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Debate on Superfund reauthorization continues; don't overlook the progress under Superfund.

The Superfund program appears to be the most maligned program implemented by the Environmental Protection Agency. In part due to a big money media campaign being waged by the insurance and other industries, barely a week goes by without an article in a newspaper or magazine regarding the high cost, mal-administration or unfairness of the program.

It is safe to say that every group affected by the Superfund program has a complaint; community residents near the sites, environmental organizations, state and local governments, industrial PRPs, insurance companies, and cleanup contractors.

While each person who judges the success of Superfund comes with a different perspective, I believe this program is generally being judged too harshly. The Superfund program has been the victim of 1) too little appreciation of the enormity of the problem, 2) too many disruptions, and 3) too high expectations of success.

Superfund Problems are Enormous

Although some have claimed that Superfund was originally conceptualized as a temporary program aimed at a few dozen abandoned waste sites, most involved with its original enactment were fully cognizant that the program would soon demonstrate that Love Canal and other well publicized sites were the proverbial tip of the iceberg.

However, few suspected that EPA would accumulate 35,000 sites for investigation and place over 1200 sites on the National Priorities List for Investigation. Furthermore, little was known about the sheer technical difficulties that would be encountered at many sites in developing even a modest containment remedy, let alone the intricacies of identifying, mapping and treating groundwater contamination.

The Superfund program today has developed an entire public and private "industry" to respond to these challenges that did not exist in 1980. This represents one of the real accomplishments that rarely receives public acknowledgement.

The Success of Superfund

Has Been Limited

by Too Many Disruptions

Progress in the Superfund program has been achieved amid a high degree of poor administration and disruption. The program was nearly strangled at birth under the administration of Anne Gorsuch Burford, who hoped to terminate it at the end of four year authorization period. Progress was brought to a virtual stand-still during the Congressional reauthorization debate as renewed appropriations were suspended for eighteen months.

Additionally, the Superfund program has been plagued by chaotic administration that seemed to constantly change direction from enforcement-lead to clean-up-lead back to enforcement-lead strategies. EPA's extensive use of contractors has clearly left too much control with the contractors and not enough in the hands of EPA. What this program does not need is another major revision or change in direction mandated by Congress which will further disrupt and slow the progress of current cleanups.

Expectations for Superfund Success

Have Been too High

There is little question that expectations for this program started out high. Primarily because of the legislative process this has been true for every large environmental initiative enacted by Congress in the last twenty years. It is true of the Clean Water Act and the Clean Air Act, too.

These programs inevitably deliver less than is promised. The key is to try to deliver as much as possible. The Superfund program has not done this. Congress in reauthorizing the Superfund must refine this program without disrupting it.

There are modest changes in this program that could make it work better. This should not include redefining the cleanup goals of the program to focus primarily on simply "stabilizing" sites, rather than permanently remediating them. The public concern over "ticking time bombs" provided the political support needed to enact and reauthorize Superfund. The American public will not accept a Superfund program whose principal goal is making ticking time bombs tick more slowly.

Fully Impact CERCLA

When Congress reauthorized Superfund in 1986, it provided some tools for EPA to use to reduce the delays arising from conflict and litigation at multiparty sites. EPA was directed to use "de minimis" and cost-sharing authorities to simplify the allocation of cleanup liability. These tools remain largely unused. EPA has approved only a handful of "de minimis" settlements and few cost sharing agreements.

Congress needs to examine what, if any, legislative changes to Superfund could be made to assure these authorities are used much more extensively. Indeed, Congress may be part of the problem. As the EPA is quick to point out, Congress has consistently appropriated less funding for the Superfund program than has been requested in the President's budget. Clearly, EPA has used these authorities sparingly because available personnel are focused on other activities deemed to have a bigger "payoff" and funds are scarce. This deadlock must be broken.

We need a Municipal Sites Initiative

There is emerging a consensus that the current structure and administration of Superfund is not well suited to addressing municipal waste sites. These sites are typically large, contain diverse wastes, and involve many PRPs. As a result, the types of remedies that can be implemented are technically and economically more limited and the location of cleanup liability is much more complicated.

Particularly troubling is the emerging trend of third party contribution suits being brought by industrial PRPs against municipal waste generators. This trend must be ended. EPA's efforts at developing a municipal settlements policy appear to be on permanent hold. Congress must step in.

Congress needs to develop a "municipal sites initiative" aimed at customizing the goals of Superfund to the unique challenges posed by large municipal sites. Although EPA has already developed a policy, it is constrained by the law in its ability to deal with municipal sites differently from other types of sites.

A new municipal sites initiative must clarify the remedy selection process to establish criteria for determining when a permanent remedy can be replaced with a containment remedy. It must assure a maximum feasible containment remedy is provided. Such initiative must assure that the technical and institutional mechanisms are created to provide long-term maintenance, monitoring and groundwater treatment that may be needed at the site.

A municipal sites initiative must also address cleanup liability allocation. As discussed below, Congress never intended the liability provisions of Superfund to be exploited to drag municipal waste generators into lawsuits for contribution.

However, Congress did intend municipalities that owned or operated municipal sites cleaned up under Superfund to share in cleanup liability. Some municipalities clearly did not take their responsibility for protecting public health and the environment seriously in operating their waste facility.

They can not escape the consequences.

However, Congress should examine the difficulties small municipalities may be having in shouldering their share of the liability. Options to look at include doing more to facilitate "in kind" services as a means of meeting their obligation, federal or other loans, and federal grants to alleviate special hardship. Clearly, new ear-marked funds would be needed to assure some of these options are viable.

A new municipal sites initiative would help make Superfund more flexible to meet the unique conditions presented at municipal sites. In addition, the "baggage" of municipal sites problems could no longer be used to seek weakening changes to Superfund as it applies to other industrial sites with few PRPs that do not present the same cleanup and liability allocation changes.

Municipal Waste Generators

While some industrial PRPs have long been calling for EPA to use its "de minimis" authority more aggressively to simplify the number of parties involved in cleanup liability allocation, an increasing trend is emerging of PRPs seeking to complicate liability allocation by bringing third party contribution suits against generators of municipal waste. The relatively small amounts of hazardous substances in mixed municipal waste is not sufficient to trigger the listing of a municipal waste site on NPL.

Congress did not intend the fact that municipal waste does contain some hazardous substances to be used as a basis for plaguing generators of municipal waste with third party contribution law suits. Were it not for the disposal of industrial and other wastes containing much more toxic hazardous substances at the site, a Superfund cleanup would not be necessary. Those responsible for disposing of these wastes must bear the burden of the cleanup.

In order to protect municipal waste generators, the Sierra Club and other environmental organizations supported an amendment to Superfund sponsored by Senators Frank Lautenberg (D-N.J.) and Timothy Wirth (D-Colo.) and adopted by the Senate this summer. The amendment provides a reasonable approach to municipal waste generator liability. Third party contribution suits would be prohibited.

EPA would be able to seek contribution using a formula that allocates 4 percent of cleanup liability to municipal waste generators (EPA has calculated that the cost of cleaning up municipal waste is 4 percent of hazardous waste cleanup). Municipalities may count reasonable "in kind" services toward their share of this limited liability. If EPA finds that a party claiming to be a municipal waste generator in fact generated wastes which are not considered mixed municipal waste, it can treat them as a traditional PRP.

Municipalities would be required to "earn" entitlement to this liability regime for wastes generated in the future (3 years after enactment) by instituting a household hazardous waste collection program to reduce the level of hazardous substances in the mixed waste stream.

The Sierra Club will continue to support the Lautenberg/Wirth amendment in future Superfund reform efforts in Congress should the amendment fail to become law this year.
COPYRIGHT 1992 National League of Cities
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1992 Gale, Cengage Learning. All rights reserved.

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Title Annotation:includes related information on the report; Special Report
Author:Early, Blake
Publication:Nation's Cities Weekly
Date:Oct 5, 1992
Previous Article:Partnership puts energy into paper recycling.
Next Article:Despite problems Superfund still is best hope.

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