I would like to make a few observations about the momentum in Congress toward a victim compensation law and about some of its possible features. There is a consensus in the Congress for a victim compensation bill; indeed, one will be enacted in this Congress. If not, we will have squandered an enormous opportunity.

An indication of this momentum is evident from an exchange between Senator Randolph and Mr. Ruckelshaus during the latter's confirmation hearing to head the Environmental Protection Agency. Senator Randolph advised Mr. Ruckelshaus that he considered victim compensation a high personal priority and that he expected the same of the Administrator of EPA. Mr. Ruckelshaus's response indicated that he was clearly disposed to consider victim compensation one of the major issues in which he, as Administrator, was prepared to invest his time and efforts.

I have no doubt that if a bill, of almost any kind, were taken to the floor within the next month, it would pass. It would be very difficult to vote against it, for obvious reasons. Yet that is not the way we expect to proceed. As this conference illustrates, even if everyone does agree on the direction, there remain issues worth discussing and resolving. Even as the author of much of the language of S. 1480 (the original form of the Superfund law as reported from the Senate Committee), I would not be comfortable seeing the bill enacted without further refinement. Congress, as a whole, has benefited from the public debate and discussion in the two years since the passage of CERCLA.

The Senate Committee on Environment and Public Works will hold hearings on victim compensation and on the related questions of oversight of the current Superfund program, beginning in the summer of 1983. The current bills, Senator Stafford's and the two introduced by Senator Mitchell, are essentially foci for discussion at this point. We are several months behind schedule because of time lost during the collapse of the Environmental Protection Agency and its subsequent restaffing at the top levels. It is now hard to predict our schedule because we do not know how long the Senate will be in session this year or how much time the members will have available for meetings. But in the fall we expect to be able to put on the table particular legislative proposals which will be the target for markup in the winter.

The three bills before the Committee now are S. 917, S. 945, and S. 946. Senator Stafford introduced S. 917, while is the original uncompromised version of S. 1480. Because it reinstates all of the points and principles predating the compromises necessary to pass Superfund in the Senate, it does not represent a resolution of the current issues.

Senator Mitchell introduced both S. 945 and S. 946.The first of these represents another of the bills that circulated during the Superfund debate and responds to Senator Mitchell's strong feeling that, in passing CERCLA, the Senate was callous to place more importance on natural resources than on the most important part of the hazardous waste problem, human health. The latter bill was drafted to reflect the recommendation of the 301(e) Study Group.

Because they only represent foci for discussion, rather than detail the provisions of each of these proposals, I would like to speculate on some features that an acceptable bill might contain. It is fairly clear that a generous compensation scheme would be included in the federal bill. It would try to be open-handed to ensure that the claimant received compensation quickly. It is also clear that any federal legislation would include a statute of limitations based on the more modern and generous discovery rule.

In any administrative compensation program, the Senate Committee would insist on subrogation of the claimant's rights to the fund, very much like the provision for recovery of cleanup costs in the current Superfund. It is probable that, in a desire to put money early into the hands of claimants, the bill would make use of presumptions or mechanisms similar to presumptions. Such mechanisms may be limited to an administrative compensation scheme.

As to proof of causation, I have two observations. First, it is obvious that many questions of causation are scientific questions, yet what we call science from the legal standpoint is much more conservative than clinical science. A witness opposing Mr. Ruckelshaus's confirmation brought this point home when he tied his opposition to Ruckelshaus's background as a lawyer, explaining that lawyers neither heal diseases nor possess a clinician's sensitivity to the problems of exposure to hazardous substances.

Second, is it fair to place a burden on the defendant through the use of presumptions, especially if the burden is shifted in contexts other than in an administrative scheme? Recalling that the Dow Chemical Company suppressed, for perhaps twenty years, information in their possession on health effects of dioxin, I think it may well be fair to allow presumptions to operate against defendants.

The Senate Committee will also be looking at episodes such as Times Beach, Missouri to determine whether to limit a compensation mechanism to medical expenses or to include economic losses. In examining these costs, we may be forced to consider difficult questions about levels of care, valuation of suffering, and the like. The question of the total cost of such a program is frequently raised. Senator Mitchell is fond of saying, 'we would not be creating new costs. These are costs already borne by victims. Through liability provisions or special tax collections, the costs will only be shifted back to those responsible for the exposure in the first place.' Yet, a very thoughtful man, Ed Gee, recently observed that this is not entirely true — that transaction costs could very possibly be increased in a system with an easy source of money. His caution is one that the Committee will take to heart.

One of the foremost questions, at least from the Committee's standpoint, will be whether a private cause of action in federal court is appropriate. Of course, Superfund does provide for a private federal cause of action [14 ELR 10132] where there are private expenditures of response costs. It may be fairly simple to build on that claims mechanism, for elements such as scope and coverage, to produce a victim compensation program within the accepted compromises of the 1980 CERCLA statute.

I have made a suggestion, which has not been adopted by any member of the Senate Committee at this time, that may be the easiest way to accept the rhetoric of the 301(e) Report and to ensure a victim recovery mechanism: one would allow a period of time, perhaps one or two legislative sessions, for state legislatures to adopt the 301(e) Report recommendations for procedural improvements in state private causes of action. In the event a state failed to respond, then the Congress would provide for access to the federal courts.

I would like to conclude by recounting an observation made recently by Douglas Costle, former EPA Administrator. He suggested that EPA would do well to follow the principle that decisions made on the merits constitute the best politics. It would be easy to capitalize now on the deep public concern about hazardous substances and public discontent with the Superfund response. Yet, to bring a bill quickly to the floor, simply to enact a law, is not the best politics. I think our Committee wishes to take as careful a view as it can, consistent with the schedule necessary to see a bill enacted during this session of Congress.