Another battle for Superfund reform

With legal and remediation costs mounting, cities and counties are desperate for relief from potential Superfund liability. Both U.S. EPA Administrator Carol Browner and key congressional Republicans say they are willing to dig local governments out from under the Superfund mess, but if actions speak louder than words, it’s pretty quiet in Washington.

As recently as March 5, Browner told the Senate Committee on Environment and Public Works that her agency would like to address the liability of municipalities and others that generated or transported municipal solid waste or owned and/or operated dumps. “EPA and the Justice Department have embarked on an exercise to address this issue through additional administrative reforms,” she said during testimony on S8, a Superfund reform bill.

Introduced by Republican Senators John Chafee of Rhode Island, who chairs the Senate’s environment committee and Bob Smith of New Hampshire, who chairs its Superfund committee, the bill includes a number of local government relief provisions. It is not, however, a favorite of the Clinton Administration.

“The administration does not believe S 8 provides the basis for consensus-based legislative reform,” Browner said.

Cities and counties face two main types of Superfund liability. They can be held accountable for transporting solid waste to dumps that later became Superfund sites, and for owning or operating dumps that may have received hazardous wastes from other sources – so-called “co-disposal sites.” (There are about 250 co-disposal sites among the 1,387 sites on the Superfund National Priority List.)

Since 1989, EPA has operated under a policy by which it would not sue local governments that merely were transporters or generators of hazardous waste. Additionally, in owner/operator situations, the agency would look at the local government’s ability to pay before negotiating a settlement, and even then would accept “in-kind” services.

The problem, though, is that even when EPA goes easy on them, cities and counties are dragged into expensive lawsuits by the industrial entities that EPA zeroes in on. And the governments themselves sometimes sue the dumpers.

Five days after Browner’s Senate testimony, Ken Patterson, the EPA official charged with turning Browner’s promise to “address the issue” into a solid administrative proposal, told a National League of Cities meeting just how difficult it will be to create concrete policies on the matter. Repeatedly referring to political realities and pressure from industrial businesses that think the municipal escape hatch is a bad idea, Patterson said, “At many Superfund sites, the cleanup costs are driven by the municipal solid waste. For example, the size of the remediation cap, which is often the most expensive component of the cleanup, is dictated by the MSW.”

The Chafee-Smith bill exempts all transporters and generators from Superfund liability as of the date it becomes law. It also puts a cap on local government liability for co-disposal sites, but the cap (10 percent for cities with populations under 100,000, 20 percent for others) only applies to costs incurred after the date of enactment. Both provisions exclude from the cap the costs that cities and counties agreed to pay in settlements signed before the bill becomes law.

Still, S8 is a step in the right direction, according to Karen O’Regan, environmental programs manager for Phoenix, Ariz., who testified on behalf of a number of local government groups.

Even better, she argues, would be reforms that apply to costs incurred before the bill’s enactment.