Liability issues cloud Superfund reform

The most prominent plan to reform the nation’s hazardous waste laws is drawing applause from the business community but is irking just about everybody else, including cities.

While cities praise the provision exempting municipal landfills from liability, they are critical of plans to require the most cost-effective strategies, rather than sound science, to be employed when it comes to cleaning up Superfund sites.

What the bill should require is the most cost-effective remedy that protects health and the environment, rather than a remedy that is simply cost effective,” says Fort Lauderdale, Fla., Mayor Jim Naugle. Such remedies may include requirements, like bottled water or fencing in sites, that do not make sense, he adds.

Naugle also opposes a provision that would permit anyone with a stake in a cleanup effort to delay remedial action through litigation. “Virtually any cleanup will be subject to legal challenge,” he says.

Superfund legislation passed a House subcommittee in November and is now headed to the full House Commerce Committee, where it is expected to pass largely along party lines. From there, it would go to the floor for a vote. The Senate is considering similar legislation.

Everyone agrees that Superfund needs improving. After all, of the 1,289 sites currently on the National Priority List, only 346 — 27 percent — have been cleaned up since 1980, when the law was first passed. The Congressional Budget Office (CBO) says each site takes about 12 years and $30 million to clean up. About eight years of that time is spent on legal wrangling and about 36 percent of the money goes to pay legal expenses, says the CBO.

Rep. Mike Oxley (R — Ohio), sponsor of the bill, says relieving small businesses, municipal landfills and tiny contributors from liability is a necessary component to cleaning up sites. “People who work on Superfund ought to be using hard hats, shovels and bulldozers, not briefcases and legal pads,” he says.

Those provisions are drawing praise, especially from the Clinton Administration, which says more sites on the priority list have been cleaned up under its leadership than since the law was first written.

Furthermore, administration officials point out that it has, through regulatory action, relieved 10,000 tiny contributors from liability. But the bill is harshly criticized by friends and foes alike for steps it would take to reduce corporate liability. Oxley wants to eliminate retroactive liability which makes businesses responsible for pollution they contributed to sites before the law was enacted in 1980.

The administration and environmentalists say that if polluters do not pay to clean up those sites, the burden will fall on taxpayers. And with such costs expected to run as much as $1 billion a year, moderate Republicans say that is out of the question.

“The key question is whether the responsibility for cleaning up sites that are now posing a hazard should be borne by those whose actions at whatever date created [the problems] or by the public at large,” says Karen Florini, senior attorney for the Washington-based Environmental Defense Fund.

Oxley is insisting on doing away with the current Superfund liability scheme that requires the deep pockets in a lawsuit to pay the whole cost of cleanup if other parties cannot. He says companies should only pay their fair share, something environmentalists claim would increase pollution.

At any rate, moderate Republicans have already shown they can force the more hard-line committee chairs to bend on environmental issues, and that will be necessary again to get Democratic foes to cooperate on any Superfund reforms.