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HomeMy WebLinkAboutSmuggler Superfund - Superfund ReformSeptember 10, 1993 U.S. Environmental Protection Agency Karen Burgan 401 M Street SW Washington, D.C. 20460 On August 11, 1993 1 was included in a conference call with Asst. EPA Administrator, Bob Sussman and others interested in the, topic of Superfund reauthorization. However, during the course of the conference, those of us on the telephone did not have an opportunity to contribute our thoughts. As the result of that, I elected to call you today to express my views. Therefore, I am following up by sending you a list of "bullets" under specific headings. The purpose is not to focus on what is wrong with Superfund, those facts are pretty well known, but rather to offer constructive ideas for reform. If I recall, the conversation was narrowly centered on the topics mentioned below. 1) Future land use and remedy selection: * Local land use issues are very clearly defined in some communities. These can be found in land use codes and regulations or other such documents. It is imperative that remedy selection be considerate of these codes and local laws. EPA should not automatically determine they are exempt from compliance with these laws. 2) Role of local citizens in remedy selection: * Get citizens involved early and often ! This should be at the absolute front end of the National Priority Listing process (at the Remedial investigation [RI] phase or sooner) . * Increase the Technical Assistance Grant amount to $100,000 and make application for the grant available to PRP's who cannot afford to fund a technical analysis of EPA data. Also, let local. governments apply for the grant in cases where they are representing the citizens or when the government is a PRP. Continue to explore and implement settlement techniques such as Alternate Dispute Resolution, Binding Arbitration, and Non - Binding Arbitration. This will send a clear message to the communities that it is not the Federal Government dictating to the citizens what will happen, but rather give the community a voice and ownership in negotiated settlements and selected remedies. * Implement a third party neutral review process of scientific and medical data pertinent to each Superfund site where the data is in question. This process could be modelled after the Technical Review Committee which was formed in Aspen to consider health risk, and develop a remedy focused on that risk. * Improve and enhance community outreach programs. This should involve improved training for community affairs personnel so they might be more in touch with the pulse of the cities EPA becomes involved with. Explaining the extremely technical aspects of a Superfund site, and the process, to the citizens must be done well and often. * Involve local government (elected officials, Environmental Health Departments, Community Health Services, etc) at the onset of an investigation. They can act as a facilitator and partner with the EPA, state health departments and citizens. * Define the health risk first, and use the best available science to do it. It is absolutely critical that the citizens and all affected parties be convinced of the level of risk before defining the remedy. This perhaps should be done in conjunction with the RI stage. Also, this might be a good time to appoint a TAC committee of scientists and doctors familiar with the contaminant, to review and recommend further directions the EPA should take. This is an ideal place to involve ATSDR and the medical support they can offer. * Define the remediation boundary using risk related data. Citizens will have much more confidence in a boundary definition based on hard scientific data, rather than a boundary defined by property ownership or convenience to the process. * Be able to separate "clean" areas within a site from contaminated areas. Further, be able to send "clean" letters to those who qualify for them. This will offer relief to properties devalued as the result of being broadly included in an unscientifically drawn site boundary. The EPA should recognize the function of home rule charters in cities and counties where they exist. The referendum function, and empowerment to the citizens to use referendum to recall passage of ordinances by elected officials has been misunderstood or not considered in some communities by Federal officials. conclusion: Do not confuse remediation to defend a policy or process with remediation defended by scientific and medical data. Keep the focus on public health, not legal maneuvering or political influences. If this can be accomplished the level of credibility of the entire remediation process will be elevated to one that the public can relate to and understand. The EPA has many "customers". it is crucial to the future success of the Superfund program that EPA become aware of customer service techniques. In the past these techniques have been largely ignored to the detriment of the entire organization. This concept was most convincingly stated by a citizen in a public meeting in Aspen. Paraphrased, he said, we are the customer of the EPA and they do not recognize it. Another such dramatic statement in another public meeting was offered by an 83 year old Aspen resident when he stated, (again paraphrased),... where in CERCLA law does it state that I have given up my rights as a citizen of the United States of America? The context of his statement was relative to a citizen consent decree settlement document he was being asked to sign. Contact me should you need clarification on any of -these points. They are brief, but we discussed most of them at length on the telephone. I look forward to future involvement with Mr. Sussman and you as reauthorization continues. Sincerely: Thomas S. Dunlop, Director Environmental Health Department cc: Amy Margerum, Aspen city manager Reid Haughey, Pitkin County Manager Joan Glickman, TCMA Environmental Coordinator AUG 06 '93 02:56PM OSWER/AA 2022604610 FX2022603527 T -5 ,Awel 77om FFMTRI WASHINGTON,20460 AUG 6 19, 9 3 l`4r. Tom Dunlop Environmental Health Director Aspen/P itkin Environmental Health Dept@ 130 South Galena Aspen, CO 81611 1 /1, ,� /,i "Po-, c0v�,, ce'll QFr1C5 OF- SO00, WASTE AND EMERGENCY' FJF-SRONSE Reauthorization of S�uper,fund presents the Clinton Administration, Congress, and the public an opportunity -to evaluate how the program has worked over the last dozen years and to make changes that will improve Superfund in the future. EPA is committed to making such changest whether they are administrative changes which can be implemented by EPA on its own, or legislative changes that must". be enacted by Congress. we recently established the Superfund Administrative Improvements Task Force to find ways to improve Superfund under the existing statute and regulations. We identified a number of changes that we hope will reduce costs, accelerate the cleanup process, and increase fairness. We are now exploring options for legislative changes and remain fully committed to getting input from interested Supe:rfund stakeholders. One means of getting this input is through the Superfund Evaluation Committee, a subcommittee of the National Advisory council on Environmental Policy and Technology (NACEPT). the Superfund Subcommittee Is well underway in conducting very fruitful discussions of key Superfund issues. To be as inclusive as possible, we are extending our outreach efforts even beyond the membership of NACEPT. Over the next few weeks, Deputy Administrator Robert Sussman will chair a series of meetings with representatives of key Superfund stakeholders. We are interested in hearing your specific thoughts and ideas regarding legislative proposals you would likc to see advanced in the coming months. I invite you to attend a meeting with other representatives of local governments on August 11, 1993 at 3:30 - 5:30PM. The meeting will be held in Room 1103 in the West Tower of EPA's Headquarterr,_At 40� M Street, S. W., in Washington, DC. OPTIONAL FORM 99 (7-90) FAX TRANSMITTAL � # 01 pages P. From Irktu Lid — r I FaX Mar ff -317-1008 &FmrRx -& Printed' on Recycled Paper AUG 06 '93 02:56PM OSWER/AA 2022,604610 FX2022603527 IWW I hope you can participate. Those of you who cannot atte�nd in person may wish to participate via conference call. Please call Mary Joidan at (202)260-4055 and let her know if you will be able to participate. She will provide you with information on entering the building or a phone number if you intend to teleconference Thank you for your interest ii look forward to a very prodj R MEMORANDUM TO: Tom Dunlop Doug Elliott Mark Nagel fim Sanchez Frank Sudol Keeley Taylor FROM: foan Glickman, ICMA DATE: August 6, 1993 RE: Meeting/ Conference Call with EPA Deputy Administrator Bob Sussman on Superfund Reform: August 11th, 330 - 5:30 Eastern Time and Preliminary ICMA Conference Call: 1vlond,ay, August 9th 230 Eastern Time Thank you for agreeing to participate in the discussion on Superfund. This is a rare opportunity to offer constructive suggestions to Dep. Adm. Sussman -- a leader in EPA's effort to reform Superfund during reauthorization. EPA is soliciting comments on three broad topics during the two hour meeting: the Superfund liability scheme, community involvement in the Superfund process, and economic development. Prior to the discussion, three groups will make presentations to Sussman on these issues: Rena Steinzor, American Communities for Cleanup Equity (ACCE,)�; Linda Christenson, Landfill Solutions Group; and myself, ICMA (possibly a joint presentation with a local official). I think it would be worth our time to consider what type of proposals we might offer to tackle these issues. Here are some ideas and questions to focus your thoughts prior to our Preliminary conference call on Monday at 2:30 Eastern Standard Time: Superfund liability scheme: What do you think of the strict, joint, and several scheme? What about the fact that liability is retroactive? If you object to the liability scheme, please consider what alternatives you think might work better. Do you advocate a public works program? (e.g. a program that is administered by EPA or the states and paid for by a fund financed through some type of tax.) If yes, please, consider the negative ramifications of such a program. (see attached article). When considering the liability scheme, also think about the issue of future liability -- the fact the liability is not cut off entirely after a site is cleaned up. When and how should EPA limit future liability? What is your position on this issue? Community-jayglytmmt What do you think about the current process, in terms of how effectively the public is involved? What would improve this aspect of the process? Are you in favor of setting up site specific advisory boards to include citizens and other interested parties in the remedy selection and cleanup process? Who would participate on such boards? What type of authority/voice would such a board have? Can you suggest a better paradigm? How should the community's voice be entered into remedy selection decisions and other decisions? Economic develop.-ment: I think what EPA is looking for here are your thoughts on how Superfund has affected economic development in cities and other areas. First, how can Superfund be changed so that contaminated properties are reused rather than abandoned? Is this actually a problem currently? Does Superfund contribute to the 11greenfields" problem? Second, how can Superfund sites be reused and redeveloped? Third, how can the affect of Superfund on property values be controlled? Fourth, how should redevelopment considerations enter into the process? into remedy selection? How can EPA work with local governments to encourage economic development? I cannot stress enough that we should focus on giving Sussman and EPA proposals to reform the program, process, and statute. They already have a sense of the problems but have come up short on solutions. So, when making comments to them, please limit your time on framing the problems with the current program, and instead make constructive suggestions for change. I am faxing you a copy of an article I recently wrote for MSW Management magazine to give you my perspective on some of these issues. It includes an overview of the ACCE and Landfill Solutions positions, pros and cons of these and other proposed options, as well as my views on the ills and values of the current Superfund program. I am also sending you by federal express relevant portions of recent position papers we have written. Please at least skim all of these materials prior to our call on Mond and let me know what you think. I apologize for all the meetings, readings, and calls. I'm not a big advocate of meetings; but, as I said before, this is a very rare opportunity for which we should be prepared. I look forward to talking with all of you on Monday. Please feel free to call me at (202) 962-3663, if you have any questions or comments. Thank you again. Thirteen years after its enactment, Superfund is up for its third reauthorization ... and the troops are fully armed. Industrial, municipal,, and environmental groups have been taking shots at Superfund for years and many .are anxiously awaiting a Congressional battle in 1994. But in the end, Superfund may be reauthorized more quickly and easily than policy -makers and lobbyists have predicted. Years of outcry did not go unheard by Congress or the Environmental Protection Agency (EPA). With a new administration, EPA is undertaking a preemptive strike and employing its forces in an effort to fix the Superfund program administratively. While EPA Administrator Carol Browner supports the "polluter pay" principle underlying the liability scheme, she seems committed to making the Superfund program more efficient and fair. If EPA's administrative measures succeed, critics who advocate major legislative reforms may be disappointed. While Congress may amend important aspects of the statute such as its, emphasis on permanent remedies, a significant departure from the current liability structure does not seem likely. Rather than trying to predict who the winners and losers will be in the reauthorization debate, let's take a hard look at Superfund's past failures and accomplishments and its impact on municipalities in particular. And, with these facts in mind, let's consider what types of changes are being proposed by different lobbyists, research organizations, and EPA. Thirteen Years Later Superfund, formally known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), was enacted in 1980 by Congress to provide a mechanism for cleaning up contaminated sites across the country. Since then, Congress has authorized over $15 billion to finance the EPA Superfund program primarily through petroleum, chemical, and environmental taxes. Under CERCLA, EPA either can clean up sites independently and later recover the Agency's costs from liable parties or can require liable parties to undertake remedial action from the onset. Since 1980, EPA has listed approximately 1300 sites on the National Priorities List (NPL), with additional sites being listed each year. In addition to the federal program, many states have created parallel Superfund programs to contend with non -NPL contaminated sites. According to a recent 1.993 update, only 51 of the NPL sites have been deleted; however, remedies have been selected at 800 sites and are underway at over 470 sites; some type of work, has begun at 1219 sites. At over 2000 NPL and non -NPL sites, EPA has completed over 2800 removal actions, which are short-term responses to immediate threats to public health, welfare, or the environment. Critics frequently point to EPA's failure to complete cleanups when suggesting that Superfund should be replaced with a more efficient cleanup program. Although EPA's program certainly could be more expeditious, these statistics are not necessarily meaningful reflections of the program's effectiveness. Certain facts should not be overlooked when considering EPA's performance: (1) the technologies and processes for identifying, characterizing, and remediating these sites are still evolving and have progressed substantially since CERCLA was enacted; (2) given diverse interests, technological constraints, and long-term operation and maintenance requirements, site cleanups span decades', (3) many NPL sites have required complex cleanups. However, regardless of these truths, EPA has recently come to realize that public perception of the program will continue to be unfavorable unless the Agency articulates the program's actual progress with better indicators. Takia g A -Critical Look The number of deficiencies attributed to Superfund go far beyond the general concern that not enough cleanups have been completed. While far from complete, the following Est describes a few of the major complaints directed at Superfund. Some involve specific provisions of the statute; others are related to EPA's administration of the program. - Unfair liability provisions. Since liability translates into "cost," responsible parties have directed much of their criticism at Superfund's broad liability structure. CERCLA's "retroactive, strict, joint, and several" liability system implicates parties associated with a site, regardless sof whether or not they are directly responsible for the contamination. Furthermore, any liable party M can be forced to pay for the total cost of cleanup even if they contributed only minimally to the contamination. Finally, since liability is retroactive, parties can be legally responsible, even if they upheld the law as it existed at the time of their involvement with a site. EPA can employ certain tools in order to lessen the unfair nature of strict, joint, and several liability. For instance, the Agency can enter into early de minimis settlements with parties that contributed minimally to the problem. Through mixed funding agreements, EPA can pay for the portion of the cleanup costs attributable to insolvent or unidentifiable parties. Until recently, however, EPA has only entered into 101 de minimis settlements and 16 mixed funding agreements. - Significant transaction costs. Observers from all sides, including President Clinton, have expressed concern that too much money is being wasted on lawyers and consultants. In part, this flaw stems from the liability system, but this waste of resources is exacerbated by certain inefficiencies in the program. Allocation of cleanup costs is a contentious issue, particularly because the relationship between responsibility and liability is frequently unclear or absent. Consequently, lawyers' fees build up, either in or out of court as disputants negotiate cost sharing. In part, this problem could be alleviated if EPA did a more thorough job of bringing in all responsible parties from the onset. Furthermore, consultant fees could be diminished if EPA held its contractors more accountable, placed a cap on its oversight costs, and did not require impractical analyses or duplication of studies. - Remedy Selection. Some critics of the program argue that tremendous resources are spent to clean up sites that do not pose significant threats to human health. First, unrealistic assumptions, set forth in EPA's risk assessments lead to overly stringent cleanup standards and remedies. Second, EPA and the States frequently require liable parties to clean up sites to residential standards, even if a site will be used as an industrial facility. Moreover, ineffective and costly remedies, such as pumping and treating contaminated groundwater, are implemented simply because better technologies are not yet available, On the other side of the debate, some residents near Superfund sites argue that risk assessments do not adequately account for the synergistic 0 effects of co -mingling contaminants and actually underestimate the effects of these toxics on human health. Two related and unanswered questions lie at the root of the dissatisfaction over the remedy selection process: "'What are the ultimate goals of the Supelfund program (e.g. protection of human health, environmental restoration, beneficial use)?" and "How clean is clean?"' Because these questions have not yet been answered definitively, different stakeholders bold disparate expectations about what Supeffund cleanups should achieve. Consequently, a singular, remedy chosen at a site usually does not satisfy all affected pal -ties' expectations. Until EPA and Congress define and articulate specific, realistic programmatic goals, the remedy selection process will continue to frustrate both responsible parties and affected communities. - Indirect Economic Impacts, Local governments, bankers, and developers among others have stressed how Superfund negatively affects property values and stymies property transactions. The property values in entire communities can be devalued simply by the presence of a Superfund site in the area. Even after a site is deleted and declared "clean", it remains stigmatized. Superfund's negative economic effects spread beyond the sites on the National Priorities List. In an effort to limit their exposure to potential Superfund liability, bankers, developers, and other companies have adopted extremely cautious investment policies. For instance, investors are more likely to develop pristine land rather than buy and develop property that may already be contaminated. As a result, abandoned industrial sites remain unused while "greenfields" are developed for industrial or commercial use. -, Environmental Equity Concerns. Some critics have argued that EPA's remedial decisions have been less rigorous at sites located in low income and minority communities. With a disproportionate number of hazardous waste facilities sited in their neighborhoods, these communities have questioned not only whether their Superfund sites are being remediated properly, but also whether a greater quantity of waste from other Supeifund site cleanups is now entering their communities' facilities. While debatable, this accusation has placed additional doubt on the soundness and consistency of the entire remedy selection process. In Superfund rfu n dSuccsses- WfiaVWorked? Even Supeifund's staunch opponents must adrnit that the program has had certain direct and indirect positive effects. Whether or not these benefits justify the costs of the program is open to, debate. Nevertheless, defenders of the program point to the following outcomes: - Reductions in immediate threats to human health and the environment. As previously stated, EPA has conducted over, 2800 removal actions at contaminated sites. Although more attention has been given to the fact that very few cleanups have been completed, these removal actions signify concrete steps that have been taken to protect citizens and the environment. Removal actions can include cleanup or removal of hazardous substances, installation of security fences on a site, and provision of alternative water supplies or housing to threatened communities. - Incentivesfor pollution prevention and additional cleanups. Although these indirect effects are difficult to measure, the looming threat of Superfund liability has definitely compelled industry and others to take more care in disposing of their waste. With the added risk of Superfund liability, businesses try to minimize the use of toxic substances in their processes and are more concerned with recovering these toxics. Owners of contaminated sites may also clean up their properties voluntarily in order to avoid the cumbersome and costly Superfund cleanup process. Finally, while the threat of liability may make "greenfields" more attractive to investors, landowners are also more likely to treat their properties responsibly and conduct cleanups prior to developing or selling them. Because of unavoidable environmental audits and looming liability, tainted property now has a cost associated with it. - Market efficiencies gained through publielprivate program. Although critics of the liability system may object to such an argument, the SUperfund program approximates a "polluter pays" type of system more closely than a public works program would. While entirely innocent parties may bear a part of the burden, parties that did contribute to the contamination incur a more substantial portion of the costs than they would under a public works approach. Certainly, very few advocates of the program would argue that retroactive, strict, joint and several liability is a fair 0 concept; however, it may be more fair than a system that spreads the costs more evenly across taxpayers, or even across certain industries. In addition to this advantage, the current prograrn includes some incentives for minimizing costs. While additional cost control measures should be adopted by EPA, the fact that private parties are paying for the work encourages cost savings as well as managerial and technological innovation. New remedial techniques would probably be developed even under a public works program. However, in the absence of any cleanup program, sites would remain contaminated and research and development of these technologies would wane. A Look at Some Poli V Alternatives As the reauthorization period approaches, advocacy groups -- with perspectives that span a broad spectrum -- are sprouting up at exponential rates. The following discussion will consider a sampling of positions that are particularly relevant to municipalities. Although these groups focus primarily on Superfund liability, non -advocacy and research organizations such as Clean Sites, the International City/County Management Association, and Resources for the Future have developed policy recommendations to address other statutory and administrative issues. American Communities for Cleanup Equity (ACCE) began lobbying in 1990 to seek legislative protection for generators and transporters of municipal solid waste (MSW) at Superfund sites. Although EPA's Interim Municipal Settlement Policy of 1989 directed the Agency not to pursue such parties, MSW generators and transporters continued to be sued in third -party actions initiated by other responsible parties. Since MSW contains only minimal amounts of toxic substances by nature, ACCE maintains that these generators and transporters should not be held liable for the cleanup of contaminated sites. Senator Lautenberg (D-N.J.) and Congressman Torricelli (D-N.J.) support this platform and have written bills which would substantially limit the liability of these parties. Under these bills, all generators and transporters of'MSW to a site would collectively be responsible for only four per cent of the total cost of remediation. This four per cent solution is based on a calculation originally proposed in EPA's draft municipal settlement guidance of 1992. on Furthermore, these generators and transporters would be protected from contribution suits initiated by other responsible parties. The final versions of these bills contain a special "relief' clause to alleviate the financial burden of municipal owners and operators, which would otherwise increase at some sites if MSW contributors only pay four per cent of the total cost. The bills suggest that municipal owners and operators should be granted some assistance if their communities' other services will suffer due to their Superfund expenditures. However, since this clause would be open to the interpretation of EPA and the courts, it is unclear whether or not liability of municipal owners and operators would be limited substantially. The Landfill Solutions Group takes a broader approach and advocates the creation of a separate trust fund to pay for the cleanup of publicly and privately owned municipal co -disposal landfills. These sites usually involve hundreds of pal -ties and are particularly adversarial because responsibility is not clear. The group argues that the make-up and volume of MSW contributes significantly to the contamination and to the cost of cleanups. Therefore, MSW generators and transporters should not face minimal liability while owners, operators, and hazardous waste contributors pay for landfill cleanups. Instead, all parties at these landfills should be exempted from liability. The group estimates that a $12 billion fund would cover the cost of cleaning up the landfills currently on the NPL, but has not yet explained precisely how the separate trust fund or other landfill cleanups would be financed. The National Environmental Trust Fund (NETF), principally sponsored by the American International Group:, Inc.(AIG) and insurance companies, proposes the creation of a broad-based trust fund to pay for contamination caused by waste disposed prior to 1987. According to NETF, approximately 80 percent of the current NPL sites fall under this classification and therefore would be cleaned up by a trust fund, financed either through a surcharge on all commercial insurance premiums or through expansion of an existing corporate environmental tax. Parties that contributed waste to a site after 1987 would be subject to the current liability system. N In addition to NETFs debatable presumption that a public works approach would be more efficient and fair, their proposal raises two major problems. First, the magnitude of the tax increase needed to finance such a trust fund has never been precisely defined. Critics of NETFand AIG have purported that approximately an 800 per cent increase in the corporate environmental tax would be required to finance the cleanups of the current NPL sites alone. NETF contends that a two percent insurance surcharge would raise $40 billion over ten years; if we assume that their forecast is accurate and that an average NPL cleanup costs $33 million, then the proposed trust fund might be sufficient to clean up the current 1200 NPL sites. Nevertheless, thousands of non - NPL sites that were contaminated prior to 1987 remain unaccounted for by the NETF at its proposed size. Second, even if the financial mechanism is viable, NETFs proposal would not necessarily limit litigation, except for the insurance industry, which clarified and limited its coverage policies for activities conducted since 1986. Rather than litigating exclusively over the issues of volume and toxicity, parties would argue over timing and how much waste they disposed after 1987. Local Governments for Superfund Reform (LGSR), also organized in part in opposition to ACCE, advocates elimination of strict and retroactive liability for public waste disposal facilities. Those facilities which accepted waste prior to December 11, 1980 and complied with .all applicable state and federal laws would be cleaned up under an enhanced trust fund. Once again, the mechanism for financing such a fund is not defined, and this proposed solution would lead to disputes over disposal dates. LGSR's position essentially calls for the creation of a public works program, similar to the type advocated by the Landfill Solutions Group and NETF; however, their platform also advocates certain administrative improvements in the Superfund program. Although it is not clear how these administrative changes would work in conjunction with a quasi -public works program, many of their recommendations warrant consideration. First, LGSR advocates cost allocation which is proportional to responsibility, rather than joint and several liability. In accordance with this recommendation, LGSR calls for increased use of mixed funding and de minimis settlements. Second, the group advocates comprehensive and uniform notification of responsible parties by EPA, rather than arbitrary and exclusive identification of "deep -pocket" parties. Third, LGSR supports the development of a reasonable risk assessment policy and the incorporation of costibenefit analysis into the remedy selection process. Fourth, the group calls for greater local government involvement in the process and enhanced use of institutional controls to limit risk exposure. Fifth, LGSR advocates a clear exemption from liability for any government that acquires title of contaminated property by virtue of its function as sovereign, Inside EM—Whab Ha ening?; In .June 1993, EPA established nine reform initiatives to ameliorate some of the problems cited by LGSR and other research and advocacy organizations. As part of these initiatives, EPA is undertaking studies and pilot projects to determine whether EPA can liberalize its mixed funding policies while sustaining the Fund. In addition, the Agency committed to expediting and enhancing its use of de minimis settlements and may issue revised guidance to clarify the level of information necessary for such settlements. EPA also intends to define the steps that prospective purchasers and developers of property must undertake in order to be eligible for the "innocent landowner defense" under CERCLA. This clarification would alleviate some of the current impediments presented by Superfund liability in the area of real estate transactions. With regard to remedy selection, EPA is developing soil trigger levels which are intended to help streamline site investigations and improve consistency between sites. The Agency also plans to issue guidance to clarify how future land use considerations should be factored into remedy selection. Finally, EPA restated its commitment to enhanced community involvement in the cleanup process and will consider implementing site specific local advisory committees, after evaluating their effectiveness at federal facilities sites. At least for the present, EPA opted out of analyzing and defining the overall cleanup goals of the Superfund program, as part of its administrative initiatives, and instead deferred this task to an EPA legislative task force and expert advisory committee. Having decided to exclude this 9 monumental, yet central, question from its administrative improvements review, EPA may not be fully prepared when Congress and advocacy groups bring up this controversial issue during reauthorization. Loo6cin Ahead and Assassin the C tions For better or worse, questions such as "Who should pay?" and "How clean is clean?" lend themselves to subjective, value -laden answers. Endless arguments can be made both in favor and against liability carve -outs for certain types of sites or parties. Similarly, on the issue of cleanup goals, different interest groups can offer equally legitimate reasons for radically different preferences, ranging from permanent treatment of sites to less costly measures for containing contaminants. Unfortunately, like the current Superfund program, all of the alternatives being proposed by advocacy groups have inherent trade-offs; none of these options are entirely fair or efficient. Therefore, rather, than searching for the "light" answer, EPA, Congress, citizens, environmentalists, local governments, industry, and any other stakeholders need to adjust their expectations and try to come up with workable, albeit imperfect, solutions. And, in their quest for acceptable policies, three indisputable facts should be kept in mind: First, with thousands of contaminated sites blemishing the country, CERCLA or its replacement needs to offer a vehicle for contending with a complex problem that far surpasses the current 1200 NPL sites. Local governments, in particular, should be attuned to the fact that any environmental cleanup law will not only have major environmental implications, but will also affect land use planning, economic development, and property tax revenues. Incentives for pollution prevention and voluntary cleanups, which are currently intact under CERCLA, are critical to putting a stop to the spread of contaminated sites.Congress needs to enhance these incentives by creating a tool that encourages redevelopment of already contaminated properties or "brownfields." At a minimum, regulatory sign -offs and comprehensive releases from future liability at completely remediated sites would provide an additional degree of certainty to sellers and investors, and thereby facilitate property transactions. Perhaps Congress should 10 consider creating some type of fund or insurance program that would cover unforeseen future costs at these remediated sites. Second, regardless of who pays for these cleanups, our country has limited resources and imperfect technologies available to clean up these sites. Remedy selection must consider technological and financial constraints and strike a balance between goals for a pristine environment and cost-effectiveness. In this regard, reauthorization holds the greatest opportunity for improvement. A couple of examples illustrate how cost, environmental protection, and reason might enter into remedy selection: For one, cleanup standards should be based on risks posed by a site in its intended, not theoretical, use. Similarly, rather than paying for inadequate current technologies, perhaps some responsible parties should direct their cleanup contribution to a governmental research and development fund for the advancement of remedial methods. / -, Third, although human resource problems may be even more challenging than technical questions, the Superfund program will not succeed unless EPA Headquarters, and all of its regional offices, embrace a more cooperative and consistent approach. Among its administrative improvement initiatives, EPA's renewed commitments to community involvement and alternative dispute resolution reflect growing recognition that a more open process is needed. While these efforts are prornising, a congressional mandate ultimately may be required to coax the Agency into relinquishing more authority and involving all stakeholders in decision-making through broad- based site specific advisory boards or other forums. Reauthorization offers an opportunity for EPA, Congress, and other interested parties to focus on these critical issues, reconsider Superfund with thirteen years of hindsight, and redirect the program under more clearly defined and realistic goals. If reauthorization can somehow instill cooperation into the process and a more reasonable approach to remedy selection, then Superfund has the potential to evolve into a program deserving of public respect, rather than criticism, distrust, and unfulfilled expectations. Joan Glickman is a project manager at the International City/County Management Association (ICNIA) -- the professional and educational organization of appointed local government II ICMA's Superfund Consortium Washington, DC June 17, 1993 MMK�,, , Session #1: itOn MARKOUP Since the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was enacted in 1980, criticism has centered on the program's inability to clean up a large number of sites in a cost-effective and timely manner. Questions of proper cleanup standards and remedy selection lie at the heart of these problems. As a result of unrealistic risk assessments, inappropriate land use assumptions, and unclear cleanup standards, tremendous resources have been poured into cleaning up a small percentage of sites, while the majority lie contaminated and unused. It is, our hope that the following recommendations will assist in developing a more effective Superfund program to remediate contaminated sites more efficiently and lead to a higher level of public safety and environmental protection at contaminated sites across the country. Topic #1: How Clean is Clean: Criteria For Cleanup Goals Background: The CERCLA statute sets forth four primary criteria to guide cleanup decisions, including protectiveness of human health and the environment, cost effectiveness, use of permanent solutions to the maximum extent practicable,1 and compliance with applicable or relevant, and appropriate requirements (ARARs).2 The National Contingency Plan (NCP) establishes nine additional factors which restate and expand upon the four statutory criteria.3 A precise method for balancing these considerations has not yet been defined. As a matter of policy, however, the Agency balances cost-effectiveness against permanent solutions that use treatment to the maximum extent practicable. Further, EPA has I CERCLA, Section 121 (b) (1). 2 CERCLA, Section 121 (d) (2) (A) (ii). 3 40 C.F.R. 300.430 (e) (9) The NCP establishes three preliminary guidelines in addition to nine measures used in a detailed analysis. The three preliminary criteria are effectiveness, implementability, and cost. The nine criteria in the NCP are divided into three categories: primary criteria, balancing criteria, and modifying criteria. The primary criteria are overall protection of human health and the environment and compliance with ARARs. The balancing criteria are long-term effectiveness and permanence; reduction of toxicity, mobility, or volume through treatment; short-term effectiveness; implementability; and cost. The two modifying criteria are state acceptance and community acceptance. followed the NCP and proposed treatments for principal threats, while selecting containment measures for lower level threats.4 Thus far, cleanup goals have been unclear, resulting in ambiguous methods and a lack of clear rationale for planning cleanups. Recommendations: 1. 'While EPA must make judgements in selecting remedies, the interpretation and balancing of the statutory criteria of maximum practicable treatment versus cost effectiveness needs to be explicitly clarified. 2. EPA needs to more strongly define a guiding principle for remedy selection. Uncertainty over ultimate cleanup goals creates considerable delay and animosity in implementing Superfund cleanups. A standard of returning a site to "beneficial reuse" would be broad enough to allow flexibility from site to site, while providing a clear direction for the program. While human health and the environment must be protected above all else, this goal is best achieved by considering appropriate remedies for particular sites, instead of advocating environmental restoration for every site. A standard of "beneficial reuse" will vary from site to site, but should fit the needs of a local community, including environmental protection, protection of residents' health, economic development, and community services such as waste management facilities, safe drinking water, and recreational facilities. In judging cleanups by achievement of appropriate beneficial reuse, EPA could, for example, allow a nature center at one site, an industrial facility at another, or a parking garage at a third. I If EPA can not effectively answer the "How Clean is Clean?" question, then Aj Congress must resolve this issue through a clear statutory mandate. 4 40 C.F.R. 300.430 (a) (1) (iii) (A) RN Topic # 4: Future Land Use in Remedy Selection Background: In many cases, remedies selected at Superfund sites have not been well tailored to site specific conditions and local concerns. For one, a considerable number of Superfund sites are located in heavy industrial areas; yet remedial decisions at such sites have been based on the assumptions that all land may at some time be used for residential purposes. Furthermore, the urgency of returning these formerly active industrial facilities to productive use is frequently overlooked by regulatory agencies. A host community's environment, public health, and economy are all directly affected by the choice of remedy and the timing of its implementation. Recommendations: 1. The future land use of a Superfund site needs to receive explicit consideration as a priority in the remedy selection process. The level of cleanup should be tied to a site's planned, as opposed to theoretical, future land use, and should be tailored to fit the needs of a particular site,. While some sites need to be cleaned up to as great an extent as possible, others exist in areas where remediation beyond industrial cleanup levels will result in very little additional benefit to the site or the community. By factoring in future land use, EPA will conserve resources to ensure effective remediation at other sites. 2. Consideration of future use should take place as early as HRS scoring, and should definitely be accounted for prior to the remedial investigation/ feasibility study (RI/FS) and the selection of remedial alternatives. Local governments should be consulted when determining a site's future land use. 3. Land use issues are one of the primary areas in which EPA and local governments can work cooperatively to generate more effective cleanups. When drafting and implementing its future use policy, EPA should consult with 11 local governments for their knowledge and expertise on land use issues. This ,() ,policy would be a major step towards accomplishing these goals and should be y`,-') designated as a priority by EPA as it examines and pursues potential 0 Jadministrative improvements. Y�44 To the extent that the Superfund program can encourage reuse of contaminated properties as opposed to development of pristine land, the "greenfields" development problem should enter into EPA's remedy selection policies. There are several incentives which EPA can offer to encourage parties to clean up abandoned industrial sites and return them to productive use. These include greater emphasis on containment and risk reduction, a more streamlined cleanup process, and agreements to limit future liability. The issue of future liability will be discussed further under "Session #2: Improving the Settlement Process". 0 Topic #5: 'The Role of'local Citizens in Remedy Selection Background: While objecting to EPA's final remedial decisions, critics have also focused on the selection process in itself. In particular, a wide range of stakeholders have called for enhanced public involvement in Superfund cleanup decisions. Members of local communities often feel left out of remedy selection decisions. Although there are opportunities for public comment throughout the process, these comment periods do not put the local community on equal footing with other stakeholders, including PRPs and state and federal officials. While local citizens do not typically have the technical or legal expertise of other parties in the process, they do have a great deal at stake in cleanup decisions. This responsibility does not rest solely with EPA, however, the Agency can play an important leadership role in ,generating more effective community involvement. Recommendations: 1. The input of private citizens affected by sites must be factored into remedy selection decisions. While citizen recommendations may not always be feasible, they must be included in the consideration of remedial alternatives prior to the ROD. 2. Citizens, must be informed of site background, risk, and possible remedial options early and often in the process so that their comments will be given sufficient consideration in the development of the ROD. 3. The public does not need to be involved in detailed, technical issues such as setting cleanup levels for specific chemicals. These are typically beyond the capabilities and interests of most private citizens. Rather, the public must have input and a proper understanding of matters which will directly affect them: • site contamination and risks; • proposed remedial alternatives, their effectiveness, cost, and other community impacts; ® planned future site use and the corresponding benefits; and • final remedy selection decisions. 4. EPA and the state agencies must respond to the concerns of private citizens at Superfund sites. At many sites, the public may perceive exaggerated risks which are not likely to exist. In that case regulatory agencies must take the initiative in providing these citizens with information that explains the improbability of these risks. If this information is not sufficient, EPA should make technical experts and other resources available to citizens through technical assistance grants or a similar program. N Topic #2: How to Utilize Mixed Fundin-,v, Background: Mixed funding12 raises difficult policy and implementation questions which make it a controversial issue. A commitment by EPA to use mixed funding is perceived as contradictory to "enforcement first" and "polluter pays" policies and as a threat to the long-term viability of the trust fund. Furthermore, use of mixed funding sets forth an exception to strict, joint, and several liability, and thereby possibly weakens the liability standard. Nevertheless, this settlement tool could have a significant positive impact on Superfund enforcement and settlement issues. If used appropriately, it can bring a higher level of equity, and cooperation, to the settlement process. Application of the policy should therefore be undertaken carefully and judiciously. If implemented properly, mixed funding can serve as a tool to expedite settlement rather than as a mechanism which threatens the strict, joint, and several liability standard. Recommendations: 1. Despite EPA's concerns, the Agency should mandate more frequent use of mixed funding to share risk and costs with parties affected by orphan shares. If EPA is not willing to pursue mixed funding more aggressively, then Congress should amend the, statute to strengthen the mandate for mixed funding. 2. EPA should apply mixed funding even if there are not other potential parties to pursue for cost -recovery. In doing so, EPA would make very effective use of the fund by expediting the settlement process and therefore the cleanup process. 3. EPA could combine its use of mixed funding with NBARs to assist in generating appropriate cost shares for viable parties. EPA could then base the amount of mixed funding on its allocation. This approach would ensure that EPA maintains control of defining the orphan shares, and would provide an excellent opportunity to utilize NBARs for resolving allocation disputes. 4. In order to maintain proper stewardship of the trust fund, EPA should establish a cap on the amount of mixed funding allowable at each site. The cap could either be based on a fixed percentage of remedial costs, or a fixed dollar amount. A reasonable percentage cap might be 10 percent of total response costs. This cap could serve as a guideline for implementing mixed funding settlements. By 12 In a mixed funding settlement, EPA pays for a portion of the costs of a remedy -- typically those that would have been assigned to, parties that have been dissolved or become bankrupt. M establishing such a cap, EPA could protect its interests in maintaining the fund, while allowing mixed funding to be utilized at a large number of sites.13 5. EPA should also consider using mixed funding in conjunction with de minimis settlements. Mixed funding would apply in the event that there are considerable unforeseen costs remaining after a de minimis settlement is entered into. In this manner, EPA would share any risk associated with a de minimis settlement with the major PIFs. 6. Mixed funding could also be used as an incentive to encourage the application of innovative technologies. EPA could either allow mixed funding initially when PIPs agree, to utilize an innovative technology to clean up a site; or the Agency could promise to provide assistance through mixed funding should an innovative technology fail. In either way, EPA would reduce the risk associated with application of these untested technologies. 13 This cap would only apply at sites eligible for mixed funding. At some sites, there may be no viable parties and the trust fund may cover 100% of the remedial costs. In other cases, PRIs may fund 100% of remedial costs and EPA may not pay any portion of the remedial costs. 17 Topic #3: Improved Use of: De Mininiis Settlemens Background: Many of the PRFs at Superfund sites are de minimis parties -- typically generators that have contributed waste minor in both volume and toxicity compared with the total amount of waste contributed at a Site.14 EPA has the ability to make early settlements with these de minimis parties, removing these parties from the negotiation and allocation process and thereby reducing the transaction costs for all parties involved. However, EPA has faced several obstacles to implementation of de minimis settlements, resulting in only 101 settlements being signed at 69 sites to date.15 The scarcity of de minimis settlements is based on two primary problems: Extensive documentation is required to prove a party's de minimis standing at a site. This information is typically very difficult to collect or simply unavailable. A de tninimis settlement is an extremely resource intensive effort for EPA and it is therefore difficult for the Agency to mass-produce these settlements. Recommendations: 1. EPA should continue to pursue, de minimis settlements as one of its major administrative initiatives. By getting minor contributors to pay their share as quickly as possible, EPA can play an important role in speeding up, the settlement process, 2. Sufficient premiums, should be established for de minimis parties, so that major PRFs will not be left to cover additional cleanup costs in the event of unanticipated costs. 3, Information requirements for de minimis settlements should be reduced, as EPA has already suggested. Current requirements are a major impediment to de minimis settlements. De minimis settlements should be allowed based solely on a reasonable estimate of total site cleanup costs and the toxicity and volume of a party's contribution relative to the total waste present at a site. A comprehensive waste -in list is 14 EPA may also enter into de minimis settlements with site owners in limited circumstances as set forth in Section 122 (g) in the CERCLA statute. 15 Richard L. Hembra, United State General Accounting Office, Superfund: Little Use Made of Techniques to Reduce Legal Expenses, Testimony before the Subcommittee on Transportation and Hazardous Materials, Committee on Energy and Commerce, House of Representatives, June 30,1993, p. 4. A single settlement may involve more than one de minimis party. The 101 de minimis settlements to date have involved 5,200 PRPs. W-111 burdensome and unnecessary. De minimis settlements should be based more on common sense judgements and less on detailed information. 4. EPA should not rely purely on "global"" settlements which insist on settling with all PRPs together. If just a small group of PRPs, or even a single PRP, want to enter into a de minimis settlement with EPA, EPA should pursue that settlement in advance of a more comprehensive, settlement. 5. In conjunction with an effective de minimis policy, EPA should expand its efforts in PRP identification. By identifying as many responsible parties as possible, EPA would make the, process more equitable for both small and large contributors, as well as reduce the burden on PRP groups to pursue these parties via third party suits. OR Topic #4: Future Liability Background: Since liability is open-ended, a site that has been cleaned up under CERCLA still has a stigma and liability associated with it. Developers, lenders, and local governments are reluctant to take on responsibility for redeveloping a site, for fear of being exposed to liability now and in the future. Often, parties are willing to invest in cleanups if they can obtain some protection against future liability, and if the costs are not prohibitive. Recommendations: 1. EPA should provide covenants not to sue for, parties who complete work under a signed agreement with EPA. Covenants would. assure parties that they will be free of liability once remediation is completed and the site is deleted from the NPL. With regulatory assurance that past contamination has been addressed effectively, PRPs and other parties will be much more willing to participate in new development of prior Superfund sites, 2. Similar protection should be accorded to parties that perform voluntary cleanups in accordance with the NCP. Voluntary cleanups can serve a major role in remediating potential NPL sites, and should be encouraged by providing such assurances. Regulatory sign -offs must be coordinated between EPA and state agencies, so that they are consistent and reliable. 3. If subsequent development of new technologies or cleanup standards lead EPA to request additional cleanup measures after the initial cleanup is completed, PRPs should no longer be held responsible, and EPA should take responsibility for performing any additional remediation. M