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July 17, 2008
Perhaps no other environmental program has been cited more often as a failure than the federal Superfund law. Because of excessive litigation promoted by the law’s faulty liability scheme and needlessly expensive cleanup standards, the program has produced scant cleanups. Yet for about two decades attempts to reform the law have failed. Meanwhile, states have created and eventually reformed their own cleanup laws, resulting in thousands of state-led cleanups. This history makes strikingly clear that Congress needs to devolve all Superfund responsibilities to the states, where sites will eventually be cleaned.
The federal Superfund law (also known as the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA) is allegedly designed to hold parties responsible for polluting property. Instead, the law arbitrarily holds anyone remotely connected to a contaminated site liable for cleanup. Responsible parties include waste generators (anyone who produced waste that eventually contaminated property), arrangers for transport of waste, waste transporters (anyone who simply transports wastes for legal disposal), operators (those who manage waste landfills), and property owners (anyone who owns the land). Under the law’s strict joint and several liability scheme, each party can be held liable for 100 percent of the cleanup costs. Liability also is retroactive, applying to situations that occurred long before Congress passed the law. Accordingly, parties ranging from small businesses, schools, and churches to large manufacturing plants have been held accountable for sites that were contaminated decades before Superfund became law.
Cleanups can proceed in a number of ways. First, sites that the U.S. Environmental Protection Agency (EPA) deems a priority for cleanup are listed on the National Priorities List (NPL). After listing a site, the EPA can clean it (paying with funds from the federal Superfund, which was created by taxes on crude oil and other chemicals); then it can seek reimbursement from the Superfund by suing what the law called “potentially responsible parties.” Often, the EPA engages in long and expensive litigation beforehand to collect funds from parties, and cleanup follows. In addition, parties found responsible may sue other parties to gain compensation for their costs. As a result, Superfund has produced a web of lawsuits, and it can take a decade or more to reach the cleanup stage.
The cleanup process entails setting cleanup standards that are based on “applicable, relevant, and appropriate requirements.” The EPA sets the standards for each site based on state, local, and federal laws. For example, sometimes the EPA will use federal drinking water standards to decide how clean water supplies at a site must be. Because the EPA uses extremely conservative assumptions when assessing risk, the cleanup standards usually demand very expensive cleanups.