The Berlin & Farro hazardous-waste dump site near Swartz Creek, Mich., where thousands of gallons of poisonous chemicals have been stored in rusting underground tanks for nearly 15 years, should no longer be there.
"It should be nothing but a big hole," said John Schauber, a state department of natural resources official directing cleanup of the 40-acre site not far from Flint.
But bulldozers sit idle at Berlin & Farro, silent testimony to an essential fact about the 1980 law called "Superfund," a landmark plan that brought the chemical industry and federal government together to find solutions to the growing problem of toxic-waste dumps. It involves the three most tedious and time-consuming systems in America: the bureaucratic, the scientific and the legal.
The law, passed to give the Environmental Protection Agency money and authority to put cleanup of toxic-waste dumps on a "fast track," appears mired in procedure. "If this is a fast track, I hope the ones on the regular track don't hold their breath," Schauber said.
The Berlin & Farro cleanup, less than one-fourth of which is finished, has been on hold for several months. Delayed first because of bureaucratic buck-passing, then halted because of conflicting scientific data about what has been dumped there, it appears to be among the hostages in a high-level legal confrontation over a set of documents that EPA Administrator Anne M. Gorsuch says are "too sensitive" to be shown to Congress.
"I can't imagine why in the hell she wouldn't give them everything they want," Schauber said. "There is nothing about this site that should be kept secret."
The White House disagrees, saying disclosure of the documents might upset legal negotiations to settle the cleanup bill. The House Energy and Commerce Committee disagrees, too, suspecting that the same documents will show political manipulation and "sweetheart" settlements for industry.
In the last week, five other congressional panels have launched investigations into an ever-widening pool of allegations about the EPA's handling of its toxic-waste responsibilities. The murky swamp includes embarrassing memos, missing appointment calendars and a paper shredder that appeared in the hazardous-waste offices shortly after the House vote that found Gorsuch in contempt of Congress.
Berlin & Farro, one of three sites of particular interest to the Energy and Commerce panel, is on a select list of 418 inactive dump sites chosen for speedy handling under the $1.6 billion Superfund act. By putting it on that list, the EPA acknowledged that dangers involved with the site were more pressing than those posed by as many as 11,000 other identified inactive sites.
Even that number represents little more than the tip of the iceberg in hazardous waste. The EPA has identified at least 11,000 additional sites that remain active as toxic wastes continue to pour in. Other estimates place the figure as high as 50,000.
In 1980, according to EPA figures, U.S. industries generated more than 400 pounds of hazardous waste for every man, woman and child in the country. It all went to an incinerator, a landfill or some other storage facility.
EPA has estimated that 90 percent of those facilities have inadequate environmental safeguards, and 75 percent of the landfill sites are close to wetlands, aquifers or flood plains.
Against a backdrop of those disconcerting statistics, and spurred by growing national fears after New York's highly publicized Love Canal tragedy, Congress passed Superfund.
Deals were cut, compromises made. Provisions of what one of the bill's drafters described as an "extreme, kitchen-sink kind of bill" were pared, and what remained was not all that advocates of strong federal action wanted. But it showed promise of shortening by years the arduous process of building a case for cleanup through the legal system. "It did what environmental case law was starting to do case by case," a former agency official said.
According to congressional and EPA officials familiar with its drafting, the most important advance under Superfund was its section on liability, not the $1.6 billion it provided for quick cleanups.
The liability section was not as strong as originally drafted. Under the original "joint and several" concept, any generator of waste in a toxic dump, no matter how small, could have been held responsible for cleanup of the entire dump. It would have been that firm's responsibility, not the government's, to collect from fellow waste generators.
"That was the part the chemical companies feared the most," the former agency official said. "Under 'joint and several,' you can hit anyone who contributed, and they have to go after the rest at their own expense."
Tracking down waste generators has proved to be one of the EPA's thorniest problems as it attempts to build court cases. New laws require that firms keep careful records of wastes, but that was not so two decades ago, when many Superfund sites were created. In many cases, neither the generators nor the government was fully aware of hazards posed by the substances.
John Leo, a Rhode Island state engineer involved in cleanup of the Picillo toxic dump site near Coventry, R.I., explained the process last September to lawyers wrangling over liability in that case.
Leo said he looked first for an identifying mark on a chemical drum--a name, logotype or address. If the drum had no marks, identifying its generator became a tedious process that included calling any company known to have handled that kind of chemical and, essentially, asking the company to claim it.
In one phase of the cleanup, Leo said in a deposition, about 200 drums had identifying marks. Asked how many drums were removed during that phase, he replied, "Somewhere between 4,400 and 4,700."
To assure passage, the Superfund bill was silent on the question of 'joint and several' liability, although a Senate bill report said a judge may consider imposing the concept. By keeping Superfund cases out of court, however, the EPA is foreclosing that opportunity.
Settlements negotiated out of court have another advantage to waste generators because they offer a limit on liability.
At the Seymour Recycling Corp. dump site near Seymour, Ind., 24 firms have acquitted themselves of further liability by agreeing to pay $7.7 million to clean up the surface of a 14-acre dump littered with more than 50,000 drums and 500,000 gallons of liquid waste. More than 170 other firms have agreed to provide $3.5 million more for subsurface cleanup.
But EPA originally estimated that $30 million would be needed to clean up Seymour.
The estimate is inexact because engineering and toxicology in general have not caught up with problems posed by hazardous-waste dumps. There are no precise ways to measure extent of ground-water contamination, no foolproof ways to erase contamination, no firm conclusions on possible effects of contamination on nearby residents' health.
The question is even more open-ended at Waukegan Harbor, Ill., a site mentioned in a memo found in the personal computer files of recently fired Superfund director Rita M. Lavelle. The memo cited Waukegan Harbor as an example of how EPA general counsel Robert M. Perry allegedly "alienated" the business community by rejecting a settlement proposal.
But if a financial settlement to clean up Waukegan Harbor were made tomorrow, it is unclear how the money would be used.
The harbor is contaminated with polychlorinated biphenyls (PCBs), carcinogens that entered the harbor with waste water from a nearby plant. State officials and environmentalists fear that efforts to dredge the sediment from the harbor floor, where PCB levels are highest, could worsen the problem.
"No one can agree what should be done," said Dr. Robert Ginsburg, an official with Citizens for a Better Environment in Chicago. "Dredging could increase the levels of PCBs in the water and increase the problem of the stuff migrating up through the food chain in fish."
Similar problems, and more, exist at the huge Tar Creek site in Oklahoma., The House panel wants to examine documents in that case.
The 60-square-mile area, encompassing portions of Kansas and Missouri, includes abandoned lead and zinc mines, many of which hold millions of gallons of water contaminated with acid discharges from mining operations defunct for decades.
In 1979, acidic waters began bubbling to the surface, reaching some springs and threatening streams and ground water.
"We sent a crew to evaluate," said Ron Jarman of the Oklahoma Water Resources Board. "When we found a large problem, we asked for help."
Their hope is to get it from Superfund, which gave the site a high ranking even though Jarman acknowledged that Tar Creek "is not an immediate threat to the health of the people there. We view it as a long-term potential threat."
The chemical industry reportedly is displeased about allocating Superfund money to Tar Creek. The money is raised by a tax on oil and chemical sales, and the firms believe it should be restricted to waste problems related to those industries.
Meanwhile, it is not clear how Tar Creek can be cleaned up and who, if anybody, can be forced to pay for it. Jarman said that the EPA wanted a list of responsible companies and that "we sent them everything we had. But our approach has been to try to solve it first."
Many of the EPA's critics in the current controversy complained about that approach under Superfund as well: clean up first and look for repayment later.
But the list of cleanups is short, more than two years after President Carter signed the bill into law, and Superfund supporters say perhaps too much was expected of the law too soon.
"There has been a misreading of what it was supposed to do," said a congressional aide involved in its drafting. "The bill was really only a quick fix for Love Canal, which we had to use as our advertising.
"We all knew it wasn't big enough. We also knew it would take more time. What was contemplated politically is that the document would be there before 1986, in large quantities, for reauthorization at a higher level in 1986."
Supporters of the law hope that will be the case, but they are concerned. Asked how well Superfund has worked, Ginsburg of the Citizens for a Better Environment said merely, "It hasn't."
He has seen the frustration in Illinois, the nation's second-largest generator of hazardous waste. Eleven of the state's high-priority sites made Superfund's "short list," and 21 did not. Ginsburg said there are "thousands more which may present equal hazards."
Superfund, he said, "has given the illusion of activity . . . . There have been sites cleaned up. But the point is that we've seen very little result, and the 1985 review will show that the act didn't do much and its funds will be cut."
Superfund's advocates here doubt that will happen.
The administration "is doing a better job than zero," a congressional aide said. "The only thing they can't stop in the long run is the development of case law. Over time, it will become case law because the principle of 'polluter pays' is going to hit somebody in the face.
"And after that happens, it will be very clear to the rest of the corporate boards that they have just got to clean up."