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Robbery with an Environmental Badge

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As the federal government has devoted itself to rescuing Americans from more perils, fair treatment of individuals is a luxury that the government can no longer afford. Few programs better illustrate the modern contempt for due process than Superfund.

Congress enacted Superfund in 1980 to deal with the problem of abandoned hazardous waste sites. Since 1980, the Environmental Protection Agency (EPA) has cast the Superfund net over far more types of sites than Congress originally intended. The federal government has spent almost $10 billion for Superfund and has forced private parties to spend up to another $80 billion. Yet the program has cleaned up barely a third of the most dangerous landfills and chemical dumps identified by the EPA. The Congressional Office of Technology Assessment estimated that the total cleanup costs for all Superfund-designated sites could exceed half a trillion dollars.

Thanks to its own interpretation of the law, EPA claims it has a right to impose the entire cost of cleaning up a hazardous waste site on any company, individual, or organization that has contributed a single box of garbage or trash to that site. EPA can accuse almost any company of sending waste to a Superfund site, and it is up to the accused to somehow prove that it never dealt with the site. Even when the EPA has no reliable evidence that a company actually sent waste products to a Superfund site, it does not hesitate to file multimillion dollar lawsuits against the company to bankroll its inefficient cleanup efforts. A Justice Department report on Superfund observed, “Joint and several liability frequently operates in a highly inequitable manner — sometimes making defendants with only a small or even de minimis percentage of fault liable for 100 percent of plaintiff’s damage.”

Superfund in many cases has been simply “robbery with an environmental badge.” EPA requires almost no evidence in order to impose potentially bankrupting liabilities on private firms. Bruce Diamond, EPA’s director of waste programs enforcement, conceded that at some sites “all you have is an aging truck driver who says, ‘I took yellow liquid and I think it was from them.’” At the Rosen Brothers Scrap Yard site in New York, EPA selected the “potentially responsible parties” largely on the basis of memories of the scrapyard employees of what had happened 20 years before.

EPA notified Formal Ware Rental Services of Tulsa, Oklahoma, that it would be held responsible for the cleanup of a local Superfund site; the only evidence linking the clothing rental company to the site was the fact that it had paid someone $14 in 1972 to haul trash to the Superfund site. The EPA fingered a Boy Scout troop as a potentially responsible party to finance the cleanup of a Superfund-designated scrapyard in Minneapolis. At New York’s Ludlow Sanitary Landfill, a court ruled that a butcher shop owner was liable because the glue on the boxes he threw in his dumpster (and which were later taken to the landfill) contained hazardous materials. Several churches and local schools were identified as potentially responsible parties to finance the cleanup of a Superfund site in Gray, Maine.

EPA has effectively no burden to prove that a company sent waste to a Superfund site; instead, the company must prove itself innocent of ever having sent anything to a site. As one lawyer observed, “It is as if the EPA is asking your client, ‘When did you stop sending hazardous waste to the site?’”

Federal judge Norma Shapiro slammed EPA’s Superfund enforcement practices as “an arrogance of power that is bureaucracy at its worst.” In Denver, after a recycling company improperly disposed of car batteries collected at a department store at a large garbage dump, EPA sued the individuals who had conscientiously brought their batteries to the store for proper disposal for the cost of cleaning up the dump.

Barbara Williams, a Gettysburg, Pennsylvania, restaurant owner, found herself sued to help pay the costs of a local Superfund site because she had put table scraps in her garbage; campgrounds, antique stores, pizza shops, ice cream shops, and bookstores were also dragged into the liability mire.

One study estimated that 3,000 small businesses were hit with Superfund liability merely for sending household trash to sites later declared to be Superfund sites. Lawyer James DeLong noted, “The operator of a municipal sewer system was recently held responsible under Superfund for the escape of hazardous substances that had been flushed down the drain by a research laboratory.”

EPA compels companies to accept liability for a waste-site cleanup by threats of triple damages for EPA-funded cleanup costs, as well as fines of $25,000 a day.

After the EPA labeled the soil under a pesticide factory near Cape Giradeau, Missouri, as a Superfund site, the EPA reached a settlement with the family that owned the company — the company agreed to repay the estimated $2 million cleanup cost. As a Wall Street Journal editorial noted, as part of the settlement, the EPA and the company agreed that the factory would be decontaminated but not destroyed. In early 1993, the EPA nullified the agreement and announced plans to destroy the factory building. (EPA claimed that would save money.) EPA had no factual support for its decision to destroy the building, because the agency claimed that it could not afford to analyze the tests it made of the building, “due to budget constraints.” When the building owners protested, EPA informed them that the agency had nothing to discuss with them. Federal judge Stephen Limbaugh intervened:

“It is clear to the court that the EPA’s ‘concern about public safety and the increasing costs to taxpayers’ is insincere and sanctimonious. The EPA’s refusal to communicate with the defendants about the demolition of their building, and its arrogant pontificating, reflecting nothing less than an attitude of supremacy tantamount to contempt.”

The judge concluded that EPA’s clean-up goals do “not make it an administrative deity” and that Congress “did not intend to give the EPA unfettered authority to deceive and bully people into submission.”

Superfund is a retroactive law par excellence. Even though a company or individual may have obeyed all the laws existing at the time it disposed of its waste products, the company can still be forced to pay whatever cleanup costs EPA demands. In June 1997, EPA demanded that 71 Idaho mining companies provide the agency with “every scrap of paper they [had] produced in the last 117 years, from recent faxes and phone messages to notes scribbled as far back as 1880″; the EPA was trying to determine which companies were responsible for lead deposits at a mining-related Superfund site. The EPA gave the companies 14 days to provide copies of all their records from the last hundred-odd years — and promised fines of $27,500 a day if they failed to meet the agency’s demand. An editorial in the Spokane Spokesman-Review noted that the “cost of the paperwork alone to meet EPA’s ultimatum could bankrupt tiny mining owners.”

EPA is abusing Superfund to goldplate slightly contaminated areas that often pose little threat to human health. A study by the Congressional Office of Technology Assessment concluded that half of all Superfund cleanups “address hypothetical risks rather than actual ones.” The cleanup of a Super-fund-abandoned quarry site in Oklahoma was delayed in 1988 after EPA and the Oklahoma State Department of Health clashed on the proper cleanup remedy; EPA demanded a $12 million cleanup, while the state health department concluded that a $1 million cleanup was all that was necessary. (EPA won.)

The stricter the cleanup standards the EPA imposes, the more power agency officials have over private companies — since companies will have to spend far more to meet EPA’s stringent standards.

The government increasingly defines justice in its own interest — as if government’s needs give it an absolute right to as much of a corporation’s assets as government lawyers can finagle. State and local government are using the joint-and-several liability doctrine to force private companies to pay for cleaning up government landfills. This happens even in cases in which city employees are blatantly responsible for problems at the landfills. New York City “brought a Super-fund suit to clean up its landfill, even though the illicit disposal resulted from one of its own employees dealing with organized crime.”

EPA sued Shell Oil Company for total cleanup costs at Rocky Mountain Arsenal in Colorado even though the contaminated ground had been used for years by the U.S. Army for chemical warfare tests. In August 1997, the EPA issued new rules that limit the amount town and city governments can be required to pay for cleanup of their own dumps. By creating special rules for governments, the EPA basically conceded the injustice of the Superfund liability scheme, but gave relief only to politicians and bureaucrats.

Superfund remains a classic case of the political system’s inability to speedily reform an extremely unjust, grossly ineffective program. Congress enacted a law that effectively gave federal bureaucrats vast arbitrary power over businesses, churches, and Boy Scout troops. And because congressmen and bureaucrats like power, the law has not been fixed after a decade’s abuses or the law’s failure to effect the cleanup of most waste sites. The most important lesson of the Superfund boondoggle is that if Americans want a cleaner environment and a stronger economy, Congress must cease giving such vast grants of power to the Environmental Protection Agency.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.