Emerging from the Superfund Morass

Will Superfund enforcement—long considered an unfair process by many recyclers—finally be reformed in 1998? There is, at least for the recycling industry, some hope in the form of sponsored legislation.

The Institute of Scrap Recycling Industries Inc. (ISRI), Washington, is among the industry trade groups carefully tracking—and lobbying on behalf of—H.R. 2733, dubbed the Superfund Recycling Equity Act of 1997.

The house resolution was introduced by Rep. W. J. “Billy” Tauzin (R-LA) in the fall of 1997. The intention of the legislation is to relieve scrap processors (as well as recyclers of materials such as paper, glass, plastic, rubber and textiles) from liability in certain circumstances where they are currently being found liable.

For any scrap processor who has found himself in the position of becoming a PRP (partially responsible party) in a Superfund case, the legislation is too late. But while it may be too late to help them, such processors are also among the foremost who would contend the legislation is sorely needed.

PERPETUALLY RESPONSIBLE PARTIES

The federal Environmental Protection Agency (EPA) has not won over many friends in America’s business community—large or small—with its pursuit of some Superfund cases.

While some cases involve responsible parties who clearly violated laws as they existed at the time, many other cases do not leave such a clear trail of responsibility. Violations may involve substances that—at the time of disposal or use—were not considered hazardous. (The EPA, on its website, seems to acknowledge this with its answer to the question, “What is Superfund?” The agency answers that “Years ago, people were less aware of how dumping chemical wastes might affect public health and the environment.”)

What is cynically known as the “deep pockets strategy” has caused perhaps the greatest amount of distress for many companies. The deep pockets strategy may be most closely associated with personal injury law: The slip-and-fall victim who sues a store’s owner rather than the worker who wet-mopped the floor and failed to put up a sign.

But the thinking of pursuing a party with money despite that party’s minimal amount of responsibility certainly seems to have been adopted by the EPA. In the EPA’s case, it may work as follows:

A landfill is operated by a municipality or a private operator in the 1950s and ‘60s. At the time, the operator was working within the laws as they existed. Customers included the area’s largest businesses, who brought waste by the truckload to the site. Decades later, contaminants are leaching from the now long-closed site. Who will pay fines to help pay for the clean-up? The companies that brought their waste to the site, disposing of it in good faith and within the law as it existed at that time.

Some of America’s largest manufacturing companies now have entire departments consisting of attorneys and scientists who deal with Superfund cases as they arise. (Staffers at some of these departments have come to regard the acronym PRP to stand for “Perpetually Responsible Party” at their companies.) For smaller companies, however, being named just once is a significant disruption and burden.

From a tactical perspective, the PRP method may have proven to be an effective one. The pace of Superfund settlements and cleanups has finally begun to pick up in the second half of the 1990s.

“We have completed a total of 343 Superfund cleanups over the past four-and-a-half years—more than in the previous 12 years combined,” says EPA administrator Carol M. Browner. “More than 86 percent of all Superfund sites are either cleaned up or are in the midst of cleanup construction.”

But the deep-pockets pursuit and the PRP naming tactic has not won universal acclaim on the ethical front. The most outspoken critics have called it extortion, with its implied message that money paid up front is the best way to avoid future prosecution.

The retroactive nature of the “crimes” also comes into question. On the one hand, damage to soil, the water table and water systems cannot be undone and can be cleaned up only at great cost. But, on the other hand, does prosecuting anyone for actions that were not illegal at the time fit in with the accepted notion of American justice?

SOME BLACK EYES FOR RECYCLING

Many of the recycling companies that have dealings with the Superfund program have indeed been drawn in through the PRP web of pursuit.

Sadly, however, many industries engaged in recycling—or in some cases operating with the word recycling somewhat misleadingly tucked into their name—have left behind messes of Superfund proportions. Here are a few cases drawn from EPA Superfund National Priority List (NPL) narratives.

• In April 1987, the Los Angeles County Health Department Emergency Response Team was called to Tweedy School in South Gate, Calif. Some “highly caustic” liquid was seeping onto school property from a neighboring business—the Cooper Drum Co. That company reconditioned and ‘recycled for further use’ steel drums after cleaning them. The liquid waste that had infiltrated the neighboring school site consisted of wash water that included oil and sodium hydroxide. The school initially paved over the problem area, but due to health concerns the school closed in the late 1980s. Testing revealed contamination existed in the area’s soil at depths of up to 30 feet. The city of South Gate has closed four municipal wells due to tetrachloroethene contamination possibly emanating from the Cooper Drum site.

• Battery breaking and lead recycling is now practiced in just a handful of strictly controlled environments. Before the dangers of lead were discovered, however, family scrap businesses commonly engaged in such operations. From the early 1950s until 1963, Gulf Coast Recycling Inc. operated a battery breaking and lead smelting facility in Temple Terrace, Fla. The buildings were later demolished and the site was developed as a 12-building apartment complex. Soil samples collected in 1992 revealed traces of lead and resulted in an EPA Order of Consent. Most portions of the apartment complex’s land have now been capped with a liner and 4 inches of concrete. The site is just more than one-tenth of a mile from a municipal drinking water well.

• Companies operating under the names Oil Conservationists Inc. (OCI) and Florida Petroleum Reprocessors (FPR) ran a waste oil transfer station from 1979 through 1991 at a site in Fort Lauderdale, Fla. The companies purchased waste oils and, after testing, stored them in above-ground tanks until they were “processed” and delivered to clients such as asphalt makers and used oil marketers. Regulators in Broward County cited the company in 1985 for discharging hazardous substances and contaminating ground water supplies. Subsequent contamination led to the excavation and removal by the State of Florida of 60 tons of contaminated soil. Contaminants such as trichloroethene and tetrachloroethene remain in the site’s soil and ground water, however, according to the EPA.

• Zinc smelting has been taking place at Circle Smelting Corp. in Beckemeyer, Illinois since 1904. Since 1920, it has been a secondary smelting operation, recovering zinc from scrap metals. While the result, on the one hand, has been a business that has endured through most of this century, other parts of the legacy are a 17-acre slag waste pile and an area of contaminated soil within the stream bed of a nearby waterway. The EPA and the State of Illinois say there is a minimum 22,862 area of contamination (contaminants include lead, zinc, nickel and cadmium), and that soil within 21 million square feet is contaminated as a result of Circle’s operations.

Browsing through the EPA’s website, with its lists and descriptions of Superfund National Priority sites, one encounters many similar accounts in states throughout the union. Those lobbying on behalf of H.R. 2733—also known as the Superfund Recycling Equity Act—will have to defend the industry’s overall record, however.

Clearly the intention of the legislation is not to protect irresponsible operators, but to decrease the size of the PRP net that is often used to snare honest processors who never violated an existing law.

An example cited in a recent ISRI newsletter offers the following example of a case in which the new legislation would helpful: “This legislation is needed because many scrap recyclers have become liable under Superfund. This is because government rulemaking has determined that the sale of recyclable materials is considered to be “arranging for the disposal” of a waste. When a scrap recycler sells a recyclable material containing a hazardous substance, such as nickel or chromium alloys in stainless steel, to a third party who creates a Superfund site, the scrap recycler may be liable for cleanup whether or not the recyclable material actually caused the contamination.”

REVISITING OLD GROUND

The hopes of recyclers are probably not pinned too closely to the actions of Congress in 1998. Too many of them probably remember when 1997 first started with a flourish with the introduction of Senate Bill 8—introduced by Sen. Trent Lott (R-Miss.) as the Comprehensive Superfund Reform Bill.

That piece of legislation may have run into trouble for a variety of reasons. The Republicans did not want to appear to be immediately rolling back environmental laws once they had a majority. And—perhaps more practically—Superfund is a budgetary plus item. The naming of PRPs and settlements with them provides a healthy revenue source for the government.

There is also the question of whether the legislation comes too late for any recyclers involved in some of the more than 500 Superfund cases where the EPA has settled with one or more PRPs.

The EPA is also claiming that it is taking its own measures to make sure small business owners are not unfairly burdened by participation in a Superfund case. EPA administrator Carol Browner recently told attendees at Washington, DC conference that separating out such small business parties is an EPA standard procedure.

Listed by Browner as a “major goal” of the EPA was “getting the ‘little guys’ out of the litigation web that surrounds many hazardous waste sites. In fact, the Clinton Administration has acted to remove more than 9,000 small parties from Superfund litigation over the past four years.”

She also noted, however, that more could be done. “In addition, we still have more to do to fully protect the ‘little guys’—the small businesses, the ‘Mom and Pop’ operations—from becoming unfairly tangled in Superfund litigation. For years, we have tried to solve this problem. The owner of a diner who sends mashed potatoes to the local dump should not have to worry about being sued by the large, corporate polluters who are responsible for contaminating that dump. The current law just doesn’t work well in this area. And it is clear that we need legislation to fix it—as well as to solve some of the other problems that have eluded our administrative reform efforts.”

Whether recyclers can—by separating and fighting for themselves—overcome those barriers remains to be seen.

However, their status as recycling companies could indeed prove helpful in the image category. They may also be able to quietly argue that as smaller companies without the deep pockets of a national chemical or manufacturing company, they will not be sorely missed as PRP targets (and revenue generators).

The author is managing editor of Recycling Today.