Collectively, our organizations represent thousands of cities, towns, and counties across the United States. Hazardous waste sites impact the health of our citizens and the environmental and economic viability of our communities. As a result, we are well qualified to provide the Subcommittee with a truly representative view of how local governments and their citizens have been affected by Superfund and to offer some suggestions as to how the program may be improved.
My City is a member of the International City/County Management Association and has been substantially involved with formulating the ICMA and Phoenix's federal and state Superfund policy. We are currently involved in reforming the State of Arizona's Superfund program and have faced many of the same challenges being addressed at the federal level. Despite the competing interests of different Arizona stakeholders, we are developing a growing consensus on a fair and streamlined cleanup program.
Like many other local governments, the City of Phoenix has many Superfund roles. At various sites, we are a generator of municipal solid waste and an owner and an operator of a co-disposal site; a water provider charged with protecting drinking water aquifers; expected to represent our citizens on local hazardous waste concerns; asked to offer up streets and rights-of-way for wells and remedies; and charged with revitalizing brownfields and blighted areas. We also experience economic and environmental impacts because there are four federal Superfund sites and nearly a dozen state Superfund sites within or adjacent to the City of Phoenix. Many of those sites are large areas of regional groundwater contamination that have caused closure of drinking water wells.
In our many roles, the City of Phoenix has, since passage of the original Superfund statute in 1980:
Across America, unjustified litigation is saddling local governments with expensive legal cons and exposing us to millions of dollars of threatened liability simply because we owned or operated municipal landfills or sent garbage or sewage sludge to landfills that were also used by generators and transporters of hazardous wastes. This problem has severely affected hundreds of communities and school boards and their citizens. Many of us-have seen our budgets for essential services threatened and reduced.
Simply put, local governments are in a unique situation that justifies statutory relief Local governments are required to provide waste collection and disposal services for public health purposes and as a service for our citizens.
It is also undisputed that Municipal Solid Waste contains, at most, a de minimis amount of Superfund hazardous substances. Most local governments are drawn into Superfund because of the past co-disposal of municipal trash with more toxic industrial hazardous waste.
There is a strong consensus in support of the position that local governments should be provided relief. We appreciate the attention that has been given to this issue by the Subcommittee and believe the municipal liability provisions outlined in S. 8 are a step in the right direction. After the date of enactment local government generators and transporters - as well as private parties- will be relieved of costs incurred attributable to all municipal solid waste and sewage sludge activities and any waste activities at co-disposal sites. In addition, local government owners and operators at co-disposal sites would receive a liability cap based on population.
We appreciate the committee's efforts to address our concerns, and the proposals in the bill are positive steps. However, there are some shortcomings in the liability relief proposal that will leave some local governments exposed to significant liabilities and many others bearing significant transaction costs. The following are our overall comments:
Limiting the application of the local government owner and operator and generator/transporter relief provisions to costs incurred after the date of enactment leaves local governments open to potentially large payments and transaction costs related to clean up expenses incurred prior to the date of enactment. For example, if a PRP incurred costs to clean up a site and is now suing local governments for recovery, the bill provides no relief from liability exposure. This means that the exposure of generators and transporters could be significant and in the case of owners and operators, much greater than twenty percent. For instance, the City of Phoenix's estimated response costs already incurred at two co-disposal sites it owned or operated is at least $17 million. Although the city has recovered some of those costs through litigation, none of the costs incurred will be credited towards the twenty percent cap.
Recommendation: For these reasons, any liability relief that is provided to local governments for activities related to municipal solid waste and sewage sludge should include relief for costs incurred prior to the date of enactment that have not yet been settled. We hope that any local government liability relief provisions will be structured to provide certainty and limits on the amount of liability. For example, a cap or some type of limit on local government generator and transporter liability for clean up costs incurred prior to the date of enactment of the bill and crediting cleanup costs already incurred by local government owner and operators against the 20% clean up cap, would go a long way to alleviate.transaction costs and provide effective relief for local governments. We will be happy to provide the Subcommittee with further information on these suggestions for possible options to achieve effective liability relief for local governments.
--The conditional nature of the relief for Subtitle D facilities is also troubling. S. 8 would make the Subtitle D liability cap at co-disposal sites unavailable to a facility that was not operated in "substantial compliance" with local laws and permits. Nor would a local government receive liability relief if it violated regulations related to vector control.
Recommendation: We suggest that the language be crafted in a more specific manner to ensure that local governments are not penalized. The legislation should ensure that the cap will not be subject to minor infractions having no impact on public health and safety or the integrity of the environment.
Under S. 8, local governments who were owners and operators of co-disposal sites would be asked to pay up to 20% of the cleanup costs, while private industries who generated hazardous waste that many times caused the contamination at these sites ~would be asked to pay nothing. Local governments, who often had to accept the hazardous waste at their landfills, do not believe that such a liability scheme is properly balanced.
Recommendation: We suggest that you develop an allocation system, with a percentage for the private generators and transporters of hazardous waste at sites owned or ~operated by municipalities.
We hope that the committee will ensure that whatever liability relief program is enacted into law is workable within the financial limits of the trust fund and the demands of the cleanup program. This will warrant that sites are cleaned up in an effective and timely manner.
Finally, an area of importance to local governments not addressed in the legislation is the potential liability arising from municipal ownership and operation of public sewer systems and related treatment works. Citizens generally take for granted the existence of ~a functional, convenient sewer systems; indeed, most people believe they have a right to such systems. Accordingly, municipalities and other public bodies provide these facilities to protect the public health and welfare of the community.
The operation of a sewer system can require a municipality to maintain and repair ~hundreds of miles of unseen, underground pipeline. Because the underground grid of pipes making up sewer systems can be so extensive and because it is essentially invisible, detection of leaks or releases from the system can be difficult. In addition, because a municipality cannot police every sewer drain connection, it has limited control over the type of materials illegally disposed into the system.
Nevertheless, local governments became liable for releases of hazardous materials, which ~~were improperly discharged to the receiving sewers in the first place or for discharges from POTWs in excess of permitted limits caused by improper industry discharges to the sewers. For instance, the Washington Suburban Sanitation Commission was found by a Maryland federal court to be liable for leaks from its sewer pipes of hazardous substances that were improperly disposed of by a dry-cleaner. This finding of liability was made
despite the fact that the disposal of the hazardous substances into the sewer was prohibited by the Sanitation Committee. These are recurring liability problems that need to be addressed by the legislation.
Recommendation: We believe S. 8 should extend the same liability relief to owners and operators of publicly owned treatment works as it does to municipal owner and operators of co-disposal sites.
The current system frequently discourages parties from implementing timely source control and containment because of the threat that impossible measures such as fill aquifer restoration will be required. By demanding the impossible, we frequently fail to get the reasonable.
Cleanup standards should be site-specific, where appropriate, and based upon actual or reasonably foreseeable risk. Where more relaxed cleanup standards are used, permissible property uses should reflect the level of cleanup. Institutional standards should also be considered to supplement risk-based decisions.
S. 8 endorses many of these concepts; however, we are concerned that the bill's focus upon treatment at the point of use does not adequately protect the groundwater resource. We urge the Subcommittee to require containment of contaminant plumes when drinking water is threatened. As growth continues, and water supplies become even more precious, we will need to rely upon aquifers with water of lesser quality. Allowing migration of contaminants into lesser quality aquifers will only increase local governments' treatment costs when that day arrives.
In addition, the proposed Remedy Review Board appears to have broad powers, and without further information on its members and structure, we have reservations about the need for another regulatory body. We are concerned that this Board would overturn agreements reached after years of negotiations and undermine hard-fought remedy selection decisions made by stakeholders, including citizens and local governments. We propose instead that an Advisory Board be established to provide guidance on remedy selection and monitor the Superfund program on a national basis. We urge that local governments be a mandatory part of any advisory or Remedy Review Board.
Revitalization of brownfields is a critical issue for local governments around the country. We applaud the efforts made in this bill regarding brownfields revitalization. Many urban centers contend with environmental, public health, and economic threats posed by abandoned and contaminated industrial and commercial properties.
The grants proposed in the bill are critical to assisting local governments remediate and reuse brownfields sites, and enhance and promote redevelopment activities. However, grants are only a piece of the brownfields puzzle. Because many communities want to encourage private investment activities, other incentives, including federal tax incentives, should be considered.
We look forward to working with the community to further refine these proposals.
Local government officials are the elected representatives of the communities directly accountable to citizens. Our role in the decision making process should be commensurate with our representative status. S. 8 does not recognize local governments' authorities for the determination of reasonably anticipated uses of land and water resources.
For example, S. 8 establishes the Community Response Organization (CRO) as the conduit of information between the community and the federal and state regulators and PRPs. The CRO serves as the representative of the local community during the remedial action planning and implementation process. Yet, representatives of local governments are designated as only one of many groups included for membership on the CRO. Local governments do not oppose the CRO, but we are concerned that the bill establishes the CROs as the only formal mechanism for local governments to participate in the decision making process.
Recommendation: Local governments should have a separate and distinct route for input on decisions affecting their communities. S. 8 requires that the Administrator "shall consult with the [CRO] in developing and implementing the remedial action plan." However, there is no language indicating that local governments represent the affected the community.
Recommendation: S. 8 should be amended to require the Administrator to directly consult with the affected community as represented by the local government in developing and implementing the remedial action plan.
In conclusion, the Superfund program must ensure that sites are cleaned up quickly and effectively without threatening the economic viability of our communities. To achieve those goals, the Superfund program must provide adequate funding for site remediation and establish cleanup standards that are protective of human health and the environment. This will ensure that sites are not continuing problems for communities in the future. Further, it will ensure that local governments will not be left with sites that are not remediated, contributing to an already overwhelming brownfields problem.
We appreciate the opportunity to comment on the bill. We thank you for giving attention to local government liability relief. We hope that any reauthorization will include effective liability relief for local government activities related to municipal solid waste, sewage sludge and publicly-owned treatment works incorporate the recommendations that we raised in our testimony.
We again thank you for your attention to this matter and we look forward to working with you and your staff on this matter.