all of which are oc­cupied by municipal trash and may even include areas where no indus­trial hazardous waste was buried. Making municipalities pay a portion of the costs is perfectly consistent with the "polluter pays" principle created by Congress during the orig­inal Superfund debate, Subak says.

CMA contends the problems mu­nicipalities are now facing are due to the fact that the law is working exactly as Congress intended. "The law imposes liability without fault or knowledge. It imposes liability retroactively on actions and practic­es that were legal, normal, and con­sidered proper at the time," Subak charges. He goes on to describe in­stances where companies, officers of companies, shippers, and others only marginally involved in any way with hazardous waste have been drawn into Superfund settle­ments. "A selective exemption from Superfund liability will only multi­ply the existing system's fundamen­tal problems. What is needed is a comprehensive reevaluation of the entire Superfund liability standard and its impact on cleanup of this na­tion's hazardous waste sites." D

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