TIME: Almanac 1995

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<text id=93TT2225> <title> Sep. 13, 1993: Toxic Dumps:The Lawyers' Money Pit </title> <history> TIME--The Weekly Newsmagazine--1993 Sep. 13, 1993 Leap Of Faith </history> <article> <source>Time Magazine</source> <hdr> ENVIRONMENT, Page 63 Toxic Dumps: The Lawyers' Money Pit </hdr> <body> Superfund was meant to clean up the worst hazards. It hasn't. But billions have vanished in lawsuits. But lawsuits have eaten up gobbled billions of dollars. By BRUCE VAN VOORST--With reporting by Richard Woodbury/Houston The scene in Harris County's Southbend subdivision is eerie, like something out of a doomsday movie. Once busy streets with names like South Autumn Drive and South Valley Lane are largely still and deserted. Houses are boarded up. There are few signs of life in this blue-collar neighborhood 18 miles south of downtown Houston, where 2,800 people once thrived. The reason for the stillness is the neighborhood's proximity to something called the Brio Superfund site, a place that once housed two waste-disposal plants and now contains a witches' brew of toxic effluviums. Southbend's wells have been polluted by such chemicals as chloroform and xylene, while a black, oozing tar has bubbled upward into driveways and garages. Residents say air contaminants, such as trichloroethane, have been responsible for personal tragedies. Among them has been a rash of birth defects: in one four-month period, 11 deformed children were born; other children suffered serious heart and reproductive-organ problems. Most of the citizens have fled their homes. Many have been compensated by the courts and developers: last year 1,700 plaintiffs agreed on a settlement of $207 million, reportedly the largest-ever out-of-court deal in a toxic-waste case. Meanwhile, after 10 years, liquid and airborne wastes are still flowing from the plant site. Fully a decade after Brio was nominated as an official cleanup site, it stands as the pre-eminent example of what has gone wrong with the extensive government cleanup program known as Superfund. Though nearly $1 billion has vanished in litigation, damages and other costs, virtually nothing has been done to the Brio mess in the way of actual cleanup. The pattern has been regularly repeated nationwide: instead of redressing the worst toxic-dumping problems, the program has become a vast legal nightmare, one that has turned interested parties against one another in a frenzy of litigation. The original idea had seemed simple enough. Superfund, which was voted into existence by Congress in 1980 after the national outrage over toxic pollution at Niagara Falls' Love Canal, would provide federal funding for tracking down the guilty parties and making them pay. Wielding the legal doctrine of "joint and severalliability," the Environmental Protection Agency could hold any single toxic dumper responsible for a mess created by several--and retroactively at that. If no one could be found to pay, then the site would be deemed an "orphan" and cleaned up by Superfund's own resources, gathered largely from taxes on the petroleum and chemical industries. While that works nicely in theory, in practice the companies sued by the EPA almost always find ways to distribute the pain, first by suing their own insurance companies, and then by suing any and all entities involved with the site. Companies readily acknowledge that it is worth spending millions of dollars on lawyers to put off spending hundreds of millions of dollars on cleanups. The result: tens of thousands of litigants, the financial effects of which are startling. About $4 billion of the $20.4 billion spent on Superfund cleanups so far has been consumed solely by lawyers and filing fees. Of the $1.3 billion paid out by insurers, nearly 90% has been eaten by litigation and related costs, according to Jan Acton, co-author of a Rand Corp. report. Companies have spent an estimated 15% of their entire Superfund expenditure, or $1.3 billion, on litigation. Meanwhile, the problem of toxic dumps is rapidly getting worse: new sites are being added faster than old ones are being cleaned up. Only 180 of the 1,202 sites now on the list have been officially cleaned up. And the total cleanup bill--with hefty litigation costsincluded--is projected by some to reach$1 trillion over the next 50 years. The proliferation of lawsuits is taking place at hundreds of sites around the country. In Glenwood Landing, New York, the EPA found 235 parties responsible, including not just major corporations but also a film-developing shop and a pizza parlor. One of those parties was Pat Genzale of Franklin Square, New York, a bona fide victim of Superfund's liti-gious excess. Genzale, who was going broke trying to comply with EPA orders to remove waste legally dumped 37 years ago on his family company's land, contracted to have some of the waste hauled to Ohio. The contractor dumped it instead at Glenwood Landing; so Genzale is being sued for $95,000 by the state of New York, in addition to the $6 million bill to clean up his original site. At a 44-acre site in Eagle ville, Pennsylvania, the EPA cited 160 responsible parties. At the Petro Processors sites near Baton Rouge, Louisiana, where 62 acres of land are saturated with liquid petrochemical wastes, cleanup is expected to last well into the 22nd century, in part because of endless lawsuits filed by and against the large corporations--including U.S. Steel, Dow Chemical, Exxon Corp. and Allied Chemical--charged with polluting. Bryant Conway, an attorney who represents a landowner with property near the Petro Processors sites, says the companies he deals with use lawyers to stall the cleanup process by legal means. "None of the ceos of these companies wants to have the costs of this thing show up on his watch," he says. "It doesn't do anything for the bottom line." Some cases are literally overrun by attorneys. An example is the Stringfellow Acid pits in Riverside County, California: a 1983 EPA lawsuit--followed by a civil suit by 3,800 plaintiffs--targeted more than 200 prps (potentially responsible parties), including McDonnell Douglas, Rockwell International, Northrop Corp. and Weyer haeuser. In the early stages of the legal battle in the mid-1980s, Riverside County lacked a courthouse that could accommodate the burgeoning stream of lawyers. An old building was converted to a courtroom just to house them. Although a number of corporate defendants have settled with plaintiffs, the site has never been cleaned up; it still contains a residue of 34 million gal. of toxic waste. Still other sites show why lawsuits proliferate so quickly around a toxic site. In Naugatuck, Connecticut, when the EPA targeted Uniroyal Chemical and 18 other companies for dumping waste, they turned around and sued 24 municipalities and more than 1,000 individuals and small-business owners. Even when a company or individual has agreed to pay damages and follows all the EPA's rules, there is no guarantee that current cleanup procedures will work or that lawsuits will not continue to be filed against that company or individual indefinitely. That is because the EPA has never produced a legally acceptable definition of how much of any given contaminant is permissible in air, water and soil. This uncertainty produces the bizarre result that cleanup goals differ by site. In the South Cavalcade site near Houston, for instance, officials accept 700 times as much contamination by pah (polycyclic aromatic hydrocarbons) as they do on the North Cavalcade site, even though the sites are separated only by a highway. The across-the-board failure of Super fund to achieve its charter is now the responsibility of Carol Browner, President Clinton's new EPA administrator. With 22% of the EPA budget, Superfund is her biggest single program, and 1 in 4 Americans now lives within four miles of a Superfund site. Browner says her agency's Superfund specialists are working around the clock to prepare a "reauthorization proposal" for Congress in November that will suggest ways to make the system work. She says one of her first priorities is to reduce the percentage of the monies flowing into lawyers' pockets in litigation. She is also pushing for micro-settlements for thousands of small guilty parties. "Nobody at EPA is after the pizza-parlor guy who may have sent his waste to a municipal landfill," she says. "That's not what Superfund is about." She also hopes to reduce litigation by suggesting, among other solutions, that corporations bypass lawyers by sending their ceos to negotiate with senior EPA officers. "This is not to denigrate lawyers," she says, "but the ceo can see the company's interest as a whole and will often move when his lawyers are paralyzed." Assuming, of course, that it is remotely in his interest to do so. </body> </article> </text>