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Superfund and a Tale Of a $76,000 Trash Bill

Liability for toxic cleanup is central to GOP reform

Barbara Williams owns a small restaurant in Gettysburg, Pa. For years she has put out the garbage, mostly food scraps, to be picked up by a trash hauler, which carted it to a state-licensed landfill.

As a result, she is being sued for $76,000 under the federal Superfund toxic-waste cleanup law. She's caught in a 1993 lawsuit brought by the US Environmental Protection Agency, designed to force cleanup of the landfill.

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EPA originally filed the suit, not against Ms. Williams, but against the dump owners and 11 waste generators. Those defendants, in turn, sued 180 small businesses, boroughs, and school districts that might have contributed waste to the site. The third-party defendants then sued another 550 small businesses and individuals - including Williams's restaurant - who are believed to have sent garbage to the site.

"I am here to tell you ... that your wonderful idea of cleaning up our country's environment through the EPA and [the Superfund law] does not work in the real world," Williams told a recent Senate committee during hearings on renewing the law.

Williams's tale illustrates why there is a growing movement on Capitol Hill to overhaul the 17-year-old Superfund law. Republicans say the cleanup program has become so bogged down in litigation that much of the money slated for cleanup of contaminated sites instead gets eaten up in lawsuits.

Liability for cleanup is a major sticking point in Congress, where overhaul of the Superfund is likely to be a top environmental issue for lawmakers. The White House and congressional Republicans agree the Superfund needs fixing, but it's unclear if they can set aside their differences and agree on how to restructure the program.

The Superfund law expired in 1994, and the past two Congresses have made little progress toward reenacting it. Moreover, the tax that funds cleanup efforts expired in 1995.

Still, the Senate's GOP leadership has included Superfund "reform" in its Top 10 list of legislation for the 105th Congress. It has offered a complex bill, which would exempt from liability businesses with fewer than 30 employees or less than $3 million in annual gross revenues. The measure would also repeal liability for generators and transporters of waste at "co-disposal" sites where industrial waste was dumped along with city trash.

"After 17 years, only 125 sites have been cleaned up and deleted from the [Superfund] National Priorities List," charges Sen. Bob Smith (R) of New Hampshire, chairman of the Senate subcommittee on Superfund, waste control, and risk assessment. "There are still more than 1,200 sites left on the list and more are being proposed."

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The GOP bill gets qualified support from a variety of interests, including small businesses, mining companies, the American Petroleum Institute, the National Governors' Association, and local governments, at whose landfills and in whose sewers toxic industrial wastes were dumped, often illegally.

The bill takes a more moderate approach than previous GOP proposals, which would have eliminated liability for pollution that occurred before the law was passed in 1980.

But the measure has early opposition. Environmental Protection Agency chief Carol Browner has criticized the bill, charging that it "may fail to ensure long-term protection of human health and the environment;... will slow down clean-ups;... lets polluters off the hook and shifts costs to taxpayers and consumers; and ... provides incomplete support for communities, states, and tribes...."

She also argues that the bill ignores the EPA's administrative remedies to many of the problems Republicans complain about. The agency, for example, has negotiated settlements with 14,000 small-volume waste contributors at hundreds of Superfund sites. "In addition, the agency has stepped in to prevent the big polluters from dragging untold numbers of the smallest ... contributors ... into litigation," she says.

Browner also disputes Senator Smith's figures, claiming that cleanup has been completed at 423 sites, with 485 "in construction."

The Environmental Defense Fund also objects to the bill, charging that "in many cases, the bill's 'cures' are far worse than the problems they purport to addresses." EDF senior attorney Karen Florini calls the plan "a recipe for crummy cleanups." "Procedurally, it largely puts polluters in control; substantively, it sets inadequate cleanup standards that are further weakened by a variety of loopholes," she says.

But Sen. John Chafee (R) of Rhode Island, chairman of the Environment and Public Works Committee, defends the GOP bill as "a comprehensive reform effort which ... will be a tremendous improvement over the status quo."

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