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Staggering local costs point to need for reform.

Five years ago I never would have believed that my citizens could face millions of dollars of toxic waste cleanup costs for doing nothing more than taking out the garbage or flushing the toilet. Yet a series of lawsuits filed across the country try against hundreds of municipalities makes it clear that the Superfund statute is being abused, potentially crippling cities' ability to provide basic services to our citizens.

Cities Face Millions for Innocuous Sewage Sludge

My city of Littleton, Colo., along with the cities of Englewood, Lakewood, Glendale, and the Metro Wastewater Reclamation District, have been targeted under Superfund because sewage sludge that we sent from our publicly owned treatment works to the Lowry Landfill outside Denver contains trace amounts of heavy metals. In the case of sludge from the Littleton/Englewood Bi-city Treatrment Plant, the sludge contained less than .25 percent of such trace metals. (Sewage sludge is 90 to 96 percent water.)

Because of a minicule amount of heavy metals, our sewage sludge is allegedly a "hazardous substance" under Superfund, and we have been dragged into the worst municipal nightmare I have ever experienced. The ultimate irony is that this same sludge is so clean and good for the environment that it is beneficially reused as fertilizer and has received award from EPA.

Lowry Landfill, a former U.S. Air Force bombing range, began accepting industrial and municipal waste in 1967. The EPA estimates that from 1967 to 1980, 145 million gallons of industrial toxic waste were dumped in approximately 65 unlined pits and were then covered with municipal refuse, soil, and about eight million tires. Preliminary reports at Lowry conclude that contamination of the groundwater is overwwhelmingly caused by organic compounds, not the trace metals found in the cities' sewage sludge.

It is clear that if industrial pollutants had never been allowed to contaminate the landfill, it would not be a Superfund site today. It is also clear that if the cities' sludge had been placed anywhere else, local taxpayers would not be faced with expensive studies, multiple and potentially crippling lawsuits, and many millions of dollars in unfair cleanup costs.

Mobilizing for National Reform

Littleton and other cities have already spent millions on technical studies, but we have also begun to fight back. We are working with other local governments for legislative reform in Washington, D.C. Besides our active involvement with the National League of Cities and the Colorado Municipal League, Littleton has joined American Communities for Cleanup Equity (ACCE). ACCE is a national coalition of local government created to focus solely on the growing national problem of local government liability under Superfund.

Unfortunately, the Lowry site is not unique.

There are more than 200 so-called "municipal" sites now on EPA's National Priorities List at which industrial hazardous waste has contaminated municipal solid waste (including both garbage and sewage sludge). To make matters worse, large corporate entities have tried to exploit this situation at the expense of local governments, small businesses, and even non-profit groups such as the Girl Scouts. After being named as responsible parties, these polluters have brought numerous "third-party" cases against local governments to force us to subsidize their responsibility

The polluters' theory is that we should pay a major portion of the cleanup costs, even though their toxic chemicals contaminated our municipal waste. The corollary to this theory is that costs should be apportioned solely or primarily on the basis of waste volume, without regard to toxicity. That is tantamount to saying that a ton of grass clippings and food scraps is as dangerous and as expensive to clean up as a ton of asbestos or methylene chloride.

The third-party cases against us are like class action lawsuits against all of our citizens -- it is their waste, after all -- yet no one in Congress ever intended to hold individual citizens strictly, jointly and severally liable under Superfund for millions of dollars for taking out the trash. Local governments and their taxpayers have become unintended victims in the Superfund program.

The Toxic Cleanup Equity and Acceleration Act

To solve this growing crisis, legislation entitled the Toxic Cleanup Equity and Acceleration Act of 1991 (TCEAA) S. 1557 and H.R. 3026, was introduced in Congress last July. ACCE fully supports and seeks rapid enactment of the following legislative proposals embodies in the TCEAA:

* Empowering only the federal government to sue local governments or other persons for cost-sharing under Suberfund when they handled only municipal solid waste (including both garbage and sewage sludge).

* Codifying EPA's "Interim Municipal Settlement Policy." EPA already has a policy of not suing municipalities or other persons who merely generated or transported municipal solid waste unless exceptional circumstances exist. Congress should make this policy permanent by turning it into law.

* Easing settlement procedures for local government generators or transporters of municipal solid waste.

* Protecting public rights-of-way, Superfund should unambigiously state that a local government will not be liable merely for owning or maintaining a public right-of-way, such as a road or sewage pipeline, over which hazardous materials are transported.

* Securing retroactive relief. The legislation must apply to all pending administrative or judicial actions that began before the effective date of the bill.

The TCEAA is fully consistent with the current NLC policy on municipal liability. Even though it does not embody every provision of the policy, the TCEAA is an ambitious first step in reaching the policy's stated goals. With the active support of the major municipal associations and hundreds of individual local governments across the country, we have a good shot at gaining its enactment.

By far the biggest Superfund problem facing local governments today is potential liability for the disposal of ordinary garbage and sewage sludge. Even when local governments face liability as owners or operators of sites, those very governments are likely to face even greater liability stemming from their role as generators of municipal waste -- because almost all owners and operators arranged to have their citizens' waste disposed of, often at the same site they owned or operated. If the polluting corporations have their way, the liability of cities based on the total volume of municipal waste will likely dwarf all other bases of liability for local governments.

The current political reality dictates that our best chance for meaningful, quick relief depends upon the ability to seek a narrow amendment to the Superfund statute. We would never, for example, have received the support of people like U.S. Senators Frank Lautenberg and Tom Wirth if we had sought a blanket exemption for municipalities; we would never have calmed the environmentalist community if we had sought to eliminate all of EPA's enforcement authority; and we would never have gotten anywhere if we had tried to do away with Superfund's liability scheme and to replace it with a public works program.

Alternative "Solutions" Show Little Promise

Other interest groups have different ideas about how to fix Superfund. The American International Group (AIG), for example, is spearheading an effort to turn Superfund into a public works program. Although this approach would end some of the litigation now plaguing cities, their solution is not a realistic alternative, especially not in the short run. The insurance industry tried and failed several years ago to convince Congress to adopt a public works approach.

The fundamental and unavoidable premise of a public works approach is raising taxes. Are Congress and the President prepared to raise at least $40 billion in new taxes? Is society ready to abandon the "polluter pays" philosophy of Superfund? Will the taxing mechanism reach deep into local governments' or their citizens' pockets? Does the public, ever more distrustful of big government, want to have the EPA in charge of managing billions of dollars of cleanup contractors?

Moreover, a public works approach will be opposed by an unusual combination of powerful forces; fiscal conservatives, who oppose any new taxes; environmentalists, who want to protect the liability scheme to ensure that cleanups occur; and many large companies, who have already paid to clean up the problems they created and do not wish to pay again through new corporate taxes.

Another proposal, supported by the Landfill Solutions Group -- which has previously advocated making municipal waste volume the major factor in allocating cleanup costs -- would "carve out" the so-called "municipal" sites on the National Priorities List and deal with them apart from the regular Superfund program. Some of the funding proposals amount to little more than a tax on our citizens, either through greatly increased local "tipping" fees or a tax on waste haulers that would be passed on to individual households.

The carve-out proposal raises almost all of the same questions raised by the broader public works approach, with a few extras: Will the sites be cleaned up properly once they are taken out of the Superfund program? Are cities prepared to join forces with the same corporations who are suing us?

Potential Administrative Relief

As of last week, EPA's "Interim Municipal Settlement Strategy" was fully drafted but struck in the White House. The Strategy, though an inadequate substitute for legislation, was begun last July by EPA Administrator Reilly to help municipalities embroiled in third-party suits. The EPA announced its intention to reach settlements with us, although they had chosen not to sue us in the first place, so that they could grant us contribution protection -- the only existing mechanism EPA has under the current statute to prevent third-party suits.

In December, EPA Assistant Administrator Don Clay floated a "trial balloon" allocation formula (supported by the Landfill Solutions Group) that would have had municipal waste generators and transporters paying as much as two-thirds of the cleanup costs at co-disposal Superfund sites. ACCE and other local government groups strongly protested this proposal, claiming it was unfair, and the Agency retreated.

In March, a draft of the Interim Municipal Settlement Strategy was circulated. It would allocate no more than four percent of cleanup costs at co-disposal Superfund sites to the generators and transporters of municipal waste.

While this amount may still be too high for many local governments, it is far more reasonable than the position taken by the corporations who are suing us, and the Strategy explicitly rejects the contention that large volumes of municipal waste mean that local governments should pay the lion's share of the cleanup costs. So far,industry has been successful in getting the White House to delay issuance of the EPA Strategy, but local government advocates have been working hard to have it released.


The bottom line is that the stakes are very high for both industry and local governments -- billions of dollars. The best measure to get the Superfund program back on track is to block unfair litigation over ordinary garbage and sewage sludge. Local officials want toxic waste sites in their communities to be cleaned up, and many resent being courted by industry to help lobby EPA to allow cheaper remedies at particular sites or to help create a groundswell of support to do away with Superfund's "polluter pays" philosophy.

The current NLC Policy on Superfund and the Toxic Cleanup Equity and Acceleration Act are headed in the right direction, and with hard work, we will win the relief we so desperately need and deserve.
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Title Annotation:Special Report: Prescribing Change for Superfund Law
Author:Thornton, Susan M.
Publication:Nation's Cities Weekly
Date:May 25, 1992
Previous Article:Superfund needs changes to best serve public.
Next Article:Superfund litigation threatens public interest.

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