Who is liable for the cleanup bill at municipal landfills where industrial hazardous waste was disposed of along with municipal waste?
A spate of recent lawsuits around the country attempts to force hundreds of local governments and their citizens to pay millions of dollars because they disposed of ordinary household waste. Large polluting corporations are arguing that taxpayers and their local governments should pay as much to clean up a garbage bag of twigs and pizza boxes as large corporations must pay to clean up the same amount of toxic chemicals. This is the tip of an iceberg that could destroy many local governments' fiscal solvency.
"Superfund," officially known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), was intended to be an ambitious program to clean up the nation's worst toxic waste sites. It was enacted in 1980 to make parties responsible for environmental contamination pay the high cost of cleanup. Although Superfund has made important, needed progress in cleaning up dangerous abandoned chemical dumps, the problem is that its liability scheme is being abused, and local governments are its newest target.
CERCLA is a far-reaching statute. Anyone who has created, transported, managed or disposed of hazardous waste, or who owned or operated a waste site, can be forced to pay for the cost of hazardous waste cleanup. If several polluters' waste becomes mixed, each one can be held liable for the entire cleanup bill. And when the federal government sues a party for cleanup costs, that party acquires the right to sue other polluters to share the cleanup expense.
Local Governments and Superfund
CERCLA affects local governments and their citizens because local governments, which frequently arrange for the disposal of their citizens' garbage and sewage sludge, are increasingly the target of corporations' attempts to make others pay their cleanup costs. Included on the Environmental Protection Agency's (EPA's) list of the nation's worst hazardous waste sites are approximately 230 so-called "municipal" landfills, where industrial hazardous waste was co-disposed along with municipal waste, contaminating the ordinary garbage.
A community's garbage and sewage sludge are items that need to be disposed of carefully, but they contain only trace amounts of hazardous substances, those found in discarded batteries, for example, or near-empty bottles of nail polish remover, etc. These are not the kind of hazardous wastes that cause EPA to name sites as among the most toxic in the nation. Studies show that less than one-half of one percent of the municipal solid waste stream consists of hazardous materials.
Twenty or 30 years ago, it was common practice to dump liquid hazardous waste on top of municipal waste; it was thought that the benign municipal waste would spread out and soak up the toxic materials. While the municipal waste may very well have delayed the hazardous waste's contamination of the underlying soil and groundwater, eventually the municipal waste became saturated and toxic leachate drained out. The end result was an environmental nightmare compounded by a massive amount of newly contaminated household waste.
From the perspective of the large industrial hazardous waste generators, these past "co-disposal" practices have created a new weapon in the latest round of Superfund wars. In their lawsuits against municipalities, they essentially argue that once citizens' discarded paint cans get mixed in with their toxic chemicals, everyone is equally responsible for cleaning up the entire mess. They also argue that costs should be apportioned solely on the basis of waste volume without regard to overall waste toxicity, a perspective that sees a ton of grass clippings and food scraps as dangerous and as expensive to clean up as a ton of asbestos or vinyl chloride.
Some local officials find it hard to believe that such legal action could happen to them. …