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National municipal policy on Superfund.

The following is NLC's National Municipal Policy regarding the Comprehensive Environmental Response Compensation and Liability Act, better known as Superfund.

Superfund Trust Fund

Congress should reauthorize the Comprehensive Environmental Response, Compensation and Liability Act (also known as Superfund) for at least five years so that existing hazardous waste disposal sites can continue to be identified, evaluated and controlled. Congress should increase the size of the Hazardous Substance Response Trust Fund which supports the Superfund program to one that is $9 to $12 billion so that it will be adequate to clean up the sites already on the National Priority List (NPL) as well as any additional sites added to the list. Trust Fund revenue should be derived from the following sources: by doubling the fees imposed on feedstocks used in the production of hazardous materials and used by hazardous waste generating industries or importers of hazardous materials; by eliminating some of the current exemptions from the fee; by levying feedstock fees on some of the new chemicals deemed by EPA to be hazardous; by establishing a broad based tax (such as an ad valorem tax, an excise tax, or corporate surcharge); and by maintaining the current contribution of general revenue to the Trust Fund.

Standards and Deadlines

EPA, the states, and responsible parties have been hampered in site cleanup decisions by the lack of site cleanup standards. To rectify this problem, the federal government should mandate that Superfund sites be cleaned up to the level required under existing environmental statues such as the Safe Drinking Water Act and the Resource Conservation Recovery Act.

In order to ensure expeditious cleanup of Superfund sites, Congress should statutorily establish timetables for cleanup of sites already on the National Priority List and separate deadlines for the identification, evaluation and cleanup of new sites added to the NPL.

The EPA and other federal agencies involved in hazardous waste site cleanup should increase their economic and administrative commitments to the problem, and make better and more rapid use of the money already available for cleanup. NLC should work with appropriate federal agencies to support improved hazardous waste cleanup.

State and Local Roles in Superfund

The Superfund program can be made more efficient if states and localities are given greater decision-making responsibilities under the program than they have currently. States and localities should have the option to assume full responsibility for planning and implementing Superfund response actions. Such responsibilities should include undertaking preliminary assessments, remedial investigations/feasibility studies, preliminary engineering, selecting contractors, performing removal and remedial actions.

Municipal Liability

Municipal liability for cleanup costs under the federal Superfund statute must be clarified. The U.S. Environmental Protection Agency recognizes that municipal solid waste (including both garbage and sewage sludge) contains only insignificant amounts of hazardous constituents and in its Interim Municipal Settlements Policy provides that EPA will identify local governments as potentially responsible parties (PRPs) at hazardous waste sites only in exceptional circumstances.

The Interim Municipal Settlements Policy, while a laudable first step, is an inadequate response to the concerns of municipalities. First, the Policy applies only to (public and private) transporters and generators of municipal solid waste, but not to municipal owners and operators of Superfund sites. Second, the Settlements Policy does not protect transporters and generators of municipal solid waste from lawsuits by private parties for cost recovery and contribution to the clean up costs at these sites.

To assure that municipalities will not be held responsible, through private party litigation or otherwise, to assume full financial responsibility for clean up costs, NLC supports enactment of legislation which would:

* eliminate local government liability under Superfund for the disposal of ordinary municipal waste, both garbage and sewage sludge;

* provide expedited de minimis settlements for hazardous materials generated by local government operations;

* allocate costs on the basis of the toxicity rather than the volume of the municipal waste;

* strengthen local governments' ability to protect and restore the environment by enabling them to recover costs for damages to natural resources; and

* reauthorize Superfund at an adequate funding level so that cleanup of existing hazardous waste sites can continue.

* State Response Funds

In order to ensure that states have adequate resources to both respond to hazardous waste emergencies and to execute their broad responsibilities under Superfund, states should have the authority to establish state-level hazardous waste response funds. Congress should amend CERCLA to repeal the current preemption of state authority to develop state hazardous response funds.

State and Local Matching Share

The current state matching requirements under CERCLA are too burdensome, hampering cleanup efforts. Congress should require states to pay only 10 percent of total cleanup costs at publicly owned or operated Superfund sites. The 50 percent matching requirement should continue to be required at publicly owned and operated sites. Additionally, Congress should liberalize conditions under which states may generate credits which can be used to offset the state matching requirements. This could be accomplished by crediting states for past cleanup actions, reimbursing states that have already expanded more than 10 percent of costs at Superfund sites they owned but did not operate, or crediting a state's administrative expenses toward its matching share.

Maintenance and Operating Costs

Funds from the Hazardous Response Trust Fund should be used to support long-term operation and maintenance activities, such as cleanup of ground-water contamination at Superfund sites, after cleanup actions have been taken. This could be accomplished by requiring that states and localities pay a matching share for maintenance and operating expenditures that is comparable to the matching share required for cleanup actions.

Post-Closure Liability

The Post-Closure Liability Fund which was established to provide assistance for monitoring, maintenance and long-term care at RCRA-permitted hazardous waste sites, should be reauthorized. The fund should continue to be supported by a tax on hazardous wastes that are disposed of in RCRA-permitted facilities. However, in order to adequately finance post-closure activities, Congress should remove the $200 million ceiling on the Fund's unobligated balance so that more revenues can accrue in the Fund. Additionally, Congress should amend current law to extend the liability period for owners or operators from five to fifteen years after closure in order to ensure that RCRA sites are properly maintained in the post-closure period.

Environmental Impairment Liability Insurance

Congress should continue to examine the nature, scope and causes of the problem of scarce environmental impairment liability insurance and should take action to improve the availability of that insurance. As a first step, Congress should amend the Products Liability Risk Retention Act to facilitate the creation of interstate risk sharing pools. Congress should change the liability standards of CERCLA only with great caution. Any effort to limit the retroactivity of those standards and to relieve responsible parties from liability for past activities would be strongly opposed by NLC. Such a change in liability would leave the cleanup of older hazardous waste sites funded at state and municipal expenses, funded through substantially increased Superfund taxes, or unfunded (and therefore not cleaned up) entirely.


Congress should enact federal community right-to-know legislation in order to establish a more uniform means of planning for and responding to emergencies caused by the release of hazardous substances which may present an imminent and substantial danger to public health. The legislation should pertain to owners and operators of facilities, including federal facilities, at which inventories of hazardous substances are maintained in quantities of 6,000 kilograms or more. The legislation should cover acutely and extremely volatile hazardous substances which may present an imminent and substantial danger to public health, as determined by the Administration of the EPA. The legislation should require the owner/operator to report to designated state and local agencies annually on the type of hazardous substances on-site, the present and anticipated amounts of the substances during a given year, and the location of the waste inventory.

Additionally, legislation should require each state to appoint a statewide emergency response planning commission to play a coordinating role in emergency response planning. If a state fails to act within a specified time period, then EPA should establish such a commission, or should designate a state agency on behalf of the state. Participation by local government representatives in the state commission should be mandatory. The statewide commission should be responsible for developing statewide plans, for responding to on-site releases of hazardous substances, for assisting the local governments in developing their own plans, and for coordinating local plans with each other and with the state plan. The costs of developing state and local emergency response plans should be borne by the federal government.

The federal legislation should also preempt different or conflicting state and local right-to-know and emergency response requirements. However, states and localities should be allowed to seek a waiver from the preemption if they can demonstrate that they have a unique safety or health circumstance which necessitates passage of a right-to-know or emergency response requirement inconsistent with the federal requirements.

Deferred Listing

Congress should carefully examine the impact of a deferred listing approach as a means of better managing the Superfund sites.

States, with the concurrence of local governments, should be allowed to petition EPA to defer certain sites. State petitions should be required to show that the state has consulted with and secured the concurrence of local governments involved in the site, and has provided reasonable notice to the public of its intent to petition. Provisions should be made for public participation in the remedy selection process.
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Copyright 1992 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Special Report: Prescribing Change for Superfund Law
Publication:Nation's Cities Weekly
Date:May 25, 1992
Previous Article:Superfund litigation threatens public interest.
Next Article:Minnesota considers revamping environmental laws.

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