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Superfund liability poses increasing threat to cities.

Municipalities throughout the country, already forced to contend with external pressures on municipal budgets over which they have no control, are, with alarming frequency, being forced to contend with another external force that is sending shock waves through their budgets and their taxpayers. The force, contribution actions under Superfund has begun to threaten municipalities throughout the nation with financial devastation which can only be averted by a coordinated effort to bring about a legislative amendment to Superfund.

By way of background, Superfund granted the EPA authority to address the harmful effects of hazardous substances released into the environment. The legislation specifically empowered the EPA to take response actions to abate any such release, to recover its response costs from responsible parties and to compel potentially responsible parties (PRPs) to undertake response actions.

Liability under Superfund is strict, joint and several.

It warrants emphasis that the definition of "hazardous subtances" under Superfund is extremely broad and encompasses substances contained in household products commonly found in the municipal waste stream such as household cleaners, cosmetics, batteries, lawn fertilizers, consumer pesticides and paint products. Moreover, various studies have concluded that approximately 0.0045 percent to 0.40 percent of household and municipal waste may be classified as "hazardous substances." Although the volume and concentration of "hazardous substances" fond in municipal solid waste is dramatically lower than that of the wastes which trigger Superfund response actions, the statute does not expressly insulate generators or disposers of household or municipal waste from liability.

Industrial polluters, in an effort to extricate themselves from cleanup costs, have recently begun to seize upon the loophole, and, in so doing, have attempted to redistribute cleanup costs to the munciipalities and their taxpayers by suing municipalities and private citizens as "generators" or "transporters" of hazardous substances.

For example, such efforts are already underway in New Jersey relative to such sites as the GEMS Landfill in Gloucester Township in which more than 100 municipal entities have been sued for contribution. Elsewhere, the City of Woodstock, Illinois, which has an annual budget of thirteen million dollars, is alleged to be liable for over twelve million dollars for site investigation and study costs alone. In Connecticut, 25 municipal entities have been sued by private parties seeking contribution for cleanup costs in excess of 70 million dollars. At the Operating Industries site in California, 64 industrial corporations have sued 29 cities alleging that the cities should pay up to 90 percent of clean-up costs which could exceed eight hundred million dollars ($800,000,000.00).

In view of the fact, that municipal entities have already spent millions of dollars in defense costs alone, it clear that municipalities, their budgets, and, ultimately, their taxpayers suffer devastating consequences the moment municipalities become parties to contribution actions under Superfund.

This harsh reality is underscored by recent court decisions which have concluded that the trace amount of hazardous substances found in household and municipal solid waste place those who "take out the trash" within the Superfund liability scheme. Accordingly, victims of contribution actions predicated on their disposal or handling of household or municipal solid waste are forced either to incur substantial defense costs to limit the extent of their liability or to pay exorbitant settlement amounts to the real polluters.

Should the industrial position prevail, municipalities and individual citizens throughout the country are at risk. For example, 41 states are already "home" to one or more Superfund sites which are either owned by municipalities or which received municipal solid waste.

Accordingly, if one accepts the conclusion that trace amounts of "hazardous substances" are found in virtually all household waste, the likelihood of a municipality's participation in Superfund litigation is a function of whether or not a municipality's waste has been commingled with hardcore hazardous waste at any one or more of the landfills to which the municipality's waste has ever been sent.

Not only does this strategy threaten municipalities with financial devastation, it also severely undermines municpalities' ability to aggressively advocate optimal measures for cleaning up the very landfills with which their citizens must live. For example, industrial parties, while threatening municipalities with suit and the associated financial exposure, regularly advise municipalities that they may mitigate their alleged financial liability by utilizing a municipality's perceived political influence with governmental authorities to "scale down" cleanup plans and associated costs. Accordingly, municipal officials are offered the "choice" of limiting their towns' alleged financial liability and/or substantial defense costs at the expense of the health, safety and welfare of their citizens who have been forced to live with the health hazards created by industry's hazardous waste.

As long as the specter of municipal liability under Superfund exists, municipal officials will forever be confronted with the "Hobson's Choice" between zealously advocating and pursuing action necessary to ensure the health, safety and welfare of their citizens versus the allure of limiting their municipality's alleged liability.

This "Hobson's Choice" will be tested further as the debate over "how clean is clean" intensifies on a policy level. This debate, which involves the weighing of risks posed to human health along with such factors as cost and speed of cleanups in establishing cleanup standards, requires the participation of municipalities and private citizens who must live with the risks associated with solid waste sites. However, as a September 1, 1991 New York Times article entitled "Experts Question Staggering Costs of Toxic Cleanups" noted, there are some who "would try to temper the zeal for large-scale cleanups by asking the communities that benefit to share in the cost."

The proliferation of contribution actions against municipalities and their citizens for 'taking out their trash" is clearly and unmistakenly part of the web being spun by industry to "temper the zeal" of affected individuals and communities.

As long as the law permits the use f these stragegies, municipalities and their citizens will forever be at risk. Each time a municipality and/or its citizens "take out the trash" new and/or increased liability under Superfund will be triggered. All of us should be alarmed. However, unless the sense of alarm is translated into legislative action, municipalities and taxpayers throughout the nation will find themselves expending millions of dollars in litigation defense costs and/or settlements.

The work of municipalities and their citizens is only beginning. Coordination and intensification of efforts of local governmental entities and their citizens throughout the country are necessary to withstand the aggressive, well funded lobbying effort being put forth by industry to block necessary legislation. It is up to municipalities and their citizens to remind Congress that the environmental hazards posed by Superfund sites are not a product of municipal solid waste, but, rather, of concentrated, hardcore hazardous substances generated and discharged by industry. Absent a coordination of efforts by municipalities throughout the country to amend Superfund, cleanup costs will, with increasing regularity, be shifted away from industrial polluters, intended targets of Superfund, and towards municipalities and their citizens, intended beneficiaries of Superfund.

John J. Ross is an attorney with the firm of Lomurro, Davison, Eastman and Munoz, P.A. in Freehold, N.J. and represents a number of New Jersey municipalities involved in Superfund sites.
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Title Annotation:Special Report: Future of Superfund Needs Careful Attention
Author:Ross, John J.
Publication:Nation's Cities Weekly
Date:Feb 24, 1992
Previous Article:Superfund reauthorization opens door to change.
Next Article:'Litigation storm' is impeding cleanups.

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