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Cleanups will demand cooperation, accountability.

Superfund liability will have a significant impact on local governmental entities nationwide in the next several years. Approximately one-third of the 1,200 Superfund sites on the national priorities list (NPL) involve local governments either as site owners or as generators of waste. Two hundred of these NPL Superfunds sites are owned, or were operated by, municipal governments. Moreover, according to a January 1992 report by Clean Sites, Main Street Meets Superfund: Local Government Involvement at Superfund Hazardous Waste Sites, municipalities are responsible for more hazardous waste at Superfund sites than previously believed.

Superfund's potential financial impact on entities who contributed to the problems of municipal waste/mixed industrial waste landfill sites is staggering. The Clean Sites report states that the cost of cleaning up the 403 sites where local governments are involved may be over $12 billion. (This is based on EPA estimates that the average cost of cleaning up a hazardous waste site is $25 to $30 million. Remediation of municipal landfills is generally much more expensive.)

This article shares preliminary observations and suggestions for modifying the federal Superfund program to deal more effectively with the large class of municipal landfills which EPA already has begun to include on the NPL.

It is certain that unless the Superfund program as applied to municipal co-disposal landfills is modified, Superfund and its unwilling municipal and business participants will be financially overwhelmed by the huge number of municipal landfills and the massive volumes of waste that must be addressed. Under the current Superfund system, these massive sites will probably not be cleaned up for decades. These sites, therefore, should be removed from the Superfund program, cleaned up pursuant to EPA's Resource Conservation and Recovery Act (RCRA) corrective action requirements--or state approved standards--and financed by a separate funding mechanism.

The Municipal Landfill Problem

The deceptively simple Superfund program is founded on the principle that any party associated with generation, transportation, management and treatment or disposal of hazardous substances should be held accountable if these hazardous materials are released into the environment. Imposition of strict, joint and several liability was intended to force all involved parties to cooperate with each other to fund and manage the necessary site investigations and cleanup actions.

A federal trust fund, the "Superfund," was established to provide seed money for investigations and program management, and to fund response actions at orphan sites where no responsible party could be found.

During the first several years of the program, industrial treatment and disposal facilities selected for the National Priority List (NPL) attracted most of EPA's and the public's attention. However, in recent years the agency's focus has included the approximately 200 municipal-owned landfills listed on the NPL. The Office of Technology Assessment (OTA) estimated that 20,000 additional municipal landfills could be added to the NPL, compared to only 2,000 additional non-municipal hazardous waste landfills. Because of Superfund's "polluter pays" liability scheme, the municipalities which generated or transported wastes containing hazardous substances are jointly and severally liable, along with commercial and industrial generators and municipal governments who owned or operated the landfills which served their regions.

Many landfills on the EPA Superfund list contain 70 to 95 percent municipal solid waste. EPA's Municipal Settlement Allocation Policy, anticipated for publication in early March, will likely shift the financial burden of clean-up to municipalities which served their regions by operating landfills, and to other parties which may have deposited only minor amounts of hazardous substances in the landfill. Therefore, it is in the best interests of municipal owner/operators and industrial potentially responsible parties (PRPs)

to work together towards a compromise solution.

Recognition of the coming avalanche of Superfund municipal solid waste landfills should set the stage for program changes to assure that all contributors to health and environmental risks associated with Superfund sites are treated equitably--irrespective of whether they are private, government, municipal, industrial or institutional. None of these groups have the resources necessary to remedy this societal problem alone.

Unless the program is modified by Congress and EPa, the financial burden for cleaning up landfills under the current Superfund structure will fall disproportionately on entities which disposed of wastes that contained little or no hazardous substance at the time of disposal. The broad spectrum of persons and entities who contributed to the problems at municipal waste/mixed industrial waste landfill sites indicates that the responsibility for the cleanup should be equally broad.

An alternative program for the cleanup of closed municipal landfills should be developed and presented to Congress prior to the reauthorization of CERCLA due in 1994. The following list identifies the primary problems with addressing municipal landfills through the Superfund process.

Application of the liability provisions of the Superfund program to landfill cleanup has been recognized as inappropriate for the following reasons:

[section] The primary goal of CERCLA, when passed in 1980, was to address traditional hazardous waste sites such as the Love Canal, N.Y. and Times Beach, Missouri sites.

[section] Recent investigations of landfills demonstrate that, in some cases, releases of hazardous substances can be attributed solely to municipal solid waste. Superfund is not an efficient means of achieving cleanup at landfills where those substances were deposited by hundreds of small generators, large generators such as hospitals and universities, or as part of household waste.

[section] Allocating funding for municipal landfill cleanups requires extensive, legally defensible documentation. Often such documentation is non-existent. The extensive, frustrating search for data concerning municipal landfill disposal requires valuable EPA staff time, valuable local government, and valuable U.S. business time that could be better spent on cleaning up the sites.

[section] The adversarial nature of the Superfund process does no foster cooperative negotiations between EPA and landfills owned or operated by political subdivisions.

[section] Numerous landfills involve insolvent owner/operators.

[section] Feasible technologies to clean up large municipal co-disposal landfills have not yet been developed.

Suggested Landfill Cleanup Programs

The Superfund liability scheme of owner/operator, generator, and transporter responsibility should not be used to clean up a mixed-disposal muncipal landfill. Instead, a revolving loan program for state funded cleanups could be established. Cleanups would be pursuant to RCRA (the Resource Conservation and Recovery Act) groundwater monitoring and corrective action requirements or state approved site specific variations of RCRA.

Funding for the loan program could mirror or become a variation of the revolving loan program created by the Federal Water Pollution Control Act for construction of wastewater treatment plants. The Act provided federal financial assistance in the form of loans to states and municipal agencies for construction of publicly owned wastewater treatment works. The statute set forth the scope of costs reimbursable under the program.

Suggested Funding

Funds for the program could originate from a local tipping fee on solid waste disposal, or other state-led initiatives, and perhaps combined with an increase in the environmental assessment on corporate alternative minimum taxable income (to be set aside for cleanup of municipal co-disposal sites). One funding example would be a fee (similar to a sales tax) imposed on trash collectors who would then pass the assessment through to individual customers as a set percentage of the total charge for waste disposal. The assessment could be either a fixed percentage of a total fee charged by the collector, or the collector could be required to establish a separate charge for the type of trash collected, e.g., one fee for households and another for industrial customers.


For CERCLA purposes, there are no separate categories of "waste," "municial solid waste," "solid wastes," or "hazardous wastes." Pursuant to CERCLA, one drop of a "hazardous substance" can result in liability for response actions. Case law interpreting CERCLA clarifies that it was not Congress' purpose when enacting CERCLA to exclude from regulation any entity's minimum quantities of hazardous substances. Therein lies the fundamental reason for opposing administrative and legislative attempts to "carve out" CERCLA liability for "special" entities (such as municipal generators and private transporters of municipal solid waste), as contrasted with developing a more appropriat remedial program for a class of hazardous substance sites, i.e., the municipal waste/mixed industrial waste landfills.

A broad spectrum of people and entities contributed to the problems at municipal and municipal co-disposal sites. Congress should implement a program that deals with this societal problem in a manner that achieves cleanup of the municipal landfills rather than fuel further litigation between local governments, community businesses, and their respective insurers.

Linda E. Christenson is of counsel with Kilpatrick and Cody, a Washington, D.C. and Atlanta-based law firm. She is the founder and executive director of the Landfill Solutions Group. The Landfill Solutions Group, formed in march 1991, is comprised of a broad spectrum of entities who contributed to the problem at municipal waste/mixed industrial waste landfill sites. The coalition will develop and present alternative solutions to the quagmire of municipal landfill cleanups independently from other Superfund NPL sites.
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Title Annotation:Special Report: Future of Superfund Needs Careful Attention
Author:Christenson, Linda E.
Publication:Nation's Cities Weekly
Date:Feb 24, 1992
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