Superfund: The Keynote Address at the 20th Annual Advanced American Law Institute-American Bar Association Course of Study on Hazardous Wastes, Superfund, and Toxic Substances

Hon. Thomas S. Udall

Editors' Summary: In the last several years, CERCLA has been the subject of a multitude of proposals for revising its more controversial provisions. One of the groups with a major interest in efforts to revise the statute is composed of state attorneys general. This Dialogue contains the text of a speech on CERCLA reform delivered by a former Attorney General of New Mexico, who is currently the U.S. Representative from the Third District of New Mexico. The Dialogue begins by explaining the origins of the statute and describing some of its key provisions. The Dialogue then discusses some of the accomplishments that have resulted from the law's enactment. The Dialogue concludes by examining the position that the state attorneys general have taken on various proposals to amend the statute.

The author is currently the U.S. Representative (D) from the Third District of New Mexico. When he delivered this speech, he was the Attorney General of New Mexico.

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The federal Superfund law, formally the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, was passed in 1980 in the final days of the 96th Congress.¹ Congress passed major revisions to CERCLA in the Superfund Amendments and Reauthorization Act of 1986.²

Congress passed CERCLA to address the very serious burgeoning problem of uncontrolled and abandoned hazardous waste sites. As I look around the room here today, I get the impression that many of you are too young to remember the seriousness of the problems that Congress and the nation faced in the 1970s and early 1980s as the result of decades of unregulated disposal of toxic wastes.

When I first became active in public service in the early 1980s, almost every day you would read stories in the newspaper about piles of rusted, leaking drums discovered on some vacant lot; of midnight dumpers; of folks — usually poor folks — finding their drinking water wells contaminated with chlorinated solvents; of places with names like the Valley of the Drums, the Stringfellow Acid Pits, and, of course, Love Canal. Let me recite just a few examples:

* In Toone, Tennessee, Velsicol Chemical Corporation operated a plant for the manufacture of pesticides. The plant generated a lot of wastes, and Velsicol needed a place to dispose of them. So Velsicol purchased a 242-acre farm in a rural area not far from the plant. It used the land to dump an estimated 16 million gallons of pesticide waste. Some 250,000 55-gallon drums were buried in shallow trenches, often after being crushed by bulldozers. Local drinking water supplies soon became contaminated with high levels of volatile organic compounds, such as benzene, carbon tetrachloride, and chloroform. Residents drinking the water became sick.³

* In South Carolina, Buck Ward and Robert Burns devised an ingenious method to get rid of the polychlorinated biphenyl (PCB) laden dielectric fluid accumulating in their transformer scrapyard. They rigged up a van with a tank in back. A hose ran from the tank to the passenger seat, where there was an on-off valve. The valve was connected to a spigot protruding outside the passenger door. They filled the tank with the dielectric fluid. For several nights, during the wee hours of the morning, they traveled along the rural roads of North Carolina with the spigot dribbling PCB fluid on the shoulder of the roadways. They'd turn the valve off at intersections, and turn it back on when on the open road. In this fashion, they sprayed some 210 miles of road shoulder with PCBs.⁴

* In New Bedford, Massachusetts, AVX Corporation manufactured electrical components using PCBs. It dumped tons of PCBs into the Acushnet River. AVX contaminated the river for six miles downstream into New Bedford Harbor with dangerous levels of PCBs. The PCBs accumulated in fish and shellfish. Numerous shell-fisheries were closed at a cost of millions of dollars.⁵

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* In Lathrop, California, Occidental Chemical Company operated a plant manufacturing fertilizers and pesticides. Occidental dumped more than five tons of wastes every year from the operation into an unlined lagoon. Chemicals percolated into the sandy, porous soil and into the groundwater that served as the drinking water supply for the community.⁶

* In my home state of New Mexico, years of industrial operations in the South Valley of Albuquerque have seriously contaminated the underlying alluvial aquifer with chlorinated solvents and petroleum hydrocarbons. The aquifer supplies the city of Albuquerque with its drinking water. Several municipal drinking water wells had to be taken out of service. Private wells in the nearby San Jose community, a Hispanic community of modest means, were also contaminated.

These are just a few examples of the problems that we faced in 1980. And the scope of the problem was enormous. Dangerous hazardous waste sites existed in each of the 50 states. The original national priorities list (NPL), promulgated in September 1983, contained over 400 sites needing CERCLA response.⁷ That number, of course, has grown to nearly 1,300 sites on the current NPL.

Now when I hear people say that the Superfund program has been a "failure," I have to assume that they simply don't remember the seriousness, the complexity, the magnitude of the problems that we faced in 1980. I have to assume that they do not realize how far we have come, how much things have changed since those days. And they therefore fail to comprehend the tremendous progress we have made in addressing the hazardous waste problem in this country, thanks in large part to the Superfund program. I'll talk more about that progress later.

CERCLA

In December 1980, Congress responded to these problems by enacting bold, far-reaching legislation — the Comprehensive Environmental Response, Compensation, and Liability Act. Congress gave the U.S. Environmental Protection Agency (EPA) primary responsibility to implement the law.

The Superfund

The statute creates the Superfund, a fund of money that EPA can use to clean up hazardous waste sites. The Superfund was originally $ 1.6 billion,⁸ and Congress increased it in 1986 to $ 8.5 billion.⁹ The Superfund is financed through taxes on petroleum and chemical feedstocks, and through general revenue. Those taxes, by the way, expired in December 1995.

The Liability Scheme

The heart of the CERCLA cleanup program is its liability scheme. CERCLA establishes broad liability for cleanup of hazardous waste sites. It places liability on several classes of persons:

(1) Persons that currently own or operate a site on which hazardous substances have been disposed;

(2) Persons that previously owned or operated a site at the time of disposal of hazardous substances;

(3) Persons that transported hazardous substances for disposal at a site that they selected; and

(4) Persons that arranged for the treatment or disposal of hazardous substances at the site (sometimes referred to as "generators").¹⁰

Under CERCLA, these persons are liable for the actual cleanup. EPA can issue an administrative order requiring liable parties to conduct a cleanup. Penalties for not complying with such an order are severe. EPA can also bring a judicial action in federal district court seeking an injunction requiring liable parties to conduct a cleanup.¹¹

These persons are also liable for all cleanup costs. EPA, or a state, may conduct a cleanup and then recover its cleanup costs from the liable parties. Recoverable costs include actual cleanup costs, enforcement and litigation costs,¹² indirect costs,¹³ and interest.¹⁴

Finally, these persons are liable for damages for injury to, destruction of, or loss of natural resources resulting from the release of hazardous substances.¹⁵

Liability under CERCLA is strict,¹⁶ and it is joint and several.¹⁷ Liability under CERCLA is also "retroactive," in that it extends to disposal activities that occurred before the statute was enacted.¹⁸

Cleanup Provisions

Another very important provision of the Superfund law governs cleanup standards. It provides a framework for answering the question: "How clean is clean?"

CERCLA provides that a cleanup must be protective of human health and the environment.¹⁹ Further, the cleanup must meet all state and federal standards that are applicable, or relevant and appropriate.²⁰ Thus, for example, groundwater cleanup must meet federal drinking water standards and state water quality standards.

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CERCLA also provides that in selecting a cleanup strategy, EPA must give a preference to remedies that treat hazardous substances so as to destroy or immobilize them, rather than merely containing them in place.²¹

Accomplishments

The Superfund program has now been in place for nearly 18 years. For its first few years, the program was severely handicapped by the scandals of [the] first Reagan Administration. The Superfund then ran out of money in 1985, until it was reauthorized in October 1986. So it wasn't until 1987 that the program really got underway.

Over the past few years, since CERCLA has been up for reauthorization, the Superfund program has come under a heavy barrage of criticism. According to the critics, Superfund is wasteful, it's inefficient, it's unfair, it's broken, all the money is going to the lawyers, and so on. You've all heard the refrain before.

My response to this criticism: The critics are wrong. Much of the criticism is based on anecdotes having little basis in reality. Or it's based on very misleading statistics. Or it's based on arguments from lawyers and lobbyists for industry and its insurance carriers. These are the folks subject to CERCLA liability, and understandably they want to get out of it. And EPA has done a poor job of responding to the critics.

Contrary to the conventional "wisdom," the Superfund program has accomplished a tremendous amount in cleaning up hazardous waste sites. There's a commonly cited statistic that you'll hear from every critic of the Superfund program: Of the 1,200 sites on the NPL, only 100 or so have been cleaned up. This reminds me of Mark Twain's remark that "there are three kinds of lies: Lies, damned lies, and statistics."²² He was absolutely right! This statistic is a totally absurd basis on which to judge the program.

Nearly all of the NPL sites — 85 percent of them according to EPA²³ — require groundwater cleanup. That means pumping contaminated groundwater from the aquifer until it meets drinking water standards. Only then does EPA delete a site from the NPL. It doesn't take a rocket scientist, or even a hydrogeologist, to figure out that it takes a long time to achieve that kind of cleanup. It takes many years, in fact, usually decades.²⁴ Of course only a small number of the sites have been cleaned up to this degree and deleted from the NPL!

Now let's talk about what the program has accomplished at these sites. And I should mention that these numbers are through the second quarter of fiscal year 1998, that is to say through the end of March 1998.

At virtually all NPL sites, EPA has taken measures to stabilize the situation and address any immediate risks.

* More than 4,800 removal actions have been completed at both NPL and non-NPL sites to remove drums, remove contaminated soil and debris, drain pits and lagoons filled with hazardous liquids and sludges, etc.

* All construction activity has been completed at 509 NPL sites, and operation and maintenance is now underway.

* Construction of the remedy has been partially completed at another 480 sites.

The vast majority of sites on the NPL are well on their way to cleanup. The program now is mostly cleaning up groundwater. So when you hear folks say that Superfund has been a failure because it's only cleaned up a few sites — that's utter nonsense.

Another big success of the Superfund program is that it has drastically changed the way industry manages and disposes of hazardous substances. Recognizing the potential Superfund liability, many companies have found ways to greatly reduce the volume of hazardous wastes they generate. They have also increased the percentage of wastes that they recycle. When firms must dispose of hazardous wastes, they are careful to choose reputable transporters and disposal facilities that will not leave behind future Superfund sites and associated liabilities. And many companies are voluntarily cleaning up contamination, through settlements with EPA or state agencies or through voluntary cleanups.

Lastly, the Superfund program has spawned a hugely successful and innovative environmental cleanup industry.

For these reasons — because the program has cleaned up the serious problems at most of these sites, because the program has induced industry to change the way it manages toxic wastes, and because the program has spawned a successful cleanup industry — the horror stories I alluded to earlier are now largely a thing of the past.

Reauthorization

For the past five years, Congress has been working to amend and reauthorize Superfund. The New Mexico Office of the Attorney General has been very active in that process, as have other state attorneys general. I have presented testimony to Congress on Superfund, and so have several of my colleagues. I anticipate that my colleagues will continue to be very active in the process if Congress picks up Superfund reauthorization in 1999.

The state attorneys general have a major interest in Superfund reauthorization legislation. As chief legal officers of our respective states, we have a duty to ensure that the laws of our states are complied with. We are concerned that the health and welfare of our citizens are protected and that our environment and natural resources are preserved and restored.

Many steps in the CERCLA cleanup process necessarily involve legal issues. Throughout the process, we are called on to advise our client agencies on how the law should be interpreted, and how the law can be implemented to achieve the desired cleanup or restoration goals. We are also responsible for negotiating settlements. Most of the progress we have made under CERCLA has been through negotiated settlements, either consent decrees filed in federal district court or administrative orders on consent. When a settlement cannot be reached, it then becomes our responsibility [29 ELR 10146] to commence and litigate an enforcement action. We have considerable experience in CERCLA litigation.

Furthermore, changes that Congress makes to CERCLA will necessarily have a profound impact on state programs, particularly if CERCLA is weakened. Changes to CERCLA will impact the implementation and interpretation of state cleanup laws. Changes to CERCLA will also prompt proposals to make similar changes to state cleanup laws in state legislatures. Accordingly, the attorneys general have taken positions on most of the major issues in the Superfund reauthorization debate.

Liability

On the issue of liability, the attorneys general have, almost unanimously, strongly opposed proposals to weaken the liability provisions of CERCLA. We do so for several reasons.

First, and most importantly, the liability scheme has been extremely effective in promoting cleanups. The great majority of remedial actions are implemented pursuant to settlements. According to EPA, some 72 percent of remedial action work is now conducted by liable parties, either under consent decrees or administrative orders complied with voluntarily.²⁵ Moreover, recognizing their potential liability, liable parties at many sites have conducted "voluntary cleanups" under state cleanup programs. There have even been reports of "midnight cleanups," clandestinely implemented by liable parties to avoid federal and state oversight.

Second, the liability scheme shifts the cost of cleanup to those responsible for the problem, as Congress initially intended.²⁶ In passing CERCLA, Congress determined that it is more equitable to place the costs of cleaning up hazardous waste sites on the parties responsible for creating those sites, rather than on the taxpayers or, as in the days before CERCLA was passed, on the communities surrounding the sites.

Third, the liability scheme provides a major incentive for industry to manage hazardous wastes much more responsibly. As I mentioned earlier, companies are reducing the amount of waste they generate, recycling more of their wastes, and managing their wastes much more carefully.

Elimination of the CERCLA liability scheme would create a huge public works program, at the expense of the taxpayers. It would create unfairness to those companies that have stepped forward and resolved their liability by entering into settlements, and spent large sums of money to clean up Superfund sites. Conversely, it would effectively reward recalcitrant parties that have failed or refused to resolve their liability in a settlement by "lying in the weeds." Elimination of CERCLA liability would also undermine state voluntary cleanup programs, which are effective only if parties are liable for cleanup.

On April 27, 1995, at the height of the debate over repeal of so-called retroactive liability under CERCLA, we sent a letter to the appropriate Senate and House committees strongly opposing repeal of retroactive liability.²⁷ The letter was signed by 43 state attorneys general. On July 25, 1996, after a federal district court in Alabama ruled that CERCLA did not apply retrospectively as a matter of law,²⁸ New Mexico filed an amicus curiae brief urging the Eleventh Circuit to reverse and vacate the district court decision. Twenty-eight states joined our brief, an exceptionally high number. Among the states joining us were the three states in the Eleventh Circuit — Alabama, Georgia, and Florida. The court of appeals ultimately reversed the decision, as we had advocated.²⁹

Nevertheless, we do support some minor changes to the Superfund liability provisions, to make the liability scheme more fair and efficient. For example, we support narrow revisions to make it easier for EPA to enter into de minimis settlements with minor waste contributors. On this issue, we note that EPA has been vigorously pursuing de minimis settlements in the last few years and has now reached settlements with some 15,000 minor parties. This record suggests to us that current law is working well, and major revisions are not necessary.

We also support an exemption from liability for parties that sent truly minuscule quantities of hazardous substances to a site. Such an exemption would cover the pizza parlors and the Elk's Clubs that have been inappropriately and unfairly sued in contribution actions by private parties, for no reason other than to make a political statement. Unfortunately, the exemption proposals we have seen so far in the various reauthorization bills have been much too broad. Finally, we support revisions to limit liability for the disposal of municipal solid waste. Such waste is by its nature less toxic and less hazardous than the industrial wastes that CERCLA was designed to address.

Cleanup Standards

On the issue of cleanup standards, we have opposed any major weakening of CERCLA's cleanup provisions. As a legal matter, weakening of the standards would make it more difficult for state cleanup agencies, our clients, to ensure that cleanup is protective of the public health and the environment.

Thus, for example, we have opposed eliminating the preference for treatment remedies. Even with the preference for treatment under current law, only some 50 percent of the remedial actions that EPA selects are truly treatment remedies. If the preference for treatment were eliminated, we fear that selection of containment remedies would become the norm. Containment remedies, as we found in the early days of the Superfund program, often do not work. It is only a matter of time before caps, liners, and slurry walls fail, and then we need to start all over again.

We have also opposed the various proposals to weaken the statute's protection of groundwater. Particularly coming from an arid and rapidly developing state like New Mexico, I consider our water resources much too precious to allow them to continue to be degraded and polluted. If anything, legal protection of groundwater should be strengthened. Weakening protection of groundwater is, in our view, unacceptable.

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Finally, the attorneys general have strongly opposed any revisions to CERCLA that would have the effect of pre-empting our state laws.

Federal Facilities

On the issue of federal facilities, the attorneys general have consistently taken the position that CERCLA and all other environmental laws should apply to the federal government to the same extent, and in the same way, that they apply to private parties. The federal government, particularly the Departments of Energy and Defense, are responsible for some of the worst contaminated sites in the country. Unfortunately, these agencies are not always forthcoming in acknowledging their environmental responsibilities.

One of the major difficulties is that arcane, archaic, anachronistic doctrine of sovereign immunity. We inherited the doctrine from the English common law fiction that the King can do no wrong. The doctrine effectively prevents the federal government from being sued unless it consents.

Accordingly, the attorneys general have long supported amending CERCLA to provide a clear and unambiguous waiver of federal sovereign immunity. Now, as you may know, § 120 of CERCLA currently includes a waiver of federal sovereign immunity.³⁰ But the federal courts, from the U.S. Supreme Court on down, have interpreted such waivers very, very narrowly.³¹ For example, several courts have held that the CERCLA waiver does not cover the federal government's liability as a former owner and operator of a site.³² As Sen. Robert Stafford (R-Vt.) said during the 1986 Superfund debates, "No loophole, it seems, is too small to be found by the Federal Government."³³ We want to close those loopholes.

State Role

On the issue of the state role, the attorneys general have advocated allowing qualified states to be delegated the authority to implement the CERCLA program, or be authorized to implement their own programs in lieu of the federal program. I emphasize, however, that only qualified states be allowed to take over the program. By "qualified" I mean that a state must have the expertise, the resources, and the legal enforcement authority to do the job.

Natural Resource Damages

Finally, on the issue of natural resource damages, the attorneys general have opposed the various proposals to weaken the program. These proposals would restrict trustee authority, narrow the definition of natural resources subject to protection, and limit damage recovery.

We have also proposed amendments to revise and clarify the statute of limitations for natural resource damage claims. The statute of limitations in current law is highly ambiguous and is creating unnecessary litigation.³⁴

Further, we have supported adding express language to the statute providing that judicial review of natural resource trustee decisions be limited to the administrative record applying the "arbitrary and capricious" standard. Such statutory revisions would promote a more open, less litigious decisionmaking process and would substantially reduce the litigation associated with natural resource damage claims.

1. Pub. L. No. 96-510, 94 Stat. 2767 (1980).

2. Pub. L. No. 99-499, 100 Stat. 1613 (1986).

3. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY — 1979, at 179 (1979); SAMUEL S. EPSTEIN ET AL., HAZARDOUS WASTE IN AMERICA 50-52 (1982).

4. United States v. Ward, 618 F. Supp. 884, 890-91, 16 ELR 20127, 20128-29 (E.D.N.C. 1985)

5. See In re Acushnet River & New Bedford Harbor, 675 F. Supp. 22, 18 ELR 20543 (D. Mass. 1987).

6. EPSTEIN ET AL., supra note 3, at 75-81.

7. 48 Fed. Reg. 40658 (Sept. 8, 1983).

8. Pub. L. No. 96-510, § 122(b), 94 Stat. at 2801.

9. Pub. L. No. 99-499, §§ 511, 517, 100 Stat. at 1760-61, 1772-73.

10. 42 U.S.C. § 9607(a), ELR STAT. CERCLA § 107(a).

11. Id. § 9606(a), ELR STAT. CERCLA § 106(a).

12. United States v. Chapman, 146 F.3d 1166, 1173-76, 28 ELR 21392, 21395-96 (9th Cir. 1998); B.F. Goodrich v. Betkoski, 99 F.3d 505, 27 ELR 20329 (2d Cir. 1996).

13. United States v. R. W. Meyer, Inc., 889 F.2d 1497, 1502-05, 20 ELR 20319, 20322-23 (6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990).

14. 42 U.S.C. § 9607(a), ELR STAT. CERCLA § 107(a).

15. Id. § 9607(a)(4)(C), ELR STAT. CERCLA § 107(a)(4)(C); see also Kennecott Utah Copper Corp. v. U.S. Dep't of the Interior, 88 F.3d 1191, 1199-1200, 26 ELR 21489, 21490-91 (D.C. Cir. 1996).

16. E.g., United States v. Hardage, 982 F.2d 1436, 1443, 23 ELR 20624, 20627 (10th Cir. 1992), cert. denied sub nom. Advance Chem. Co. v. United States, 510 U.S. 913 (1993).

17. E.g., United States v. Monsanto Co., 858 F.2d 160, 171-73, 19 ELR 20085, 20089-90 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989).

18. E.g., United States v. Olin Corp., 107 F.3d 1506, 27 ELR 20778 (11th Cir. 1997); United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 732-34, 17 ELR 20603, 20606-07 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987).

19. 42 U.S.C. § 9621(d)(1), ELR STAT. CERCLA § 121(d)(1).

20. Id. § 9621(d)(2), ELR STAT. CERCLA § 121(d)(2).

21. Id. § 9621(b)(1), ELR STAT. CERCLA § 121(b)(1).

22. INTERNATIONAL THESAURUS OF QUOTATIONS 656 (2d ed. 1996).

23. Superfund Reassessment and Reauthorization: Hearings Before the Subcomm on Superfund, Waste Control, and Risk Assessment of the Senate Comm. on Environment and Public Works, 104th Cong., pt. 1, at 480 (1995) (statement of Elliott Laws, EPA Assistant Administrator for Solid Waste and Emergency Response).

24. NATIONAL RESEARCH COUNCIL, ALTERNATIVES FOR GROUND WATER CLEANUP 104 (1994).

25. Superfund Reauthorization: Hearings Before the Subcomm. on Superfund, Recycling, and Solid Waste Management of the Senate Comm on Environment and Public Works, 103d Cong. 181 (1993) (statement of Carol M. Browner, EPA Administrator).

26. S. REP. No. 96-848, at 13 (1980).

27. Letter from Deborah T. Poritz, New Jersey Attorney General, to Sen. Robert C. Smith (R-N.H.) (Apr. 27, 1995) (signed by 43 attorneys general).

28. United States v. Olin Corp., 927 F. Supp. 1502, 26 ELR 21303 (S.D. Ala. 1996).

29. United States v. Olin Corp., 107 F.3d 1506, 27 ELR 20778 (11th Cir. 1997).

30. 42 U.S.C. § 9620(a), ELR STAT. CERCLA § 120(a).

31. E.g., U.S. Dep't of Energy v. Ohio, 503 U.S. 607, 22 ELR 20804 (1992).

32. Rospatch Jessco Corp. v. Chrysler Corp., 829 F. Supp. 224 (W.D. Mich. 1993); Redland Soccer Club v. U.S. Dep't of the Army, 801 F. Supp. 1432 (M.D. Pa. 1992), aff'd in part, rev'd in part on other grounds, 55 F.3d 827, 25 ELR 21026 (3d Cir. 1995), cert. denied, 116 S. Ct. 772 (1996).

33. 132 CONG. REC. 28414 (1986) (statement of Sen. Stafford).

34. E.g., California v. Montrose Chem. Corp. of Cal., 104 F.3d 1507, 27 ELR 20508 (9th Cir. 1997).