SUPERFUND
XVII: The Pathology of Environmental Policy
August
1997
James V. DeLong
Executive
Summary
Superfund
was created in 1980 when Congress enacted the Comprehensive
Environmental Response, Compensation and Liability Act
(CERCLA). Criticism of the resulting federal programs
started soon thereafter and has continued ever since.
Notwithstanding, Superfund has sailed on, in a remarkable
demonstration of staying power. This persistence is
a sobering commentary on the current state of environmental
policy. Passage of a bad law can be understood - mistakes
happen - but healthy institutions find their mistakes
and correct them. A major signal of institutional distress
is an inability to fix error, or even to admit it. By
this standard, Superfund is a symptom of truly awesome
pathology.
Superfund
was conceived to address concerns about the sloppy disposal
of hazardous wastes, particularly at abandoned sites.
These concerns were valid, albeit overstated. If CERCLA
had solely provided for emergency actions at abandoned
waste sites, there would have been few problems or complaints.
Instead, congress passed a law covering every plot of
ground on which any contaminant had been spilled, however
small the amount or minor the threat.
Most
discussions of Superfund focus on the National Priorities
List (NPL) assume that "the Superfund problem"
will be dealt with once the NPL sites are cleaned up.
This is not true. The NPL sites represent a small percentage
of the total of contaminated sites, and not necessarily
the most important ones. As long as the liability rules
and cleanup standards remain unchanged the Superfund
problem will exist, whatever happens to the current
NPL sites.
Even
when a site is cleaned up, the problems do not end.
The continuing possibility of Superfund liability makes
it a leper from the standpoint of investors. The post-remediation
liability threat is so great that no one will touch
a site even though it is declared clean. Congress made
every individual Superfund site into a tarbaby, exposing
anyone with any connection to it to liability for all
cleanup costs. No "potentially responsible party"
(PRP) can defend on the grounds that it acted legally
and responsibly. This regime gives PRPs strong incentives
to engage in costly litigation, delaying cleanups and
wasting financial resources.
In
theory, reforming Superfund has been high on the Congressional
agenda for the past several sessions, but real reform
has not happened. Neither Administrative reforms nor
current legislative proposals address Superfund's central
flaws. Under the leading Congressional proposal, S.
8 The Superfund Cleanup Acceleration Act of 1997
a few of the squeakiest wheels would be greased,
without addressing Superfund's central flaws. S. 8 contains
one reform that is clearly important: The provision
shielding any site cleaned up pursuant to a state plan
from suit by the federal government or any private party.
Most of the other reforms would accomplish little. Mere
lip service is paid to liability reform risk assessments,
and the provisions to delegate more authority to states
are mostly a sham. Most unfortunately, passage of proposals
currently on the table would probably foreclose serious
reform for another decade.
The
flaws in Superfund are so fundamental that it is simply
not possible to achieve meaningful reform by tinkering
with the present statute. True reform of Superfund requires
three steps:
1)
Repeal of the current statute and its approach to hazardous
waste cleanup, including federal cleanup standards,
taxes, and liability rules;
2)
Replace CERCLA with nothing. Contaminated real
estate is not a federal problem. It is a state and local
concern. States are already outperforming the federal
government at hazardous waste cleanup, and would do
more if they were able.
3)
Establish transition rules to sweep up the debris of
seventeen years and provide a measure of justice to
people enmeshed in the program, with particular concern
for those sites that are already in the Superfund pipeline.
The primary aim should be to expedite the process and
transfer sites to state jurisdiction or where possible,
private hands, through .
Under
exceptional circumstances, where a release threatens
to contaminate ground or surface water and spread across
state lines, the federal government may have an interest
where state authorities are incapable of addressing
the concern, but the primary obligation should rest
on the states and the principles of common law should
guide nation's approach to hazardous waste sites in
the future. This is the only true road to Superfund
reform. Seventeen years of nonsense is enough.
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