Superfund as Godzilla
Norman, Geoffrey
Geoffrey Norman Superfund as Godzilla Al Gore and the EPA have created a monster that even sucks the blood out of socialist businessmen in Vermont. B iff Mithoffer is a genial, energetic man and...
...They treat you worse than a criminal...
...EPA is trying to implement this program effectively, and I think it is important to recognize where its efforts have been successful...
...We even offered to set up some kind of payment schedule, the way you do with the IRS...
...Criminals have rights...
...Then, once the initial group has been formed, the people who are in it can start looking around for more parties that can be brought in...
...Criminals get specific punishments...
...I run it...
...Our trucks and our drivers...
...So there is, needless to say, a tremendous incentive to join...
...Jeffords also asked when the EPA stopped pursuing a party...
...Members leave their homes and stay in rented rooms or with friends in Montpelier while they are doing the people's business...
...Mithoffer disagrees: "No," he says, sitting in his office one afternoon, nearly a year after the hearing that accomplished nothing more than maybe getting the EPA to behave a bit more civilly toward American citizens who have broken no laws...
...Theirs may have been the more prudent course of action...
...You could easily imagine Mithoffer accepting one of those awards for environmental good citizenship...
...Six months passed and the group was still bogged down The American Spectator November 1993 41 in the work of locating additional PRPs and deciding on a common counsel...
...From the start, Mithoffer and Stannard were out of their league...
...One witness would call it extortion...
...As it turns out, the man from whom Mithoffer bought the equipment, and who had dumped thingslegally—in the old landfill, was one of those who threw his 104E in the trash...
...I don't keep someone on retainer...
...It might be through a declaratory judgment or what is called a de minims settlement...
...They'll go after banks that have loaned money to people who used a site...
...Hohman complimented the PRPs and the state of Vermont for "cooperating," and said such conduct "warrants our thanks...
...For a small trash hauler like Biff, they could be crushing...
...The whole idea," Bartle says, "is to cast the widest possible net...
...I mean, we are a little business...
...But he could survive it...
...People were appalled by the legal overhead involved in some of the LBOs of the eighties...
...Even though they had dumped legally...
...Mithoffer again consulted Bartle, who was by now his lawyer in this matter, though he was not sending out bills for his services...
...Mithoffer, however, considered it his "duty as a citizen to return the form...
...Which seemed, to Mithoffer, to let him off the hook...
...B iff Mithoffer is a genial, energetic man and something of a contradiction...
...Some of his competitors were members of the group...
...Mithoffer's trucks then transport the waste to collection centers where he sells it at a loss...
...Jeffords, then a member of the Senate Committee on Environment and Public Works, was coming to Bennington to hold hearings on EPA and Superfund...
...His practice involves, chiefly, real estate...
...I don't have any of those rights...
...He studied recycling extensively and traveled to other parts of the country and to Europe to research methods and systems...
...Even President Clinton has said of Superfund, "We all know it doesn't work...
...Stannard thought, momentarily, that things might be worked out painlessly...
...I told Biff that he had two choices," Bartle says...
...A trust fund--Superfund—was to be established out of special taxes on petroleum and assorted chemicals...
...Four years after the dump it had operated was declared a Superfund site, the town had spent over three-quarters of a million dollars—$350,000 of it on legal fees and over $400,000 on PRP business ($20,000 just for postage, copying, and faxes...
...Eventually, he expects, tighter regulations and higher dumping fees will force more and more people into recycling—and that side of his business will become profitable...
...Still, some sixty or seventy people came to the hearings at the Bennington Ramada, most of them to blow off steam...
...To which Hohman, striking the perfect regulatory note, answered: "I don't know...
...but the legal costs of a Superfund case are much higher...
...In the time since he received his 104E, his company has been responsible for recycling tons and tons of solid waste...
...In Lyndonville, Vermont, they spent $4 million to find out the site there .was not a threat...
...Mithoffer finds himself imprisoned in the Kafkaesque world of Superfund, which Vice President Albert Gore considers his proudest legislative accomplishment...
...But there were concerns about possible contamination of ground water and deep underground aquifers...
...So he was already in for over $30,000, and would have owed another $30,000 if Bartle had been keeping tabs for his legal work...
...So many years in jail...
...Mithoffer, realizing he also was not going to get any of his money back, and that "it could just as easily be six yearsas six months before this thing ends," decided to dropout of the PRP group...
...Stuart Hurd says that, since the meeting...
...The lawyers were cordial and even personally sympathetic...
...Bartle was still not aware of "just how lawyer-intensive the whole process is...
...Not a single sheet of newspaper...
...We've got Bob and a guy to answer the phones...
...Estimates of future Superfund expenditures range from $125 billion to $1.25 trillion, with something like 85 percent of the money going to "transaction costs," i.e., lawyer's fees...
...I told Biff that, worst case, it might cost himnine or ten thousand dollars to go through the first step and then get out...
...Nobody asked if the date and time were convenient," he says...
...Jeffords thanked him for his "very moving statement...
...It could be worse, though," Hurd says...
...Jeffords opened the show with the usual bromide: "I think that most people agree that the intent of Superfund is good...
...A proposed incinerator went broke after a long fight with regulators and environmentalists...
...And it was one of them, probably, who fingered Mithoffer for the EPA...
...But, then, like all massive government programs, Superfund generates a lot of loose money which outside consultants and lawyers slop on like hogs at a trough...
...Actually, this snooping is usually done by an outside consulting firm...
...He would be fined $25,000 a day for every day that he was not in compliance...
...For a while, they treated us like criminals...
...T he Environmental Protection Agency, however, sees things differently...
...The applause even got to Jeffords, who started to grill Hohman...
...Stannard drove down to Boston in his own car and stayed with his in-laws...
...On Bartle' s advice, Mithoffer sent Bob Stannard to Boston...
...Just getting to that point, then, would cost the town over a million dollars...
...The American Spectator November 1993 43...
...He believes he has a civic duty to promote recycling but, being a businessman, he also considers these the start-up years...
...The audience stood and cheered when he finished...
...Mithoffer still lives in a kind of nether world, hoping that he will not be sued by the PRP group and that, when the RIFS is completed, the EPA might be willing to grant him a de minimus settlement so he can at last put the whole thing behind him...
...During that time, at a cost of millions, the EPA has not removed a single shovelful of dirt from the Bennington Superfund site:1%1ot one' CI A stack of correspondence, faxes, and legal documents began to grow like a moist toadstool in a corner of his office...
...It would be another six months, at least, before the group could agree on a plan for the study that would produce the plan for the cleanup...
...there was money to be made hauling waste out of state, to dumps that would take it, and Mithoffer moved into the niche...
...Countercultural businessmen are not unusual in Vermont...
...Mithoffer was among the creditors...
...The landfill had been approved by the state and run under state guidelines for several years before it was closed under the terms of state law...
...I believe the next big fight we face in this country will be over the environment," he says, and by just about any38 The American Spectator November 1993 body's common sense measure, Biff Mithoffer would have to be counted as one of the good guys in the struggle he foresees...
...Also, the time spent forming the group is a convenient delay, a way of postponing—sometimes for years—the cleanup and its heavy costs...
...No plan for removing them had been developed...
...PRPs don't...
...In this case it came to an astonishing $276,000—to produce a group of twenty-seven PRPs...
...He gets to face his accuser and is judged by a jury of his peers...
...Frankly, if we can help them stay in business, 'Senator, it insures an income stream...
...You could easily imagine Mithoffer accepting one of those awards for environmental good citizenship . . . small businessman of the year, or something like it...
...And EPA's responses come slowly or not at all...
...Mithoffer owns trucks and his business, East Mountain Transport, hauls things—chiefly trash...
...A PRP' s sentence lasts until the EPA is tired of screwing with him, or figures there isn't any blood left...
...The program faces congressional reauthorization next year, and for all its problems out in the country, Superfund has strong support in Washington, especially from the environmental lobby...
...This particular case showed that he did have liability and he did join in the settlement and is now part of the overall group...
...Mithoffer had already been billed $7,000 for his share of the group's expenses...
...The legislation passed in the heat and hysteria generated by the chemical contamination of Love Canal...
...Up until that moment," Stannard says, "I had assumed we were dealing with an agency that was basically sympathetic and reasonable...
...The EPA wouldn't listen...
...When Mithoffer doesn't know, it can cost him his business and his employees their jobs...
...Stuart Hurd, the Bennington town manager, says, "So far, we have found the necessary funds by deferring other projects...
...We told them we'd still come to all the meetings and do anything we could...
...Strictly on appearances, he belongs to that tribe of lost sixties souls who settled in Vermont and other rural areas, sometimes to prosper but more often merely to hang on...
...The Vermont legislature meets for sixty days a year...
...Not all of these people can become Superfund lawyers...
...Generous of them...
...So maybe Senator Jim Jeffords, a Vermont Republican, might...
...Mithoffer wears his hair in a ponytail, lets his beard grow wild, and has had an earring for years now...
...I am not," he said, "discussing this matter with any individual PRP...
...Throughout the process," he testified, "EPA has strong-armed the PRP group by imposing unreasonable deadlines and threatened penalties...
...And there were other costs, too," he says...
...T he site for which Mithoffer was considered "responsible" was an inactive landfill that had been operated for several years by the town of Bennington, Vermont...
...Everything is set up to get as many people into the group as possible...
...Then he points out one last irony...
...He was not aware that he was even under investigation...
...More likely, the purpose of the hearings was to show his constituents that—in the locutions of politics—"he shared their concerns...
...Mithoffer said things he's been wanting to say to someone in authority for a long time...
...Eventually, the PRPs pay the bill for the investigation...
...And: "The PRPs at thosekeep his job and gets a raise for seniority...
...To hold Biff responsible for the cleanup of that site—and according to the principle of joint and several liability, if other parties could not be found, he could be held liable for all of the cleanup, which might come to $50 million—to say that because he bought those trucks and containers .. . that pushes the law to absurdity...
...No staffs...
...Stannard drove down to Boston in his own car and stayed with his in-laws...
...In a recent two-day span, the Washington Post editorialized for the "reform" of the law (good intent, bad execution, which is getting to be kind of an old, lame excuse) and the New York Times ran a story reporting that many towns would rather live with the contamination than endure the typical EPA cleanup, which takes anywhere from seven to ten years and costs an average of $25 million...
...If Mithoffer was not paying a lawyer to handle his EPA problem (Bartle was still advising him at no charge), then he was certainly paying a full-time employee to devote more than half his time and energies to the case...
...The $300-an-hour lawyers representing the other PRPs flew in first class and stayed at the Copley...
...Bartle had done further research and understood more clearly how Superfund works...
...They see you are involved in a Superfund case . . . well, you've got a problem...
...Mithoffer returned the form, and several months passed, during which he heard nothing from EPA...
...In a rational world," Bartle says, "we would have been let out on a declaratory judgment...
...So I told Biff to hang in there and hope for a de minimus—which he ought to get in maybe six months...
...42 The American Spectator November 1993 They had been through the wringer with the EPA and wanted the senator to hear about it...
...Nobody knows, which is what makes Superfund such a nightmare...
...But the difference is, when Hohman doesn't know, he gets to because the program might be "gutted...
...Says Mithoffer: "They never bothered him again...
...For big companies, with large exposure, the legal costs of dragging out this stage of the process are bearable...
...Third-party suits, as they are called by the EPA, are a common feature on the Superfund landscape...
...Even though I never broke any law...
...The group continued to send bills and threatened to sue...
...Stannard is not a lawyer—as he is quick to point out—but he had been an elected member of the Vermont House of Representatives, one of the few remaining citizens' legislatures in the country...
...Someone has to prove that he did something that was against the law...
...In one of those strikingly perverse twists that big government specializes in, Mithoffer has been identified by the EPA as one of the bad guys...
...There was a general, urgent sense that the country needed to do something...
...The EPA was not, after all, in the business of bankrupting companies...
...Consider the case of Bennington...
...But Vermont has eight Superfund sites, including the old Bennington landfill...
...Furthermore, if the group sues one party and loses, then it goes after another party and also loses, and then goes after still another party and wins, then that party pays the cost of all the lawsuits...
...The town, like many distressed small cities in New England, is looking for some new source of vitality, now that the mills have closed and the manufacturing jobs that employed many of its 12,000 citizens are gone...
...But he had bought three trucks, four containers, and portions of some garbage pickup routes from another small hauler who had used the dump...
...Hohman answered that, well, there was an ability-topay provision in the law...
...The EPA uses confidential informants—who can be embittered former employees, or even business rivals—to locate those it considers responsible...
...He attends town meetings faithfully, drives a Saab, and voted' for Bernie Sanders, the only formal socialist in the U.S...
...Hohman went on to say, "That decision is made on a case-by-case basis...
...They had dumped material in the landfill so, perhaps, they should have been included...
...M ithoffer hadn't been aware there was a problem until a certified letter arrived in September 1991 at the old, unpainted clapboard headquarters building of EMT near the entrance to the old Sun-derland landfill...
...Typically, he became interested in the possibilities of recycling—for both business and cultural reasons...
...With his briefing complete, the EPA lawyer left the room...
...Mithoffer is also a businessman...
...The lawyer held up his hand, palm out, cutting Stannard off before he could get started...
...Mithoffer had a further incentive to join the group...
...He could join the group or . . . he could join the group...
...So he called an old friend in New York, who is a lawyer, and he asked for help...
...According to them," he says, bitterly, "I am a criminal...
...The parties already in the group want it to be as large as possible, so the costs can be spread around...
...F or Mithoffer, there came a moment last November when he was finally allowed to do something he had wanted to do since the day he received his 104E by certified mail—stand up and explain to someone in authority that he was being wronged...
...But he did some research and advised Mithoffer to send someone to the meeting with instructions to be co-operative, state his case, and see what developed...
...Having joined the group, Mithoffer and Stannard set out to be active, cooperative members...
...we have seen a relative softening of the EPA toward our group...
...All I am allowed to do is plead guilty and accept my punishment...
...House of Representatives...
...After an hour-long wait, a bristling lawyer from EPA entered the room and announced that it was up to the people in the room to form a group and begin assessing each member's degree of accountability for the problems at the Bennington site...
...This is lawyer-Latin for a deal in which a party is allowed out of the group by the EPA in return for a small settlement...
...It had agreed to a 17 percent allocation for the cost of the RIFS, which would run about $1.5 million...
...The proposed cleanup was subject to EPA approval...
...According to Indira Balkasoon of the Boston EPA office, when the EPA opens a Superfund investigation and attempts to identify those who will be notified as Potentially Responsible Parties ("PRPs" among Superfund cognoscenti), it looks at "manifests and other old records, talks to former employees of the dump, and to people who might have worked for somebody who used the dump . . . or their neighbors...
...Again, no mention of the $25;000-a-day fine...
...One consulting company to EPA that worked on Love Canal billed taxpayers $167,000 for office parties, including a Christmas bash complete with reindeer suits and a dance instructor...
...I thought there was a good chance Biff would be dropped from the list of PRPs, just on common-sense grounds, since he hadn't put anything in the dump and, just as important in the eyes of the EPA, he didn't have the kind of deep pockets they look for...
...Just about everything was subject to EPA approval...
...The RIFS, if accepted by the EPA, would recommend some form of cleanup...
...Another problem is that, by putting them both in the PRP group, the process makes antagonists of the town government and some of the local industries...
...But we couldn't live with those assessments...
...This fund was to be used to cleanup sites, after which the polluters would be billed their share of the costs by the EPA...
...I have been a lawyer for eleven years and I've never seen anything like it...
...Nobody understands the law perfectly, least of all those who wrote it, who claim that it was never the law's intent to persecute small operators...
...I could liquidate the whole thing and maybe make a $25 donation to the PRP group...
...Jeffords, a very wet Republican, is sensitive to the Beltway zeitgeist...
...The witnesses, including Biff Mithoffer, found plenty to say without knocking Superfund where it was working effectively...
...Stannard, the able small-town politician, did a good job...
...Or, the polluters could concede responsibility and accomplish the cleanup themselves...
...And I couldn't take the time, myself, to go to a lot of meetings...
...I can see that man sitting at the table and saying to his wife, 'I don't have a job.' And I can see his wife crying...
...ighteen months after Bartle had told him to hang in E there for six months, Mithoffer received another bill from the group for his share of expenses: $11,000...
...According to the document, Mithoffer was considered a Potentially Responsible Party in the contamination of an old dump that the EPA had classified as a Superfund site...
...Superfund has been a disaster...
...The purpose of the hearing, according to Jeffords, was to gather some "input [that] will help with this reauthorization process...
...Textron, Eveready, and the city of Bennington were also listed as PRPs and they had the money...
...Most of the others did Superfund work exclusively and were handling as many as a dozen other cases...
...The pile reached two feet, then three, and finally five...
...He also launched another business, this one called East Mountain Environmental Services, which is building recycling facilities in Nantucket, Massachusetts, and in the Berkshires...
...Mithoffer is probably as green as any businessman is likely to get, but he remains a businessman...
...So Geoffrey Norman is editor-at-large of FYI...
...His assessment of the costs was initially put at 3 percent...
...it is the home, after all, of Ben & Jerry's, with its one-percent-for-peace plan...
...When he was finally contacted, it was to inform him that either he or his representative (read: lawyer) must attend a meeting of those with potential liability...
...A stack of correspondence, faxes, and legal documents began to grow like a moist toadstool in a corner of his office...
...You go to the bank and say you want to borrow money for a new truck...
...They are paid about $480 a week plus some modest expenses...
...Then it was Mithoffer's turn...
...But, I found, the EPA does not like to let people out on declaratories...
...They have no offices, other than their desks in the legislative chambers...
...B artle's advice at this time was to stick it out, be a good citizen, do your share, and bide your time...
...The group did not agree to Mithoffer's proposal...
...It would be, for them, a matter not of justice but of sound business practice...
...Like any good inquisitor, Hohman celebrates the confession and neglects the torture that preceded it...
...My wife does the books...
...They didn't get the money back, either...
...He's a fine downhill skier who shuns fancy ski-wear for carpenter's overalls when he is on the mountain...
...In buying that equipment, Mithoffer had also acquired all the liabilities that went with it, according to a legal doctrine he later learned was called "successor liability...
...That was real money to him...
...Stuart Hurd, Bennington's town manager, saw it a little differently...
...We tried to be decent about it...
...If the cost of the cleanup reaches $50 million, which is one preliminary estimate, then the town will have to issue bonds to raise the-money...
...I employ fourteen people and own five trucks...
...Under the law, Mithoffer was required to sign the enclosed form and return it within ten days...
...He took over a landfill in Sunderland that had been closed for environmental reasons, and now operates it as a recycling center, where people come in new Volvos and rusted pickups to drop off their newspapers, wine bottles, milk jugs, and tin cans free of charge...
...There is also the possible negative effect on the recruitment of new industries...
...The group would conduct a survey called a Remedial Investigative Feasibility Study (RIFS), which would determine what, exactly, the problems at the site were and how they could be best cleaned up...
...The meeting would be held in Boston, in the offices of the EPA...
...We just couldn't afford to keep paying the assessment...
...No contaminants had been cleaned up...
...Mithoffer's line, however, is a little less glamorous than Cherry Garcia or Rain Forest Crunch ice cream...
...Vermont was busy closing landfills as environmental hazards...
...They are not so combative...
...Jeffords pronounced the meeting a success, but warned that Congress was "terrified" of opening up the Superfund legislation for changes sites have agreed to reimburse us for most of our past costs and to pay the cost of EPA oversight of the studies...
...Very much...
...Also, because we had to use money we had set aside for a reappraisal on Superfund, we lost over $200,000 in state aid to education...
...I told Bob to do everything he could to cultivate good will for EMT within the group," Bartle says...
...In six months, perhaps, the process would reach a stage where, under arbitration, Mithoffer could get out...
...The Superfund law was pushed hardest in the Senate in 1980 by Vermont Republican Robert Stafford, who has since retired...
...Stannard followed him, thinking he would be able to get the man alone and explain that EMT shouldn't be part of any group because it hadn't done any polluting...
...He spoke in the euphemistic mode favored by government strong-arm men...
...So if the group decides that you are a responsible party and should be included, and you refuse to join, then you can be sued by the group...
...The something was cERcLA—the Comprehensive Environmental Response, Compensation, and Liability Act, the central idea of which was to clean up toxic waste sites and make the polluters, themselves, pay...
...The $300-an-hour lawyers representing the other PRPs flew in first class and stayed at the Copley...
...Everything, up until then, was merely prelude...
...An estimated 25 percent of the area's solid waste goes through this transfer station rather than into landfills...
...Mithoffer started in heavy construction in the seventies, and as more and more of his business turned on hauling his own trash, he saw an opportunity and took it...
...If Mithoffer refused to join, they would certainly be in favor of a suit...
...And, anyway, I didn't see how I could be held responsible for any contamination caused by that dump since I'd never put anything in it...
...At least a criminal knows what law he has broken and gets to stand up and defend himself...
...Industries in Bennington, including the Eveready Corporation, had dumped materials that might leach into the water and cause problems...
...It is good nineteenth,-century civics, perhaps, but it does not prepare you for dealing with the federal government...
...Anyone who has put anything into a site, no matter how small the amount, can be held accountable...
...It had been a legal dump in every sense...
...othing much has N changed since the meeting...
...If you lose, you get to join the group and you get to pay what it cost the group to sue you...
...They'll go after people like Biff...
...To officials like Hohman, threats of $25,000a-day fines amount to "encouragement" in getting people to "agree" to do what the EPA wants done...
...If I buy someone's truck," Jeffords asked him, "and he used that truck to dump, am I responsible for what he dumped...
...Nobody from the EPA had talked to him...
...EPA," Hohman said, "has made full use of the strict joint and several liability provided in the statute to encourage PRPs to do the Superfund work, as opposed to relying primarily on the trust fund...
...And he became the point man...
...Legally opened, legally operated, legally closed...
...The American Spectator November 1993 39 the old dump site, it was not because of anything he had done...
...The lawyers in the room merely nodded as the man from EPA spoke...
...So Mithoffer joined, voluntarily but reluctantly...
...He had never put anything in the dump, which had been closed in 1988, two years before he ever got into the trash-hauling business...
...40 The American Spectator November 1993 T he question for Mithoffer, Stannard, and EMT became: Should they join the group or not...
...They'll want to spread the costs around...
...But it has worked out to about a 20 cent increase in the tax rolls...
...In their misery, PRPs like company and plenty of it...
...They don't like to admit they made a mistake...
...In practice, then, the EPA identifies the polluters of a particular site, then herds them into a group, and the group pays...
...If the regional director himself does not know the answer to that question, how can the owner of a small trucking business be expected to...
...The letter was from the Boston office of the EPA—something called a 104E, which is one of those government documents that, like a notice from the IRS announcing an audit, turns a citizen's knees to water...
...Then he turned and walked away, leaving Stannard alone in the hallway...
...The pile reached two feet, then three, and finally five...
...He talks the talk, certainly, but he is also actually doing something...
...When he arrived in the EPA offices, Stannard found he was the only non-lawyer in the group...
...And, he was told, there was another on the way, this one for $15,000...
...Butl am a special kind of criminal, because I am not allowed to stand up in court and defend myself...
...But first, they had to listen to Merrill S. Hohman, EPA regional director...
...Like most people in his line of work, Jeffords wants it both ways if he is to have it any way at all...
...If the EPA—or anyone else—had a problem with He talks the talk, certainly, but he is also actually doing something...
...The notice took Mithoffer completely by surprise...
...C hristopher Bartle is a graduate of Yale Law, and has known Mithoffer since high school...
...The group was nowhere near ready to decide on allocation of responsibility for the RIFS...
...Bartle had woefully underestimated the EPA...
...They write their own letters and, often, answer their own phones...
...There were long conference calls, quick trips to Boston, meetings...
...The company's president asserted that his "charges to the government are fair, to the taxpayer...
...Since most people are opposed to welfare for lawyers, Superfund has become an embarrassment even to ardent environmentalists...
...Mithoffer heard from several other small businesses that had received 104Es from the EPA and had simply thrown them away and gone on about their work on the assumption that they were too small to matter and, anyway, if the government was serious enough to actually come after them, then it was all over anyway...
...So the EPA starts after everybody who may have put anything into the dump or anybody who acquired the liabilities of anyone who ever put anything into the dump...
...Also, I didn't have a lawyer and couldn't afford one...
...Jeffords also asked, not very eloquently, that "witnesses denounce any criticisms in discussion where the program is working effectively...
...This is the preferred course, since nobody wants to be put in the position of letting the government decide just how much to spend on something when it will be passing the bill along to you...
...You are living under a financial cloud when one of these things is going on...
...He began by assuring everyone that he was "not a lawyer," and concluded by describing how it felt to lay off one of his drivers...
...He was named to the group's steering committee and began spending more and more of his time on group business...
...Go back in the room and join the group...
Vol. 26 • November 1993 • No. 11
