Superfund Exemption Rescues Scrap Recyclers

Scrap recyclers cheered when President Clinton signed a fiscal year 2000 omnibus appropriations bill last November. Tucked into the lengthy and crowded measure was a controversial and noteworthy provision: a Superfund liability exemption for companies that process scrap paper, metal, glass, textiles, batteries, plastics and other materials. Under the new law, someone who arranges for the recycling of recyclable material is not liable for cleanup costs as an "arranger" or "transporter" at a site where both the recyclable material and hazardous wastes are present. In short, arranging for recycling no longer amounts to arranging for disposal.

The exemption "helps level the playing field between virgin material and recycled materials suppliers," said a spokesperson for the Institute of Scrap Recycling Industries (ISRI), Washington, D.C., shortly after the bill became law.

The new provision, however, has its own limits: it doesn't affect any scrap processor that, before the exemption's enactment, had accepted liability as a potentially responsible party for a Superfund site by signing a consent decree with the U.S. Environmental Protection Agency, or the Department of Justice. Also, the provision also does not protect any person or company already involved in litigation brought by the U.S. Government.

The Clinton administration supported help for the scrap metal industry, as did Senate Minority Leader Thomas A. Daschle, D-S.D. But, the exemption had been vigorously opposed by various Washington, D.C.-based business and trade organizations including Chemical Manufacturers Association, the Business Roundtable, and the American Insurance Associations who favored comprehensive changes to the Superfund Law.

Lawmakers, the business community and environmentalists agree that the Superfund program needs improvement, but they disagree on where changes must be made. Broad reform has been unachievable, and interested parties have long resisted any attempts at piecemeal adjustments. Opponents of incremental changes have won sympathy from many members of Congress, including Rep. Sherwood Boehlert, R-N.Y., and Sen. Michael D. Crapo, R-Idaho, according to reports last year from several press sources.

However, that was last year's news. As the venerable Paul Harvey would put it, "here's the rest of the story."

Lobbyist and former Republican National Committee chairman Haley Barbour successfully engineered the exemption for ISRI through a mix of skill, energy and, according to The Washington Post, "the kind of congressional backroom dealing and horse-trading that occurs on a regular basis but is rarely captured on paper."

Ironically, the exemption for scrap processors received important help from one of its opponents: Sen. Crapo, who chairs the Senate Environment and Public Works Committee. His constituents include a number of mining companies who want sweeping changes in the Superfund law and who face millions of dollars in potential liability for site cleanup costs.

Sen. Crapo supported across-the-board Superfund reform, but worried that special relief for the scrap industry - which, incidentally, he considered to be justified - would spoil the chances for far-reaching changes to help the mining companies and other industries.

Meanwhile, he and Senate Majority Leader Trent Lott, R-Miss., with a number of Senate Democrats, supported an amendment to the Superfund law that would limit the liability of companies that redevelop so-called "Brownfields" - abandoned industrial sites and other blighted inner-city areas. Sen. Lott and Sen. Crapo believed that the Brownfields legislation could help swing votes for wide-ranging Superfund changes.

As Congressional support grew for a free-standing Brownfields bill, the two senators concluded that its passage would remove critical leverage for broad Superfund reform. According to the newsletter, Inside EPA, which broke the story, the two lawmakers decided to make a deal.

In November, 1999, Sen. Lott wrote a letter to Sen. Crapo, promising to kill any proposed Superfund changes, including any Brownfields initiatives, this year on condition that Sen. Crapo withdraw his opposition to the scrap metal exemption.

"You have agreed not to exercise your rights and privileges under Senate rules to object to [the scrap metal exemption] in any legislation brought before the Senate this session," the letter stated. "In exchange, I have agreed to use the privileges of my position as majority leader to ensure ... no Brownfields proposal or Superfund liability exemption or limitation proposal ... will be allowed to be considered or acted upon by the Senate during this Congress, either as a stand-alone bill or as part of any other legislation."

Reportedly, members of Sen. Crapo's committee, Democrats and Republicans alike, knew nothing about the deal.

"All it is," said John Czwartacki, who spoke for the Majority Leader, "is putting on paper what was committed to verbally." The spokesman was quick to point out that Sen. Lott's agreement with Sen. Crapo should not interpreted as opposition to Brownfields legislation. "He would like to see [Brownfields] in the context of broader reform, if that's what the sponsors deem appropriate," Czwartacki added.