To: Members & Subscribers, and Legal Affairs Committee From: National Office Date: August 7, 1997 Re: RA 97-19 EPA Draft Municipal Settlement Policy At Co-Disposal Sites
On July 11, 1997, EPA issued in the Federal Register a draft Municipal Settlement Policy for resolving the Superfund liability of local government owners and operators of co-disposal sites and all generators and transporters of municipal solid waste (MSW) and municipal sewage sludge (see attachment). EPA is seeking public comment on this draft policy by August 25. The proposal describes a methodology for calculating appropriate settlement contributions for these local government entities. Key elements of the policy include:
- The policy will apply to co-disposal sites on the National Priority List where local governments have not yet entered into a settlement agreement.
- Liability for generators and transporters of municipal solid waste will be capped at $3.05 per ton, the amount it costs to close an uncontaminated MSW landfill according to EPA. EPA can increase the cost to $3.25 per ton based on certain site-specific conditions such as the presence of a shallow aquifer, high annual rainfall or the unavailability of appropriate cover material.
- Liability for owners and operators of co-disposal sites will be capped at 20 percent of the cost of cleanup. EPA can increase the cap up to 35 percent of the local government exacerbated contamination or exposure, received net operating revenues substantially greater than the cost of cleanup, or was convicted of criminal activity related to its ownership or operation of the site. The cap may be adjusted downward if the local government made efforts to mitigate environmental harm from the site and for other equitable factors. Local government owners and operators will also be liable as generators and transporters, if applicable, and will be subject to the generator/transporter provisions listed above.
- EPA will carefully consider any forms of in-kind services/contributions at a site that a local government owner/operator may offer as partial settlement of its cost share.
- In all cases, EPA will take into account the local government's ability to pay its share of the cleanup costs under the policy.
The draft policy should enable local governments to equitably and expeditiously resolve Superfund liability issues related to municipal solid waste and municipal biosolids. Once the policy is adopted, it should ease the litigation that has saddled cities and towns with exorbitant legal costs and liability because municipalities have owned or operated municipal landfills or sent garbage or biosolids to landfills that were also used by generators and transporters of industrial hazardous waste. Most likely, EPA will support inclusion of the final version of the policy in any Superfund reauthorization that is passed by Congress.
AMSA strongly encourages its members to submit letters/comments in support of the policy to EPA. Specifically, any comments should mention support for the key elements of the policy, such as the $3.05/ton cap for generators and transporters of municipal solid waste and the 20% cap for owners/operators. In addition, there are two elements of the policy that local government would like to see improved. First, the policy should apply to local government owners/operators of MSW-only sites as well as co-disposal sites. Very few MSW sites exist and local governments should not be penalized for keeping industrial hazardous waste out of their landfills. Secondly, the policy should apply to local governments at sites where there are no viable parties. Local governments that shipped MSW to a site should not be penalized because of the status of other parties that shipped industrial hazardous waste to a site. Local governments that shipped MSW to a site where the generator/transporter of industrial hazardous waste to the site are non-viable or defunct should not be treated differently from local governments that shipped MSW to sites where the generator/transporter of industrial hazardous waste are financially viable.
Comments should be submitted to EPA no later than August 25 at the following address: Ms. Leslie Jones, U.S. Environmental Protection Agency, Office of Site Remediation Enforcement, Policy and Guidance Branch (2273A), 401 M Street, S.W., Washington, DC 20460. AMSA plans to submit a letter to EPA in support of the settlement policy. Copies of any correspondence to EPA should also be sent to Sam Hadeed, c/o AMSA National Office. For additional information, please contact Sam Hadeed at (202) 833-4655 or shadeed@amsa-cleanwater.org.
ATTACHMENT:
- EPA Draft Municipal Settlement Policy
For this downloadable file, you must have the Acrobat Reader. If you don't have the Acrobat Reader, click on the icon below to download a copy. After you download and install a copy, return to this page and click on the link above.