Working Paper 93-2, July 20, 1993(1)2

By Marc Alston

Chief, Colorado Section

EPA Region VIII Superfund Program

(1) This paper is an edited transcript of a talk given by Marc Alston for the Intractable Conflict/Constructive Confrontation Project on February 18, 1993. Funding for this Project was provided by the William and Flora Hewlett Foundation and the University of Colorado. All ideas presented are those of the author and do not necessarily represent the views of the Consortium, the University, or Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail:

© 1993. Conflict Resolution Consortium. Do not reprint without permission.

Although toxic waste has been around for a long time, public concern about the hazardous waste situation caught steam in the late 1970s, after some widely publicized problems such as Love Canal. Since hazardous waste affects people's health, the environment, and property values, it causes considerable concern and gets extensive news coverage. The Superfund law was passed in 1980 and revised in 1986. The law requires EPA to set up a list of hazardous waste sites through a formal process. Then it is required to reduce risks at these sites by studying them to determine the nature and extent of the problem, developing an appropriate solution and then carrying that solution out.

In trying to do this, EPA has encountered many conflicts. These conflicts are typically of two types. First, the EPA has tried to impose solutions on communities that they don't want. In other words, the residents feel that a site is okay the way it is, and they don't feel the expense or disruption is worth it. These communities, Smuggler Mountain, for instance, feel that the solution goes beyond what is needed, or is overly expensive or overly intrusive. At some sites, people don't really want their yards dug up, when EPA thinks they need to be, to reduce risks to human health.

Secondly, EPA will try to carry on a cleanup that the local residents do not feel goes far enough. In other words, the community feels threatened by the site and argues that either the EPA plan is not cleaning it up fast enough or the to extent that they want. Some want us to clean up to nearly zero risk. One way or another communities (or a portion of the community) often have issues with EPA over the level of cleanup.

The Superfund regulations include nine criteria for selecting remedies. These criteria are not often discussed in public, but they are very important to us, because they are the basis on which we select solutions. The first two criteria are: 1) the protection of public health and environment, and 2) compliance with all applicable standards. Those two criteria must be met at every site. We cannot, under our regulations, fail to achieve those criteria. Next, are permanence, implementability, a preference of treatment, cost, and short-term effectiveness. These are criteria that we have to balance.

The criteria that are to be used to "modify" the solution are state acceptance and community acceptance. This is sometimes misunderstood to mean that these are lower priority criteria. It is a very high priority for EPA to work with the State and community in the beginning so that the position of each is understood. Communities have argued that it is unfair that community acceptance is the last thing we consider. What I believe is more pertinent is that EPA and communities can disagree over the risk at a site, and over the risk that is acceptable. As I said previously, conflict over risk is frequent at Superfund sites.

We do have to exercise a lot of judgement in coming up with solutions to make everyone happy--and typically, we don't come up with solutions that please everyone. So we get into conflicts frequently.

We do have other goals as well, for instance, consistency across the country. This creates some difficulties too, as our efforts to be consistent diminish our ability to meet local concerns. Also, our consistency goal also makes us a very bulky agency to deal with. We have a hierarchy that we need to go through in Washington to get decisions on cleanup approval and settlements in legal cases approved. It takes a lot of time and does not often allow for local preferences to be accommodated. Community values and perceptions of risk differ very, very much from one community to the next. We can have the same circumstances and one community may not want us to cleanup at all and another may feel that we need to drive for the zero-risk situation. The consistency goal makes it difficult for us to meet both these communities' needs--that creates conflicts for us. It is opposite to some of our other goals.

We also have a goal of enforcement first, or as it is often put, "the polluter pays." It is a fundamental premise of the Superfund program that the individuals who are liable for the waste pay for the cleanup.

Finally, we have a goal of site completions. Bill Clinton reiterated that he wants us to cleanup sites and that is what we are supposed to do. Currently one site per week nationally is being completed right now. So the program has gotten into that mode. It's taken a long, long time, but finally, we are finishing up one site per week.

The type of sites that we have are landfills, chemical disposal sites, wood treaters, radioactivity, mine wastes, and many different kinds of hazardous waste. They can affect ground water, soil, surface water and air. In choosing sites, we examine whether they produce health or environmental risks. We consider both actual risk that we can measure, or potential risk--the risk that they will harm human health or the environment in the future. A big part of the program and a big point of contention are our attempts to address potential risks, since these risks can't now be seen or measured. But most of our sites now involve potential risks, not actual risks.

Cost is at the root of many of these conflicts, as the solutions are very, very expensive. Many, many millions of dollars are spent per site. I can't give an exact figure for the average cost for clean up, but it is well over $10 million.

Another cause of conflicts is the liability scheme imposed by the law, which is thought by some to be unfair. But, it is very powerful. The law mandates joint and several liability. This means if you have some involvement at a site (i.e., are responsible for some of the waste, but not all of it), you can be held liable for the full cleanup cost.

Also, potential risk is difficult to quantify. That is another point of conflict. Should EPA allow potential risk to occur before we do something? The law tells us to address both potential and actual risk, but there are some that say that we should wait until people's blood lead levels actually rise before we do something. There's a whole technical debate about biomarkers that is creating considerable controversy in this area.

Other frequent conflicts that we encounter are with the responsible parties over costs, over what kind of risk we should be required to reduce, over what the right solution is, and over liability. We sometimes get into very long enforcement or solution processes, and communities can be held hostage as this goes on. It can take years to resolve these issues.

These issues are complicated even further when there are third-party suits that occur. In other words, we sue a certain party as responsible and that creates spin-off suits as they sue other parties who may have contributed to the situation. At some sites, particularly landfills, we have hundreds or thousands of responsible parties, making resolution very difficult.

How do we reduce these conflicts? A number of things are possible. I'm not advocating any of these except the last, as I haven't found a win/win situation in this program. But some of these ideas might help.

We could change the emphasis of the law away from addressing potential risks to only addressing actual risk. This would be much less costly, since we would have far fewer sites, and it would reduce or eliminate the conflicts over identifying and quantifying risks that haven't happened yet. However, those who are worried about potential risk, those who value the reduction of those risks, will not get them reduced or eliminated. So, there is a downside to that approach.

Another way to reduce conflict would be to allow communities more say in determining the solution. The continuum runs from one end in which the community is given no say at all in the determination of the proper solution to the other end, at which we say "community X, you have a Superfund site. We think cleanup is going to cost $5 million. Here's the money--you clean it up." That's the other end of the continuum. And somewhere in between is to allow communities more say, to elevate the weight that you give to their preference.

This would diminish our ability to be consistent, but it would allow us to be more protective or less protective in some cases. This approach also allows the responsible parties the opportunity to influence this decision (the responsible parties are those that caused the problem who are liable to pay for the cleanup). Often the responsible parties have a strong influence on the community--they have had a big presence in that community for a long, long time. They may be an industry that was there. So they may influence the community against an expensive cleanup. I feel that the closer the community is tied into the political process, or the closer the political process operates in these decisions, there is less likelihood to achieve risk reduction or environmentally-based protective remedies.

Another way to reduce conflicts is to change the joint and several liability clause. One idea that has been suggested is a total tax situation. The insurance industry has proposed taxing the industries more as a whole, or to tax individuals to pay for the cleanups. This would get away from the responsible party situation or the situation in which the individual polluter pays, and this would eliminate the conflicts over who's to pay how much. It's a possible change, but it has problems too.

One change that I do personally advocate, but that EPA has had great difficulty successfully implementing, is informing the community early about what is going on and having a dialogue with them, educating them, listening to their positions, knowing what their positions are, and involving them in the decision-making process. It is an objective of the EPA, but we clearly have not succeeded in that area at many sites. There is a process called "informed consent" that attempts to do this. Through the informed consent process we do try to get the community involved. We try to listen and determine what they can live with. It is one of our objectives, but we could do better and are attempting to do better.

There are things like mediation that can help with this. Third parties can help you to try to identify your issues and work them out. There are processes, such as the Smuggler Mountain Technical Advisory Committee--an information exchange process--which can be helpful.1 Improved community presence can help. We have tried having local EPA offices. We are probably going to do more of that.

What I need to say in conclusion is that reauthorization of the Superfund law is coming up in 1994. Congress will be examining Superfund in an attempt to reauthorize it, as it has run out already and we are on an extension right now. To say that there will be lively discussion in Congress, is kind of mild. I don't know what they are going to do. EPA has a list of reauthorization issues and industry is going to come in with its own, as are other interest groups--it's going to be a difficult decision. Liability is sure to be discussed, as is risk reduction, and EPA's progress. The end result could range from Congress deciding that it's just not worth it and eliminating the program entirely, to changing the liability scheme, to directing us to do certain things. I was just in a discussion today about what we should ask Congress to do to clarify some things with communities. It will be a long and difficult debate.


1 This is described in CRC Working Paper 93-1, by Willard Chappell.