WASHINGTON -- Congress wrote the Superfund law a decade ago to make polluters finance the cleanup of hundreds of toxic waste sites, but now major companies are trying to dump large shares of the costs on cities and their taxpayers.
With only a fraction of sites cleaned up and the cost growing, many Fortune 500 companies are using provisions of the law to file third-party lawsuits against anyone who has ever hauled garbage to now-closed landfills.
So far, these companies have presured everyone from the Girl Scouts to scores of U.S. cities to share the cost of the $100 billion-plus Superfund problem. They have also forced their targets to pile up major legal expenses to escape paying for toxic waste when they only contributed potato peels or diapers to the dumps.
"It's fundamentally unfair that you have to spend millions of dollars to defend yourself over providing a public service," said Kevin Murphy, city manager of Alhambra, Calif., one of the founders of a group lobbying Congress to rewrite the law to protect cities. "Congress did not intend to have cities pay a disproportionate share of cleaning up landfills. It is supposed to be the polluter that pays."
Instead, they say corporate America is using the law in its search for a deep pocket -- local taxpayers, in this case -- to share the cost of Superfund. Or worse, they say, corporations are using cities to create a public backlash to abolish the Superfund law.
But Fortune 500 companies say that, like cities, they are the victims of a potentially ruinous joint liability scheme i the Superfund law that would force them to pay an unfair share of the clean-up costs.
"The municipalities' complaints are the same as ours," said William Bresnick, a spokesman for Texaco. "The perception is that Superfund is not working really well. Our position is that Congress should not simply take the complaints of the cities and solve their problems without taking a comprehensive look at the statute."
While corporations push for a major rewrite of the Superfund law, a coalition of nearly 100 cities, known as American Communities for Cleanup Equity, has been lobbying for specific reforms to protect cities.
Known as the Toxic Cleanup Equity and Acceleration Act, the bill would block third-party lawsuits against citizens, cities, and others whose only contribution to landfills that become Superfund sites was ordinary garbage or sewage sludge.
However, if a city owned or operated a landfill or dumped hazardous waste there, it would still be subject to a third-party lawsuit.
Also, the proposal -- known as Senate Resolution 1557 and House Resolution 3026 -- would allow cities to settle any Superfund claims based on the amount of toxic material they actually put in a dump -- and not on the overall volume of trash they may have hauled there.
Unless the law is changed, city officials say their taxpayers could be forced to pay for up to 90% of the cleanup of some sites because of the sheer volume of the trash they hauled to landfills.
"They don't base it on toxicity. It's according to the total volume you bring in," said Jerry Lucas, a first selectman in Killingworth, Conn. "If we put in 100 pounds of potato peels and orange rinds and somebody else put in two ounces of highly toxic material, they are getting bills for two ounces and we are getting billed for 100 pounds."
In Killingworth, city leaders have already spent $50,000 on legal bills in disputing claims that they should pay up to $1 million of the cost of cleaning up a landfill where 20 years ago their trash was dumped for a few months. Killing-worth is only one of 24 cities and dozens of potential defendants in just one case.
"Under the law, if your wife drops nail polish in the trash, you've got toxicity," said Mr. Lucas. With a chuckle, he added, "I'll pay for the nail polish."
Frank Shafroth, lobbyist for the National League of Cities, said that many local governments are being pressured to settle quickly or face years of costly litigation in an attempt to prove they have little, if any, liability for Superfund costs.
"We have a certain amount of blackmailing going on," he said. "We have some corporations going around and pressuring [cities] to settle for $50,000 or $100,000 now."
So far, the courts have given cities little hope of victory if they press their case in lengthy lawsuits.
"They're holding against us," said David Kolker, the legislative counsel of American Communities for Clean-up Equity. "It means that we can face judgments in the future."
For instance, in a 61-page ruling handed down in September, a federal judge in California refused to release cities from a Superfund lawsuit. While U.S. District Judge William Byrne refused to rule on whether the cities' garbage contains hazardous material, he did rule that the plaintiffs must provide specific evidence that the cities dumped hazardous material.
It was a partial victory for Alhambra, Calif., and other cities that have already spent an estimated $5 million on legal fees. The case was set for trial this month, but was delayed until February amid new settlement talks.
"What it means is that in the meantime, the city has to go to trial in three or four years," said Mr. Kolker, who is not involved in the lawsuite. "Meanwhile, the cost of staying in the case is just tremendous."
In a July speech to the National Association of Counties, U.S. EPA Administrator William Reilly said his agency would use its settlement powers to help cities resolve Superfund claims faster.
"You should not be exposed to the expense and uncertainty of protracted litigation in cases where you are not the owner of the site and have sent only household garbage to that site," he said. "I want to get people out of the Superfund system that the law did not intend to be major contributors to the cleanup."
Waiting for The EPA
Four months later, local government officials are still waiting for signs that the EPA is on their side.
While cities in the Los Angeles were the first to face the Superfund issue, they are not alone. From Colorado to Michigan and New Jersey, cities are being pressed to settle or be sued.
However, because only a few dozens cities have been pulled into third-pary lawsuits, there is not yet a national movement by local government to get reforms in Congress.
"I think this affects potentially every city in the country," said Mr. Kolker. "Until it really comes knocking at their door, most cities see it only as a potential problem and not something they need to be activist about."
For a growing number of cities, however, the Superfund mess is a problem with the potential to bankrupt them.
Oxford Township, Mich., a rural community of about 9,000, has been asked to pay up to $500,000 because the city's trash was hauled years ago to a nearby landfill that has since been declared a Superfund clean-up site.
But Susan Morrison, an attorney for the city, said the pressure to pay up now has also hit some other unsuspecting groups: the Girl Scouts and Boy Scouts of America.
Both operate summer camps that paid for their waste to be hauled away to the landfill-turned-toxic waste site. "There waste baskets were also dumped in a truck that went to the same landfill," said Ms. Morrison.
To the north, in Blaine, Minn., city officials have not yet been sued, but are still discussing a demand for $100,000 because the city hauled tis trash to a now-closed landfill in 1970.
"Negotiation is a sham word," says Blaine City Manager Don Poss of the Superfund process. "It's more of an inquisition."
He said the city of 40,000 cannot afford to settle at any price -- especially when city officials believe they are blameless.
"That money starts representing policemen and public works employees for us. That's the way I measure it," he said. "It's not as if we have a well we can go to for the money."
The situation in Minnesota seems trivial, however, when compared to the potential liability other cities face.
Consider the case of Littleton, Colo. For a few years in the late 1970s, the city of 34,000 dumped its treated sewer sludge at the Lowry landfill along with other Denver-area cities and corporations.
Today, the U.S. Environmental Protection Agency has declared the landfill a Superfund waste site, estimating that the cost of cleanup could be from $500 million to $4.5 billion.
"Nobody knows what the cost of this could be for us." said Littleton's Mayor Susan Thornton. "Its feels like one of those nightmares you can't wake up from."
The city has already spent millions on studies and legal fees, including a fight against insurers who deny they would have to pay any settlement or court-ordered judgement for Littleton. "The lawyers and engineers are very happy about this," noted the mayor.
From Honor to Costs
Ironically, the city was honored by the EPA for its program to treat sewage sludge and reuse it as fertilizer for wheat. The toxic level in the waste, the mayor says, is about 0.002%.
"This is the stuff that was sos afe that they gave us an award, and now they say we have to go through this," Ms. Thornton said. "The theory was the polluter pays, and the industry has really suberted that."
The mayor tells the story of a recent conference over the waste site at which one corporate official suggested that cities have more flexbility to pay for the cost of the cleanup than his company did.
"They said we could just raise our taxes to pay for it," She recalled. "They said they were in a highly competitive business and couldn't do that."
While Littleton argues that its only act was to put ordinary trash -- not toxic waste -- in the Lowry landfill, corporation argue that trash may have caused small amounts of toxins to spread, incresing the cost of the cleanup. The city argues their trash may have slowed the contamination.
"If the trash weren't there, would it cost less to clean up?" asks Jon Goldman, a spokesman for Adolph Coors Co., in golden, Colo. "How is it that we are more responsible than anybody else? We followed the law at the time."
Coors and other coporations say they followed the law by contracting to dump their waste in landfills, only to face retroactive action now by the EPA.
"Everyone is beind dumped on, that is the nature of the law," said Mr. Goldman. "Even if you did something properly, you are being told that you have to come back retroactively and clena up the situation. We are all in the same boat."
Texaco's Mr. Bresnick agrees.
"Superfund doesn't say we're going to get those people who were the midnight dumpers," he said. "It doesn't count that you complied with the law back then."