HomeMy WebLinkAbout1990 Resolution No. 011RESOLUTION NO. LL
SERIES OF 1990
A RESOLUTION APPROVING POSlTION STATEMENT WITH RESPECT TO
MUllICIPAL SETTLEMENT WITH EPA,
WHEREAS, the EPA recently announc ed "Interim Policy of
CERCLA Settlements Involving Municipalities and Municipal Wastes"
(Interim Policy) published on December 12, 1989 in 54 Fed. Reg.
51047; and
WHEREAS, the cities of Englewood and Littleton jointly own
and operate the Bi-City Treatment Plant, a publicly own~d
treatment works, and the plant currently sells sludge for use as
a fertilizer and previously sent its sewage sludge to Lowry
Landfill, a municipal landfill as defined by EPA's policy; and
WHEREAS, EPA has identified the plant as a potentially
responsible party for cleanup costs associated with the Lowry
Landfill;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ENGLEWOOD, COLORADO, THAT:
Section 1. City Council hereby approves the position
statement, attached hereto and incorporated herein by reference,
with respect to municipal settlement.
13 (a)
Section 2 . The Mayor i s hereby authorized to sign said
position statement for and on behalf of City Council and the City
of Englewood, Colorado.
ADOPTED AND APPROVED this 5th day of February, 1990.
~st :
~-$.~ Patricia H. Crow, Ctyelerk
I, Patricia II. Crow, City Clerk for the City of Englewood,
Colorado, hereby certify that the foregoing is a true copy of
Resolution No, ~• Series of 199n • •
~µ,:g'~ Patr\:i& H. Crow
City of Englew " d
OFFICE OF THE CITY ATTORNEY
Rick DtW1n, Clly Anorney
Ch1rlt1 C. Grimm. Ass l1t1nt City Attorney
01ni11 L. 8ro11m1n, A11 is11n1 City Anorney
Kathleen MacKinnon
February 5, 1990
U.S. Environmental Protec~ion Agency
Office of l"laste Programs Enforcement
Guidance and oversight Branch (OS-510)
401 M Street, s .w.
Washington, D.C. 20460
3,00 S. Ellli Strnt
Englewood , ColorlOO 80110
Phone 1303) 761-1140
Re: Comments on EPA Interim Municipal Settlement
L Dear Ms. MacKinnon :
On behalf o f t he Cities of Littleton and Englewood,
Colorado, we submit the following comments on EPA's recently
announced "Interim Policy of CERCLA Settlements Involving
Municipalities and Municipal Wastes," published on December 12,
1989 (54 Fed. Reg. 51047) (hereafter "Interim Policy").
The Cities of Littleton and Englewotd are residential
communities located south of the City of Denver. Since 1977,
Litt:eton and Englewood h a ve jointly owned and operated the
Bi-City Treatment Plant ("the Plant"), a publicly owned treatment
works (POTW) built to treat wastewater collected from each
municipality. The Plant discharges treated wastewaters to state
waters. The Plant also generates sewage sludge as a by-product.
The Plant currently sells this sludge for use as a fertilizer.
However, at points in the past, the Plant sent its sewage sludge
to the Lowry Landfill, a municipal landfill as defined by EPA's
policy.
EPA has named the Bi-City as a potentially responsible
party (PRP) for cleanup costs associated with the Lowry Landfill,
which EPA has placed on the CERCLA NPL. EPA identifk::: t :-i e Plant
as a PRP on the basi s of the sewage sludge sent to the Lowry
Landfill. Both cities are members of a group, referred to as the
Lowry Coalition, that is currently fun ,:!ing the preparation of a
remedial investigation and feasibility study for two discrete
phases of the cleanup. the cities are thus directly ~ffected by
the positions taken in the Interim Munici~al Settlement policy
and appreciate the opportunity to submit these comments.
Ka thleen MacKinnon
EPA Waste Programs Enforcement (OS-510)
Page 2
February S, 1990
Generally, we support EPA's efforts at develiping a
Municipal Settlement Policy that recogni zes appropr .'ate
distinctions in the Ag e ncy's tre atme nt of municipali ~ies under
CERCLA, In particul~r, we agree with the support EPA's
recogn i tion that municipal waste is generally characterized by
large vo lumes of non-hazardous s ubstances that may c ontain small
quantities of household and other hazardous substances. This is
also true of much sewage sludge generated by municipalities.
However, we believe that several statements or positions
expressed in the Interim Policy need to be clarified or
corrected .
1. Information Requests
The Interim Pol icy first addre sses the i ssue of whether
t o include municipalities in information gathering efforts under
section 104(e) of CERCLA. The Interim Policy states that all
municipal and private party owner/operators and generator/trans-
porters should be included in this process. If EPA intends to
include municipalities in its information gathering efforts, we
believe it is essential for EPA to require of its Regions that
any information request clearly explain that it is not in any way
a determination that the party is being identified asa PRP.
Information request letters that are misconstrued ~s preliminary
determi na tions of PRP status can have s erious detrimental impacts
on municipalities .
2. Identification as a PRP
The policy goes on to address the important question of
when a municipality should be identified a s a PRP. l"lith respect
to sewage sludge, the policy provides that generally EPA will not
notify municipalities unless : the Region obtains site-specific
information that the sewage sludge contains a hazardous sub-
stance, and the Region has reason to believe that the hazardous
substanceis derived from commercial, institutional, or
industrial process or activity.
Uhile we applaud the policy's presumption that sending
sewage sludge to a site generally will not trigger notification
as a PRP, the policy does not go far enough. To begin with, in
allowing a Region to rebut this presumption, the policy appears
to establish two different standards: the R.!gion n,ust determine
that the sewage sludge contains a hazardous substance based on
site-specific information, but then must merely have "a reason to
believe" that the haza.i:dous substance came from a commercial,
institutional, or industrial process or activity. We believe
that the standard should be consistent for both parts of EPA's
C
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Kathleen MacKinnon
EPA waste Pr~grams Enforcement (OS-510)
Page 3
February 5, 1990
determination. Thus, the Region also should be required to
determine, based on si te -specific information, that the haz-
ardous waste comes from a commer~ial, institutional or industrial
process or activity .
If EPA disagrees, at a minimum it must provide some
guidance on what forms the basis for a "reason to believe" and
what information is needed for EPA's Regions to meet this cri-
terion. In addition, EPA must define the terms "commercial,
institutional, and industrial" (CII) used h ere and elsewhere in
the policy. The terms are vague and if broadly interpreted
could result in the inclusion of inappropriate activities.
example, is a store o r an office co nsidered a CII source?
For
If
that of yes, how is waste fr om such sources likely to differ from
norma l househo ld wastes ?
In f act, we believe that the mun icipal po licy draws an
arbitra,:y dist i nction between sewa ge sludge c oming fro r., POT\-ls
that accept only househcld wast e and domestic sewage and sewage
sludge coming from P01·1·:s that additionally receive contributions
from commercial, instituti on al, and industrial processes and
activities. From an environmental standpoint, there may be
little, if any, difference in pollutant concentrations and
potential enviro nmental concerns between t he two . The policy
itself cites studies demonstrating that household waste routinely
contains such things as pesticides and s o lvents, substances that,
if coming from a comme r cial, institutional, or industrial source,
could be considered hazardous substances. In addition, from a
practical standpo int, it is likely that the vas t mejority POTWs
in th e United States rece ive some contribution from commercial,
institutional, and industrial sources. To limit the p r otections
of the policy in the case of such POTWs would severely limit the
overall scope and benefit o f the po licy .
To prevent unfair a nd illogical results, we suggest t hat
where EPA has dete rm ined that hazardous substances are attribut-
able to commerc ial, institutional , and industrial (CII) processes
or activities, BPA also should be required to find that the
amount of th~~ hazardous substance is greater t ha n that expected
to be tound in "non-CII" sewage sludge before a municipality is
identified as a PRP. In addition, EPA should incorporate a de
~ exception for minor or insignificant CII contributioiii.
Kathleen MacKinnon
EPA waste Programs Enforcement (OS-510)
Page 4
February 5, 1990
3. Settlement Issues
A third area addressed by the policy is the treatment
of municipalities in the settlement process. We applaud EPA'•
recognition that in some cases, special provisions may be appro-
priate for settlement with municipalities --among them, delayed
payments, structured settlements, and in-kind payments --due to
unique limitations on municipal powers. \'le believe, however,
that the policy additionally should authorize and encourage the
use of broad covenants not to sue, as well as exemptions from
reopeners for municipalities. It should also specifically
address the issue of allocation.
EPA's policy recognizes that a municipality's status as a
governmental entity can impose unavoidable constraints on its
ability to carry out obligations as a PRP. One example used is a
municipality's need to hold special votes involving its legisla-
ture or citizens in order to gain approval to issue bonds or
arrange financing. State statutes or constitutions may also
impose limitations on the amount of funds a municipality is
authorized •o raise or the time of such efforts. In addition, as
is the case in Colorado, municipalities may be legally unable to
enter into agreements that obligate them to open-ended financial
commitments. These and other constraints arising from a
municipality's status as a government entity make it appropriate
to consider special settlement provisions. Indeed, special
provisions may be needed to enable a municipality to enter into
settlements where it is otherwise willing to do so.
The policy should rrovide for covenants not to sue for
municipalities under CERCLA section 122(f) as generally being E!.E
se in the public interest, because their liberal use will provide
greater certainty to municipalities and the pub l !.c citizens they
represent. At a minimum, the policy should encourage the use of
such covenants and discuss circumstances under which they would
be appropriate for municipaliti~s.
The policy should also encourage the Regions to exempt
municipalities from reopener requirements as authorized by CERCLA
section 122(f)(6)(B). As discussed below, municipal waste,
including sewage sludge, generally is characterized by only small
volumes of hazardous waste, which may often be of much lower
toxicity than private contributors. In addition, as discussed
~
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\._,,
Kathleen MacKinnon
EPA Waste Programs Enfnrcement (OS-510)
Page 5
February 5, 1990
above, mur.icipalities face special con~traints inherent in their
status as governmental entities, among them prohibitions against
incurring future debt. In the case of private parties, EPA
guidelines allow for consideration of financial difficulties by
recognizing bankruptcy as an "extraordinary circumstance" excus-
ing reopeners. Unlike private parties, municipalities are
limited in their ability to obtain bankruptcy protection for
CERCLA liability. H0\1ever, the unique financial and public
policy constraints on municipal generators should be entitled to
the same consideration.
Another issue c oncerning settlements that is not currently
addressed by the policy is the issue of allocation. At most
CERCLA sites, the sole or primary basis used for allocating
responsibility among PRPs is the volame of waste sent to a site.
This is because it is the factor for whi ch the most information
usually exists or simply because it is the easiest approach. In
addition , it is often the ,,pproach most favored by major private
PRPs, who often control r:ivate allocation negotiations and wish
to coerce the greatest assessment from other PRPs.
The Interim Policy acknowledges that municipal waste
generally involves large volumes of non -hazardous substances with
only small amounts of household and small quantity hazardous
substances. The same is true for sewage sludge from POTlls that
generally would not be notified as ~RPs under this policy.
Allowing volume to be used as the basis for allocation in such
circumstances is grossly unfair to municipalities. Yet
municipalities often have little ability to influence or control
such allocation schemes when pu shed by powerful private PRPs.
The result is that municipalities either are coerced into
accepting an unfair burden or are unable to settle, leaving them
to be unfairly labeled as "recalc i trants" and potentially subject
to excessive penalties.
To prevent such clear inequities, EPA's policy should
provide that volume is rarely, if ever, an appropriate basis for
determining fair and equitable allocations f or POTWs. Other
equitable factors --nature of a POTl1' s waste, financial
constraint imposed on municipalities, the general immobility of
sewage sludge --must be considered. An explicit recognition of
the inappropriateness of using volume will help PRPs to more
quickly reach equitable settlement among themselves.
Kathleen MacKinnon
EPA Waste Programs Enforcement (OS-510)
Page 6
February 5, 1990
4. Retroact~y.!.!.l:'..
Finally, although not explicitly stated in the policy,
at the public announcement of the Municipal Policy i n December
1989, Bruce Diamond explained that the policy was to be
pr,spective only . l'le strongl, <iisa gree with t his position. In
order to be truly fair, the poll.cy should be applied
retroactively to relieve municipalities of burdens unfairly
placed upon them in the past. Even if EPA is unwilling to agree
to this, EPA must at least clarify that the policy does apply to
multi-phase sites where municipalities may have been involved in
earlier phases. Thi s is the case at the Lowry Landfill . At such
~ites , municipalities should not be required to remain involved
where, under the Interim Policy, they would otherwise not be
involved.
l'le thank you for this opportunity to submit comme nt s.
Very truly yours,
Susan Van Dyke
Mayor of Englewood, Colorado
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