The Superfund Cleanup: Mired in Its Own Mess

It was created by a lame-duck Congress in an era of anger mixed with naivete: a $1.6-billion, five-year crash program to clean up the worst of the toxic waste dumps across the country. It came to be known, inevitably, as Superfund.

There were, it was thought at the time, perhaps 500 dangerous dumps that demanded special attention. And prompt cleanup seemed a reasonable objective. The befouled Potomac River had been dramatically rehabilitated, and the oil that once flamed on the surface of the Cuyahoga River was but a memory. It seemed logical enough that the toxic outrages epitomized by New York’s Love Canal and Kentucky’s Valley of the Drums could be eliminated, too.

Prodded by environmentalists infuriated by industry indifference toward polluted dumps, Congress adopted a punitive measure giving the government extraordinary authority to attack the toxic waste problem with brute force.

That was more than 12 years and as much as $13 billion in public funds ago. The way things are going now, the list of Superfund sites is projected to reach 4,000 one day, and estimates of eventual cleanup costs run to $700 billion. The tab rises above $1 trillion when Defense Department and Energy Department sites are included.

Of the 1,275 sites on the so-called National Priorities List so far, only 60-odd have been cleaned up.

“The Superfund,” President Clinton told business leaders earlier this year, “has been a disaster.”

Some would quibble with the President’s choice of words. But few are willing to defend the program and the way it has been run, and there are strong indications it faces changes in its fundamental structure and reforms in its implementation.

At the heart of the Superfund law is its strict “joint and several” liability provision, which declares that any “potentially responsible party” can be held liable for the entire cost of site cleanup, no matter how small his contribution to the problem.

It was the most potent tool Congress provided the government--an attempt to assure that polluters who could be identified would ultimately foot the bill for cleaning up a Superfund site.

“It’s a little like enacting a death penalty for speeding,” said Dennis Eckart, a former Ohio Democratic congressman who now advises the American Insurance Assn. in its lobbying for Superfund overhaul.

“What we frankly thought was that it was so onerous that potentially responsible parties would rush to the EPA, settle, and put their liability behind them. The reality is that we created a system that is incapable. We created a a program designed to fail. People do not come forward, they do not cash in. They lie in the weeds.”

The liability controversy has helped to move Superfund reform near the top of list of major environmental issues to be tackled in Washington in the coming months. “The Endangered Species Act gets the press, but there is a much greater grass-roots demand to address Superfund,” said Sen. Max Baucus (D-Mont.), chairman of Senate Environment and Public Works Committee.

This is not the first time Congress has undertaken to fix Superfund, but the coming effort may be different from the others.

“The difference now,” said Jonathan Lash, president of the World Resources Institute, a Washington-based environmental think tank, “is that we now have a very clear statement from industry that it recognizes this as an important problem to be dealt with. There is also a recognition by the environmental community that the powerful tools and brute force have not been getting the job done.”

Lash is heading an independent National Commission on Superfund, made up of industry executives, environmentalists, government officials and public citizens working to produce a report on what Congress should do to make the program work.

When Clinton delivered his State of the Union speech and his plan for change in February, the words that brought bipartisan cheers from lawmakers had to do with spending Superfund money on cleanup rather than lawyers’ fees. What has made the program ripe for congressional slashing and burning in the coming year is a tidal wave of litigation that causes the typical site cleanup to take more than a decade.

For example:

* A site where petroleum was stored and wastes were dumped for four decades at Glenwood Landing, N.Y., was put on the National Priorities List by the Environmental Protection Agency in 1984. Eventually, the EPA identified 257 parties it deemed potentially liable for cleanup costs. They ranged from multinational corporations to a local film-developing shop. By 1991, no less than 136 law firms had been engaged to represent them. Four of the parties sued 442 insurance companies in an effort to get reimbursement for their cleanup costs, and the insurance companies in turn hired another 72 law firms.

* At Eagleville, Pa., EPA put a 44-acre municipal and industrial landfill on the list in 1982. After three years, the agency identified 26 potentially responsible parties and moved ahead with a cleanup plan, only to be sued by several of them. In time, the list mounted to more than 160 parties with more than 90 law firms involved in litigation of various forms.

Other cases have escalated to even grander absurdity. In one case, a Girl Scout troop was implicated. In others, ordinary community residents have been swept into lawsuits merely because their household garbage had been taken to a landfill that became a Superfund site.

When cleanup efforts work their way through the bramble of negotiations and lawsuits, finally scaling the heights to a formal settlement conference, officials often find it necessary to rent an auditorium or a gymnasium to accommodate all of those who have been entangled in the mess.

Congress, which has a host of volatile environmental issues before it, including reauthorization of the Endangered Species Act, is about to address the Superfund once again.

It will be the third time the program has been extended. In 1985, Congress expanded the program fivefold. And in reaction to a Superfund scandal during the Ronald Reagan Administration, it strengthened the government’s authority even more and attached strings now blamed for making its administration more cumbersome and ineffective.

In 1990, Congress extended it for another five years without a hearing or recorded debate.

This week, the Clinton Administration is expected to give its first definitive view of the program when Environmental Protection Agency Administrator Carol Browner testifies before panels in both the House and Senate.

In spite of high priority and powerful political sentiment favoring Superfund reform, it appears that Congress will first move to reauthorize the nation’s clean water program.

In the Senate, the Environment and Public Works subcommittee on Superfund, ocean and water protection, chaired by Sen. Frank R. Lautenberg (D-N.J.), has begun a series of hearings expected to run the rest of the year. Parallel House hearings are being conducted by Rep. Al Swift (D-Wash.) and his Energy and Commerce subcommittee on transportation and hazardous materials.

The issues may be further ventilated in other committees.

Optimists hope that lawmakers and the White House will be ready to move with legislation early in 1994. Congressional sources say that Rep. John Dingell (D-Mich.), chairman of the House Energy and Commerce panel, has already begun urging the White House to write its own Superfund reform proposal rather than wait for one to be developed on Capitol Hill.

Although the Administration has yet to detail its approach to reforming the program, rhetorical change is evident in the words of industry executives and environmentalists, as well as in the words of the President. The EPA, which has reacted to much of the Superfund criticism with staunch defenses of its administrative diligence, is conceding that change is indicated.

Given the interests at stake and the complexities, both technical and legal, the debate seems destined to be long and convoluted.

But the bottom line, says a Senate staffer preparing to live with Superfund reform over the coming months, is simple: “It is a question of who pays and how much.”

“Congress needs to make Superfund efficient and fair,” said John W. Johnstone, chairman and chief executive officer of the Olin Corp., one of several companies that have created something called Coalition on Superfund to lobby for change. “The current law is neither.

“Its most potent weapon, the (joint and several) liability scheme, both far-reaching and retroactive, is an inefficient device for promoting action,” Johnstone said. “It forces responsible parties, sometimes hundreds of them at a single site, to spend enormous resources protecting their interests in court rather than working on cleanup. It is downright unfair to everyone, municipalities, financial institutions, and small companies that may have only been bit players at a site. It is unfair to big corporations; it is unfair to insurance companies. Literally everyone touched by Superfund’s liabilities complains about its inequities.”

Others are somewhat more charitable.

“The reason there has been such a proliferation of environmental lawyers is due to the enormous concern about environmental liability,” said Lash of the World Resources Institute, “and that concern has had very positive effects. It has gotten a lot of voluntary cleanup done and it has led to a lot of voluntary pollution prevention efforts. Joint and several, along with public disclosure requirements in law, have given birth to an enormous greening among corporate leaders.”

Environmentalists are concerned that opposition to the liability system could cause reformers to go too far. “We would like to preserve joint and several,” said William Roberts, legislative director for the Environmental Defense Fund. “Eliminating it now would be throwing the baby out with the bathwater.”

“We think we should keep it because it has great pollution prevention value and because it forces polluters to pay. When William K. Reilly became administrator of EPA in 1989, he took a program that was collecting maybe $300 million per year from potentially responsible parties and got it up to about $2 billion per year.”

Superfund was created by the 1980 Comprehensive Environmental Response, Compensation and Liability Act, CERCLA, for short. Its popular name refers to a tax-derived fund for cleanup costs not collectible from polluters.

Proposals for remedying the much-maligned joint and several liability arrangement and its attendant gridlock include converting Superfund into a public works program supported by taxes.

Under present circumstances, congressional sources say, there is no discernible political support for that concept. Some corporate participants in the debate likewise have strong reservations about such an approach, fearing that their new taxes for it would be exorbitant.

There is also certain to be a move to replace joint and several liability with proportional liability, meaning that polluters’ cleanup responsibility would be linked to their contribution to a Superfund site. The advantage might be more fairness. On the other hand, overall costs could soar.

In the end, the new effort to make Superfund work may turn on cleanup standards as much as the law’s liability provisions.

Critics contend that huge sums are being wasted now because cleanup standards are too vague. Money is being thrown away, they say, in attempts to return dumps to pristine, pre-industrial conditions when reasonable cleanup and site isolation would adequately protect the environment and human health.

Differences over “how clean is clean” have provoked continuing disputes between state and federal authorities from the beginning. State governments tend to feel that they have no control over the process even though they bear the ultimate responsibilities.

Even before Clinton took aim at Superfund--and even though the new Administration has yet to name the assistant EPA administrator who will have responsibility for the program--the EPA was working on initiatives to improve administration of the law.

It is now in the process of developing residential and industrial-area cleanup standards for the 100 chemicals most commonly found in Superfund sites, re-evaluating relations between the EPA and state environmental organizations, and looking at other measures to speed the cleanup.

Procedural reforms could “shave years off the process,” said Tim Fields Jr., director of EPA’s Superfund Revitalization Office.

Many observers believe that Superfund is about to see far-reaching reform because the Clinton Administration has a political mandate to make it work.

“For Bill Clinton, Superfund is as big an opportunity as he will see, and he has already sensed that,” said Michael McGavick, director of the American Insurance Assn.’s Superfund Improvement Project.