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SR-6-F (99) - w .. ~ - / ~ 6-F ~ 'i ..... _." . -,.; .......A..... Q'- . 3 1 -'''' i'. ~ ~t t ;.: 1 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 1 6-F r~ ~, _ _-----..J_ -------- , . 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 2 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. 3 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 4 ---- -- -- - . . 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 5 ------ --------- -- -- , , 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 , . posslble to provlde fair and equitable relief to local governments. APPROVED AS TO FORM ~ ......1 ~_ ....,? ... .., Robert Myers city Attorney reso9 - . ~ . . . ~ Adopted and approved this 3rd day of December, 1991. f~ C~~ , . . \ l-fayor 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: ../~/b,~ _____~ ci ty Clerk 7