Districts Have Stake in Debate Over Superfund

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The 1980 federal Superfund law was intended to foster the cleanup of the nation's worst hazardous-waste sites and to hold the offenders responsible for footing the bill.

While corporate polluters were the law's most obvious target, the legal mechanics of the program have also turned some school districts into Superfund defendants, hit with bills for the cleanup of sites where their trash or waste oil had been dumped alongside industrial toxic waste.

Dozens of districts and individual public, private, and parochial schools in more than 20 states have been told that they could be asked to share the cost of cleaning up contaminated landfills and other hazardous-waste sites.

That gives schools a stake in the upcoming debate in Congress over proposed changes in the Superfund program that would protect minor contributors to waste sites from efforts to stick them with a disproportionately large share of the cleanup costs.

Under the current rules, the government prosecutes the chief industrial polluters at a site and the courts ultimately determine what proportion of cleanup costs each one is liable for. However, the law also allows the large polluters to file third-party suits against school districts, municipalities, and other entities that dumped at the same site and to try to persuade courts to force them to foot some of the bill.

Several districts already have agreed to cash settlements to avoid expensive legal battles and the risk, however small, that they could be held liable for much larger amounts.

The Clinton Administration's proposal for reauthorizing the Superfund program, which was released last month, would exempt from liability entities such as school districts that have contributed "negligible'' amounts of waste to Superfund sites.

In an effort to reduce the amount spent on litigation, it also would establish an administrative process through which generators or transporters of larger, but still relatively small, amounts of waste could settle with the Environmental Protection Agency early in the life of a Superfund project and be protected from third-party suits. The liability of those who generate or transport municipal solid waste would also be capped.

Laurie A. Westley, the chief legislative counsel for the National School Boards Association--which has joined municipal groups in lobbying for the changes--last week described the Administration bill as "a very good balance between everybody's discomfort.''

However, the proposal will likely be opposed both by environmental groups wary of reducing polluters' liability and by business groups seeking to retain a means for industry to spread its liability.

One Congressional source noted last week that previous efforts to cap municipal liability have failed. The current proposal has not yet met strong resistance, but lawmakers have just begun work on the reauthorization, he said.

Ms. Westley also said that the Administration so far "has not put very much muscle'' behind the measure, and this may have weakened its chances of passage.

A Chain of Liability

The Superfund law, formally known as the Comprehensive Environmental Response Compensation and Liability Act of 1980, or CERCLA, was passed largely in response to the public outcry over Love Canal, the New York site where industrial toxic waste seeped into homes and backyards.

Since its enactment, Superfund has resulted in the cleanup of more than 220 sites, and another 1,100 sites are in various stages of cleanup, according to the E.P.A.. In addition, the agency has overseen emergency removal of hazardous material at 2,700 sites that were deemed to pose an immediate risk.

The law seeks to hold polluters responsible, and was worded so as to be broad and hard to evade.

Because it confers on each party connected with a site "joint and several'' liability--meaning that each can be held responsible for the entire costs of a cleanup--CERCLA creates an incentive for larger polluters to go after smaller ones for a share of such costs.

Neither generators nor disposers of household waste are insulated from liability, and many substances contained in household cleaners, cosmetics, and other consumer products are listed as "hazardous substances'' under CERCLA.

While the accumulation of such everyday wastes is in itself highly unlikely to place a municipal dump on the Superfund list, and the E.P.A. has made a policy of not pursuing municipalities and school districts under CERCLA, there is nothing in the law that prevents corporations from doing so.

A 1991 U.S. District Court decision involving 25 Connecticut municipalities specifically held that municipal waste was covered by the law, and no entity is exempt.

Tempting Targets

"A lot of corporations that would ordinarily be concerned about their public relations have nevertheless decided to go forward with these suits because of what is at stake--billions of dollars of liability,'' said John J. Ross, a lawyer who is representing the Freehold Regional High School District in New Jersey in connection with litigation over the Lone Pine municipal landfill.

Mr. Ross, who has worked extensively with the New Jersey School Boards Association on the issue, maintained that going after school districts and municipalities also is politically shrewd. By doing so, he said, corporations have been able to enlist the help of these "white hats'' in calling for changes in CERCLA and a lessening of cleanup standards.

In response, industrial associations argue that while the largest and most hazardous concentrations of waste may come from other sources, municipal solid waste forms much of the volume of waste at many sites and also contains some toxic materials. Therefore, industry representatives say, removing it can account for a substantial portion of cleanup costs.

A 1992 computer search of E.P.A. records commissioned by the school boards' association found that at least 90 school districts in 21 states had been notified that they could be held partially responsible for the cleanup of a Superfund site.

The list of larger districts that have received such notices includes Boston; Broward County, Fla.; Denver; Minneapolis; Mobile, Ala.; and Oklahoma City.

The districts listed, moreover, are only the ones directly notified by the E.P.A. because they may have sent waste that was clearly hazardous to Superfund sites.

Many others face liability because they sent everyday trash to the ordinary municipal landfills that account for about a fifth of the approximately 1,300 sites on the Superfund national-priorities list.

Indirect Implication

A typical example is the Portland, Me., school system, one of more than 30 districts in New England that have been implicated in connection with one Maine site.

Richard B. Jones, the district's facilities manager, said administrators there assumed that when they hired a company to clean up a spill from one of their oil tanks the material was being disposed of properly. Their assumption was wrong, and they found themselves having to pay an out-of-court settlement of $5,000 to avoid being sued when the dumping site was cleaned up.

"We thought we had done something right, only to find out we had responsibility,'' Mr. Jones said.

The Denver school district became liable for part of the cost of cleaning up the nearby Lowry landfill through its disposal of chemicals from junior high school science laboratories.

The Puyallup district outside Tacoma, Wash., is paying more than $7,000 a year toward the cleanup of a site because the firm it hired to haul away and work on its electric transformers was found to have contaminated its own property with polychlorinated biphenyls. These substances were widely used as insulators to protect transformers from heat--until they were found to disrupt the food chain.

"Unless you can prove that your material could not have contaminated the ground, you are party to the suit,'' said James M. Hansen, an official in the district's office for support services.

In New Jersey, more than 50 districts have been named as potentially liable, to the tune of an estimated $10,000 to $20,000 each, in connection with the Gloucester Environmental Management Services landfill in Gloucester Township.

"More than 200 school districts in our state have been sued or threatened with lawsuits by industrial polluters who are trying to pass on the cost of toxic-waste cleanup to taxpayers,'' Robert E. Boose, the executive director of the New Jersey School Boards Association, said in a statement last year, when his organization began to push for changes in the federal law.

An Expensive Fight

Small contributors to a Superfund site can contest such lawsuits in court, and endeavor to convince a judge that their liability is minor. In many cases, however, districts have found settling out of court to be far less expensive than hiring a lawyer to do battle.

Robert J. Rosati, a laywer based in Fresno, Calif., said he told the Kerman Unified School District in northern California to save its money and, rather than hire him, simply pay the few thousand dollars it would take to settle a case involving a waste-oil site where a former truck driver recalled taking the district's waste oil during the 1940's and 1950's.

Such a strategy can be more expensive, however, for districts that have been named in connection with several different Superfund sites or asked to accept large amounts of liability.

For example, a consortium of major corporations that sued the Freehold, N.J., district asked in 1991 for $3.2 million in exchange for freedom from liability in connection with dumping at the Lone Pine landfill, said Joan N. Saylor, the district's assistant superintendent for business.

Moreover, because the district had not described itself as a transporter or manufacturer of hazardous waste in filling out its insurance forms, its insurer has refused to cover its costs, Ms. Saylor said.

"Most of our stuff is paper products from the offices and school buildings, as well as food waste from the kitchens,'' Ms. Saylor said.

Vol. 13, Issue 25

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