Superfund XVII: The Pathology of Environmental Policy

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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.