Long Road to a Superfund Cleanup

WHEN the Superfund was created at the end of 1980 to clean up toxic waste sites such as Love Canal and those here in Woburn, many people thought solving the problem would be fairly straightforward. Armed with $1.8 billion, the EPA would move in, stop the contamination, clean it up, and make the polluters pay. But it hasn't worked that way.

Ask John Rabbitt, mayor of Woburn, an old industrial city of 40,000 people on Route 128 northwest of Boston.

Standing at a chalk board behind a desk covered with engineering plans, letters from the public, and official memos, the grandfatherly Mr. Rabbitt explains his frustration with the US Environmental Protection Agency (EPA), which is working to clean up two of its nationally listed sites in his city. Both cleanups will take decades.

The Superfund cleanup law ``absolutely needs to be changed to protect innocent people'' who did not contribute to the pollution in the first place, he says.

A case in point is that of city wells G and H, which used to supply about 30 percent of Woburn's drinking water. The wells are located near a swamp surrounded by industry. In 1979 they were found to be contaminated with a variety of chemicals and shut down. They were placed on the EPA priorities list in 1983.

In accordance with the Superfund law, the EPA has designated the nearby factories and owners of the land as responsible parties who will be liable for cleaning up the pollution. But Rabbitt objects that at least two of the parties - the city itself and the Massachusetts Rifle Association Inc., which owns a shooting range and conservation land next to the wells - should not be held liable, since they did not contribute to the contamination.

``EPA is trying to get everyone involved [in the cleanup] first,'' Rabbitt says. ``They should clean up the sites first, and then decide who should pay.''

The question of liability is one reason for Superfund's slow progress. Of 1,200 sites placed on the national priorities list during the program's nine years, only 26 cleanups have been completed.

Just getting a cleanup started is a tortuous process. A report prepared earlier this year under incoming EPA administrator William Reilly estimated that it will take an average of 13 years to begin cleanup on the sites currently on the list.

`Realistic' cleanups needed

Rabbitt says the law should provide for what he terms a ``realistic'' cleanup. Currently, the EPA is required to completely remove hazardous waste from a site. In the case of the Woburn wells, this means making the water drinkable again. The EPA has just announced a $68 million plan to clean up the five industrial sites surrounding the wells which will take 30 to 50 years. It is still studying how to clean the wells themselves.

But the mayor says this is ridiculous. He says the EPA should concentrate on cleaning up the industrial sites, and let the aquifer purify itself naturally. ``No one is going to drink that water again,'' he says. He believes the Superfund law needs revision to avoid burdening ``innocent parties'' such as city governments.

The high cost of the Woburn cleanup mirrors a looming issue for the program at large.

``Early on in the program, we had a lot of money, but few sites moving through the pipeline,'' says Paul Keough, the EPA's acting regional administrator for New England. ``Now a lot of studies are moving into the construction phase.'' The problem in this phase will be funding, he says.

When the program began, the estimated cost per cleanup site was $5 million to $7 million, Mr. Keough says. Now the average cost per cleanup is estimated to be $25 million. With 1,200 sites, this comes to $30 billion. And about 75 to 100 sites are being added to the list each year.

This means the Superfund, for which Congress authorized $1.6 billion in 1980 and another $8.5 billion in 1986, may find itself seriously underfunded in the future, Keough says. At present, the EPA has only enough funds to keep the program going though the second quarter of next year.

A long, complex process

To understand Superfund's problems, says Mr. Keough, it is important to remember that ``this was one of the few technical programs handed to an agency with little experience in the whole area [of toxic waste].'' Poor management in the first two years of the Reagan administration, and a one-year delay in funding while the program was renewed in 1986, helped delay progress.

But basically, cleaning up toxic waste turned out to be more than the nation had bargained for - a problem ``far more complex and diffuse than anyone at first realized,'' the Reilly report says.

``Public expectations are definitely not being met,'' says Keough. ``The expectations are that something will happen overnight when a site is put on the magical list. Then the public feels betrayed and doesn't understand why it takes so long to clean it up.''

The process of cleaning up a polluted site is long and complex. The EPA's first priority when a site is identified for cleanup is to stabilize conditions there. It cuts off access to the site and removes any barrels or containers that may be contributing to the pollution. The agency then studies the site to confirm the contamination's source and attempts to design a solution. The study, design, and implementation stages all take years, Keough says.

The need for public input into designing the solution can also slow down the process. ``There is constant pressure from elected officials, EPA headquarters, citizens' advisory councils,'' he says.

In addition, a new study by the RAND Corporation's Institute for Civil Justice finds that some provisions of the original Superfund law itself prevent speedy action.

Who's at fault?

Central to the law was Congress's intention that the responsible parties pay for the cleanup. But in many cases, determining exactly who is responsible for the pollution is a difficult task, especially for closed or abandoned sites. Traditional legal remedies [such as tort lawsuits] are often difficult to apply, the RAND report says.

So when Congress drafted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 - creating the Superfund - it decreed that anyone connected with a site could be held liable for cleanup costs.

This means that a range of parties from present or past landowners to originators of toxic waste to toxic-waste transporters can be held liable. The courts have ruled that, under the law, the landowner may be liable even if the land was acquired after it was no longer being used as a waste site.

Some waste sites can end up with 300 to 400 responsible parties, says Merrill Hohman, EPA's New England Waste Management Division director.

The RAND study also notes that the EPA is required to work with responsible parties for a timely cleanup while at the same time unilaterally determining how much each of them must pay. During any part of the research, design, and implementation stages, the parties or their insurance companies may contest their liability in court.

This ``creates a legal conflict and litigious atmosphere among the very parties that the EPA is trying to encourage to take over the lead for investigation and remedy,'' the study says.

For some environmentalists, the whole Superfund concept is flawed. They believe the production of toxic waste should be stopped and less dangerous chemicals and processes used. ``The cleanup is necessary, but it distracts from the fact that we're still pouring millions and millions of tons of toxic waste into the environment,'' says Kenny Bruno, New England toxics campaigner for Greenpeace USA. ``We're creating thousands of future Woburns and Superfund sites.''