A Superfund Story
Posted by Jeff Condon on January 15, 2011
By John Pittman
If you want to read the regs start with CERCLA, then SARA. After reading the first few pages you will probably want to come back here to read this because you will realize I would have to be practically brain dead to be as boring as reading regs.
Superfund was set up with good intentions. Of course, that statement also in general implies there is a problem that has been hard to solve using the normal and usual mechanisms and the politicians have stepped in. Super fund is NOT an exception to this. So, I am going to tell a true story about Superfund.
My introduction to CERCLA or Superfund came about earlier in my career than the main story, but it provides some needed background. The first environmental job I had was investigating PCB contamination that had shown up in a body of water. In this case, we have the archetypical businesses that caused Superfund to happen in the first place.
The PCB’s came to be buried on-site when they were supposed to be sent back to the manufacturer for destruction. For those unfamiliar with PCB’s, they were used as a di-electric in transformers and as heat exchange fluids in reactors. They were also used to spray down dirt roads to keep the dust down. Recently, there has been some evidence that it was PCB’s not DDT that caused fragile egg shells that inspired Silent Spring.
I was out on this site where the “Invitation to Dance” was about $6 million. The ItD was our slang for those who would have to pay for the cleanup. The reason anybody was interested in cleaning up at all, you may not be familiar with. Because the total cost was about $12 million and there were one, two, or three parties who would have to pay the bill, it paid to determine your culpability because Superfund has a hammer clause. The clause is that if you don’t cooperate, you can be charged with 3X the total clean-up costs. Superfund is one of the few places where strict liability applies. In for a penny, you bought the whole wad. Refuse and you pay 3X the total cost. So it pays to do your share. Well sort of.
Now of course, since it was done with good intentions, there must be unintended consequences. The unintended consequence, of course, is once you get the parties together, it pays for them to join forces and screw the other parties. So, who are the recipients of much money? Lawyers. Not a big gasp of surprise here at tAV, I imagine.
As a newbie in the environmental arena, I was unfamiliar with the typical cast of characters. My job was to go out and determine where and how much PCB’s and other chemicals were present, and devise a clean-up and recovery system. So, I go out auguring holes, and collecting samples. I go back to the office where we have obtained photos from a local aviator club. Aviators love to take pictures. And I personally have used them to prove all sorts of things in my professional career, which I did in this case. I used to have a whole list of things to check whenever I went to a site, but that’s another story.
So I write my report. Now one of the things I don’t understand about realclimatescience (sarcasm intended), is their aversion to review and audit. With $12 million on line, believe me, I felt like the only duck at the lake on the opening day of duck hunting. I had engineers, lawyers, executives, geologists, and even chemists taking turns trying to poke holes in my report. We would spend hours going over sentences tearing them apart and putting them back together to make sure that the sentence meant what it said, and said what it meant. But this isn’t why I brought it up. The next part is.
So, I send my report to the different parties. After the gauntlet, I know I have explained and justified the culpability and the proper approach for clean-up and recovery. What happens next is one of those unintended consequences. We get a notice form one of the party’s lawyers that a different environmental group will be on-site evaluating the site working for their lawyer. Being the newbie, it is explained to me, when I asked, that when you do the work for the lawyer, and not the client, it becomes the lawyer’s work product, and gets to be treated differently. Huh?
They show up on site, and instead of talking about chemicals, or hydrology, they are taking pictures of our sampling, collecting specimens of plants, and other weird activities that appeared useless. I, being suspicious, and my partner, being experienced, did what you should always do in these strange deals; we took pictures of them taking pictures, and took samples where they were taking samples. We go back to the office, and we have a WTHIGO meeting (what the hell is going on). Since I have a biology degree as well as a chemical engineering degree, it is duck season at the office again, for me. It is lonely being the duck.
My hypothesis is that they are going to try to get out of the costs by proposing to use bio-remediation. Over the objections of it won’t work, plants don’t like hydrocarbons that much, I win the duck award again, by maintaining that it is not about it working, it is about being cheap. What is the duck award? You get to be the duck again. Talk about the pitfalls of positive feedback.
A strange thing happened on the way to the post office. The other firm’s secretary sent the copy that was to go to the client explaining how they were going to screw our report over, got sent to us. It also contained their strategy of bioremediation where they knew it would not work as advertised, but would put the clean-up off for years, so that they would have time to find other ways to get out of the clean-up. It was like being the opposing coach at the Superbowl and you just found the other coach’s playbook, including when and why he will use his trick plays, for both offense and defense.
My introduction to why Superfund and other regulations were set up the way they were. Also, my realization I was now our group’s permanent duck.
My next part in Superfund was more like what those who think Superfund is an imposition on wealth and business. In this case, a public entity fought EPA to do the clean-up versus having industry and commerce do it. Their reasoning was that they had invited industry and commerce in, and that they were going to pay their share and make sure costs to industry and commerce were minimal. They continue to this day to actively seek new businesses, and use their commitment in the face of typical Superfund activity as a selling point.
My position was a bit unique. I designed the remediation system. I then went to work for one of the parties ItDed. I was also on the Technical Subcommittee for the Chamber of Commerce. So, I went to the meetings with one of our state’s most respected environmental lawyers, who represented the legal part of the Technical Subcommittee.
When I designed the remediation, I was an experienced professional. One of the strange things about the project was the limited potential for negative impact. My previous sites where of the “Holy Crap” type. One of those beloved engineering terms for “Did you see this? I can’t believe its so fxxxxd up.” But still, I was paid to design a system, I designed it. These designs are not cheap. But they do work.
So we go to this meeting where the EPA is requesting more money for their part in the caretaking of the site. In the meeting handouts, they had monies for technical items that were unexplained. Since it was an outline, this is not unexpected.
If you have not been to one of these meetings, it goes like this. The EPA’s lawyers are typically up on the podium or stage. Seated in the audience are environmental professionals, environmental lawyers, environmental activists, interested public, politicians, regulators, and business professionals. Next, the EPA spokesperson introduces the subject, and/or usually a government or local official introduces themselves and the goals of meeting that may or may not exactly agree with the other parties, and then they start going over the details.
The first part was the justification and then came the details. Not being the quiet type, I am whispering to the Tech Sub’s lawyer what is wrong with the proposals, why it is wrong, why it won’t work, why it is unnecessary, and a whole host of sarcastic remarks.
Now after details are explained, comments can be made. As you may have guessed I get volunteered to be the duck, again. So, I start out with introducing the group to the design. See, what people don’t often understand, Superfund is more of a legal implementation than a regulatory or technical implementation. The persons leading the discussion are typically lawyers, the person representing business or environmental activist are most often lawyers, and the rest are typical business professionals with their environmental professionals. Usually the environmental professionals are there to see that the regulatory and the legal part are done correctly, not about the technical design.
After describing the design, I start in on why the proposed technical action items were wrong. And this is where the legal nature hit me. They did not bring their technical staff to explain the technical action items. See, I asked for their basis of proposing the actions, so I could discuss what they really needed to do rather than what was proposed. The persons in charge did not know such technical details as when you cap a landfill; you don’t poke holes in it because you are curious. I had designed a collection system so any leaks could be tested and if necessary treated. You don’t disturb the natural earth cap, because you want the grass to grow. The “run-off” someone had complained of was actually the irrigation system to make sure the grass kept growing in times of drought, not leachate. They wanted to take soil samples to make sure the soil was not contaminated, which was unnecessary because we tested all the soil that came from a virgin borrow area before we used it.
So, I can agree that with all these lawyers present Superfund is often more expensive than it should be. I can also agree that the rule of unintended consequences is why this happens. But where I disagree with opponents of the regulations is that the reason it is the way it is. It is because once again short term focus on money means that a significant number of companies or individuals are trying to game the system, not clean up. And, that is what drives it to being more expensive that it should be, and even worse it probably makes economic sense to do so.
Note that part of the unintended consequences, is that it only takes one of the major parties (major meaning the most culpable) trying to game the system to drive the costs up due to the strict liability. Another perhaps not so obvious linked unintended consequence is that the major parties do their utmost through their lawyers to get the minimal parties to pay more than their fair share. After all, if your potential cost is only a few thousand dollars, you can’t afford to have the EPA come in and charge you 3X the multi-million dollar cleanup.
So, in response to how expensive Superfund is, it is that way for economic reasons, not environmental reasons. That is why I, as a professional challenge, those who think there is something better. I know the reason it is the way it is. And it is economic, not environmental. I hope someone does find a more economical methodology. The world could use more money for other good works.