Coming to Grips With Toxic Waste: The Need For Cooperative Federalism in the Superfund Program

Adam Babich

Editors' Summary: The Environmental Protection Agency's Superfund program is under increasing attack as slow, inflexible, and inclined toward inconsistent administration in various regions around the country. While EPA defends itself vigorously, asserting that these criticisms are exaggerated and that outsiders often do not acknowledge the complexities of hazardous waste cleanup, the fact remains that in its ninth year of implementation the Superfund program has still not lived up to public expectations.

In this Dialogue and the one that follows, two authors from very different backgrounds conclude that EPA is the wrong tool for at least some of the hazardous waste cleanup needed. Institutionally, they conclude, EPA as a national agency is too blunt and unwieldly to make the difficult, localized decisions required. In the first Dialogue, Adam Babich, a former state assistant attorney general who now represents primarily environmental plaintiffs, points out that state and local leadership is already permissible under the Superfund statute, and urges community leaders to turn first to local and state governments for action to clean up hazardous waste.

In the Dialogue that follows, Norman Bernstein, a former associate counsel for a Detroit automaker whose private practice now consists principally of environmental defendants, focuses on the cleanup of municipal landfills and reaches very similar conclusions. He points out that the key to settlement is the wise use of covenants not to sue and similar economic incentives, and that cities and states can use these tools unencumbered by overly cautious EPA policies.

A former Assistant Attorney General for the Colorado Attorney General's CERCLA Litigation Section, Adam Babich is a lawyer with the Denver, Colorado, firm of Cornwell & Blakey.

[19 ELR 10009]

Recent reports confirm that the U.S. Environmental Protection Agency (EPA) is mismanaging the Superfund program — a multi-billion dollar program established by Congress to protect the public and environment from contamination by hazardous substances. A report from the House of Representatives Appropriations Committee staff notes that EPA suffers from "paralysis by analysis."¹ The Agency spends year after year studying toxic waste problems, at the cost of millions of dollars, rather than acting to protect the public. If current practices persist, EPA will exhaust the entire eight-and-one-half billion dollar Superfund before completing work at even those toxic waste sites the Agency has listed for priority cleanup. Additionally, Congress' Office of Technology Assessment reports that inexperienced and inadequately supervised EPA officials are selecting cleanup plans based on second-rate technologies and neglecting to analyze the long-term risks posed by those plans.² Indeed, a federal district court recently found that EPA's conduct at one toxic waste site had made contamination worse.³ Clearly, the Superfund law — the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)⁴ — is not working as Congress intended.

Sources of EPA Failure

Although problems of poor decisionmaking, inefficiency, and insensitivity to local concerns are typical of large federal bureaucracies, these problems are especially evident as EPA moves beyond its traditional role of regulator to engage directly in the engineering and construction of complex projects to clean up toxic waste. Because several thousand toxic waste sites are scattered throughout the nation,⁵ the Agency is severely overextended. In the past, when faced with the need to deal with thousands of pollution sources, EPA has implemented regulatory programs through a system called "cooperative federalism."⁶ Under this system, EPA establishes federal standards to create a floor beneath which environmental quality must not drop, but allows qualified states to administer those standards in their own ways. Instead of using cooperative federalism to enlist state and local governmental aid in administering [19 ELR 10010] the Superfund program, however, EPA has rapidly expanded its own bureaucracy, sacrificing quality control in a futile attempt to maintain full control over the cleanup of thousands of contaminated sites.

In response to a congressional mandate for quicker, more effective cleanups, EPA is in the process of revising the National Contingency Plan (NCP), federal regulations that govern the Superfund program.⁷ However, EPA's recent draft of the revised NCP, submitted for Office of Management and Budget review on June 20, 1988, fails to come to grips with the vast scope of the toxic waste problem and the need for a concerted effort to increase state and local governmental action.⁸ Indeed, despite suggestions for more delegation to the states, the draft fails to propose any increase in delegation, but instead defers the issue. The draft's preamble states:

Given the greater State involvement envisioned in the 1986 amendments to CERCLA, the similarities between CERCLA selection of remedy decisions and RCRA corrective action decisions, and the desire to maximize response actions, some States have asked EPA to consider whether States can and should be allowed to assume full authority for selection of remedial actions pursuant to section 104(c)(4) of CERCLA. EPA solicits comments on the advisability and practicality of allowing States to assume this authority through the cooperative agreement mechanism as authorized by section 104(d)(1) of CERCLA. Comments should consider whether such involvement should be offered selectively, including the criteria for making this determination, and what role EPA should retain if the State role increases.⁹

The above statement underscores EPA's lack of appreciation of the need to address the Superfund program's problems expeditiously. The Agency has administered major federal environmental regulatory programs on a cooperative basis with the states for over 15 years, authorizing states to take the lead in administering the Clean Air Act, the Federal Water Pollution Control Act (FWPCA), and the Resource Conservation and Recovery Act (RCRA). Moreover, EPA has almost eight years of experience in attempting to administer Superfund as a predominantly federal program. If the Agency currently is unable to assess the "advisibility and practicability" of cooperative federalism, it is doubtful that additional public comments are going to help.

Citizens, state and local officials, and members of Congress should encourage EPA to rethink its revisions to the NCP. An essential element of an effective Superfund program is a system of cooperative federalism in which EPA provides oversight, guidance, and funding, while state and local governments provide the day-to-day implementation. Such a program would foster creativity and experimentation in dealing with complex environmental problems. Moreover, if environmental cleanup is spearheaded at the state and local levels, the task can be cut down to a manageable size. Only when state and local enforcement efforts have broken down, resulting in inaction or inadequate action, should EPA step in.

Expanding the Role of States and Local Governments

EPA's continuing failure to foster and fund widespread state and local leadership in cleaning up toxic waste does not preclude individual states and local governments from taking the lead at contaminated sites. In enacting federal environmental laws, Congress has repeatedly acknowledged the primary role of states and local governments in protecting public health and the environment.¹⁰ CERCLA is no exception. It empowers state and local governments to proceed directly in court against polluters to obtain court-ordered cleanups and to recover damages for injuries to natural resources.¹¹ There is no need to await EPA action. To make environmental protection affordable to state and local governments, Congress authorized the recovery of essentially all cleanup and enforcement expenses, including attorneys fees, from polluters. Additionally, both CERCLA and the current NCP allow EPA to fund state and local governmental action to address toxic waste problems.¹²

Citizens, environmental groups, business leaders, and others concerned with toxic waste problems should turn first to their state and local governments for action. Community leaders should be prepared to educate state and local officials as to the scope of their enforcement authority. Although making difficult and controversial cleanup decisions may expose such officials to increased political heat, positive action to protect their constituents' health and welfare ultimately will enhance the stature of state and local politicians. Although the business community's first reaction might be to view environmental enforcement as an attack on the community's industrial base, businesses taking the long view will find consistent state or local enforcement generally more responsive to their legitimate concerns than EPA's efforts. State and local governments — with their relatively less rigid bureaucracies — can be more flexible than EPA in finding cost-effective ways to protect their citizens and environments. And, in the long run, effective protection of environmental quality is a vital component of strong local economies.

Conclusion

The less EPA gets bogged down in day-to-day cleanup operations, the more the Agency will be able to concentrate [19 ELR 10011] on providing the policy direction and shared information necessary for a coherent program for national cleanup. Whenever possible, toxic contamination should be addressed on a state or local level by officials who understand the requirements of federal law but are sensitive to the needs and concerns of the communities at risk. Only state and local governments are responsible directly to the people who suffer the effects of governmental delay and who must live with the governments' solutions. Congress must continue to insist on a strong, efficient federal role in environmental protection. However, it is time for state and local governments to reassert their traditional roles as the primary defenders of the public health and the environment.

1. SURVEYS AND INVESTIGATIONS STAFF, A REPORT TO THE COMMITTEE ON APPROPRIATIONS, UNITED STATES HOUSE OF REPRESENTATIVES ON THE STATUS OF THE ENVIRONMENTAL PROTECTION AGENCY'S SUPERFUND PROGRAM (Mar. 1988). EPA is not the only federal agency at fault. The Departments of Energy and Defense are two of the nation's worst polluters. Abetted by the Justice Department, they regularly run roughshod over EPA and state efforts to enforce the law. Nonetheless, overall management of the Superfund program remains EPA's responsibility.

2. OFFICE OF TECHNOLOGY ASSESSMENT, ARE WE CLEANING UP? 10 SUPERFUND CASE STUDIES: A SPECIAL REPORT OF OTA'S ASSESSMENT ON SUPERFUND IMPLEMENTATION (June 1988).

3. United States v. Ottati & Goss, Inc., 18 ELR 20773, 20774 (D.N.H. Mar. 17, 1988).

4. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 44001.

5. The U.S. General Accounting Office estimates that there are up to 425,000 potential Superfund sites nationwide. GENERAL ACCOUNTING OFFICE, SUPERFUND: EXTENT OF NATION'S POTENTIAL HAZARDOUS WASTE PROBLEMS STILL UNKNOWN (GAO/RCED-88-44) (1988).

6. Cf. Hodel v. Virginia Surface Mining and Reclamation Association, 452 U.S. 264, 288-289, 11 ELR 20569, 20575 (1981).

7. The NCP is codified at 40 C.F.R. Part 300.

8. Rather than cleaning up more sites, a major focus of the draft NCP appears to be the shunting of as many contaminated sites as possible off the National Priorities List and out of the Superfund program.

9. The quoted language appears on page 289 of EPA's June 20, 1988, draft.

10. See, e.g., Clean Air Act § 101(a)(3), 42 U.S.C. § 7401(a)(3), ELR STAT. CAA 004 ("prevention and control of air pollution at its source is the primary responsibility of States and local government") (emphasis added); FWPCA § 101(b), 33 U.S.C. § 1251(b), ELR STAT. FWPCA 003 ("it is the policy of the Congress to recognize, preserve and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution….") (emphasis added); RCRA § 3006(d), 42 U.S.C. § 6926(d), ELR STAT. RCRA 018 (actions taken by states pursuant to their own authorized hazardous waste programs have the same force and effect as actions taken by EPA under the federal program) (emphasis added); and CERCLA § 114(a), 42 U.S.C. § 9614(a), ELR STAT. 44043 (states may impose "any additional liability or requirements with respect to the release of hazardous substances").

11. See Babich and Hanson, Injunctive and Declaratory Relief for States Under CERCLA, 18 ELR 10216 (1988); Babich and Hanson, Opportunities for Environmental Enforcement and Cost Recovery by Local Governments and Citizen Organizations, 18 ELR 10165 (1988); Maraziti, Local Governments: Opportunities to Recover for Natural Resource Damages, 17 ELR 10036 (1987).

12. CERCLA § 104(d)(1), 42 U.S.C. § 9604(d)(1), ELR STAT. 44014; 40 C.F.R. § 300.62.