Small Businesses May Be Exempt from Cleanup Culpability

Kim A. O'Connell

The U.S. House of Representatives has passed a bill that will “help to end the long nightmare suffered by so many small businesses” that face liability when disposing of waste in Superfund sites, according to Rep. Paul E. Gillmor, R-Ohio, the bill's chief sponsor. The bill, supported by the Bush Administration, now is awaiting action in the Senate.

On May 22, the House voted unanimously to protect small businesses from large polluters that try to make them share the costs of cleanup operations under the Washington, D.C.-based Environmental Protection Agency's (EPA) Superfund program. “This bill is an acknowledgement that something must be done,” Gillmor says, “and the best way to provide common-sense liability relief … is to find those areas of agreement within the Superfund universe and move them forward.”

In addition to Gillmor, the bipartisan legislation was co-sponsored in the House by Reps. Frank Pallone, D-N.J., John Duncan, R-Tenn., and Peter DeFazio, D-Ore. Sen. Christopher Bond, R-Mo., has introduced an identical bill, S. 1064, in the Senate, where at press time it awaited a vote by the Committee on the Environment and Public Works.

Although the Superfund law allows joint liability for cleaning up toxic sites, large polluters often have diverted attention and resources away from cleanup by filing lawsuits to force small businesses to contribute to cleanup costs. Under the House bill, H.R. 1831, companies with fewer than 100 employees that dispose of ordinary refuse at a waste site are not subject to such lawsuits.

In addition, the bill allows relief for de minimis contributors of waste, or businesses and individuals involved in the dumping of less than 110 gallons of non-hazardous liquid waste or less than 200 pounds of non-hazardous solid waste.

“The less litigation we have, the more likely we finish the job of cleaning up Superfund sites,” says EPA Administrator Christine Whitman. “This measure will promote cleanup and reduce needless lawsuits by drawing a bright line between large contributors of toxic waste and small businesses that disposed of small amounts of waste.”

The measure will allow the EPA to settle a cleanup claim with a business for a lesser amount, if the business can prove that it cannot afford to pick up the tab — as long as the business cooperates with cleanup efforts.

Last fall, a similar bill failed to pass in the House, with some Democratic members arguing that it would allow polluters to escape responsibility or provide a loophole for parent corporations of small businesses to opt out of paying for cleanup. But Rep. Michael Oxley, R-Ohio, sponsor of last year's bill and a co-sponsor of H.R. 1831, countered with stories of mom-and-pop businesses he visited that had suffered under the current liability construct.

In one such story, a Gettysburg, Pa., restaurateur was sued for sending restaurant waste to a municipal landfill. In another, the owner of two McDonald's restaurants in Quincy, Ill., was sued for throwing away cups, paper wrappers and hamburger buns into a landfill that later was declared a Superfund site.

Still, others are awaiting reform of the entire Superfund program, for which several bills have been introduced and defeated in the past decade. For Rep. Sherwood Boehlert, R-N.Y., a comprehensive Superfund reform legislation would have been preferable to the small business bill, but he acknowledged the roadblocks the larger legislation has faced.

Boehlert is the chief sponsor of a now-stalled comprehensive Superfund reform bill, the Recycle America's Land Act of 2001, or H.R. 324. The bill would absolve small businesses, recyclers and contiguous property owners of liability for cleanup, which the waste industry has supported for years.

Even as Congress continues to debate the future of Superfund, the EPA has pointed to its cleanup successes in the 20 years since the program first was established. According to a recent report, 757 Superfund sites have had all of their cleanup construction completed. Of the more than 1,400 sites remaining on the Superfund National Priorities List, 219 have been deleted, and more than 1,200 have had all final cleanup plans approved. And, significantly, the EPA claims that, through various de minimis settlements, about 22,800 small waste contributors have received relief from liability for cleanup.