TAKING CHARGE:
LOCAL GOVERNMENTS AND
HAZARDOUS SUBSTANCES

By KENT E. HANSON and ADAM BABICH*

Local governments are ideally situated to address environmental problems with sensitivity to the concerns of local citizens, environmentalists and business interests, and to strike a rational balance between short-and long-term environmental and economic goals. However, the fact that few local governments are taking the lead in the cleanup of hazardous wastes suggests that they have yet to fully understand the power and scope of their authorities under state and federal environmental laws. Congress, by enacting federal environmental statutes such as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as "Superfund") — provided local governments with unprecedented power to protect the quality of the environment and to shift cleanup costs to polluters and away from the taxpaying public. Under these laws, local governments may obtain court-ordered cleanups and damage awards for injuries to natural resources. Congress made environmental enforcement affordable to local governments by providing for reimbursement of investigation, cleanup and litigation expenses, including attorney and expert consultant fees.

Contamination of the environment with toxic, carcinogenic, mutagenic and teratogenic substances is a nationwide problem. Relatively few contaminated sites, such as Love Canal, the Rocky Mountain Arsenal and Times Beach, have received national publicity, but practically every community must deal with seepage from landfills, leaking storage tanks, midnight dumping, and perhaps, an overturned tank truck or railroad car. At stake are human health, the quality of life, property values and the economic vitality of the community. Only by taking the lead in tackling toxic problems can local governments assure that environmental cleanups properly address local concerns, that costs are borne by industrial polluters, and that recovered damages are returned to the communities that suffered the injuries.

Why Not Let EPA or the State Handle the Problem?

Local governments cannot afford to rely solely on the state or the federal government to solve local problems. Whenever hazardous materials are involved, public expectations — and emotions — run high. A community's highest priority may be viewed as a minor issue by state and federal agencies. When those agencies arrive on the scene, local concerns often take a back seat. Furthermore, the United States Environmental Protection Agency (EPA) is able to address only a fraction of the hazardous waste sites currently threatening communities. When EPA does act, cleanups frequently are slow and sometimes fail to assure long-term protection of the public. Moreover, EPA cleanups (and supporting studies) are frequently unnecessarily expensive — a consideration that looms particularly large when EPA attempts to recover its costs from local businesses or from the local government itself. If the public and environment are to be cost-effectively protected, such protection must be initiated at the local level.

What Can Local Governments Do?

Local governments have broad authority to require cleanup of contaminated sites. CERCLA authorizes local governments to proceed directly against polluters in federal district court to obtain:

• Reimbursement of expenses incurred in protecting the public and environment from hazardous substances, including costs of investigating the problem, compelling and supervising cleanup actions or studies by defendants, and litigating the lawsuit;
• Court orders directing defendants to perform cleanup operations under governmental oversight;

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• A declaration that the defendants are liable for all future cleanup or oversight costs; and
• Damages for injuries to natural resources.

Several other federal environmental laws empower local governments to enforce statutory requirements, regulations, permits and orders. For example, the "citizen suit" provisions of the Resource Conservation and Recovery Act (RCRA) enable governments to address a broad range of situations that may threaten the public or the environment. Many state statutes grant local governments similar authorities. These enforcement provisions may be used alone, in conjunction with one another or with common law claims for relief, as circumstances warrant.

Can Local Governments Afford the Expense?

CERCLA and other major federal environmental statutes authorize recovery of essentially all government expenses associated with exercising statutory authorities. Recoverable expenses include the costs (e.g., employee salaries, related overhead and consultant fees) of activities such as: emergency responses by local fire departments; installation of security fencing; environmental sampling and other investigations; provision of alternative water supplies; temporary evacuation and housing of threatened individuals; health monitoring; and storage, confinement, neutralization, destruction or treatment of hazardous substances. Attorney fees and other enforcement costs are also recoverable.

By providing for prompt reimbursement of essentially all expenses related to enforcement efforts, Congress ensured that local governments would be able to afford to exercise their statutory authorities. Additionally, short-term funding may be available through interim recoveries of expenses from defendants pending final resolution of cases.

What Damages Are Recoverable?

CERCLA empowers local governments to recover damages for injuries to the public's interests in all natural resources within their borders, including those owned privately. Damages are not limited to the costs of restoring or replacing injured resources (traditional measures of damages in property damage cases). As a result, local governments are entitled to damages for injuries to public lands, drinking water supplies, or any other public or private resource from which the community derives a benefit. For example, damages are recoverable for the loss of benefits the public would have received from direct use of the resource (e.g., fishing, hunting, hiking and swimming), and for loss of indirect benefits, such as having the option to use the resource, preserving the resource for future generations, and simply knowing the resource exists. Measuring these damages can be expensive, but the damages are often substantial and defendants are liable for the reasonable costs of the damage assessments.

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Congress mandated that damage recoveries be used to restore, replace, or acquire the equivalent of injured natural resources. By taking the initiative, a local government can assure that damage recoveries are used to restore the local environment and benefit the community where environmental injuries occurred.

What Problems Can Local Governments Tackle?

Problems that trigger local governments' authority to act under CERCLA and other statutes include actual or threatened groundwater or surface water contamination, releases of chemical vapors into the air, and contamination of soils with metals, chemicals or radioactive substances. Such authority is not limited to sites identified by EPA on the National Priorities List and does not require prior approval by EPA or state governments. CERCLA authorizes local governmental action to address "hazardous substances," including heavy metals, radioactive materials, industrial chemicals, PCB's, and other toxic, carcinogenic, mutagenic and teratogenic substances. The term is not limited to wastes and is defined to incorporate most substances regulated under the major federal environmental statutes. Substances may be subject to CERCLA even if they are exempt from regulation under other statutes. For example, mine drainage, fly ash, and coal tar have been found to contain hazardous substances within the meaning of the statute. The release of any hazardous substance — regardless of quantity or concentration — gives rise to liability under CERCLA, allowing local governments substantial latitude in determining when and whom it is appropriate to sue.

Who Can Be Held Liable?

CERCLA's liability provisions reflect a fundamental policy determination by Congress that, regardless of traditional notions of fault, those responsible for the management and disposal of hazardous substances — rather than the taxpayers — should bear the costs of needed cleanup. Thus, in enacting CERCLA, Congress designated four broad categories of "responsible parties" — parties who, regardless of fault, are liable for environmental cleanups, governmental expenses and natural resource damages. Responsible parties include: (1) current owners or operators of a site; (2) a site's owners or operators at the time of disposal of hazardous substances; (3) persons who arranged for disposal, transport or treatment of hazardous substances; and (4) persons who accepted hazardous substances for transport to facilities sites which they selected. Because of the broadly defined classes of responsible parties, many CERCLA enforcement cases include multiple defendants, although there is no requirement that every potential defendant be made a party to such suit. At a hazardous waste landfill, for example, the roster of responsible parties is likely to include property owners, dump operators, and many transporters and genera-

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tors. Even a small spill can give rise to liability on the part of a transporter and several generators.

How is Liability Proven?

CERCLA makes proof of liability easier than under traditional legal theories. CERCLA imposes liability regardless of fault; the government need not prove negligence or other wrongful conduct. Moreover, there is no need to "fingerprint" wastes and make a traditional showing of causation. In other words, it is unnecessary to prove that the contamination can be traced back to each defendant's hazardous substances. To establish liability, a local government need demonstrate only that there has been a release or threatened release of a hazardous substance from a facility, that the defendant falls within one of the four categories of responsible parties, and that some governmental expenses have been incurred in responding to the problem. If these elements are satisfied and no defenses apply, the defendant is strictly liable for cleanup, expenses and damages. When two or more persons have contributed to a single harm, each person is liable under CERCLA for all contamination at a site. CERCLA encourages a fair apportionment of damages and costs by providing responsible parties with legal recourse against one another to ensure that each pays its fair share.

Do Local Governments Have the Necessary Expertise?

The combined effect of complex statutes, lengthy administrative regulations, multiple defendants and extensive discovery typically involved in environmental enforcement cases may cause local officials to question whether they have the resources and expertise to tackle yet another difficult problem. However, because CERCLA and other statutes authorize recovery of costs, including attorney and expert witness fees, local governments have the option of hiring additional staff or employing specialized outside counsel and expert consultants to supplement their staff attorneys and technical experts. In many cases, involvement of such experienced outside help may be essential.

Over the last several years, environmental litigation has become increasingly specialized. Defendants today draw upon a pool of sophisticated lawyers and consultants — many of them former government enforcers — with years of experience in litigation under CERCLA and other environmental statutes. Accordingly, local governments seeking to establish an enforcement presence under CERCLA or the other major federal environmental laws should consider carefully the option of employing experienced outside counsel and technical experts.

What If Local Government Has Contributed to the Problem?

It is generally advantageous to local governments to take the lead in cleaning up toxic problems, even if they are partially responsible for creating the problem. When, for example, a municipal landfill is leaking hazardous chemicals or a county airport has been identified as the source of solvents in ground water, local governments often have two choices. They can wait and risk becoming defendants in an enforcement action brought by EPA, the state, neighboring land owners or citizen groups. Alternatively, local governments can initiate their own enforcement actions to recover the bulk of their cleanup costs and natural resource damages from generators and transporters of hazardous substances or from operators of the offending facility. Taking the initiative carries with it several strategic benefits. Local governments prosecuting enforcement actions exert maximum control over the pace and manner of cleanup, permitting them to keep an eye on costs while assuring full protection of the public and environment. Cleanup costs for which local governments are ultimately held liable may be at least partially offset by natural resource damages awarded to them. As a practical consideration, it is almost always less expensive to clean up contamination at the earliest opportunity, before it spreads. Thus, overall, the community is better served when the cleanup is spearheaded by local government, even if that government itself is liable for some cleanup costs.

Conclusion

Federal and state environmental statutes create powerful tools for local governments to protect the public and environment from problems posed by toxic and hazardous substances. Environmental statutes empower local governments to resolve their problems on a local level, instead of awaiting action from EPA or the state, ensuring the predominance of local priorities and values in environmental cleanup actions. Because local governments are entitled to recover their expenses from polluters, the use of federal and state enforcement authorities is a realistic and affordable option. As a result, counties, municipalities and special districts have the authority and financial means to take the lead in protecting their communities' environments, economies and the quality of life. •

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