SR-6-F (99)
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GS:CP:superfund Santa Monica, California
Council Meeting: December 3, 1991
To: Mayor and city Council
From: city Staff
Subject: Recommendation to Approve Resolution in Support of
the Toxic Cleanup Equity and Acceleration Act
(S 1557 and HR 3026)
INTRODUCTION
This report recommends Council adopt the attached resolution in
support of the Toxic Cleanup Equity and Acceleration Act of 1991,
S 1557 and HR 3026. This proposed legislation would bar
corporations from involving local governments in third party suits
pertaining to the cleanup of corporate hazardous waste disposal
sites.
BACKGROUND
The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), better known as the Superfund Act,
instructed the Environmental Protection Agency to list the nation's
worst toxic waste sites, identify "potentially responsible parties"
(PRPs) , and sue them for cleanup costs if necessary.
For a time, the cleanup burden fell primarily on corporations.
Because of the enormous cost associated with cleanup, corporate
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entities have turned to third parties to help them shoulder the
financial burden. Local governments, and even small businesses,
became prime targets for lawsuits, or the threat of lawsuits,
brought by private corporate interests. For many cities, even
though their involvement was minimal or possibly specious (issuing,
for example, business licenses to a franchise or private hauler in
the city), the attempt by corporations to transfer cleanup
responsibility meant that cities would have to enter into expensive
and, potentially, devastating lawsuits to protect themselves.
Like hundreds of cities nationwide, the City of Santa Monica has
been named as a party to a lawsuit regarding Superfund Clean-up
sites. The Potlatch Corporation, the Simpson Paper Company and
Montrose Chemical Corporation have named Santa Monica as a third-
party in a law suit brought against them by the Federal and state
governments. The lawsuit was lodged against several corporations
for disCharging toxic materials into Los Angeles County sewage
systems, and against Los Angeles County for Treating and, then,
disposing toxic wastes into Santa Monica Bay. Potlatch, Simpson
Paper and Montrose Chemical have filed a third-party suit against
the local governments, arguing that they must take responsibility
for a portion of the cleanup because they owned pipes through which
the hazardous substances traveled. In some instances the hazardous
substances did not travel through the cities' pipes but the
corporations argue that the local government still must pay for a
portion of the cleanup because the municipalities' sewage
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eventually mixed with the PCBs and pesticides at the treatment
plant.
Corporations across the country have resorted to such tactics in
order to "share" with local governments their financial
responsibility for the removal of toxic materials from ocean dump
sites and from the country's landfills.
Local governments have organized a national single issue coalition,
American Communities for Cleanup Equity (ACCE), to respond to these
inequities and liabilities. The principles of this coalition do not
seek to undermine the liability structure contained in the
Superfund Act or to gain immunity for local governments who
improperly manage hazardous waste. The underlying principles do
assert that if a local government has managed only municipal solid
waste (MSW) or sewage sludge, Superfund requirements should not
apply.
The efforts of the coalition to lobby for fair treatment under the
1980 Superfund Act has resulted in new legislation being introduced
to protect municipalities from overreaching lawsuits which equate
Municipal Solid Waste (MSW) and sewage sludge with industrial
hazardous waste. The "Toxic Clean-up Equity and Acceleration Act"
(5 1557 and HR 3026) proposes to restrict lawsuits from being
brought forward by polluters against municipalities that merely
transport and generate municipal waste.
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The legislation modifies Superfund to prevent third-party
contribution suits against municipalities or other persons if their
only actions at the site were related to the generation or
transportation of MSW or sewage sludge. However, if municipalities
or other persons own or operate a facility or handle genuinely
hazardous waste, the block on third-party suits does not apply.
The legislation would give EPA exclusive Superfund enforcement
authority in such cases, and only the agency would be allowed to
bring suits against municipalities in circumstances in which they
essentially acted like an industrial polluter and contributed to
the hazardous pollution at a Superfund site. This conforms to EPA
current policy, and is aimed at achieving expedient resolution of
Superfund cleanup issues with municipalities, while allowing the
government to aggressively move ahead with cleanup. Further, it
will relieve municipalities from Superfund liability if they are
parties to lawsuits only because they own public-rights-of-way such
as a road or sewage pipeline. The bill applies to all pending and
administrative or judicial actions that began before the effective
date of the bill, unless a court judgment has been rendered or a
court-approved settlement agreement has been reached.
This proposed legislation would not modify any of the Clean Water
Act requirements which the City presently administers through its
Industrial Waste Control program. The proposed legislation also
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does not pertain Federal/state storm drain pollution regulations.
The proposed legislation will protect cities from specious third
party suits, however, it is not a substitute for proactive
approaches to hazardous waste control.
FINANCIAL/BUDGET IMPACT
There is no fiscal impact associated with the adoption of the
resolution. If the Toxic Cleanup Equity and Acceleration Act is
passed, it may save the City future legal and/or settlement costs.
RECOMMENDATION
Staff recommends that the City Council adopt the attached
resolution in support of the Toxic Cleanup Equity and Acceleration
Act.
Prepared by: Craig Perkins, Environmental Services Manager
Kate Vernez, Senior Management Analyst
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RESOLUTION NO. 8331 (CCS)
city of Santa Mon1ca
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA
MONICA IN SUPPORT OF THE TOXIC CLEANUP EQUITY AND
ACCELERATION ACT
WHEREAS, large corporatlons which are most responsible for
polluting our nat1ons's landfills and waterways are emploYlng the
tactic of enjoining municipalities as third parties in Superfund
litigation in order to pass on the burden of Superfund cleanup
costs: and
WHEREAS, the Clty of Santa Monlca like hundreds of citles
natlonwide is involved In a Superfund lawsuiti and
WHEREAS, cit1es have formed a national single-issue
coalltion organization, Amerlcan commun1ties for Clean-up EqU1ty
(ACCE) , which has lobbied for fa1r treatment for local governments
regarding Superfund clean-up liabilitYi and
WHEREAS, persistent lobbying efforts by ACCE have led to
the creatlon of the "TOX1C Cleanup EqUlty and Acceleration Acti"
and
WHEREAS, central concerns of Santa Monica and cities across
the country regarding Superfund responsibl1itles and related
11tigation are addressed in the act;
NOW, THEREFORE, be lt resolved that the City Council of the
Clty of Santa Monica does hereby support the "Toxic Cleanup Equity
and Acceleration Act" and urges that it be adopted as quickly as
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posslble to provlde fair and equitable relief to local governments.
APPROVED AS TO FORM
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Robert Myers
city Attorney
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Adopted and approved this 3rd day of December, 1991.
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I hereby certify that the foregoing Resolution No. 8331(CCS)
was duly adopted by the City council of the City of Santa Monica
at a meeting thereof held on December 3rd, 1991 by the following
Council vote:
Ayes: Councilmembers: Abdo , Holbrook, Ka t z , Olsen,
Vazquez, Zane, Genser
Noes: Councilmembers: None
Abstain: Councilmembers: None
Absent: councilmembers: None
ATTEST:
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