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Why Municipalities Should Not Receive Special Treatment Under Superfund

July 1992

Citation: 22 ELR 10431

Issue: 7

Author: Roy S. Belden and Andrew A. Giaccia

Are municipalities justified in calling for special relief from the broad scheme of Superfund liability? This Dialogue asserts that such special treatment both overlooks the nature of municipal solid waste (MSW) and distorts the purposes of the Superfund program.1

Municipalities argue that they are increasingly the targets of Superfund contribution suits by industrial polluters seeking to shift some of the liability for their "wrongdoing" onto the backs of innocent taxpayers. They claim that both the courts, which have refused to recognize sovereign immunity as a defense to Superfund liability for municipalities,2 and the U.S. Environmental Protection Agency (EPA) have failed to correct this injustice. While EPA has acknowledged these concerns in its Interim Municipal Settlement Policy of December 1989,3 the municipalities believe the policy is inadequate since it only restricts EPA's discretion to sue local governments directly, without halting third-party lawsuits.4 The Policy does not purport to amend the Superfund national contingency plan5 or otherwise restrict the ability of third parties to sue municipalities for a share of cleanup costs at the same landfills. As a result, local government advocates are pressing for legislation in Congress that will amend Superfund to establish that municipalities cannot be held liable if all they did was to dispose of "ordinary garbage" at a Superfund site.6

Andrew Giaccia is a senior associate with the Washington, D.C., office of Chadbourne & Parke. Mr. Giaccia specializes in environmental issues and has represented numerous companies targeted as PRPs in Superfund site cleanups.

Roy Belden is an associate with the Washington, D.C., office of Chadbourne & Parke. Mr. Belden also specializes in environmental issues.

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