Congress is considering legislation that would overhaul the troubled Superfund program, but officials remain skeptical that any new law will pass this year. Superfund, the common name for the Comprehensive Environmental Response and Liability Act of 1980, was created to identify hazardous waste sites, clean them up, and find the responsible parties. To fund the program, lawmakers hit petroleum and chemical manufacturing companies with an excise tax. The tax money was then put into a trust fund that swelled to $1.6 billion in five years.
But the government’s authority to collect that tax expired in 1995, and Congress has been unable to agree on a Superfund reauthorization bill since.
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EPA hails Superfund for revitalizing contaminated waste sites nationwide. For example, at the Davis Liquid Waste site in Smithfield, a 10-acre parcel that served as a dumping ground for metal sludges, paints, solvents, oily wastes, acids, pesticides, and tires, the cleanup is under way. Some 746,000 tires have been shredded and recycled; 5,000 tons of soil and municipal hazardous waste hauled out; and 10,000 laboratory containers removed, according to the U.S. Environmental Protection Agency.
EPA also cites success stories from around the country, from the copper-contaminated smelter site that has been turned into a golf course in Anaconda, Mont., to the former fly-ash disposal area in Chisman Creek, Va. that is now a softball field.
But many business groups charge that the program is inefficient, unfairly assigns liability, and causes endless litigation.
U.S. Rep. Sherwood L. Boehlert, R-N.Y., has filed a bill – which as of press time was before the House Commerce Committee – that would exempt small businesses from Superfund liability, protect municipalities from Superfund legislation, establish a ‘fair share’ liability scheme for Superfund sites, and give communities more voice in local cleanup processes.
Meanwhile, House Commerce Committee Chairman Tom Bliley, R-Va. supports a separate bill that would give states more authority to handle cleanups on their own and allot money for voluntary cleanup programs. Both bills seek to reduce what critics call the bonanza that Superfund has created for lawyers and consultants.
Since Congress has been unable to reauthorize the Superfund program, and agree as to whether the excise tax should be reinstated, the trust fund is slowly being drawn down, said Stephen Bentfield, a spokesman for the U.S. Senate Committee on Environment and Public Works, of which Rhode Island Republican John Chafee is chairman. About $ 2.1 billion remains in the trust fund now, said Alice Kaufman, of the EPA’s community affairs office in Boston.
EPA uses the trust fund to pay for cleanups when none of the parties responsible for the contamination can be found. Otherwise, EPA identifies the Potentially Responsible Parties and forces, through litigation if necessary, the polluters to pay.
The drawing down of the trust fund has had little immediate impact on Rhode Island, said Matthew DeStefano, a senior engineer for the state Department of Environmental Management who works with each of Rhode Island Superfund sites. The reason, he said, is that most of the sites are Potentially Responsible Party sites. Therefore, the state can work on these problems and put the sites that require trust fund moneys off until later.
“We can use the fund, but we try not to,” DeStefano said, adding that the PRP sites provide more than enough work for the state right now. “We have plenty to do anyway.”
Kaufman, however, said that it is not always possible to put sites off, since EPA must respond based on the level of threat each site presents to the public. There are about 100 Superfund sites in New England, she said.
But that does not mean that Cong-ress’s failure to reauthorize Superfund has had no effect, DeStefano said. He cited the West Kingston Town Dump/University of Rhode Island Disposal Area site as an example. Under the current law, the towns of South Kingstown and Narragansett are responsible for paying for half the cleanup, with the state and EPA paying the rest. Changing the law to cap the towns’ liability at 30 percent would be a fairer solution, he said, since small towns have limited means to pay.
Business groups seek larger changes. For example, the Superfund law calls for liability to be applied jointly and severally, meaning that all the EPA needs to do is sue one company for the cost of the entire cleanup of that site – even if that company contributed little to the contamination, and even if the dumping was legal when it was done. Under the law, it is then up to that company to find the additional parties that contributed to the damage and sue them to recoup its costs.
The law, in fact, does not require the parties who contributed to the dump sites to have done anything wrong, noted Gerald J. Petros, a lawyer with the Providence firm of Hinckley, Allen, & Snyder who has worked with dozens of Superfund cases. Because of this it is called ‘no fault’ liability, he said. Some companies have collapsed under the weight of Superfund costs, he said.
“You can do nothing wrong, but (contribute) a small amount, and lose your company,” Petros said. “It does not have a parallel in American jurisprudence.”
The question of whether to bring back the excise tax has split Democrats and Republicans, with Democrats generally favoring it and Republicans opposing it. That and other issues have prevented Congress from reaching a compromise over the last few years.
For example, Chafee and U.S. Sen. Bob Smith, a New Hampshire Independent, sponsored a Superfund reauthorization bill this year that has since stalled, much to the chagrin of people who thought it had a chance to bridge partisan differences, Bentfield said.
“We worked pretty hard to get it done (but) we just didn’t have the votes to get it out of the committee,” he said. “You move an inch to the left and you start losing votes on the right, and vice versa.”
Oil companies stand firm on the tax question. From their perspective, they have paid more than enough already. According to the American Petroleum Institute, the U.S. oil industry has paid 57 percent of all Superfund taxes. But the institute maintains that the oil industry’s responsibility for problem sites is less than 10 percent.
“Our position is much like the rest of the industry,” said Thomas Koch, director of external affairs for BP Amoco. “We are not in favor of refunding (the program) until the government take a fundamental re-look at the Superfund rules.”
Chemical Manufacturers Association, a Washington, D.C. group, meanwhile is calling for Congress to adopt a provision that would allow the EPA to go after polluters for the amount of waste they contributed to the site only – the so called ‘fair share’ provision, a spokeswoman for the association said.
Officials say it is too soon to say whether the House will pass a new Superfund law this year. And since the Chafee-Smith bill has failed, supporters of a Superfund overhaul in the Senate must hope that the House is successful, Bentfield said.
“We’ve effectively shelved the bill over here on the Senate side,” he said. “We’re going to watch the House very closely and revisit the issue at that time.”
