27 ELR 10201 | Environmental Law Reporter | copyright © 1997 | All rights reserved

Superfund Reauthorization: A More Modest Proposal

Editors' Summary: For over three years, Congress has been trying to reauthorize and revise CERCLA. Reauthorization bills introduced in the 103d, 104th, and 105th Congresses have proposed extensive changes intended to "fix" a program that many people consider to be "broken." In this Article, an Assistant Attorney General for Natural Resources in the New Mexico Office of the Attorney General suggests that the Superfund program is not as flawed as its critics charge. He argues that the statute only needs some fine-tuning.

The Article begins with an overview of CERCLA that focuses on the features of the program that critics say need fixing. The author reviews the elements of the statute's liability scheme, its provisions for response actions and cleanup standards, the role afforded states and communities, and the statute's provision for restoration or replacement of injured natural resources. He then examines the perception that the program is broken, and analyzes the bills that have been introduced to correct the program's perceived problems. Finally, he proposes statutory changes of his own that would address existing problems without making major revisions to the law.

Charles de Saillan is Assistant Attorney General for Natural Resources in the New Mexico Office of the Attorney General. He has worked with the 103d, 104th, and 105th Congresses on Superfund reauthorization issues, has testified on reauthorization before several Senate and House committees, and leads a state attorney general work group on Superfund reauthorization.

The author wishes to thank the following individuals for sharing their wealth of knowledge, experience, and insight on the implementation of Superfund, which greatly contributed to this Article: Brian Hembacher, Assistant Attorney General, State of California; Vicky L. Peters, Senior Assistant Attorney General, State of Colorado; Alan C. Williams, Assistant Attorney General, State of Minnesota; Robert G. Collins, Assistant Attorney General, State of Montana; Richard F. Engel, Deputy Attorney General, State of New Jersey; Gordon J. Johnson, Assistant Attorney General, State of New York; Jay J. Manning, Senior Assistant Attorney General, State of Washington; and Mary Sue Wilson, Assistant Attorney General, State of Washington. However, the views expressed in this Article do not necessarily reflect the views of these individuals or the views of the attorneys general of their respective states.

[27 ELR 10202]

Introduction

When Congress reconvened in January 1997, it began its fourth year of debating the reauthorization and amendment of Superfund.¹ Enacted in 1980, Superfund is the primary federal statute addressing the cleanup of hazardous waste sites. Over the past few years, the Superfund program has been widely—though often misguidedly—criticized as unfair and ineffective. Congressional leaders have reacted to this criticism by introducing massive legislation that would completely revamp the law. Due at least in part to the enormity and complexity of these legislative proposals, Superfund legislation, first introduced in February 1994, has become stalled in the legislative process. The delay in reauthorizing Superfund, and the resulting uncertainty that now pervades the law, is having serious adverse consequences for the program, as well as on analogous state programs, and, most distressingly, for the American public.

Superfund legislation is much more likely to sail quickly through the legislative process if its sponsors take a different tack. Rather than seeking to rewrite the law completely, they should focus on the current problems with the Superfund program—on which there is a surprisingly high degree of consensus. They should craft narrow, concise, straight-forward legislation directed at addressing those problems.²

This Article begins with an overview of the Superfund statute, emphasizing those provisions slated for revision in Superfund reauthorization. The Article goeson to describe the successes and the shortcomings of the program, concluding that Superfund is not "broken" but needs some fine-tuning. The Article then summarizes the unwieldy reauthorization bills that have been introduced in the past two Congresses, and points out some of the major problems with those bills. Finally, the Article proposes a more modest and simplified approach to Superfund reauthorization.

I. Overview of CERCLA

Congress enacted the Superfund law—formally the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)³—in 1980 in response to the very serious burgeoning problem of uncontrolled hazardous waste sites.⁴ Congress substantially amended the law in the Superfund Amendments and Reauthorization Act of 1986 (SARA).⁵ CERCLA establishes a multibillion dollar fund—the Superfund⁶—for the cleanup of hazardous waste sites to be administered primarily by the U.S. Environmental Protection Agency (EPA).⁷ EPA is authorized to use Superfund monies to implement cleanup, or "response" actions, at these sites. EPA may then sue liable parties to recover its response costs, thereby replenishing the Superfund for cleanups at other sites. Alternatively, EPA may compel liable parties to implement cleanup through the use of administrative orders or judicial actions for injunctive relief.

A. The Rigorous Liability Scheme

The backbone of the Superfund program is its rigorous liability scheme, designed to ensure that the parties responsible for hazardous substance pollution pay for its cleanup.⁸ [27 ELR 10203] CERCLA § 107(a) imposes liability on four categories of parties: (1) generators that arranged for the treatment or disposal of hazardous substances; (2) transporters that hauled hazardous substances for treatment or disposal at sites they selected; (3) current owners and operators of facilities where hazardous substances have been disposed; and (4) owners and operators of facilities at the time of disposal of hazardous substances.⁹ These parties are liable for response costs incurred by the United States or a state,¹⁰ necessary response costs incurred by other parties,¹¹ and damages for injuries to natural resources.¹² Under CERCLA § 106(a), such parties are also liable for cleanup, either under an administrative order or in an action for injunctive relief.¹³

1. Strict, Joint and Several, and Retroactive Liability

Liability under CERCLA is strict.¹⁴ A party in any of the four statutory categories is liable regardless of whether its actions were unlawful or negligent. The concept of strict liability for hazardous activities is not a new one, but dates back over 100 years, at least to the famous English common law case of Rylands v. Fletcher.¹⁵ The doctrine has been carried forward and expanded in American jurisprudence.¹⁶ Congress acknowledged these historic underpinnings when it originally passed CERCLA.¹⁷

The courts have uniformly held that liability under CERCLA is joint and several, unless the defendant can show that its contribution to the harm is divisible.¹⁸ Although CERCLA does not expressly provide for joint and several liability, its legislative history makes clear that Congress intended the courts to apply evolving common-law principles of liability, including joint and several liability.¹⁹ Joint and several liability for an indivisible harm has long been applied under common law.²⁰ Under CERCLA, a party found to be jointly and severally liable for a hazardous waste facility is liable for the entire cleanup of that facility. CERCLA § 113(f)(2), however, provides that such a party can seek contribution from other liable parties for any costs that exceed its "fair share."²¹ Thus, it is left to the liable parties themselves, rather than EPA, to make sure that all other liable parties contribute to the cleanup.

Finally, liability under CERCLA is "retroactive" in that it extends to disposal activities that occurred before its [27 ELR 10204] enactment.²² The courts have consistently applied CERCLA liability retrospectively, finding that Congress clearly intended such an application.²³ Obviously, as these courts have recognized, the overall purpose of CERCLA—to cleanup abandoned hazardous waste sites—can only be accomplished if liability extends to preenactment conduct. The courts have upheld the constitutionality of CERCLA's retrospective application of liability.²⁴

2. Exemptions and Exclusions From Liability

Despite its broad scope, CERCLA places several significant limitations on liability. First, § 107(b) creates certain affirmative defenses to liability. There is no liability under CERCLA if the defendant can show that the release of hazardous substances is the result of an act of God,²⁵ an act of war,²⁶ or an act or omission of an independent third party.²⁷ However, the third-party defense does not apply if the act or omission occurs in connection with a contractual relationship between the third party and the defendant.²⁸

Second, CERCLA includes an exemption from owner and operator liability for secured creditors. Section 101(20)(A)(iii) defines "owner and operator" to exclude a party who, "without participating in the management" of a facility, "holds indicia of ownership primarily to protect his security interest" in the facility.²⁹

Third, § 101(14) excludes from the CERCLA definition of "hazardous substance" petroleum including "crude oil or any fraction thereof which is not otherwise specifically listed."³⁰ This "petroleum exclusion" broadly excludes releases of many petroleum substances from CERCLA liability,³¹ including releases of leaded gasoline.³²

Fourth, CERCLA exempts from liability several categories of hazardous substance releases. Under § 101(22), there is no liability for workplace releases, emissions from motor vehicle exhausts, certain releases of radioactive waste regulated as "source, byproduct, or special nuclear material" under the Atomic Energy Act, or the normal application of fertilizer.³³ Section 107(i) exempts from liability the lawful application of a pesticide registered under the federal pesticide statute.³⁴ Finally, § 107(j) exempts from liability any "federally permitted release."³⁵ A federally permitted release is defined in § 101(10) as a release of a hazardous substance that is subject to any of several federal environmental permits, and is in compliance with that permit.³⁶

3. Mitigation of Liability Under SARA

When Congress revised CERCLA in 1986, it retained the broad liability scheme originally enacted. It recognized, however, that this liability scheme was having unintended adverse consequences by unfairly imposing liability on parties with relatively little culpability. For example, purchasers of contaminated property were liable although they may not have had any role in creating the contamination, or even [27 ELR 10205] had any knowledge of the contamination at the time of purchase. Generally such purchasers could not assert the third-party defense under § 107(b)(3),³⁷ because they would be in a contractual relationship with a person, the seller, whose act or omission resulted in the contamination.³⁸ To address this problem, Congress created an "innocent land-owner" defense as part of SARA by adding a new—and somewhat illogical—definition of "contractual relationship."³⁹ Briefly, the new § 101(35) provides that a "contractual relationship" does not exist between the purchaser and the seller of contaminated property if the purchaser was unaware of the contamination at the time of purchase, after having made all appropriate inquiries.⁴⁰

Congress was also concerned in 1986 that the liability scheme could unfairly impact parties that contributed only minor amounts of hazardous substances to a site. Such parties could easily incur litigation costs far in excess of their proportional share of the cleanup costs. To address this problem, Congress included de minimis settlement provisions in SARA.⁴¹ These provisions, found in CERCLA § 122(g),⁴² allow EPA to enter into an expedited cash-out settlement with a party that contributed only minimally to the hazardous substances sent to the site. Such settling parties are entitled to contribution protection under § 122(g)(5), insulating them from contribution actions by other liable parties.⁴³ In order to enter into such a de minimis settlement, EPA must first determine that the settlement involves only a "minor portion of the response costs" for the site, and that the settling party's contribution was minimal in comparison with the other hazardous substances at the site, both in volume and in toxicity and other hazardous effects.⁴⁴ EPA may also enter into de minimis settlements with owners of a facility, if the Agency determines that the settling party did not contribute to the disposal of hazardous substances at the facility, and acquired the facility property without knowledge of the contamination.⁴⁵

In addition, Congress in 1986 enacted two other settlement provisions designed to mitigate the impacts of the liability scheme. The first such provision, CERCLA § 122(e)(3), allows EPA to conduct "nonbinding preliminary allocations of responsibility" (NBARs) for sites involving multiple liable parties.⁴⁶ In an NBAR, EPA allocates percentages of the total cost of response among those parties liable for cleanup of the facility. An NBAR would serve to resolve allocation disputes and discourage litigation among the liable parties. The second provision, CERCLA § 122(b)(1), allows EPA to enter into "mixed funding" agreements in which the Superfund funds a portion of the remediation costs and the liable parties fund the remainder.⁴⁷

B. The Federal Government's Liability

From the time it was originally enacted in 1980, CERCLA has included a waiver of the federal government's sovereign immunity.⁴⁸ CERCLA § 120(a)(1) provides that federal [27 ELR 10206] agencies "shall be subject to, and comply with, this Act in the same manner and to the same extent, both procedurally and substantively, as any non-governmental entity." The waiver includes liability under § 107(a).⁴⁹

Despite the waiver of sovereign immunity, Congress recognized in 1986 that cleanup at federal facilities had been less than timely and adequate.⁵⁰ Yet hazardous substances released from many federal facilities had posed "significant problems,"⁵¹ and federal facilities were among "the worst" hazardous waste sites in the nation.⁵² To address these problems, Congress adopted a new federal facilities provision, CERCLA § 120, as part of the 1986 SARA amendments. The SARA amendments retain the original waiver of federal sovereign immunity. Moreover, they extend the waiver to allow actions against federal facilities pursuant to state law. Under CERCLA § 120(a)(4), state laws providing for hazardous substance cleanup, including enforcement provisions, apply to facilities "owned or operated" by the federal government.⁵³ Congress intended the 1986 provisions to "clarify that CERCLA … requires Federal facilities to comply with all Federal, State and local requirements, procedural and substantive, including fees and penalties."⁵⁴ In addition, Congress in CERCLA § 120(d) and (e) placed federal sites on a schedule for assessment and cleanup.⁵⁵

C. Response Actions

CERCLA, as enacted in 1980, grants EPA broad authority to conduct, and to require liable parties to conduct, response actions. The statute vaguely distinguishes two different types of response actions, both broadly defined. First, removal actions under § 101(23) are relatively short-term, temporary, or partial cleanup measures, such as the removal of leaking drums or the provision of a temporary water supply.⁵⁶ Section 104(c)(1) generally limits removal actions to a maximum of 12 months and $ 2 million.⁵⁷ Second, remedial actions under § 101(24) are long-term, permanent measures, such as groundwater remediation and permanent relocation of residents.⁵⁸

In what is now § 105(a), CERCLA requires EPA to revise the national contingency plan (NCP)⁵⁹ to develop procedures and methods for investigating and evaluating hazardous waste sites and for determining the appropriate extent of response action.⁶⁰ As revised, the NCP provides detailed procedures for selecting and implementing response actions.

For remedial actions, the NCP follows a lengthy, sequential process. Each step in the process is given its own name—often bearing little relation to its function—and, of course, its own confusing acronym. The initial step in the process is the preliminary assessment and the site inspection (PA/SI), which is simply a preliminary evaluation of the site.⁶¹ The next step is the remedial investigation and feasibility study (RI/FS).⁶² The RI/FS may be performed by the agency or by qualified liable parties under agency oversight.⁶³ The purpose of the RI is to collect data to adequately characterize the site, including the nature and extent of contamination. These data are to be used to evaluate and develop alternatives for remediation.⁶⁴ The purpose of the FS is to develop and evaluate a number of alternatives for remediation, usually ranging from "no action" to aggressive treatment of hazardous substances.⁶⁵ After completion of the RI/FS, the next step is the publication of the proposed plan, in which the agency identifies a preferred remedial alternative and presents it to the public for review and comment.⁶⁶ The next step is issuance of the record of decision (ROD), in which the agency selects the remedial alternative.⁶⁷ After the remedial alternative has been selected, it is designed and implemented in the remedial design and remedial action (RD/RA).⁶⁸ As in the case of the RI/FS, the liable parties may perform the RD/RA, under agency oversight, in accordance with an administrative order or judicial consent [27 ELR 10207] decree.⁶⁹ The final step, which is actually part of the RD, is operation and maintenance (O&M), which may last for decades or longer.⁷⁰ For removal actions, the NCP follows a similar though more streamlined procedure.⁷¹

CERCLA also required EPA to establish a national priorities list (NPL)⁷² to prioritize among known hazardous waste sites requiring remedial action.⁷³ EPA promulgated the first NPL, consisting of 406 sites, in September 1983.⁷⁴ The NPL has grown to a current list of 1,238 sites, with an additional 52 sites proposed for listing.⁷⁵ Consistent with the purpose of the NPL, EPA conducts remedial actions only at listed sites,⁷⁶ although listing on the NPL is not a legal prerequisite to CERCLA response actions. EPA often conducts removal actions at non-NPL sites.

D. Cleanup Standards

As originally enacted in 1980, CERCLA provided little guidance on the level of hazardous substance cleanup that should be achieved. This omission led to considerable uncertainty, epitomized by the rhetorical question, "How clean is clean?"⁷⁷ Similarly, because the nation had little experience in hazardous site cleanup in 1980, the original law provided no guidance on the degree of permanence or long-term effectiveness the remedial actions should achieve. During the early years of the program, EPA tended to implement nonpermanent remedies designed to contain hazardous substances on-site using slurry walls, caps, liners, and similar technologies.⁷⁸ Such remediation methods, however, are prone to fail.⁷⁹

In an attempt to address these problems, as part of the 1986 SARA amendments, Congress added to CERCLA a new § 121 establishing fairly rigorous standards for remedial actions. Section 121(a) begins moderately with a requirement that response actions be "cost-effective."⁸⁰ Section 121(b)(1) goes on to give an express preference to remedial actions involving treatment that "permanently and significantly reduces the volume, toxicity or mobility of hazardous substances." Off-site disposal without such treatment, on the other hand, is the "least favored alternative."⁸¹ According to Sen. John Chafee (R-R.I.), "a major goal" of these provisions was to "establish a statutory bias toward the implementation of permanent treatment technologies and permanent solutions whenever they are feasible and achieveable."⁸²

Further, § 121(b)(1) sets forth several factors that EPA must consider in selecting a remedial action. It requires EPA to consider the uncertainties associated with land disposal; the goals and requirements of the Resource Conservation and Recovery Act (RCRA);⁸³ the hazardous characteristics of the wastes; the potential for adverse health effects from human exposure; long-term maintenance costs; the potential for future costs if the remedy fails; and the threat posed by excavating, transporting, and redisposing, or by containing wastes.⁸⁴ Consideration of these factors implicitly creates a further preference for treatment remedies.

Perhaps most significantly, § 121(d) governs the degree of cleanup, thus partially answering the question, "How clean is clean?" It requires EPA to select remedial actions that attain a degree of cleanup that "assures protection of human health and the environment."⁸⁵ In addition, the remedy must attain applicable or relevant and appropriate requirements,⁸⁶ an amorphous concept which has been given the irritating acronym "ARARs."⁸⁷ CERCLA [27 ELR 10208] § 121(d)(2)(A) expressly provides that maximum contaminant level goals for drinking water set under the Safe Drinking Water Act,⁸⁸ and water quality criteria established under the Clean Water Act,⁸⁹ are to be considered ARARs.⁹⁰ Other examples of ARARs include RCRA regulations for the closure of hazardous waste disposal units, pretreatment requirements for discharge of wastewater into municipal treatment plants set under the Clean Water Act, and state siting laws for hazardous waste facilities.⁹¹ However, under § 121(d)(4), EPA has broad authority to waive ARARs if the Agency determines, for example, that it would be technically impractical to comply with the requirement, or that an alternative cleanup option will attain an equivalent level of protection.⁹²

Lastly, CERCLA § 121(c) requires EPA to review completed remedial actions at least every five years to assure that the remedy continues to protect human health and the environment. This requirement applies only to sites at which hazardous substances have been left in place.⁹³

E. The Role of the States

CERCLA gives states a remarkably limited role in the cleanup process. Unlike all the other federal environmental pollution control laws,⁹⁴ CERCLA does not provide for authorization of state programs. Although SARA affords states greater opportunities to influence Superfund cleanups, under the procedures set forth in the 1990 NCP,⁹⁵ the states' role is relatively minor.

Section 104(d)(1) does allow a qualified⁹⁶ state to take the lead in response actions, using Superfund monies, pursuant to a cooperative agreement with EPA.⁹⁷ EPA has delegated this authority only very grudgingly, however. Under the 1990 NCP as promulgated, a state could publish and proceed with a proposed plan for a Superfund-financed remedial action only if it had been approved by EPA.⁹⁸ If agreement could not be reached on EPA approval of a state's proposed plan, EPA could assume the lead from the state.⁹⁹ Thus, for response actions conducted under the authority of CERCLA and the NCP, "all final authority [was] reserved to EPA."¹⁰⁰

In Ohio v. EPA,¹⁰¹ several states challenged as unlawful EPA's retention of final approval authority, and they won a limited victory. The D.C. Circuit remanded these provisions of the NCP, ruling that EPA had not adequately explained its rationale.¹⁰² The court nevertheless strongly suggested that EPA could lawfully retain approval authority—it just needed to justify its decision to do so.¹⁰³

For sites at which EPA is taking the lead in the remedial action, the state has little role other than to identify ARARs and comment at various stages of the process. First, under § 121(d)(2)(A), a state may identify ARARs that EPA generally must meet in selecting and implementing a remedial action.¹⁰⁴ As we have seen, however, EPA has fairly broad discretion to waive ARARs—including state ARARs.¹⁰⁵ If EPA selects a remedial action that does not meet state ARARs, under § 121(f)(2) the state may bring a legal action challenging the remedy. However, the state has the difficult burden of establishing that EPA's decision was not supported by "substantial evidence."¹⁰⁶

Second, § 121(f)(1) provides that the state must have the opportunity to review and comment on the RI/FS, the proposed remedial action plan, the remedial design, and other data and reports relating to implementation of the remedy.¹⁰⁷ In addition, the state must be given notice of and an opportunity to participate in any settlement negotiations with liable parties.¹⁰⁸ Although § 121(f)(2) requires EPA to give the state the opportunity to concur in the selection of the remedial action, EPA may nevertheless select and proceed with the implementation of a remedial action without state concurrence.¹⁰⁹

Despite the states' very limited substantive contribution to the remedy selection, the states must nevertheless make very significant financial contributions to remedial actions [27 ELR 10209] that are funded through the Superfund. Under CERCLA § 104(c)(3)(C)(i), for "Fund-lead" sites, the state must agree to pay 10 percent of the cost of the remedial action, including all future maintenance.¹¹⁰ If, however, the state or a political subdivision of the state operated the site, under § 104(c)(3)(C)(ii) the state must agree to pay 50 percent of the Superfund-financed response costs.¹¹¹

F. The Role of Communities

CERCLA likewise gives communities a very limited role in the cleanup process. Community participation is limited to commenting at various steps in the process.

Under § 117(a), EPA must publish, in a local newspaper of general circulation, a notice of the availability of the proposed plan for a remedial action. It must make the proposed plan available for public review and comment, and it must provide an opportunity for a public hearing.¹¹² EPA must consider community acceptance, along with several other factors, in selecting a remedial action.¹¹³

Under § 117(e), EPA may make technical assistance grants (TAGs) to groups or individuals affected by NPL sites.¹¹⁴ TAG grants may be used to obtain technical assistance to ascertain the nature of the hazard at the site, or to interpret the RI/FS, the ROD, the RD/RA, or a removal action. Under § 117(e)(2), TAGs are generally limited to $ 50,000 for a single grant recipient, although EPA may waive this limitation. Moreover, the recipient of a TAG must make a 20 percent contribution to the technical project, although again, EPA may waive this requirement.¹¹⁵

G. Injuries to Natural Resources

CERCLA also provides for the restoration or replacement of natural resources that have been injured, lost, or destroyed by the release of hazardous substances. Natural resources within the scope of CERCLA liability are defined broadly in § 101(16) to include "land, fish, wildlife, biota, air, water, ground water, [and] drinking water supplies" that belong to, are managed by, or are held in trust by the federal government, a state or local government, a foreign government, or an Indian tribe.¹¹⁶ Purely private natural resources are not covered under CERCLA, however, unless they are in some way managed or regulated by a government entity.¹¹⁷

CERCLA § 107(a)(4)(C) imposes liability for damages for injury to, destruction of, or loss of natural resources resulting from a release of hazardous substances into the environment, and for the reasonable costs of assessing those damages.¹¹⁸ It extends liability for natural resource damages to the same classes of parties that are liable for cleanup.¹¹⁹ As with liability for cleanup, liability for natural resource damages is strict, joint, and several.

In addition to its limitations on liability generally,¹²⁰ CERCLA contains several provisions limiting liability only for natural resource damages. First, unlike cleanup liability,¹²¹ CERCLA limits the retroactive application of natural resource damage liability. Section 107(f)(1) provides that there is no liability where the release of a hazardous substance and the damages resulting from the release occurred wholly before the enactment of CERCLA on December 11, 1980.¹²² Second, CERCLA § 107(f)(1) provides that there is no liability for natural resource damages if there has been an "irreversible and irretrievable commitment" of those resources in an environmental impact statement (EIS) or similar environmental analysis.¹²³

Third, CERCLA § 107(c)(1)(D) places a cap on awards for damages to natural resources. For releases from facilities, the cap is $ 50 million "for each release of a hazardous substance or incident involving a release."¹²⁴ Under § 107(c)(2), however, this defense does not apply if the release is the result of "willful misconduct," "willful negligence," or a violation of law.¹²⁵

CERCLA also contains a statute of limitations for claims for natural resource damages. Section 113(g)(1) establishes a two-pronged limitation period. An action for natural resource damages must be brought within three years of the later of: (1) "the date of the discovery of the loss and its connection with the release in question"; or (2) the date on which federal regulations are promulgated.¹²⁶ These provisions are commonly referred to as the "discovery prong" and the "regulatory prong." If the site is on the NPL, however, or is otherwise scheduled for remediation, a claim cannot be brought until the remedy has been selected, and the action must be brought within three years of the completion of the remedial action, excluding operation and maintenance.¹²⁷

CERCLA § 301(c)(1) requires the U.S. Department of the Interior (DOI) to promulgate regulations for the assessment of damages for injury to natural resources. After more than [27 ELR 10210] a decade of effort,¹²⁸ the DOI promulgated final damage assessment regulations in March 1994¹²⁹ and May 1996.¹³⁰ Under CERCLA § 107(f)(2)(C), a damage assessment conducted in accordance with the regulations is afforded a rebuttable presumption of validity.¹³¹

II. A "Broken" Program?

A. The Myth

Over the last few years, the Superfund program has been the subject of increasingly intense criticism. The now trite cliche, often repeated in Washington, D.C., is that Superfund is "broken" and needs to be "fixed."¹³² After all, according to the common refrain, Superfund has succeeded in cleaning up only 75 or so sites at a cost of $ 25 billion.¹³³ Moreover, it currently takes some 10 to 15 years to get a Superfund site cleaned up.¹³⁴ Most Superfund expenditures, the critics complain, go to lawyers and litigation rather than cleanup.¹³⁵ The liability scheme is grossly unfair and, according to at least one critic, un-American.¹³⁶ It leads to endless litigation and unbounded transaction costs.¹³⁷ And so on. These criticisms have been repeated so often that they are almost taken for granted in Washington, D.C., even by the program's supporters.

B. The Reality

While there is more than a grain of truth to the criticisms of the Superfund program, the common perception that Superfund has been a failure is, quite simply, wrong. In fact, the Superfund program has been quite successful.¹³⁸

1. Sites Cleaned Up

Contrary to the common criticism, the Superfund program has made considerable progress in the cleanup of hazardous waste sites. The statistic, often repeated, that only 75 of 1,300 NPL sites have been cleaned up is a wonderful example of Mark Twain's famous admonition that "there are three kinds of lies: lies, damned lies, and statistics."¹³⁹

In judging the success of the Superfund cleanup program, it is important to keep in mind what must be done before a site can be considered "cleaned up" and deleted from the NPL. Nearly all the NPL sites require some form of groundwater remediation.¹⁴⁰ Groundwater cleanup is an inherently lengthy process. Monitoring wells must first be drilled and sampled to define the extent of the contaminant plume. The standard "pump and treat" cleanup technology consists of pumping contaminated groundwater from the aquifer and treating it to remove contaminants. Because many contaminants tend to adhere to soil particles, simply withdrawing the total volume of groundwater from a contaminated aquifer does not produce a clean aquifer. As fresh water gradually reenters the aquifer, it becomes polluted by the remaining contaminants. This process must therefore be repeated many times before the pollutants are completely flushed from the aquifer. As we have seen, CERCLA generally requires that polluted groundwater be cleaned up until it meets federal and state drinking water standards. Only then can EPA delete the site from the NPL. Unavoidably, this cleanup process takes many years—usually measured in decades—to complete.¹⁴¹ It should therefore come as no [27 ELR 10211] surprise that relatively few sites have been completely cleaned up.

Although complete groundwater cleanup is a slow process, that process is now well underway at many sites because of the Superfund program. Through September 1996, construction of the remedial action has been completed at 410 NPL sites, and operation and maintenance is now underway. Partial construction of the remedy has been completed at another 491 NPL sites.¹⁴² EPA has also taken steps to eliminate immediate threats at all NPL sites.¹⁴³ In addition, EPA has conducted a tremendous amount of cleanup under the removal program. Again through September 1996, EPA has conducted 3,961 removal actions, 1,226 at NPL sites and 2,797 at non-NPL sites.¹⁴⁴ These removal actions have, for example, removed leaking drums and contaminated soil and debris, drained pits and lagoons filled with hazardous liquids and sludges, and provided residents with alternate drinking water supplies.

2. Liability Scheme Effective

Although, as the critics point out, CERCLA liability has created some unfairness, that unfairness is greatly outweighed by the many benefits of the liability scheme.¹⁴⁵ First, and most importantly, the liability scheme has been extremely effective in promoting cleanups. The great majority of remedial actions are implemented pursuant to settlements. According to EPA, some 72 percent of remedial action work is now conducted by liable parties, either under consent decrees or administrative orders complied with voluntarily.¹⁴⁶ Moreover, recognizing their potential liability, liable parties at many sites have conducted "voluntary cleanups" under state cleanup programs. There have even been reports of "midnight cleanups," clandestinely implemented by liable parties to avoid federal and state oversight.¹⁴⁷

Second, the liability scheme shifts the cost of cleanup to those responsible for the problem, as Congress initially intended.¹⁴⁸ In passing CERCLA, Congress determined that it is more equitable to place the costs of cleaning up hazardous waste sites on the parties responsible for creating those sites, rather than on the taxpayers or, as in the days before CERCLA was passed, on the communities surrounding the sites.

Third, the liability scheme provides a major incentive for industry to manage hazardous wastes much more responsibly. Many companies have recently found ways to greatly reduce the volume of hazardous wastes they generate. They have also increased the percentage of wastes that they recycle. When firms must dispose of hazardous wastes, they are careful to choose reputable transporters and disposal facilities that will not leave behind future Superfund sites and associated liabilities. As a result, the serious hazardous waste problems that were commonplace a few years ago¹⁴⁹ are now largely a thing of the past.

3. Transaction Costs Exaggerated

Although excessive transaction costs are generally recognized as a problem with the Superfund program, the level of transaction costs has been exaggerated. RAND Institute for Civil Justice, a nonprofit research organization, has developed what is probably the most reliable information on Superfund transaction costs. In 1992, RAND published a study concluding that from 1986 through 1989 large industrial firms had spent an average of 21 percent of their Superfund-related expenditures on transaction costs.¹⁵⁰ In 1994, RAND published a second study, finding that from 1981 through 1991 private sector parties spent 32 percent of their total Superfund expenditures on transaction costs at 18 sites.¹⁵¹ These studies have been widely publicized.

In both these reports, however, RAND placed an important caveat on its conclusions. RAND noted in the first study that "the transaction-cost share falls as a site moves through the remedial process."¹⁵² This trend is to be expected, RAND observed, as large outlays in the remedial phase "dilute transaction costs and cause the transaction-cost share to drop."¹⁵³ RAND similarly noted in the second study that "the share of transaction costs through 1991 will overstate what [the] transaction-cost share will be when cleanup is complete at the 18 study sites."¹⁵⁴ This overstatement will be particularly significant because "construction of the cleanup remedy is complete at only 2 of the 18 study sites."¹⁵⁵

The Superfund transaction costs, in other words, are "front loaded"; a substantially larger proportion of the transaction costs are spent early in the implementation of a remedy. Thus, the RAND reports merely provide a "snapshot" of the percentage of transaction costs as of the current stage of the cleanup process. As more and more remedial actions near completion, the percentage of transaction costs can be expected to drop.

[27 ELR 10212]

4. Administrative Improvements Successful

Partially in response to the criticisms of the Superfund program, EPA has lately undertaken a number of highly publicized "administrative improvements"¹⁵⁶ to the program. Although the current Administration has boasted of these initiatives, they actually began under the prior Administration. EPA's administrative improvements can be divided into three broad categories of projects designed to streamline cleanups, mitigate liability, and redevelop contaminated property.

The first major focus of EPA's administrative improvements has been to streamline and accelerate the remediation process. These efforts began in the early 1990s with the Superfund Accelerated Cleanup Model (SACM).¹⁵⁷ Under SACM, EPA has attempted to hasten the pace of cleanups by reducing the amount of study and investigation conducted at Superfund sites and, more importantly, by increasing the use of removal actions that are governed by much simpler procedures under the NCP.¹⁵⁸

In a related initiative, originally included as part of SACM, EPA has begun developing presumptive generic remedies for certain categories of sites, such as municipal landfills.¹⁵⁹ The objective of presumptive remedies is to streamline site investigation and remedy selection for these categories of sites by relying on past experience. By using presumptive remedies, EPA expects to select remedial actions that are nationally more consistent and that are completed in less time and at less cost.¹⁶⁰

EPA has also established a National Remedy Review Board to provide an additional tier of review of certain Agency remedy decisions.¹⁶¹ The purpose of the board is to ensure that EPA selects remedial actions that are cost-effective. The board reviews proposed remedial actions that either are estimated to cost more than $ 30 million, or are estimated to cost more than $ 10 million and cost 50 percent more than the least-costly remedial action alternative that is protective of health and the environment and complies with ARARs. The board expects to review about 30 proposed remedial actions per year.¹⁶²

The second major focus of EPA's administrative improvements has been mitigating liability, particularly the liability of minor parties and innocent landowners. Perhaps most significant has been EPA's effort to enter into more de minimis settlements. For several years after the de minimis settlement provisions were enacted as part of SARA in 1986, EPA was quite reluctant to enter into such settlements. De minimis settlements are time-consuming; EPA typically must review extensive data on waste volume and toxicity, render difficult cost projections, and make statutorily mandated findings.¹⁶³ Rather than devote limited Superfund resources to these tasks, EPA initially chose to focus its resources on cleanup. This view has changed markedly over the last few years, however, as EPA has become increasingly sensitive to the issue of fairness to minor parties. EPA has recently committed to entering into de minimis settlements wherever appropriate.¹⁶⁴ To further this goal, EPA has streamlined its de minimis settlement procedures.¹⁶⁵ As a result, through September 1996 EPA had entered into some 240 de minimis settlements, settling out over 14,000 minor parties.¹⁶⁶ Most of these settlements have been completed in the last three years.

A related issue is the liability of "de micromis" parties, parties that contributed truly minuscule amounts of waste to Superfund sites. In several CERCLA cases, defendants filed third-party contribution actions against such minor parties as an Elks Club, a pizza parlor, Little League, and the Salvation Army, that had sent very small quantities of trash to the sites.¹⁶⁷ In response, EPA developed guidance for settlements with de micromis parties.¹⁶⁸ EPA based this guidance on its statutory authority to enter into de minimis settlements, as it views de micromis parties as a subset of de minimis parties. The guidance provides that EPA will enter into quick cash-out settlements with de micromis parties, at amounts ranging from as little as $ 1.00 to $ 300.00, or even for no payment at all. As part of the settlement, the de micromis party receives a covenant not to sue and, more importantly, contribution protection insulating the de micromis party from contribution claims by other liable parties. EPA has now entered into several such settlements.

EPA has also increased its commitment to enter into mixed funding arrangements. As with de minimis settlements, for many years after SARA added the mixed funding provisions, EPA was reluctant to use this settlement mechanism. Recently, however, EPA has routinely offered to [27 ELR 10213] contribute Superfund monies to cleanup or, more frequently, to compromise claims for past costs as part of an RD/RA settlement. This contribution of funds or past cost "credit" is used to cover the "orphan share," or share of liability attributable to defunct, bankrupt, or otherwise judgment-proof parties.¹⁶⁹ In fiscal year 1996, EPA made offers totalling $ 57 million to cover the orphan shares in cleanup settlements.¹⁷⁰

Although it has not included NBARs as part of its administrative improvements, EPA has initiated formal allocations of liability at several large, multiparty Superfund sites. In 1996, EPA began allocation pilot projects for 10 sites,¹⁷¹ which are now at various stages of the allocation process, though none are complete. In conducting these allocations, EPA has employed independent allocators and has generally attempted to follow the procedures in the Administration's proposed Superfund reauthorization bill.¹⁷²

In addition, EPA took a number of steps to address the issue of lender liability. Recall that CERCLA exempts from liability secured creditors that hold indicia of ownership in contaminated property "without participating in the management" of the property.¹⁷³ In several cases, courts interpreted the "participating in management" language broadly, thus limiting the exemption and creating a great deal of uncertainty among lending institutions.¹⁷⁴ In United States v. Fleet Factors Corp., for example, the Eleventh Circuit ruled that a secured creditor who merely had the "capacity to influence" a borrower's treatment of hazardous wastes had effectively "participated in management" and was not covered by the exemption.¹⁷⁵ As a result of such decisions, lenders became reluctant to lend money for the development or improvement of contaminated property, exacerbating the "brownfields" problem discussed below.¹⁷⁶

In response to this problem, EPA promulgated a lender liability rule, which set forth specific criteria for "participating in management."¹⁷⁷ Under the rule, only a secured creditor's "actual participation in the management or operational affairs of the…facility" would serve to eliminate the exemption. The "mere capacity to influence" facility operations would not.¹⁷⁸ Several parties challenged the rule in the D.C. Circuit, however, and that court vacated the rule, holding that EPA had exceeded its statutory authority in attempting to define the scope of liability.¹⁷⁹ EPA and the U.S. Department of Justice nevertheless published guidance committing to follow the rule in CERCLA enforcement actions.¹⁸⁰ The issue was resolved, however, by passage late last year of the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996,¹⁸¹ which effectively codifies the EPA rule.¹⁸²

The third major focus of EPA's administrative improvements has been the redevelopment of contaminated property, or "brownfields." Brownfields are contaminated industrial or commercial properties that have been abandoned, idled, or underused due to the liability associated with the ownership of contaminated property.¹⁸³ Estimates of the number of brownfields range from tens of thousands to 450,000, most of them located in urban and industrial areas.¹⁸⁴ The existence of such undeveloped properties contributes to economic decline in many older urban areas, while industrial development moves to relatively pristine "greenfields" in suburban or rural areas.

EPA has taken a number of steps to address the brownfields problem. It has entered into memoranda of understanding with several state environmental agencies, stating that sites successfully cleaned up under state authority will not be further addressed by EPA. The Agency has awarded 40 grants of up to $ 200,000 to communities for brownfield redevelopment.¹⁸⁵ It has issued new guidance on agreements with prospective purchasers.¹⁸⁶ Under such agreements, EPA provides a prospective purchaser of contaminated property with a covenant not to sue in exchange for cleanup or partial cleanup. Recently, EPA has been much more willing to enter into such agreements.¹⁸⁷ It has also removed some 27,000 sites from the Superfund tracking list known as "CERCLIS," clarifying that EPA has no further interest in the sites.¹⁸⁸

[27 ELR 10214]

III. Congress' Attempt to "Fix" the Program

A. A Brief History

1. The 103d Congress

Congress is now in the fourth year of its attempt to reauthorize Superfund.¹⁸⁹ The 103d Congress began considering Superfund reauthorization in 1993, holding several hearings on the matter.¹⁹⁰ On February 2, 1994, EPA Administrator Carol Browner sent to Congress a proposed bill,¹⁹¹ which was the culmination of the Administration's effort to develop consensus legislation acceptable to industry, states, municipalities, and environmental organizations.¹⁹² The following day, on February 3, 1994, Rep. Al Swift (D-Wash.) introduced in the House the Administration's bill, entitled the Superfund Reform Act of 1994, as H.R. 3800.¹⁹³ A few days later, on February 7, 1994, Sen. Max Baucus (D-Mont.) introduced an identical bill, S. 1834, in the Senate.¹⁹⁴

Both bills went through hearings and markup and were revised substantially. The House Committee on Energy and Commerce held hearings on the Swift bill in February and March 1994.¹⁹⁵ In May 1994, it reported the bill to the full House by a vote of 44 to 0.¹⁹⁶ The House Committee on Transportation and Public Works, which also had jurisdiction over the legislation, reported the amended bill in July.¹⁹⁷ Representative Swift reintroduced the bill as amended as H.R. 4916 in August.¹⁹⁸ On the Senate side, the Committee on Environment and Public Works held hearings on the Baucus bill in February, March, and April 1994.¹⁹⁹ In August 1994, it reported the amended bill²⁰⁰ to the full Senate by a vote of 13 to 4.²⁰¹ The House Ways and Means Committee and the Senate Finance Committee also favorably reported the bills in August and September.²⁰² The legislation died, however, in the closing days of the 103rd Congress.²⁰³

2. The 104th Congress

Superfund reauthorization was slated as a top priority of the 104th Congress. In January 1995, Rep. John Dingell (D-Mich.), now in the minority, reintroduced the Swift bill as H.R. 228,²⁰⁴ but it was destined to languish in the Republican-controlled Congress. In September 1995, Sen. Robert C. Smith (R-N.H.) introduced S. 1285, the Accelerated Cleanup and Environmental Restoration Act of 1995, in the Senate.²⁰⁵ In October 1995, Rep. Michael G. Oxley (R-Ohio) introduced H.R. 2500, the Reform of Superfund Act, in the House.²⁰⁶ The Smith and Oxley bills, which differed substantially from the Baucus and Swift proposals, became the vehicles for Superfund reauthorization efforts in the 104th Congress.

Over the next year and a half, the Smith and Oxley bills slowly proceeded through the legislative process. The House Committee on Commerce²⁰⁷ was the first to move on the legislation. It held hearings on the Oxley bill in October 1995²⁰⁸ and conducted a subcommittee markup on November 9, 1995. A revised bill was introduced after markup.²⁰⁹ The House Committee on Transportation and Infrastructure²¹⁰ held hearings on the bill in November 1995.²¹¹ On the Senate side, an amended "substitute" version of the Smith bill was introduced on March 21, 1996.²¹² The Senate Committee on Environment and Public Works [27 ELR 10215] held hearings on the revised bill in April 1996.²¹³ No further formal activity took place on the comprehensive legislation in the 104th Congress, however.²¹⁴

Significantly, the federal tax authority by which the Superfund program is funded expired on December 31, 1995.²¹⁵ Although Sen. Frank Lautenberg (D-N.J.) introduced a bill to extend the authority by five years,²¹⁶ Congress took no action to extend the tax authority.

Despite its inability to pass comprehensive legislation, or to extend the tax authority, Congress did in September 1996 pass legislation addressing the liability of lending institutions holding a security interest in contaminated property.²¹⁷ Lender liability is an issue on which there has been general consensus.²¹⁸ The legislation, entitled the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996, was enacted as part of an omnibus appropriations bill.²¹⁹ Largely following EPA's vacated lender liability rule, the Act provides that a secured creditor loses the exemption only by "actually" participating in the management of the facility, not by merely having the "capacity to influence" management decisions.²²⁰ The Act also provides that a secured creditor retains the exemption even if it forecloses on the contaminated property, provided that it does not participate in the management of the facility and that it sells or re-leases the property at the earliest practicable commercially reasonable time.²²¹

B. The Proposals

A review of the comprehensive Superfund reauthorization bills—or to use the current vernacular, Superfund "reform"²²² bills—introduced in the Democratic 103d Congress and the Republican 104th Congress reveals some serious problems with the legislation. The bills were extremely long and extremely complicated, and many of their provisions were quite controversial. The sheer length of the Superfund bills serves to illustrate their complexity. In the 103d Congress, the Baucus bill (S. 1834) as originally introduced was 175 pages long; as reported to the full Senate, it had grown to 474 pages.²²³ The Swift bill (H.R. 3800) as originally introduced was 178 pages long; as reported to the full House (H.R. 4916) it was 316 pages long. In the 104th Congress, the Smith bill (S. 1285) as introduced was 249 pages long; the substitute amendment was 264 pages long. The Oxley bill (H.R. 2500) as originally introduced was 264 pages long; as revised in subcommittee markup, it was 275 pages long.

Moreover, the substantive provisions of these massive bills were in many instances unnecessary and counterproductive. The bills would have completely rewritten much of CERCLA with detailed new provisions, creating new procedures, new standards, new requirements, and new opportunities for litigation and transaction costs. If enacted, the interpretation of these provisions would have kept lawyers and courts busy well into the 21st century.

1. Liability

The bills contained a host of broad new exemptions from liability. One of the most controversial liability exemptions, designed to partially eliminate retroactive liability, was the Oxley bill's rebate provision. It would have required payment from the Superfund to reimburse 50 percent of the cleanup costs that any liable party incurred after October 1995, if such costs were attributable to liability for pre-1987 disposal activities.²²⁴ According to EPA, the provision would effectively bankrupt the Superfund, leaving little money for the cleanup of other sites.²²⁵ The rebate proposal drew considerable criticism from opponents.²²⁶

Moreover, each of the bills contained broad exemptions from liability for certain industries. The Baucus bill as reported included a new exemption for "remining" activities.²²⁷ The exemption would have applied to acid or cyanide leaching operations, which are highly destructive of the environment. The Oxley bill included a broad exemption for any landfill authorized to accept municipal solid waste.²²⁸ However, many landfills that primarily handled industrial and hazardous wastes, and that are listed on the NPL, had such authorization and thus would have been [27 ELR 10216] covered by the exemption.²²⁹ The Swift and Baucus bills, as reported, and the Oxley bill each included a lengthy and poorly drafted exemption for recycling facilities.²³⁰ The Oxley bill, after subcommittee markup, also contained a nearly total liability exemption for battery and used oil recycling facilities.²³¹ Yet lead-acid battery recycling facilities, such as battery crackers and secondary lead smelters,²³² and used oil recycling facilities have created enormous environmental and public health problems.²³³ Moreover, these exemptions were vague and very complex; their only certain result would have been a great deal of litigation.

Each of the bills also contained minutely detailed procedures for the allocation of liability.²³⁴ Contrary to the overall goal of streamlining cleanup, the allocation process prescribed in each of these bills would have resulted in substantial delays in cleanup.²³⁵ According to one analysis, the allocation process set forth in the Baucus bill would have taken, at best, 13 to 17 months to complete, and would likely have taken considerably longer in practice.²³⁶ This schedule stands in stark contrast to the current 120-day negotiation period under CERCLA § 122(e).²³⁷ Moreover, as part of its allocation pilot projects,²³⁸ EPA has attempted to follow the allocation procedure of the Baucus and Swift bills. Based on this experience, EPA recently concluded that for some sites such an allocation process "may increase, not decrease, transaction costs on all parties."²³⁹ The allocation procedure in the Smith and Oxley bills would have been equally complex and time-consuming, if not more so.²⁴⁰ Furthermore, although the Baucus and Swift bills were silent on the issue of whether an enforcement action could commence before completion of the allocation, the Smith and Oxley bills would have expressly required the allocation to be completed before commencement of such an action.²⁴¹ Thus, the approach under these bills effectively would have been to allocate first, cleanup later—a complete reversal of current law.²⁴²

2. Cleanup Standards

The bills contained detailed provisions on cleanup standards that would have completely rewritten § 121.²⁴³ Most of these [27 ELR 10217] provisions, particularly those in the Smith and Oxley bills, would have significantly weakened the standards in numerous ways.

First, each of the bills would have eliminated from CERCLA the preference for permanent treatment remedies,²⁴⁴ although the Baucus and Swift bills would have retained a preference for treatment of highly contaminated areas—"hot spots."²⁴⁵ The Smith and Oxley bills went further, and would have placed containment remedies on an equal footing with treatment remedies.²⁴⁶ Ironically, EPA has often been criticized for failing properly to follow the SARA preference for permanent remedies.²⁴⁷

Second, the Smith and Oxley bills would have effectively rewritten the criteria for considering human health risks. The Smith bill defined protection of human health as reducing the risk from carcinogenic hazardous substances to a 1 in 10,000 (10<-4>) to 1 in 1,000,000 (10<-6>) lifetime cancer risk, and reducing the risk from noncarcinogenic hazardous substances so that there is not "an appreciable risk of deleterious effects."²⁴⁸ The Oxley bill included a somewhat similar provision.²⁴⁹ By contrast, the current NCP provides that risk from known or suspected carcinogens should be reduced to a 1 in 10,000 to 1 in 1,000,000 lifetime cancer risk, and that the more protective 1 in 1,000,000 risk level "shall be used as the point of departure."²⁵⁰ The NCP also provides that risk from noncarcinogens should be reduced so that "the human population, including sensitive subgroups, may be exposed without adverse effect … , incorporating an adequate margin of safety."²⁵¹ The Smith bill would have overridden the NCP's point of departure for carcinogens and its stronger narrative standard for noncarcinogens.

Third, the Smith and Oxley bills would have limited the circumstances under which groundwater contamination could be cleaned up. For example, both bills provided that "point-of-use treatment"—meaning a filter under the sink—would be an acceptable alternative for groundwater remediation.²⁵² The Smith bill also precluded any presumption that uncontaminated groundwater suitable for use as drinking water would ever be used for such purpose.²⁵³

Fourth, the Oxley bill would have elevated the role of cost in remedy selection. The bill repeatedly used terms such as "cost-effective" and "cost-reasonable."²⁵⁴ Perhaps most significantly, it would have required strict cost-benefit analysis of all remedial decisions.²⁵⁵

Additionally, both the Smith and Oxley bills would have weakened the CERCLA requirement that EPA review completed remedial actions every five years to assure continued protection of health and the environment.²⁵⁶ The Oxley bill would have completely eliminated the requirement.²⁵⁷ The Smith bill would have extended the five-year review to a seven-year review.²⁵⁸ Yet the General Accounting Office recently concluded that EPA's five-year review has discovered and corrected serious problems with a number of remedial actions in the operation and maintenance phase, and that EPA has a significant backlog of such reviews.²⁵⁹

3. Remedy Selection

The Smith and Oxley bills would also have drastically changed the procedures by which remedial actions are selected. First, the Smith bill would have completely replaced the remedy selection procedures of the NCP. It would have allowed the liable parties to select remedial alternatives.²⁶⁰ It would also have significantly limited EPA oversight of response actions conducted by liable parties.²⁶¹ As various public officials have pointed out, however, response actions need to be selected, and their implementation overseen, by federal or state agencies having the statutory responsibility to protect the health and environment of their citizens²⁶²—a responsibility often in conflict with the financial interest of the liable parties.

Second, both the Smith and Oxley bills would have required EPA to reopen final remedial decisions—RODs—to conform to the new cleanup standards.²⁶³ According to EPA, these provisions would severely disrupt and delay the cleanup program. The Smith bill would have required EPA to reopen at least 400 RODs,²⁶⁴ while the Oxley bill potentially would have required EPA to revisit 1,200 RODs at [27 ELR 10218] over 700 sites.²⁶⁵ Such transition rules are in sharp contrast to the transition rules adopted in the 1986 SARA amendments. The new and more stringent cleanup standards added as part of SARA expressly applied only to RODs signed after SARA's enactment. Moreover, the new SARA standards applied only "to the maximum extent practicable" to RODs signed during the 30-day period immediately following enactment.²⁶⁶

Third, remedial decisions under the Oxley bill and, in some instances, the Smith bill would have been immediately subject to legal challenge. The Oxley bill would have eliminated from current law the prohibition on preenforcement judicial review of remedy decisions.²⁶⁷ The Smith bill would have eliminated the prohibition for remedies estimated to cost more than $ 15 million.²⁶⁸ The effect of these provisions would have been to delay cleanup and create widespread litigation.²⁶⁹

4. Cap on the NPL

The Smith and Oxley bills would have placed a cap on new additions to the NPL. The Smith bill would have allowed a maximum of 30 sites to be added to the NPL per year over each of the following three years, for a maximum total of 90 sites, with no further listings thereafter.²⁷⁰ The Oxley bill would have allowed a maximum total of 125 sites to be added to the NPL over the following seven years, with no further listings after that.²⁷¹

Placing such a cap on the NPL removes much of the incentive for liable parties to conduct voluntary cleanups. Under voluntary cleanup programs underway in many states, private parties have recognized their potential CERCLA liability and have voluntarily entered into cleanup agreements with state agencies for sites not listed on the NPL. If NPL listing is capped, these parties will realize that CERCLA liability may never be imposed, and much of their incentive to conduct voluntary cleanups will be lost.²⁷² Further, capping the NPL would effectively shift the cost of cleaning up many NPL-caliber sites from the Superfund to the states.²⁷³

5. The Role of the States

Each of the bills would have provided for delegation of the Superfund program to state agencies,²⁷⁴ a step that has wide support. The bills also would have provided for delegation of EPA's authority to oversee cleanups at federal facilities,²⁷⁵ such as U.S. Department of Defense and U.S. Department of Energy facilities. A particularly controversial aspect of the Smith and Oxley bills, however, was that in delegating the Superfund program to the states, they would have preempted state environmental laws.²⁷⁶ State officials have categorically opposed such preemption.²⁷⁷

6. Injuries to Natural Resources

Although the Baucus and Swift bills would not have amended the CERCLA provisions governing the natural resource damage program, the Smith and Oxley bills would have made sweeping revisions to the program. Each of these revisions would have limited liability for natural resource damages or would have reduced natural resource trustee authority.

First, the Smith bill would have created a new statute of limitations for natural resource damage claims.²⁷⁸ The bill would have required an action for natural resource damages to be brought within three years after the earlier of either the date the trustee agency "knew or should have known of the injury," or the date of the proposal to list the site on the NPL.²⁷⁹ Thus, the bill would have substantially changed current law, and each of these changes would have effectively extinguished many viable damage claims.

The bill would have eliminated the regulatory prong, which currently provides an alternate trigger for the running of the three-year period. The bill also would have changed the standard of knowledge in the discovery prong from "knew" to "knew or should have known." Moreover, under the bill's "two-pronged" limitation, an action would need to be filed within three years after the earlier date, rather than the later date as under current law. Finally, the bill would have provided that for NPL sites, the three-year period begins to run on the date the site was proposed for listing on the NPL, rather than the date of completion of the remedial action as under current law. If this provision had been enacted in 1995, unfiled damage claims would have been immediately extinguished [27 ELR 10219] for the roughly 1,200 NPL sites listed or proposed for listing as of 1992.²⁸⁰

Second, the Smith and Oxley bills would have expanded the cap on natural resource damage liability. Currently, CERCLA provides that the $ 50 million cap is applicable to each responsible party "for each release of a hazardous substance or incident involving a release."²⁸¹

In contrast, the Oxley bill would have capped "the aggregate liability of all responsible parties" for "cumulative releases" from all related facilities at $ 50 million.²⁸² Under this provision, the cap would have applied per "facility or group of facilities" rather than per release or per incident. Because multiple releases of hazardous substances, or multiple incidents, can and often do occur at the same facility, this revision would have substantially reduced potential damage recoveries at such facilities. Moreover, under the bill, the cap would have applied collectively to all responsible parties at a facility, rather than individually to each responsible party, thus reducing the maximum potential recovery at multiparty sites. The rationale behind this provision is puzzling, given the original purpose of the cap to address the insurability of individual parties.²⁸³

The Smith bill would have placed a somewhat different cap on liability. It would have left unchanged the cap under current law, and it would have added another cap of $ 25 million (in some cases $ 50 million) for the category of damages vaguely defined in the bill as "compensatory damages." The cap on "compensatory damages" would also have applied per facility and applied in the aggregate to all liable parties.²⁸⁴

Third, the Smith and Oxley bills would have placed greater emphasis on costs in restoration actions. The Smith bill would have required trustees to select "the most cost-effective method of achieving restoration" from among appropriate restoration measures, including "natural recovery."²⁸⁵ The Oxley bill would have required strict cost-benefit analysis of restoration actions.²⁸⁶

Fourth, both the Smith and Oxley bills would have precluded recovery for damages attributable to "passive use" values.²⁸⁷ "Passive use" refers to the value that is derived from the knowledge that resources exist and can be passed on to future generations. For example, most people would place a value on the Grand Canyon or Yellowstone National Parks, even though they do not expect ever to visit those places.²⁸⁸

The objective of the Smith and Oxley bills, it seems, was not to preclude recovery for passive use values per se, but to prevent use of the methodology for measuring passive use values, contingent valuation. Contingent valuation estimates the value of resources that are not traded in the market through surveys of individuals having a stake in the given resource.²⁸⁹ Contingent valuation methodology is quite controversial.²⁹⁰ A contingent valuation study is very expensive to conduct and, unless conducted properly, can produce inaccurate and anomalous results.

By precluding recovery for passive use values, however, the Smith and Oxley bills would have summarily eliminated an important element of natural resource valuation. Economists widely recognize the validity of passive use values. In 1992, the National Oceanic and Atmospheric Administration (NOAA) commissioned the Contingent Valuation Panel, a blue ribbon panel of experts, including two Nobel laureates, to evaluate contingent valuation as a damage assessment tool. According to the panel,

for at least the last twenty-five years, economists have recognized the possibility that individuals who make no active use of a particular beach, river, bay, or other such natural resource might, nevertheless, derive satisfaction from its mere existence, even if they never intend to make active use of it.²⁹¹

Their report concluded that a properly conducted contingent valuation survey can provide a useful measure of natural resource damages.²⁹² Courts have also recognized the validity of passive use values.²⁹³ Moreover, courts frequently rule on the admissibility of scientific and technical evidence.²⁹⁴ [27 ELR 10220] A poorly conducted contingent valuation study would not be admissible, or would be afforded little weight.

Finally, the Smith and Oxley bills both contained a host of additional slightly more subtle limitations on liability for natural resource damages. The Smith bill would have further limited natural resource damage liability for releases of hazardous substances caused by pre-1980 disposal activities.²⁹⁵ The Smith bill also would have limited recovery to injuries for natural resources that are subject to a documented "committed use" by the general public.²⁹⁶ The Oxley bill would have limited recovery to natural resources that are "ecologically significant."²⁹⁷ The Smith and Oxley bills both would have broadened the prohibition on double recovery.²⁹⁸ The Oxley bill would have broadened the limitation on liability where there has been an irreversible and irretrievable commitment of natural resources.²⁹⁹ In addition, both the Smith and Oxley bills would have eliminated the rebuttable presumption in favor of damage assessment conducted in accordance with the assessment regulations.³⁰⁰

The Smith and Oxley proposals on natural resource damages were vigorously opposed by federal, state, and tribal trustee agencies.³⁰¹ In the words of one state official, the proposals "would cripple most state programs."³⁰²

C. The Price of Delay

The continuing delay in Superfund reauthorization is having a number of unfortunate adverse consequences on the cleanup program. It has been extremely distracting to EPA, which has been forced to shift precious talent and resources from implementing and enforcing—and even improving—the Superfund program to working with Congress on reauthorization. Moreover, although EPA is moving aggressively with the "administrative improvements" of the program, overall the Agency is proceeding cautiously in implementing and enforcing the program, wary that Congress may soon change the rules. Uncertainty over the proposed drastic changes to the Superfund liability scheme is a particular source of concern. For example, EPA now seems hesitant to enforce the statute to require responsible parties to conduct cleanups, as those parties may soon be exempted from liability.³⁰³ Likewise, responsible parties are reluctant to enter into binding settlements for Superfund cleanup, when they anticipate Congress may soon let them off the hook. State voluntary cleanup programs, which are dependent on responsible parties' recognition of their liability for cleanup under Superfund, have also suffered.

Moreover, as we have seen, the federal tax authority that finances the Superfund expired in December 1995.³⁰⁴ The expiration of that authority threatens to undermine the program further due to lack of funding. Funding shortfalls have idled the Superfund cleanup program in the past.³⁰⁵

The delay and uncertainty is causing problems for industry, too. Uncertainty over the scope of its liability may disrupt a company's financial planning. In addition, industry is missing the benefits it stands to gain from many of the proposed revisions, even those on which there is wide consensus. For example, express statutory authority for presumptive remedies may result in lower costs in implementing many remedial actions.

Finally, and most importantly, the delay is having an adverse effect on the American public. Cleanup has been delayed due to uncertainty over the future of the program. Modest revisions to the law, which would speed cleanup and enhance community participation, have not been made.

IV. A More Modest Proposal

To avoid the problems that have impeded Superfund legislation in the last two Congresses, a more modest proposal for Superfund reauthorization is needed, and one is herein suggested.³⁰⁶ Legislation based on this proposal should be simple, straightforward, and succinct. Such legislation should receive bipartisan support from all but the most extreme interests. It should move quickly through Congress, and should be summarily signed into law by the President. The proposal addresses liability, federal sovereign immunity, [27 ELR 10221] cleanup standards, delegation of the program to states, community participation, and injuries to natural resources.

A. Retain the Current Liability Scheme With Some Minor Revisions

As explained above, the liability scheme is essential to the effectiveness of the Superfund program. State attorneys general, who represent state agencies likely to be implementing the reauthorized program, strongly support retention of the current liability scheme.³⁰⁷ Congress must retain the current liability scheme, and it must resist the temptation to create large exemptions from liability for special interests.

Eliminating retroactive liability, as has been advocated, would eliminate many of the benefits of the liability scheme described above.³⁰⁸ It would create unfairness to parties that have already resolved their liability, through settlements or otherwise, and spent large sums of money to clean up Superfund sites. Conversely, it would effectively reward recalcitrant parties that have previously failed or refused to resolve their liability in a settlement.³⁰⁹ Further, it would result in extensive new rounds of litigation on the issue of whether disposal occurred before or after the effective date of liability.³¹⁰ The costs associated with such litigation would be substantial.³¹¹ It would also undermine state voluntary cleanup programs which are effective only if parties are liable for cleanup.³¹²

Nevertheless, some minor revisions to the liability scheme are appropriate. Such revisions would address de minimis settlements, de micromis parties, liability for municipal solid waste, and allocation of liability. These revisions could be accomplished with very minor changes to the statutory language.

First, Congress should amend CERCLA to further encourage de minimis settlements. As noted above, EPA recently entered into a large number of such settlements, which suggests that the statutory authority is adequate.³¹³ Nevertheless, one significant hurdle that EPA must surmount before entering into a de minimis settlement is the required statutory findings. Recall that to enter into a de minimis settlement, EPA must first determine: (1) that the settlement involves only a minor portion of the response costs; and (2) that the waste contributed by the settling party is minimal, in comparison with other hazardous wastes at the site, in both volume and toxicity or other hazardous effects.³¹⁴ Although such findings are certainly appropriate, they require a great deal of factual information about a site that is often not readily available, especially early in the process. Moreover, nonsettling parties challenging a de minimis settlement often argue that the EPA findings are inadequate or incorrect.³¹⁵

Therefore, Congress should revise CERCLA slightly to make it easier for EPA to make the requisite findings. Section 122(g) should be amended to provide that such findings can be based on estimates of costs, volume, and toxic or other hazardous effects. Even such a minor revision, backed up by legislative history emphasizing the importance of de minimis settlements, would greatly strengthen EPA's hand in defending against legal challenges to such settlements and would further encourage EPA to enter into such settlements in appropriate cases.

Congress should not, however, legislate an automatic de minimis volume level, even one that is only presumptive and at EPA's discretion. Such an automatic de minimis volume level has been included in the reauthorization proposals, usually at 1 percent.³¹⁶ Attractive as a presumptive 1 percent de minimis level may seem, it is largely arbitrary and would be inappropriate at most sites. Usually a higher or lower level is more appropriate.³¹⁷ Moreover, a statutory volume level would have the pernicious effect of creating a presumption that, in many cases, EPA would need to overcome with still more factual findings.

Second, Congress should provide express statutory authority for EPA to enter into de micromis settlements. Currently, a de micromis settlement is subject to a legal challenge that the settlement is beyond EPA's legal authority; indeed, at least one de micromis settlement has been [27 ELR 10222] challenged on this ground.³¹⁸ An express statutory provision would eliminate this issue. Again, Congress should not legislate an automatic de micromis volume level, as has been proposed,³¹⁹ but should leave the determination to Agency discretion.

Third, Congress should limit liability for municipal solid waste. Municipal solid waste—ordinary trash—generally contains an assortment of hazardous substances³²⁰ and thus gives rise to CERCLA liability.³²¹ Many Superfund sites contain municipal solid waste. According to EPA, approximately 20 percent of the NPL sites are municipal solid waste landfills.³²² However, such waste is inherently less hazardous than industrial and chemical wastes, which CERCLA was primarily intended to address.

Congress should amend CERCLA to apply less stringent liability standards for the disposal of municipal solid waste, recognizing that such waste is less dangerous than industrial waste. Although far from an ideal solution, there is considerable consensus on placing a 10 percent cap on liability for municipal solid waste.³²³ Such provisions, particularly the definition of municipal solid waste,³²⁴ must be very carefully drafted to limit the inevitable litigation over their interpretation.

Finally, Congress should provide EPA with greater authority to conduct allocations of liability. Although CERCLA currently authorizes EPA to prepare NBARs, such authority is quite limited.³²⁵ CERCLA should be amended to expressly authorize EPA to hire an independent allocator to allocate liability and to enter into settlements based on such an allocation. In addition, EPA should be given the authority to promulgate regulations on liability allocations.

Detailed allocation procedures should not, however, be specified in the statute. EPA should be allowed the flexibility to conduct an allocation appropriate to the specific site, or not to conduct an allocation at all. EPA should also be allowed the flexibility to decide how to select the allocator. Moreover, the amended statute should expressly provide that the allocation process must not delay negotiation of a cleanup agreement and, most fundamentally, must not delay cleanup.³²⁶

B. Confirm the Liability of the Federal Government

Congress should confirm the liability of the federal government under CERCLA and analogous state statutes. It should amend § 120 to provide a clearer waiver of sovereign immunity.

As Congress recognized when it enacted SARA, federal facilities are among the worst hazardous waste sites in the nation.³²⁷ Yet the federal government is relatively insulated from enforcement actions to compel cleanup. Where federal government agencies are the liable parties, EPA enforcement authority is at its weakest. Under the "unitary Executive" theory, long advocated by the U.S. Department of Justice, EPA cannot bring a judicial enforcement action against a sister federal agency.³²⁸

Given EPA's limited enforcement authority, state enforcement authority is critically important.³²⁹ That authority too is limited, however, by the doctrine of sovereign [27 ELR 10223] immunity. Although Congress has attempted—first in CERCLA and then in SARA—to waive the sovereign immunity of the federal government from enforcement actions under CERCLA and analogous state law, those attempts, remarkably, may not have been entirely successful. The U.S. Supreme Court has interpreted waivers of federal sovereign immunity in environmental laws extremely narrowly, holding that such waivers must be "unequivocal," "construed strictly in favor of the sovereign," and "not enlarged beyond what the language requires."³³⁰ In U.S. Department of Energy v. Ohio,³³¹ the Court held that the waivers of federal sovereign immunity in RCRA and the Clean Water Act were not sufficiently "unequivocal" to subject the federal government to actions for civil penalties for past statutory violations,³³² contrary, it would seem, to Congress' intent.³³³ Moreover, at least two federal district courts have held that the CERCLA waiver of sovereign immunity from actions under state law does not apply to liability based on prior ownership of the facility.³³⁴ As Sen. Robert Stafford (R-Vt.) remarked during the SARA debates, "No loophole, it seems, is too small to be found by the Federal Government."³³⁵

To ensure a complete waiver of federal sovereign immunity, Congress should, once again, revise the provision.³³⁶ Congress should add to CERCLA a waiver provision similar to that in RCRA as amended by the Federal Facility Compliance Act of 1992.³³⁷ In addition, Congress should revise the waiver of federal sovereign immunity from actions under state law clearly to include liability based on prior ownership.

C. Set More Flexible Cleanup Standards

Congress should amend CERCLA to provide slightly more flexible cleanup standards. Again, these amendments should be accomplished with relatively minor revisions to the statute. There is no need to completely rewrite § 121.

First, with certain exceptions, Congress should eliminate from CERCLA the requirement that remedial actions comply with "relevant and appropriate requirements." Such requirements, particularly certain RCRA requirements, are needlessly complex, unnecessary for environmental protection, and a significant hinderance to the cleanup process.³³⁸ However, drinking water standards set under the Safe Drinking Water Act, and surface water quality standards set under the Clean Water Act, should continue to govern cleanup of ground and surface waters. Furthermore, CERCLA should continue to require that remedial actions comply with applicable federal and state requirements.

Congress should also require EPA to promulgate national cleanup standards for soil and groundwater.Standards should be set for approximately the 100 hazardous substances most commonly found at Superfund sites.³³⁹ The standards should allow some degree of variability to account for certain site-specific factors, including future land use. EPA would be allowed the flexibility to waive the standards, on the same bases that it can now waive ARARs.³⁴⁰ No doubt, promulgation of such standards will be a complex and time-consuming process. Congress should place EPA on a reasonable schedule for issuing final regulations.

Emphatically, however, such national cleanup standards must not preempt applicable state standards, even if those state standards are more stringent. Nor should states be required to fund the incremental cost difference of meeting more stringent state standards. Most federal environmental statutes currently allow states to adopt standards that are more stringent than the federal standards.³⁴¹ Cleanup standards that preempt state law, as were proposed in the Smith and Oxley bills, would lead to anomalous cleanup results, particularly in states that have been authorized to implement state cleanup programs.³⁴² Preemption would preclude states with demonstrably effective cleanup standards from implementing such standards at NPL sites. Authorized states, and many delegated states, would be bound to implement two different sets of cleanup standards—the mandated federal standards for NPL sites, and the existing state standards for non-NPL sites. Such a dual program would be needlessly inefficient. Further, preemption would result in many partial cleanups that do not meet minimum state standards for protection of human health and the environment. Developers might be reluctant to build on "remediated" property that does not meet state health-based [27 ELR 10224] cleanup standards, and lending institutions might be unwilling to finance such developments.

Second, Congress should retain the statutory preference for remedial actions that treat hazardous substances to reduce their volume and toxicity. Nothing has changed in the last 10 years to make containment remedies any less likely to fail in the long term.³⁴³ EPA has stated that the statutory preference for permanent remedies has not been an obstacle to streamlining the cleanup program.³⁴⁴ The statutory preference for treatment remedies has also driven industry to develop more efficient, more innovative, and less-costly cleanup technology.³⁴⁵

Third, Congress should amend CERCLA expressly to allow EPA to consider future land use in remedy decisions. EPA typically selects remedial actions that clean up toxic pollutants to levels considered safe for unrestricted human use of the land—in other words, residential use. Critics charge that this approach leads to unnecessarily costly remedies. The logic of these arguments is appealing: Why should liable parties be obligated to clean property to levels safe for residential use when the property is in the middle of an area zoned for industrial use, or will ultimately be paved for use as a parking lot?

Interestingly, EPA interprets its current authority as sufficiently broad to allow consideration of future land use in selecting remedial actions.³⁴⁶ Nevertheless, the current statutory language does not clearly give EPA such authority; each of the reauthorization bills would have provided such authority.³⁴⁷ Probably the simplest way to address this issue would be to add "anticipated future land use" as another factor to be considered in remedy decisions under § 121(b)(1). Clear statutory authority would preclude any legal challenge to a remedy based on considerations of future land use.

The statute should not, however, require EPA to select remedial actions based on the most probable future land use.³⁴⁸ Future land use should be a factor in remedy decisions, but not the controlling factor. EPA should be allowed the flexibility to consider less likely but plausible future land uses.³⁴⁹ The Love Canal property, it should be remembered, was used for the disposal of some 22,000 tons of chemical waste between 1942 and 1953, yet it eventually became a residential neighborhood and public school.³⁵⁰ Likewise, EPA should be allowed to compare the relative costs of more complete cleanup free of institutional controls versus the costs of a less complete cleanup necessitating long-term institutional controls. Otherwise, an inflexible requirement might prohibit EPA "from conducting a more stringent cleanup even when the added cost of doing so was limited, the cost of maintaining long-term oversight was substantial, and the risk that institutional controls might fail was significant."³⁵¹

Fourth, Congress should provide for national institutional controls. Institutional controls, such as land and water use restrictions, deed restrictions, well-drilling prohibitions, and building permits,³⁵² are now used quite frequently as a component of remedial actions.³⁵³ They will become much more important as future land use increasingly becomes a factor in remedial decisions. However, the law of many states limits the duration of certain institutional controls.³⁵⁴ National institutional controls, such as federal hazardous substance easements, would not be subject to such limitations.

Congress should therefore amend CERCLA to establish federal hazardous substance easements, as several of the reauthorization bills would have done.³⁵⁵ As amended, CERCLA should authorize EPA to acquire the easements from property owners for appropriate consideration. The easements would be designed to prevent or reduce further releases of hazardous substances, or to limit human exposure to hazardous substances. Such federal easements should encompass restrictions on the use of land, prohibitions on drilling wells, or other limitations on the use of groundwater or surface water. To be effective, federal easements should be legally enforceable by EPA, by states, or by citizen suit.

Fifth, Congress should provide express statutory authority for EPA to publish guidelines for presumptive remedies, and to implement such remedies. Again, such clear statutory authority would preclude possible legal challenges to the implementation of a presumptive remedy.

Sixth, Congress should not require cost-benefit analysis in remedy selection, as has been proposed.³⁵⁶ While cost should certainly be an important consideration in remedy selection, as it is under current law,³⁵⁷ a strict cost-benefit analysis is not appropriate. Cost-benefit analysis is laden with methodological problems which distort many of its conclusions.³⁵⁸ For example, because environmental benefits are typically very difficult to quantify, strict cost-benefit analysis usually undervalues those benefits. Moreover, to conduct a cost-benefit analysis as part of each remedial [27 ELR 10225] decision would be costly and time-consuming, and would divert EPA resources from the more important task of cleanup.

Finally, Congress should provide transition rules as in SARA. The reauthorization legislation should provide that the revised cleanup standards apply only to RODs signed after the legislation is enacted. Furthermore, the legislation should provide that RODs signed within the 30-day period after enactment must comply with the new cleanup standards only to the maximum extent practicable.³⁵⁹

D. Turn the Program Over to Qualified States

Congress should amend CERCLA to allow qualified states to implement the cleanup program. As explained above,³⁶⁰ CERCLA does not provide for authorization of state programs. Such an approach was perhaps justified at the time CERCLA was enacted, as states then had relatively little experience in hazardous waste remediation. This is no longer the case. Indeed, based on one study, it has been argued that states are doing better than EPA in remediating sites. According to the study, during the period from 1980 through 1992, states completed 3,527 removal actions and completed construction for 2,689 remedial actions. During the same period, EPA completed 2,365 removal actions and 155 remedial actions.³⁶¹ Of course, the federal sites were generally larger, more heavily contaminated, and more complex than the state sites, which at least partially explains the large discrepancy. Nevertheless, the study demonstrates that states now have considerable experience in successful cleanup of hazardous waste sites.

Congress should amend CERCLA to allow states maximum flexibility to implement all or part of the cleanup program. States should be given the option to choose to implement the cleanup program through either delegation or authorization.³⁶² Under a delegation model, the federal government would delegate its authority to qualified state agencies. The Smith and Oxley bills would have followed this model.³⁶³ Under an authorization model, EPA would approve qualified state programs, which the states would implement in lieu of the federal program. The Baucus and Swift bills would have followed this model,³⁶⁴ as does the RCRA hazardous waste program and the discharge permit system under the Clean Water Act.³⁶⁵

Under either model, states should be given the option to implement the cleanup program statewide, for individual sites, or for discrete portions of a site. Further, states should be given the option to implement distinct components of the cleanup program under a partial delegation or authorization. For purposes of partial delegation or authorization, the program would be divided into three components: (1) site identification and investigation activities; (2) remedial actions; and (3) removal actions.³⁶⁶ Several of the reauthorization bills would have allowed variations on these options.³⁶⁷

Finally, states should have the option of receiving delegation of EPA's authority to oversee the cleanup of federal facilities. They should also be given the authority to oversee removal actions, which federal facilities currently conduct without oversight.

It is important, however, that only demonstrably qualified states should be allowed to implement the cleanup program under either the delegation model or the authorization model. Delegation or authorization should not be automatic. For example, a state that has received authorization to implement the RCRA corrective action program, though analogous to the CERCLA cleanup program, should not necessarily be deemed qualified to implement the CERCLA program.³⁶⁸ Qualifications should include experience and expertise in site cleanup, adequate financial and personnel resources, effective legal enforcement authority, and mandatory procedures for public participation.³⁶⁹

E. Encourage Community Participation

Congress should amend CERCLA to more strongly encourage community participation in the cleanup process. Each of the reauthorization bills included community participation provisions.³⁷⁰

Most importantly, Congress should provide for greater communication between EPA and local community groups. EPA should be required to provide to the local community information on all significant phases of response actions. Congress should also provide for the establishment of community working groups to represent the local community in discussions with EPA.³⁷¹ In addition, Congress should expand the TAG grant program.³⁷² Congress should expressly [27 ELR 10226] allow TAG grants for actual participation in significant response actions, including site listing, site assessment, the RI/FS, the proposed plan, the RD/RA, any removal action, and any natural resource damage assessment. To encourage the use of TAG grants, Congress should eliminate the 20 percent contribution requirement.

F. Clarify the Natural Resource Damage Provisions

Congress should enact a few minor changes to clarify and strengthen certain of the CERCLA provisions addressing injuries to natural resources. The sweeping changes proposed in the Smith and Oxley bills are not at all necessary. There is no indication that the natural resource damage program is in need of major correction. Despite the rhetorical claims of at least one industry representative,³⁷³ natural resource damages are not the "sleeping giant" of Superfund that will bankrupt American industry.³⁷⁴ Of the relatively few natural resource damage settlements reached thus far, "their amount was small compared with the cost of cleaning up sites."³⁷⁵

First, Congress should revise the ambiguous statute of limitations for natural resource damage claims. The discovery prong is vague and generally will not indicate a precise date. What constitutes "discovery of the loss" and "its connection with the release" is subject to a wide range of interpretations.³⁷⁶ The regulatory prong is also ambiguous, given the piecemeal promulgation of the natural resource damage assessment regulations issued by the DOI.³⁷⁷ Indeed, the federal courts that have construed the language have given it three inconsistent interpretations.³⁷⁸

Further, the current statute of limitations frequently puts a trustee in the awkward position of bringing an action for natural resource damages before a damage assessment has been completed and hence before the trustee can articulate the relief it is seeking. Until the damage assessment has been completed it is very difficult to quantify the damages.³⁷⁹

Congress appears to have recognized these problems in passing the Oil Pollution Act of 1990 (OPA).³⁸⁰ Although earlier versions of the bill included statute of limitation language very similar to that in CERCLA,³⁸¹ the Senate amendment and conference substitute revised the provision,³⁸² as enacted, in OPA § 1017(f)(1)(B).³⁸³ It provides that an action for natural resource damages must be brought within three years from "the date of completion of the natural resource damage assessment." In most instances, this date can be readily and precisely determined, and therefore will not present an issue to be litigated. Congress should amend CERCLA to make the statute of limitations for natural resource damage claims consistent with that in the OPA.³⁸⁴

Second, Congress should clarify that judicial review of trustee decisions should be limited to the administrative record, and that trustee decisions should be upheld unless found to be arbitrary and capricious or otherwise not in accordance with law. Such an amendment would greatly [27 ELR 10227] diminish litigation over natural resource damage claims, and would encourage a more open assessment and restoration process.

The Administrative Procedure Act provides for judicial review of agency decisions "on the record" and provides that agency decisions are to be upheld unless found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."³⁸⁵ Similarly, CERCLA § 113(j) currently provides for record review of EPA decisions on response actions under the "arbitrary and capricious" standard.³⁸⁶ Although CERCLA does not expressly provide for the scope and standard of review for trustee decisions on damage assessment and restoration actions, a strong argument can be made that record review on the "arbitrary and capricious" standard should be applied as a matter of law. The issue is not settled, however, and it is not clear how the courts will resolve it.³⁸⁷ Several policy considerations strongly militate in favor of limiting judicial review of trustee decisions to the administrative record under the "arbitrary and capricious" standard.

Administrative record review will greatly reduce the amount of litigation—and associated transaction costs—likely to result from a claim for damages to natural resources. Without record review, defendants in many natural resource damage cases would be expected to challenge the trustee's assessments and restoration plans and the underlying methodologies in court, and to promote their own damage assessment and restoration plans. Trial would be likely to consist of each side presenting competing damage assessments and restoration plans, each based on differing methodologies, and each supported by batteries of opposing expert witnesses.³⁸⁸ Substantially more time and legal resources would be necessary for discovery, trial preparation, and trial.

Record review will allow greater public participation in damage-assessment and restoration decisions. Without record review, both the trustee and the responsible parties would be likely to seek to withhold their scientific studies and expert reports as privileged, as was done in the Exxon Valdez litigation,³⁸⁹ making meaningful public participation impossible. If, on the other hand, an administrative record is mandated, each side will have a strong incentive to submit its studies and reports into the record to be considered by the court. A much more open and efficient, less litigious process will result.³⁹⁰

Further, record review will allow trustee agencies to make decisions on natural resource damage assessments and restoration plans within their areas of expertise. Such decisions usually involve extremely complex technical, scientific, and economic determinations, which the courts have neither the expertise nor the resources to make. Such decisions are much better left to trustee agencies with expertise in these areas.

Federal, state, and tribal trustees for injured resources at the same facility should be encouraged to prepare damage assessments and restoration plans jointly. Such joint efforts would avoid the preparation of different and possibly inconsistent assessments and restoration plans, each arguably subject to record review. Thus, the new record review provisions should apply only to assessments and restoration plans prepared jointly by all interested trustees.³⁹¹

Finally, Congress should amend CERCLA to provide that Superfund monies are available to federal, state, and tribal trustees for damage assessments and restoration activities, as under the original law. CERCLA § 111(c)(1) and (2), which was originally enacted in 1980, expressly provides that Superfund monies may be used to conduct natural resource damage assessments and to restore, rehabilitate, replace, or acquire the equivalent of damaged natural resources.³⁹² This provision is contradicted, however, by SARA § 517, which amended § 9507(c)(1) of the Internal Revenue Code. As amended, § 9507(c)(1) provides that Superfund monies shall be available only for purposes "other than" the purposes set forth in § 111(c)(1) and (2), that is, for purposes other than damage assessment and restoration.³⁹³

Given this limitation, it is extremely difficult for trustees to fund natural resource damage assessments. Consequently, many state and tribal trustees are not conducting assessments and an important goal of CERCLA is not being met.

Conclusion

Reauthorization of Superfund remains an important issue, as Congress certainly recognizes. The delay in reauthorizing the statute is wasting time and resources, and is causing disruption and delay in the cleanup program. Moreover, the tax authority has expired and must be renewed before EPA is forced to scale back the program's cleanup activities.

Superfund is not "broken," but it certainly can and should be improved. By making modest revisions to the statute, rather than completely rewriting it, Congress can address Superfund's problems without creating serious new problems, and without generating new rounds of litigation and transaction costs. Hopefully, Congress will recognize the flaws in its efforts over the past three years to reauthorize Superfund and, in a bipartisan effort, adopt a more modest approach to reauthorization legislation.

1. Superfund is the popular name of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

2. This Article is not the first to suggest such an approach. See Norman Bernstein, Superfund Reform Needs Drastic Simplification, 25 ELR 10008 (Jan. 1995); Sen. Max Baucus, The Superfund Solution: Congress Should Keep Its Focus on Issues Where There Is Bipartisan Agreement, ROLL CALL, Feb. 26, 1996, at 13.

3. Pub. L. No. 96-510, 94 Stat. 2767 (1980); see also supra note 1.

4. During the late 1970s and early 1980s, mismanaged and uncontrolled hazardous waste sites were commonplace throughout the country, and a frequent topic of news stories. See, e.g., Donald Janson, Jersey Hunts Dumpers of Toxics, N.Y. TIMES, Jan. 30, 1978, at A1; Donald G. McNeil Jr., Upstate Waste Site May Endanger Lives, N.Y. TIMES, Aug. 2, 1978, at A1, B9; Michael H. Brown, Love Canal, U.S.A., N.Y. TIMES, Jan. 21, 1979, § 6 (magazine), at 23; Jim Adams & Jim Detjen, Valley of the Drums Is Still Full of Barrels, LOUISVILLE COURIER J., Nov. 25, 1979, at A14; Denise Tessier, Chemicals Linked to Cancer Found in Valley Well, ALBUQUERQUE J., Jan. 15, 1981, at B1; Peggy Strain, Wells Could Be Tainted, Homes West of Arsenal Told, DENVER POST, Jan. 16, 1981, at 1; Andrew Blake, Dumpers: They Drove by Night, BOSTON GLOBE, Mar. 22, 1981, at 22; Partner Accused in PCB Dumping, CHARLOTTE OBSERVER, May 20, 1981, at 1; Roger A. Rosenblatt, Toxic Flow From Acid Pits Creates Water Basin Peril, L.A. TIMES, Aug. 7, 1984, at 1 (relating to the Stringfellow site); see also MICHAEL BROWN, LAYING WASTE: THE POISONING OF AMERICA BY TOXIC CHEMICALS (1979); SAMUEL S. EPSTEIN ET AL., HAZARDOUS WASTE IN AMERICA (1982).

5. Pub. L. No. 99-499, 100 Stat. 1613.

6. As part of the CERCLA legislation in 1980, Congress funded the Superfund (then called the Hazardous Substances Response Trust Fund) at $ 1.6 billion over five years through taxes on petroleum and chemical feedstocks. Pub. L. No. 96-510, § 221(b), 94 Stat. at 2801. The Superfund ran out of money in 1985. In 1986 as part of SARA, Congress extended the tax authority and funded the Superfund at $ 8.5 billion over the next five years. Pub. L. No. 99-499, §§ 511, 517, 100 Stat. at 1760-61, 1772-73. In 1990, as part of the Omnibus Budget Reconciliation Act, Congress again extended the tax authority, and funded the Superfund at $ 5.1 billion over the next five years. Pub. L. No. 101-508, 104 Stat. 1388 (1990). The tax authority expired on December 31, 1995.

7. Congress vested CERCLA authority in the President. By executive order, the President has delegated most of this authority to the Administrator of EPA, although various responsibilities are delegated to other federal agencies. Exec. Order No. 12580, 3 C.F.R. § 193 (1988), ELR ADMIN. MAT. II 45031. Significantly, cleanup authority for U.S. Department of Defense and U.S. Department of Energy facilities is delegated to those departments. Id. § 2(d), ELR ADMIN. MAT. II at 45031.

8. See S. REP. No. 848, 96th Cong., 2d Sess. 13 (1980) ("The goal of assuring that those who caused chemical harm bear the costs of that harm is addressed in the reported legislation by the imposition of liability"), reprinted in 1 SENATE COMM. ON ENVIRONMENT AND PUBLIC WORKS, A LEGISLATIVE HISTORY OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (SUPERFUND), 97th Cong., 2d Sess. 320 (1983) [hereinafter A LEGISLATIVE HISTORY OF CERCLA] (Senate Report No. 848 is not reprinted in U.S.C.C.A.N.).

9. 42 U.S.C. § 9607(a), ELR STAT. CERCLA § 107(a).

10. Id. § 9607(a)(4)(A), ELR STAT. CERCLA § 107(a)(4)(A).

11. Id. § 9607(a)(4)(B), ELR STAT. CERCLA § 107(a)(4)(B).

12. Id. § 9607(a)(4)(C), ELR STAT. CERCLA § 107(a)(4)(C). The natural resource damage program is discussed below. See infra notes 116-31 and accompanying text.

13. 42 U.S.C. § 9606(a), ELR STAT. CERCLA § 106(a). The courts have held that liability for injunctive relief under § 106(a) is governed by § 107(a)'s liability provisions. See, e.g., United States v. Bliss, 667 F. Supp. 1298, 1313, 18 ELR 20055, 20061 (E.D. Mo. 1987).

14. See United States v. Hardage, 982 F.2d 1436, 1443, 23 ELR 20624, 20627 (10th Cir. 1992), cert. denied sub nom. Advance Chem. Co. v. United States, 510 U.S. 913 (1993); B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198, 22 ELR 20683, 20684 (2d Cir. 1992); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150, 20 ELR 20334, 20336 (1st Cir. 1989); United States v. Monsanto Co., 858 F.2d 160, 167, 19 ELR 20085, 20087 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989).

15. 3 H.&C. 774, 159 Eng. Rep. 737 (1865), rev'd, L.R. 1 Ex. 265 (1866), aff'd, L.R. 3 H.L. 330 (1868).

16. See RESTATEMENT (SECOND) OF TORTS § 519 (1977); see also New York v. Schenectady Chems., Inc., 459 N.Y.S.2d 971 (Sup. Ct. 1983), aff'd, 479 N.Y.S.2d 1010 (App. Div. 1984) (holding a generator of hazardous substances strictly liable under state common law for the subsequent disposal of those substances by another party).

17. For example, the Senate Report on S. 1480, in which the liability provisions of CERCLA originated, states,

Strict liability has been imposed either judicially or legislatively for a variety of activities. At one time strict liability (or "no-fault" liability) was the prevailing way of allocating loss. One reason for imposing strict liability was laid out in 1866 in the English case of Rylands v. Fletcher—

We think the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequences of its escape.

The rule of Rylands v. Fletcher—strict liability for ultra-hazardous activities—has been accepted and applied throughout the United States, under one name or another. Incidents to which it has been applied include the transportation of hazardous substances; the spraying of hazardous substances; the emission of noxious gases; the impoundment of slimes; and the keeping of explosives and flammables.

S. REP. No. 848, 96th Cong., 2d Sess. 33, reprinted in 1 A LEGISLATIVE HISTORY OF CERCLA, supra note 8, at 340.

18. See B.F. Goodrich, 958 F.2d at 1198, 22 ELR at 20684; United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1507-08, 20 ELR 20319, 20325 (6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990); O'Neil v. Picillo, 883 F.2d 176, 178-79, 20 ELR 20117, 20118 (1st Cir. 1989), cert. denied sub nom. American Cyanamid Co. v. O'Neil, 493 U.S. 1071 (1990); Monsanto, 858 F.2d at 171-73, 19 ELR at 20089-90.

Several recent cases, however, have declined to impose joint and several liability, holding either that the harm was divisible, or that the defendant was not given the opportunity to show that the harm was divisible. See, e.g., In re Bell Petroleum Servs., 3 F.3d 889, 23 ELR 21474 (5th Cir. 1993) (harm was divisible); United States v. Alcan Aluminum Co., 990 F.2d 711, 721-23, 23 ELR 20706, 20710-11 (2d Cir. 1993) (defendant not afforded the opportunity to show that harm was divisible); United States v. Alcan Aluminum Co., 964 F.2d 252, 267-71, 22 ELR 21124, 21132-35 (3d Cir. 1992) (same), reh'g and reh'g en banc denied, 964 F.2d 271, 22 ELR 21124 (3d Cir. 1992), on remand, 892 F. Supp. 648, 25 ELR 21556 (M.D. Pa. 1995) (defendant failed to meet its burden of proving divisibility of harm), aff'd, 96 F.3d 1434 (3d Cir. 1996); see also Mehron Azarmehr, Status of Joint and Several Liability Under CERCLA After Bell Petroleum, 24 ELR 10250 (May 1994); David M. Moore, The Divisibility of Harm Defense to Joint and Several Liability Under CERCLA, 23 ELR 10529 (Sept. 1993); Linda L. Rockwood & James L. Harrison, The Alcan Decisions: Causation Through the Back Door, 23 ELR 10542 (Sept. 1993); David A. Munro, The Alcan Decisions—CERCLA's Maturing Divisibility Defense, NAT'L ENVTL. ENFORCEMENT J., July 1993, at 3.

19. 126 CONG. REC. 30932 (1980) (statement of Sen. Randolph), reprinted in 1 A LEGISLATIVE HISTORY OF CERCLA, supra note 8, at 686; 126 CONG. REC. 31965 (1980) (statement of Rep. Florio), reprinted in 1 A LEGISLATIVE HISTORY OF CERCLA, supra note 8, at 778; see United States v. Chem-Dyne Corp., 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983) (discussing in detail the legislative history of CERCLA and concluding that it supports the application of joint and several liability).

20. See, e.g., Summers v. Tice, 199 P.2d 1 (1948); RESTATEMENT (SECOND) OF TORTS § 875 (1977) ("Each of two or more persons whose tortious conduct is a legal cause of a single and indivisible harm to the injured party is subject to liability to the injured party for the entire harm.").

21. 42 U.S.C. § 9613(f)(2), ELR STAT. CERCLA § 113(f)(2).

22. In the view of some courts, CERCLA liability addresses present and future releases of hazardous substances into the environment, and therefore it is not retroactive. Rather, it imposes a prospective obligation for the postenactment environmental consequences of the defendant's past acts. See United States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984, 996, 14 ELR 20272, 20276-77 (D.S.C. 1984), aff'd sub nom. United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989).

23. See United States v. Monsanto Co., 858 F.2d 160, 173-74, 19 ELR 20085, 20090-91 (4th Cir. 1987), cert. denied, 490 U.S. 1106 (1989); United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 732-34, 17 ELR 20603, 20606-07 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987).

Curiously, one district court recently held that CERCLA does not apply retroactively based on the recent U.S. Supreme Court decision in Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994). United States v. Olin Corp., 927 F. Supp. 1502, 26 ELR 21303 (S.D. Ala. 1996), appeal docketed, No. 96-6645 (11th Cir. June 26, 1996). Several other recent decisions have expressly rejected the Olin court's reasoning. Nova Chems., Inc. v. GAF Corp., 945 F. Supp. 1098, 1100-05, 27 ELR 20530, 20531-34 (E.D. Tenn. 1996); Gould, Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431, 438, 26 ELR 21614, 21617 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691, 26 ELR 21443 (D. Nev. 1996); Cooper Indus., Inc. v. Agway, Inc., 43 Env't Rep. Cas. (BNA) 1933, 1938-40 (N.D.N.Y. 1996); Ninth Avenue Remedial Group v. Allis Chalmers, 33 Chem. Waste Litig. Rep. (Computer L. Rep.) 396 (N.D. Ind. Nov. 25, 1996); United States v. Alcan Aluminum Corp., 33 Chem. Waste Litig. Rep. (Computer L. Rep.) 392 (N.D.N.Y. Oct. 28, 1996); see also Charles de Saillan, CERCLA Liability for Pre-Enactment Disposal Activities: Nothing Has Changed, NAT'L ENVTL. ENFORCEMENT J., Oct. 1996, at 3.

24. See Monsanto, 858 F.2d at 173-75, 19 ELR at 20090-91 (holding that retroactive application of CERCLA does not offend the Due Process Clause, U.S. CONST. amend. V, or the prohibitions on bills of attainder and ex post facto laws, U.S. CONST. art. II, § 9, cl. 3); see also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) (upholding as constitutional the provisions in the Black Lung Benefits Act of 1972 requiring mine operators to compensate former employees who had been disabled by pneumoconiosis before the statute was enacted).

25. 42 U.S.C. § 9607(b)(1), ELR STAT. CERCLA § 107(b)(1); see United States v. Stringfellow, 661 F. Supp. 1053, 1061, 17 ELR 21134, 21136 (C.D. Cal. 1987) (heavy rainfall is not an "act of God" under § 107(b)(1)).

26. 42 U.S.C. § 9607(b)(2), ELR STAT. CERCLA § 107(b)(2).

27. Id. § 9607(b)(3), ELR STAT. CERCLA § 107(b)(3).

28. Id.

29. Id. § 9601(20)(A)(iii), ELR STAT. CERCLA § 101(20)(A)(iii); see In re Bergsoe Metal Corp., 910 F.2d 668, 20 ELR 21229 (9th Cir. 1990); United States v. Fleet Factors, 901 F.2d 1550, 20 ELR 20832 (11th Cir. 1990), cert. denied, 498 U.S. 1046 (1991). Congress clarified and expanded the exemption for secured creditors in the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996. Pub. L. No. 104-208, tit. II, subtit. E; see infra text accompanying notes 217-21.

30. 42 U.S.C. § 9601(14), ELR STAT. CERCLA § 101(14). The provision also excludes various forms of natural gas from the definition of hazardous substance.

31. See Memorandum from Francis S. Blake, EPA General Counsel, to J. Winston Porter, EPA Assistant Administrator for Solid Waste and Emergency Response, regarding the Scope of the CERCLA Petroleum Exclusion Under Sections 101(14) and 104(a)(2) (July 31, 1987), reprinted in 14 Chem. Waste Litig. Rep. (Andrews) 858 (Sept. 1987); see also Christopher D. Knopf, What's Included in the Exclusion: Understanding Superfund's Petroleum Exclusion, 5 FORDHAM ENVTL. L.J. 3 (1993).

32. Wilshire Westwood Assocs. v. Atlantic Richfield Co., 881 F.2d 801, 19 ELR 21313 (9th Cir. 1989).

33. 42 U.S.C. § 101(22), ELR STAT. CERCLA § 101(22).

34. Id. § 9607(i), ELR STAT. CERCLA § 107(i). The federal pesticide law is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA §§ 136-136y.

35. 42 U.S.C. § 9607(j), ELR STAT. CERCLA § 107(j).

36. Id. § 9601(10), ELR STAT. CERCLA § 101(10); see United States v. United Nuclear Corp., 814 F. Supp. 1552, 1563-65, 23 ELR 20887, 20892-94 (D.N.M. 1992) (the federally permitted release defense does not apply where the permitting agency knew of the release but did not authorize the release in the permit); Idaho v. Bunker Hill Co., 635 F. Supp. 665, 674, 16 ELR 20879, 20882 (D. Idaho 1986) (the federally permitted release defense does not apply where the release exceeded the limitations established by the permit).

37. 42 U.S.C. § 9607(b)(3), ELR STAT. CERCLA § 107(b)(3); see supra text accompanying note 28.

38. See H.R. CONF. REP. No. 962, 99th Cong., 2d Sess. 186-87 (1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3279-80, and in 6 SENATE COMM. ON ENVIRONMENT AND PUBLIC WORKS, A LEGISLATIVE HISTORY OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986 (PUBLIC LAW 99-499), 101st Cong., 2d Sess. 4818, 5002-03 (1990) [hereinafter A LEGISLATIVE HISTORY OF SARA].

39. As the SARA amendments were debated, the participants developed an informal understanding that the CERCLA liability provisions would be left intact. Thus, although as a drafting matter it would have been most logical to place the "innocent landowner" defense with the liability provisions in § 107, the defense was instead placed in the definition section, as a new definition of "contractual relationship." The definition says, in effect, that certain contractual relationships are not "contractual relationships" for the purpose of the third-party defense in § 107(b)(3).

40. 42 U.S.C. § 9601(35), ELR STAT. CERCLA § 101(35); see EPA, Guidance on Landowner Liability Under Section 107(a)(1) and De Minimis Settlements Under Section 121(g)(1)(B) of CERCLA, and Settlements With Prospective Purchasers of Contaminated Property, 54 Fed. Reg. 34235 (June 6, 1985) [hereinafter EPA Innocent Landowner Guidance]. See generally Richard H. Mays, The Blessed State of Innocence: The Innocent Landowner Defense Under Superfund, 6 SANTA CLARA COMPUTER & HIGH TECH. L.J. 23 (1990).

41. The de minimis settlement provisions were introduced in the Senate as part of a package of amendments offered by Sens. Lloyd Bentsen (D-Tex.), Pete Domenici (R-N.M.), and Alan Simpson (R-Wyo.). In introducing these amendments, Senator Bentsen expressed concern that "small contributors" could be dragged "into the process and through the lengthy litigation in which, in many cases, the lawyers' fees could exceed the amount of responsibility." The intent of the amendment was to allow these small contributors to be "removed from the litigation." 131 CONG. REC. 24728 (1985) (statement of Sen. Bentsen), reprinted in 2 A LEGISLATIVE HISTORY OF SARA, supra note 38, at 1242.

42. 42 U.S.C. § 9622(g), ELR STAT. CERCLA § 122(g).

43. Id. § 9622(g)(5), ELR STAT. CERCLA § 122(g)(5).

44. Id. § 9622(g)(1), ELR STAT. CERCLA § 122(g)(1); see EPA, Interim Guidance on Settlements With De Minimis Waste Contributors Under Section 122(g) of SARA, 52 Fed. Reg. 24333 (June 30, 1987), ELR ADMIN. MAT. I 35067.

45. 42 U.S.C. § 9622(g)(1)(B), ELR STAT. CERCLA § 122(g)(1)(B); see EPA Innocent Landowner Guidance, supra note 40. For a discussion of the puzzling interplay between the innocent landowner defense in § 101(35) and the de minimis landowner settlement provisions in § 122(g)(1)(B), see Steven L. Leifer, EPA's Innocent Landowner Policy: A Practical Approach to Liability Under Superfund, [20 Current Developments] Env't Rep. (BNA) 646 (Aug. 4, 1989).

46. 42 U.S.C. § 9622(e)(3), ELR STAT. CERCLA § 122(e)(3); see EPA, Interim Guidelines for Preparing Nonbiding Preliminary Allocations of Responsibility, 52 Fed. Reg. 19919 (May 28, 1987), ELR ADMIN. MAT. I 35065.

47. 42 U.S.C. § 9622(b)(1), ELR STAT. CERCLA § 122(b)(1); see EPA, Evaluating Mixed Funding Settlements Under CERCLA, 53 Fed. Reg. 8279 (Mar. 14, 1988), ELR ADMIN. MAT. I 35117.

48. The doctrine of sovereign immunity derives from the ancient English common law maxim that "the King can do no wrong." "The king … is not only incapable of doing wrong, but even of thinking wrong: he can never mean to do an improper thing: in him is no folly or weakness." 1 WILLIAM BLACKSTONE, COMMENTARIES *219. The doctrine of sovereign immunity has been criticized as an anachronism of modern jurisprudence:

Despite its ancient lineage, the doctrine of sovereign immunity is nothing but a judge-made rule that is sometimes favored and sometimes disfavored. Its original reliance on the notion that a divinely ordained monarch "can do no wrong" is, of course, thoroughly discredited. Moreover, its persistent threat to the impartial administration of justice has been repeatedly acknowledged and recognized.

United States v. Nordic Village, Inc., 503 U.S. 30, 42-43 (1992) (Stevens, J. dissenting). Another critic remarked that "it is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, 'the King can do no wrong,' should exempt the various branches of the government from liability for their … wrongful acts." Rodolphe J.A. de Seife, The King Is Dead, Long Live the King! The Court-Created American Concept of Immunity: The Negation of Equality and Accountability Under the Law, 24 HOFSTRA L. REV. 981, 989 (1996).

49. 42 U.S.C. § 9620(a)(1), ELR STAT. CERCLA § 120(a)(1). As originally enacted, the waiver was in § 107(g) of CERCLA. Pub. L. No. 96-510, 94 Stat. 2767, 2783 (1980) (codified at 42 U.S.C. § 9607(g)). As part of the 1986 SARA amendments, Congress moved the waiver into the new § 120 dealing with federal facilities.

50. H.R. REP. No. 253, 99th Cong., 1st Sess., pt. 1, at 95 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2877, and in 3 A LEGISLATIVE HISTORY OF SARA, supra note 38, at 1764, 1858.

51. Id.

52. Id. at 58, reprinted in 1986 U.S.C.C.A.N. 2835, 2840, and in 3 A LEGISLATIVE HISTORY OF SARA, supra note 38, at 1764, 1821.

53. 42 U.S.C. § 9620(a)(4), ELR STAT. CERCLA § 120(a)(4).

54. H.R. CONF. REP. No. 962, 99th Cong., 2d Sess. 242 (1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3335, and in 6 A LEGISLATIVE HISTORY OF SARA, supra note 38, at 4818, 5058.

55. 42 U.S.C. § 9620(d) & (e), ELR STAT. CERCLA § 120(d) & (e).

56. Id. § 9601(23), ELR STAT. CERCLA § 101(23).

57. Id. § 9604(c)(1), ELR STAT. CERCLA § 104(c)(1). EPA may waive these limitations if there is an emergency or if the Agency determines that the removal action is consistent with any remedial action for the site. Id.

58. Id. § 9601(24), ELR STAT. CERCLA § 101(24).

59. Formally, the National Oil and Hazardous Substance Pollution Contingency Plan. 40 C.F.R. pt. 300 (1996). The NCP actually predated CERCLA. It was originally published in 1968, and thereafter revised, according to § 311 of the Clean Water Act. 33 U.S.C. § 1321(d)(3), ELR STAT. FWPCA § 311(d)(3). The primary purpose of this earlier NCP was to address oil spills. In 1982, EPA expanded the NCP to "effectuate the new responsibilities and powers created by CERCLA." EPA, National Oil and Hazardous Substance Pollution Contingency Plan, 47 Fed. Reg. 31180 (July 16, 1982). In 1985, EPA substantially revised the NCP to reflect the Agency's experience in the implementation of CERCLA. EPA, National Oil and Hazardous Substance Pollution Contingency Plan, 50 Fed. Reg. 47912 (Nov. 20, 1985). In 1990, EPA again substantially revised the NCP, "to implement changes necessitated by SARA," among other reasons. EPA, National Oil and Hazardous Substance Pollution Contingency Plan, 55 Fed. Reg. 8666 (Mar. 8, 1990). See generally Lawrence E. Starfield, The 1990 National Contingency Plan—More Detail and More Structure, But Still a Balancing Act, 20 ELR 10222 (June 1990). The 1990 NCP was challenged on several grounds, and largely upheld. Ohio v. EPA, 997 F.2d 1520, 23 ELR 21157 (D.C. Cir. 1993). The 1990 NCP, with a few minor revisions, is currently in effect.

60. 42 U.S.C. § 9605(a), ELR STAT. CERCLA § 105(a).

61. 40 C.F.R. § 300.420 (1996).

62. Id. § 300.430.

63. CERCLA § 104(a)(1) allows a liable party to perform an RI/FS only if EPA first determines that the party is qualified, and if EPA arranges for the oversight of the performance. 42 U.S.C. § 9604(a)(1), ELR STAT. CERCLA § 104(a)(1).

64. 40 C.F.R. § 300.430(d)(1) (1996).

65. Id. § 300.430(e)(1).

66. Id. § 300.430(f)(2).

67. Id. § 300.430(f)(4).

68. Id. § 300.435.

69. Under § 122(d)(1)(A), a settlement for a remedial action must be embodied in a judicially approved consent decree. 42 U.S.C. § 9622(d)(1)(A), ELR STAT. CERCLA § 122(d)(1)(A).

70. 40 C.F.R. § 300.435(f) (1996).

71. Id. § 300.415.

72. Id. pt. 300, app. B.

73. 42 U.S.C. § 9605(a)(8), ELR STAT. CERCLA § 105(a)(8).

74. EPA, Amendments to the National Oil and Hazardous Substance Contingency Plan: National Priorities List, 48 Fed. Reg. 40658 (Sept. 8, 1983).

75. EPA, National Priorities List for Uncontrollable Hazardous Waste Sites, Proposed Rule No. 19, 60 Fed. Reg. 51390, 51393 (Oct. 2, 1995).

76. 40 C.F.R. § 300.425(b)(1) (1996).

77. E.g., 132 CONG. REC. 28436 (1986) (statement of Sen. Chafee), reprinted in 6 A LEGISLATIVE HISTORY OF SARA, supra note 38, at 5216; Theodore G. Brown, Superfund and the National Contingency Plan: How Dirty is "Dirty"? How Clean Is "Clean"?, 12 ECOLOGY L.O. 89 (1984).

78. GENERAL ACCOUNTING OFFICE, HAZARDOUS WASTE: EPA'S CONSIDERATION OF PERMANENT CLEANUP REMEDIES 12-17 (1986).

79. See, e.g., id. at 9-10 (noting problems with land-based containment remedies); CONGRESSIONAL OFFICE OF TECHNOLOGY ASSESSMENT, SUPERFUND STRATEGY 226-27 (1985) (finding that "EPA shows a consistent bias toward containing waste," although "containment structures can only temporarily reduce the inflow of water into the waste or retard the migration of contaminants from the site"). In the early 1980s, several studies demonstrated that natural clay liners, then commonly used to contain hazardous wastes, were very ineffective for this purpose. Many common organic solvents cause natural clay to desiccate, shrink, and crack, and thus rapidly penetrate the clay material. Jan W. Green et al., Interaction of Clay Soils With Water and Clay Solvents: Implications for the Disposal of Hazardous Wastes, 17 ENVTL. SCI. & TECH. 278 (1983); David C. Anderson, Kirk W. Brown & J.C. Thomas, Conductivity of Compacted Clay Soils to Water and Organic Liquids, 3 WASTE MGMT. & RES. 339 (1985).

80. 42 U.S.C. § 9621(a), ELR STAT. CERCLA § 121(a). The legislative history of SARA elaborates on the meaning of cost-effective:

The term "cost-effective" means that in determining the appropriate level of cleanup the President first determines the appropriate level of environmental and health protection to be achieved and then selects a cost-efficient means of achieving that goal. Only after the President determines, by the selection of applicable or relevant and appropriate requirements, that adequate protection of human health and the environment will be achieved, is it appropriate to consider cost-effectiveness.

H.R. CONF. REP. NO. 962, 99th Cong., 2d Sess. 245 (1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3338, and in 6 A LEGISLATIVE HISTORY OF SARA, supra note 38, at 4818, 5061.

81. 42 U.S.C. § 9621(b)(1), ELR STAT. CERCLA § 121(b)(1).

82. 132 CONG. REC. 28438 (1986) (statement of Sen. Chafee), reprinted in 6 A LEGISLATIVE HISTORY OF SARA, supra note 38, at 5219.

83. 42 U.S.C. § 6901-6992k, ELR STAT. RCRA §§ 1001-11007 (formally, the Solid Waste Disposal Act).

84. Id. § 9621(b)(1), ELR STAT. CERCLA § 121(b)(1). The NCP sets forth a longer and somewhat different list of criteria for evaluation of remedial alternatives: overall protection of human health and the environment; compliance with applicable or relevant and appropriate requirements; long-term effectiveness and permanence; reduction of toxicity, mobility, and volume of waste; short-term effectiveness; implementability; cost; state acceptance; and community acceptance. 40 C.F.R. § 300.430(e)(9)(iii) (1996).

85. 42 U.S.C. § 9621(d), ELR STAT. CERCLA § 121(d).

86. Id.

87. The concept of ARARs actually originated in the 1985 NCP. See 40 C.F.R. § 300.68(i) (1986).

88. 42 U.S.C. §§ 300f to 300j-26, ELR STAT. SDWA §§ 1401-1465.

89. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

90. 42 U.S.C. § 9621(d)(2)(A), ELR STAT. CERCLA § 121(d)(2)(A).

91. See EPA, Interim Guidance on Compliance With Other Applicable or Relevant and Appropriate Requirements, 52 Fed. Reg. 32496, 32497 (Aug. 27, 1987).

92. 42 U.S.C. § 9621(d)(4), ELR STAT. CERCLA § 121(d)(4). EPA may waive an ARAR if the Agency determines: (1) that the remedial action is only part of a more comprehensive remedy; (2) that compliance with the requirement will result in greater risk to health or the environment than alternative options; (3) that compliance with the requirement is technically impractical from an engineering perspective; (4) that an alternative option will attain an equivalent standard of performance; (5) for a state ARAR, that the state does not consistently apply the requirement; or (6) for a remediation financed by the Superfund, that compliance with the requirement will not provide a balance between protection of health and the environment and preserving the Superfund for use to clean up other sites. Id.

93. Id. § 9621(c), ELR STAT. CERCLA § 121(c). According to Senator Chafee, "the periodic review provision is intended to assure that Superfund cleanups keep pace with developing technologies and that remedial actions are upgraded to take advantage of such developing technologies." 132 CONG. REC. 28438 (1986), reprinted in 6 A LEGISLATIVE HISTORY OF SARA, supra note 38, at 5220.

94. See Clean Air Act §§ 110, 112(l), 42 U.S.C. §§ 7410, 7412(l), ELR STAT. CAA §§ 110, 112(l); 33 U.S.C. §§ 1316(c), 1342(b), ELR STAT. FWPCA §§ 306(c), 402(b); 42 U.S.C. §§ 6926, 6991b, ELR STAT. RCRA §§ 3006, 9003; Id. §§ 300g-2, 300h-1, ELR STAT. SDWA §§ 1413, 1422.

95. See generally, 40 C.F.R. pt. 300, subpt. F (1996) (State Involvement in Hazardous Substance Response). Subpart F "codifies all regulatory requirements for state participation and involvement in CERCLA-authorized response actions." EPA, National Oil and Hazardous Substance Pollution Contingency Plan, 55 Fed. Reg. 8666, 8775 (Mar. 8, 1990).

96. CERCLA § 104(d)(1)(A) appropriately requires EPA first to determine that the state has the capability to undertake the response action. 42 U.S.C. § 9604(d)(1)(A), ELR STAT. CERCLA § 104(d)(1)(A).

97. Id. § 9604(d)(1), ELR STAT. CERCLA § 104(d)(1). EPA has published regulations governing cooperative agreements under CERCLA. 40 C.F.R. pt. 35, subpt. O (1996).

98. 40 C.F.R. § 300.515(e)(1) (1996).

99. Id.

100. Ohio v. EPA, 997 F.2d 1520, 1540, 23 ELR 21157, 21167 (D.C. Cir. 1993).

101. Id.

102. Id. at 1540-43, 23 ELR at 21167-68.

103. Id. at 1541-42, 23 ELR at 21167.

104. 42 U.S.C. § 9621(d)(2)(A), ELR STAT. CERCLA § 121(d)(2)(A).

105. See supra note 92 and accompanying text.

106. 42 U.S.C. § 9621(f)(2), ELR STAT. CERCLA § 121(f)(2).

107. Id. § 9621(f)(1), ELR STAT. CERCLA § 121(f)(1).

108. Id.

109. Id. § 9621(f)(2), ELR STAT. CERCLA § 121(f)(2).

110. Id. § 9604(c)(3)(C)(i), ELR STAT. CERCLA § 104(c)(3)(C)(i).

111. Id. § 9604(c)(3)(C)(ii), ELR STAT. CERCLA § 104(c)(3)(C)(ii).

112. Id. § 9617(a), ELR STAT. CERCLA § 117(a).

113. Supra note 84. Community acceptance is the last of nine factors that EPA must consider under the NCP. Id.

114. 42 U.S.C. § 9617(e), ELR STAT. CERCLA § 117(e).

115. Id. § 9617(e)(2), ELR STAT. CERCLA § 117(e)(2). EPA has published regulations governing the award of TAGs. 40 C.F.R. pt. 35, subpt. M (1996).

116. 42 U.S.C. § 9601(16), ELR STAT. CERCLA § 101(16).

117. See Artesian Water Co. v. New Castle County, 851 F.2d 643, 649, 18 ELR 21012, 21014 (3d Cir. 1988).

118. 42 U.S.C. § 9607(a)(4)(C), ELR STAT. CERCLA § 107(a)(4)(C).

119. See supra text accompanying note 9.

120. See supra text accompanying notes 25-36.

121. Cf. supra note 23 and accompanying text.

122. 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA § 107(f)(1); see In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution, 716 F. Supp. 676, 19 ELR 21471 (D. Mass. 1989) (interpreting the "wholly before enactment" language).

123. 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA § 107(f)(1). For this defense to apply, the EIS must contain a "clear and unambiguous" statement committing the resources, although the exact words of the statute need not be recited. Idaho v. Hanna Mining Co., 882 F.2d 392, 396, 19 ELR 21358, 21360 (9th Cir. 1989).

124. 42 U.S.C. § 9607(c)(1)(D), ELR STAT. CERCLA § 107(c)(1)(D); see California v. Montrose Chem. Corp., 104 F.3d 1507, 1518-21 (9th Cir. 1997) (rejecting arguments that the $ 50 million cap on damages for releases from facilities applies on a per-site basis). The cap for releases from various types of vessels, motor vehicles, aircraft, rolling stock, and pipelines ranges from $ 300 per gross ton to $ 50 million. 42 U.S.C. § 9607(c)(1)(A)-(D), ELR STAT. CERCLA § 107(c)(1)(A)-(D).

125. 42 U.S.C. § 9607(c)(2), ELR STAT. CERCLA § 107(c)(2).

126. Id. § 6913(g)(1), ELR STAT. CERCLA § 113(g)(1). These provisions are far from clear. See discussion infra text accompanying notes 376-78.

127. 42 U.S.C. § 6913(g)(1), ELR STAT. CERCLA § 113(g)(1).

128. For a discussion of the history of the DOI natural resource damage regulations, see infra note 377.

129. DOI, Natural Resource Damage Assessments, 59 Fed. Reg. 14262 (Mar. 25, 1994); 43 C.F.R. pt. 11 (1996); see Kennecott Utah Copper Corp. v. U.S. Dep't of the Interior, 88 F.3d 1191, 26 ELR 21489 (D.C. Cir. 1996) (largely upholding these regulations).

130. DOI, Natural Resource Damage Assessments—Type A Procedures, 61 Fed. Reg. 20560 (May 7, 1996).

131. 42 U.S.C. § 9607(f)(2)(C), ELR STAT. CERCLA § 107(f)(2)(C); see generally Mark Menefee, Recovery for Natural Resource Damages Under Superfund: The Role of the Rebuttable Presumption, 12 ELR 15057 (Nov. 1982).

132. E.g., Superfund Reassessment and Reauthorization: Hearings Before the Subcomm. on Superfund, Waste Control, and Risk Assessment of the Senate Comm. on Environment and Public Works, 104th Cong., 1st Sess., pt. 1, at 77 (1995) [hereinafter Environment Comm. Hearings on Superfund Reassessment and Reauthorization] (statement of Don R. Clay, former EPA Assistant Administrator for Solid Waste and Emergency Response). Even EPA Administrator Carol Browner, during congressional testimony given on October 26, 1995, stated that she came to EPA "believing that Superfund was broken." Reform of Superfund Act of 1995: Hearings on H.R. 2500 Before the Subcomm. on Commerce, Trade, and Hazardous Materials of the House Comm. on Energy and Commerce, 104th Cong., 1st Sess. 150 (1995) [hereinafter Commerce Comm. Hearings on H.R. 2500] (statement of Carol M. Browner, EPA Administrator).

133. Although this statistic is extremely misleading, as shall be explained shortly, it (or some variation thereof) has been repeated so often that it has taken on a life of its own. See, e.g., Rep. Michael Oxley, Byzantine Liability, Exorbitant Cost: Rep. Mike Oxley On Why the Superfund Program Is an "Abject Failure," ROLL CALL, Feb. 26, 1996, at 12; Gary Lee, GOP Pushes Superfund Rewrite, WASH. POST, Oct. 27, 1995, at A9; Margaret Kriz, The Superfund Saga, 27 NAT'L J., 2592, 2593 (1995); SENATE COMM. ON ENVIRONMENT AND PUBLIC WORKS, SUPERFUND REFORM ACT OF 1994, S. REP. NO. 349, 103d Cong., 2d Sess. 136 (1994) [hereinafter S. REP. NO. 349] (minority views of Senators Simpson, Smith, Faircloth, and Kempthorne); James M. Strock, Wizards of Ooze, POLICY REV., Winter 1994, at 42; J. Winston Porter, Let States Clean Up Superfund's Mess, N.Y. TIMES, Feb. 6, 1994, § 3, at 15; MARTIN J. GROSS, GOVERNMENT RACKET: WASHINGTON WASTE FROM A TO Z 221 (1992).

134. Oxley, supra note 133, at 12; S. REP. NO. 349, supra note 133, at 136 (minority views of Senators Simpson, Smith, Faircloth, and Kempthorne).

135. In his 1993 State of the Union Address, President Clinton declared that "I'd like to use that Superfund to clean up pollution for a change and not just pay lawyers." 29 WKLY. COMP. PRES. DOC. 215, 221 (1993); see also Oxley, supra note 133, at 12 ("Joint and several liability [under CERCLA] has turned into a 'Lawyers Full Employment Act.'").

136. Commerce Comm. Hearings on H.R. 2500, supra note 132, at 98 (statement of Rep. William H. Zeliff, Jr.).

137. Environment Comm. Hearings on Superfund Reassessment and Reauthorization, supra note 132, pt. 2, at 2 (statement of Sen. Robert Smith).

138. Many of the following points have been made before, though several years ago and in a somewhat different context. See Charles de Saillan, In Praise of Superfund, ENVIRONMENT, Oct. 1993, at 42.

139. INTERNATIONAL THESAURUS OF QUOTATIONS 656 (1996). Actually, Mark Twain attributed this quote to Benjamin Disraeli. THE AUTOBIOGRAPHY OF MARK TWAIN 149 (Charles Neider ed., Harper Perennial 1990).

140. EPA estimates that 85 percent of the NPL sites have contaminated groundwater. Environment Comm. Hearings on Superfund Reassessment and Reauthorization, supra note 132, pt. 1, at 480 (statement of Elliott Laws, EPA Assistant Administrator for Solid Waste and Emergency Response).

141. NATIONAL RESEARCH COUNCIL, ALTERNATIVES FOR GROUNDWATER CLEANUP 104 (1994) ("Theoretical cleanup times range from years to centuries or more, depending on contaminant and geologic characteristics"); C.W. FETTER, APPLIED HYDROGEOLOGY 487 (3d ed. 1994) (methods for restoring contaminated groundwater are "time-consuming").

142. EPA, END OF YEAR FY96 SUPERFUND HISTORICAL PERFORMANCE (forthcoming).

143. Superfund Reauthorization: Hearings Before the Subcomm. on Superfund, Recycling, and Solid Waste Management of the Senate Comm. on Environment and Public Works, 103d Cong., 1st Sess. 180 (1993) [hereinafter Environment Comm. Hearings on Superfund Reauthorization] (statement of Carol M. Browner, EPA Administrator).

144. See supra note 142.

145. For a thorough discussion of the advantages of the CERCLA liability scheme in the context of Superfund reauthorization, see Lois J. Schiffer, Keep Superfund Liability Intact, ENVTL. F., Sept./Oct. 1995, at 24.

146. Environment Comm. Hearings on Superfund Reauthorization, supra note 143, at 181 (statement of Carol M. Browner, EPA Administrator).

147. Telephone Interview with V. Ann Strickland, former associate, Jones, Day, Reavis & Pogue (Jan. 13, 1997).

148. See supra note 8.

149. See sources cited supra note 4. Such news stories are no longer commonplace.

150. JOHN PAUL ACTON & LLOYD S. DIXON, RAND INSTITUTE FOR CIVIL JUSTICE, SUPERFUND AND TRANSACTION COSTS: THE EXPERIENCES OF INSURERS AND VERY LARGE INDUSTRIAL FIRMS 33 (1992).

151. LLOYD S. DIXON ET AL., RAND INSTITUTE FOR CIVIL JUSTICE, PRIVATE-SECTOR CLEANUP EXPENDITURES AND TRANSACTION COSTS AT 18 SUPERFUND SITES 45 (1994).

152. Id.

153. ACTON & DIXON, supra note 150, at 52.

154. Id. at 57-58.

155. Id. at 58.

156. See Steven A. Herman, Superfund Administrative Reforms Will Result in Faster Cleanup, More Effective Program, NAT'L ENVTL. ENFORCEMENT J., Mar. 1995, at 11; EPA, SUPERFUND ADMINISTRATIVE REFORMS: ANNUAL REPORT FISCAL YEAR 1996 (Dec. 1996) [hereinafter SUPERFUND ADMINISTRATIVE REFORMS 1996 REPORT]; EPA, SUPERFUND ADMINISTRATIVE IMPROVEMENTS CLOSEOUT REPORT: JUNE 23, 1993—SEPTEMBER 30, 1994 (Feb. 1995).

157. EPA, Guidance on the Implementation of the Superfund Accelerated Cleanup Model Under CERCLA and the NCP (OSWER Directive No. 9203.-03 July 7, 1992), ELR ADMIN. MAT. I 35493.

158. Compare 40 C.F.R. §§ 300.410-415 (1996) (NCP procedures for removal actions) with id. §§ 300.420-.435 (NCP procedures for remedial actions).

159. EPA, Presumptive Remedies: Policies and Procedures (OSWER Directive No. 9355.0-47FS) (Sept. 1993) (available from the ELR Document Service, ELR Order No. AD-141); EPA, Presumptive Remedies for VOC's in Soils (OSWER Directive No. 9355.0-48FS) (1993); EPA, Presumptive Remedy for CERCLA Municipal Landfill Sites (OSWER Directive No. 9355.0-49FS) (Sept. 1993) (available from the ELR Document Service, ELR Order No. AD-143).

160. EPA, Presumptive Remedies: Policy and Procedures, supra note 159, at 1.

161. Michael W. Steinberg & Joshua Swift, EPA's New National Remedy Review Board Aims to Improve Superfund Decisions, [26 Current Developments] Env't Rep. (BNA) 2353 (Apr. 12, 1996).

162. Id. at 2353.

163. See supra note 44 and accompanying text.

164. Environment Comm. Hearings on Superfund Reauthorization, supra note 143, at 152 (statement of Carol M. Browner, EPA Administrator).

165. EPA, Streamlined Approach for Settlements With De Minimis Waste Contributors Under CERCLA Section 122(g)(1)(A) (OSWER Directive No. 9834.7-1D) (July 30, 1993), ELR ADMIN. MAT. I 35564, reprinted in [24 Current Developments] Env't Rep. (BNA) 17 (Nov. 12, 1993).

166. SUPERFUND ADMINISTRATIVE REFORMS 1996 REPORT, supra note 156, at vii.

167. Joan Wart Olmstead, CERCLA Settlements With De Micromis Waste Contributors, [24 Current Developments] Env't Rep. (BNA) 1939, 1940 (Mar. 11, 1994).

168. EPA & U.S. Department of Justice, Revised Guidance on CERCLA Settlements With De Micromis Waste Contributors (June 3, 1996); EPA, Guidance on CERCLA Settlements With De Micromis Waste Contributors (OSWER Directive No. 9834.17) (July 30, 1993), ELR ADMIN. MAT. I 35566.

169. See EPA, Interim Guidance on Orphan Share Compensation for Settlers of Remedial Design/Remedial Action and Non-Time Critical Removals (June 3, 1996).

170. SUPERFUND ADMINISTRATIVE REFORMS 1996 REPORT, supra note 156, at vii.

171. Id. at 35.

172. Id.

173. See supra note 29 and accompanying text.

174. For a fairly comprehensive discussion of these cases, see Edward B. Sears & Laurie P. Sears, Lender Liability Under CERCLA: Uncertain Times for Lenders, 24 ELR 10320, 10323-25 (June 1994).

175. United States v. Fleet Factors Corp., 901 F.2d 1550, 1557-58, 20 ELR 20832, 20835-36 (11th Cir. 1990), cert. denied, 498 U.S. 1046 (1991).

176. See infra text accompanying notes 183-84.

177. 57 Fed. Reg. 18344 (Apr. 29, 1992).

178. Id. at 18383.

179. Kelley v. EPA, 15 F.3d 1100, 24 ELR 20511 (D.C. Cir.), reh'g denied, 25 F.3d 1088, 24 ELR 21204 (D.C. Cir. 1994), cert. denied sub nom. American Bankers Ass'n v. Kelley, 115 S. Ct. 900 (1995).

180. EPA & U.S. Department of Justice, Policy on CERCLA Enforcement Against Lenders and Government Entities That Acquire Property Involuntarily (Sept. 22, 1995), reprinted in 60 Fed. Reg. 63517 (Dec. 11, 1995). Of course, EPA's commitment to follow the vacated rule was not binding on other parties bringing CERCLA actions, such as state cost recovery actions or private contribution actions.

181. Pub. L. No. 104-208, tit. II, subtit. E.

182. See infra text accompanying notes 217-21.

183. See generally CONGRESSIONAL OFFICE OF TECHNOLOGY ASSESSMENT, STATE OF THE STATES ON BROWNFIELDS: PROGRAMS FOR CLEANUP AND REUSE OF CONTAMINATED SITES (June 1995); GENERAL ACCOUNTING OFFICE, COMMUNITY DEVELOPMENT: REUSE OF URBAN INDUSTRIAL SITES (June 1995); Ned Abelson & Maura McCaffery, Brownfields: Recent Massachusetts and Federal Developments, [26 Current Developments] Env't Rep. (BNA) 2152 (Mar. 15, 1996); Anne Slaughter Andrew, Brownfield Redevelopment: A State-Led Reform of Superfund Liability, 10 NAT. RESOURCES & ENV'T 27 (1996).

184. CONGRESSIONAL OFFICE OF TECHNOLOGY ASSESSMENT, supra note 183, at 4.

185. Accelerated Cleanup and Environmental Restoration Act: Hearings on S. 1285 Before the Senate Comm. on Environment and Public Works, 104th Cong., 2d Sess. 398 (1996) [hereinafter Environment Comm. Hearings on S. 1285] (statement of Carol M. Browner, EPA Administrator); see also John Holusha, Cities Redeveloping Old Industrial Sites With EPA's Aid, N.Y. TIMES, Dec. 4, 1995, at A1, A10.

186. EPA, Guidance on Agreements With Prospective Purchasers of Contaminated Property (May 24, 1995), reprinted in 60 Fed. Reg. 34792 (July 3, 1995), ELR ADMIN. MAT. I 35626.

187. See Howard M. Shanker & Laurent R. Hourcle, Prospective Purchaser Agreements, 25 ELR 10035 (Jan. 1995).

188. Environment Comm. Hearings on S. 1285, supra note 185, at 397 (statement of Carol M. Browner, EPA Administrator). "CERCLIS" is the Comprehensive Environmental Response, Compensation, and Liability Information System. 40 C.F.R. § 300.5 (1996).

189. It is interesting, if not encouraging, to compare CERCLA reauthorization to the last reauthorization of the Clean Air Act. Clean Air Act reauthorization took nine years, beginning with the introduction of several bills in 1981, and culminating when President Bush signed into law the Clean Air Act Amendments of 1990. Pub. L. No. 101-549, 104 Stat. 2399.

190. Environment Comm. Hearings on Superfund Reauthorization, supra note 143; Superfund Program: Hearings Before the Subcomm. on Transportation and Hazardous Materials of the House Comm. on Commerce, 103d Cong., 1st Sess., pts. 1, 2 (1993).

191. See letter from Carol M. Browner, EPA Administrator, to Thomas S. Foley, Speaker of the House (Feb. 2, 1994) (on file with ELR); see also John H. Cushman Jr., Administration Plans Revision to Ease Toxic Cleanup Criteria, N.Y. TIMES, Jan. 31, 1994, at A1, A14.

192. The Administration's proposed legislation was based on the proposal of the National Advisory Council on Environmental Policy and Technology (NACEPT), a study group set up by the Administration and comprised of representatives from large and small businesses, federal, state, and local government, environmental groups, community groups, and the waste cleanup industry. See NACEPT, Superfund Evaluation Committee Meeting Held October 4, 1993 at the Department of Justice (Oct. 6, 1993). The Administration's proposed legislation was also influenced by the National Commission on Superfund (NCS) or Keystone Commission, a similar group set up by the Keystone Center and the Environmental Law Center of the Vermont Law School. See NCS, FINAL CONSENSUS REPORT OF THE NATIONAL COMMISSION ON SUPERFUND (Mar. 1994).

193. H.R. 3800, 103d Cong., 2d Sess. (Feb. 3, 1994).

194. S. 1834, 103d Cong., 2d Sess. (Feb. 7, 1994).

195. Superfund Program: Hearings on H.R. 3800 Before the Subcomm. on Transportation and Hazardous Materials of the House Comm. on Energy and Commerce, 103d Cong., 2d Sess., pt. 3 (1994).

196. H.R. REP. No. 582, 103d Cong., 2d Sess., pt. 1, at 166 (1994).

197. Id., pt. 2, at 131.

198. H.R. 4916, 103d Cong., 2d Sess. (Aug. 8, 1994).

199. Superfund Reform Act of 1994: Hearings on S. 1834 Before the Subcomm. on Superfund, Recycling, and Solid Waste Management of the Senate Comm. on Environment and Public Works, 103d Cong., 2d Sess. (1994) [hereinafter Environment Comm. Hearings on S. 1834].

200. S. 1834, 103d Cong., 2d Sess. (Aug. 19, 1994) (as reported, with amendment, by the Senate Committee on Environment and Public Works) [hereinafter S. 1834 (with amendment)].

201. S. REP. No. 349, 103d Cong., 2d Sess. 6 (1994).

202. S. REP. No. 389, 103d Cong., 2d Sess. (1994); H.R. REP. NO. 582, 103d Cong., 2d Sess., pt. 3 (1994).

203. John H. Cushman Jr., Congress Forgoes Its Bid to Speed Cleanup of Dumps, N.Y. TIMES, Oct. 6, 1994, at A1, A12; Gary Lee, Superfund Reform Bites the Dust, WASH. POST, Oct. 6, 1994, at A15; see generally Rena I. Steinzor, The Reauthorization of Superfund: Can the Deal of the Century Be Saved?, 25 ELR 10016 (Jan. 1995).

204. H.R. 228, 104th Cong., 1st Sess. (Jan. 4, 1995).

205. S. 1285, 104th Cong., 1st Sess. (Sept. 29, 1995).

206. H.R. 2500, 104th Cong., 1st Sess. (Oct. 18, 1995).

207. Formerly, the House Committee on Energy and Commerce.

208. Commerce Comm. Hearings on H.R. 2500, supra note 132.

209. H.R. 2500, 104th Cong., 1st Sess. (Comm. Print Nov. 21, 1995) [hereinafter H.R. 2500 (Comm. Print)].

210. Formerly, the House Committee on Transportation and Public Works.

211. H.R. 2500: Reform of Superfund Act of 1995: Hearings Before the Subcomm. on Water Resources and Environment of the House Comm. on Transportation and Infrastructure, 104th Cong., 1st Sess. (1995) [hereinafter Transportation Comm. Hearings on H.R. 2500].

212. S. 1285, 104th Cong., 2d Sess. (Amendment No. 3563) (Mar. 21, 1996) [hereinafter S. 1285 (Amendment No. 3563)].

213. Environment Comm. Hearings on S. 1285, supra note 185.

214. Shortly before this Article went to press, Sen. Trent Lott (R-Miss.) and Senators Chafee and Smith introduced the Superfund Cleanup Acceleration Act of 1997. S. 8, 105th Cong., 1st Sess. (Jan. 21, 1997).

215. See supra note 6.

216. S. 2027, 104th Cong., 2d Sess. (Aug. 2, 1996).

217. For a good analysis of the lender bill, see William W. Buzbee, CERCLA's New Safe Harbors for Banks, Lenders, and Fiduciaries, 26 ELR 10656 (Dec. 1996).

218. For a discussion of the lender liability issue, and EPA's efforts to address it, see supra text accompanying notes 173-82.

219. Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009 (1996).

220. Id. § 2502(b).

221. Id.

222. Regrettably, contrary to the plea of Rep. Sherwood Boehlert (R-N.Y.), the word "reform" seems to have "become a euphemism for rolling back environmental protections." See Rep. Sherwood Boehlert, The Moderate Approach to Environmental Reform, ROLL CALL, Feb. 26, 1996, at 7.

223. Excluding 170 pages of stricken material.

224. H.R. 2500, supra note 206, § 201. The Smith bill, as introduced, would have similarly required a 50 percent tax credit for a liable party's cleanup costs attributable to pre-1980 disposal activities. S. 1285, supra note 205, tit. IX, subtit. B. This provision was dropped from the substitute version of the bill; the substitute version would have required the Superfund to pay for a liable party's cleanup costs attributable to pre-1980 disposal activities. S. 1285 (Amendment No. 3563), supra note 212, §§ 502, 503 (proposed §§ 112(g)(2)(B), 132(l)(2)(B) of CERCLA).

225. Commerce Comm. Hearings on H.R. 2500, supra note 132, at 152, 158 (statement of Carol M. Browner, EPA Administrator). According to EPA, the reimbursement and other exemption provisions in H.R. 2500 would cost the Superfund more than $ 1 billion annually, yet EPA's entire Superfund budget for fiscal year 1995 was only $ 1.3 billion. Id. at 158.

226. In an acerbic critique of the Oxley bill, Rep. Edward J. Markey (D-Mass.) referred to the rebate proposal as "the Ed McMahon Polluters' Clearinghouse Sweepstakes." He chided that the proposal would say to liable parties, in effect: "Congratulations! You may already have won millions of dollars in fabulous cash rebates…. Soon our prize van will be on its way to your corporate headquarters with a rebate check to pay you for cleaning up sites that you polluted." Commerce Comm. Hearings on H.R. 2500, supra note 132, at 139 (statement of Rep. Edward J. Markey).

227. S. 1834 (with amendment), supra note 200, § 404(d).

228. H.R. 2500, supra note 206, § 203.

229. In New Jersey, for example, there are 51 landfills listed on the NPL that received primarily industrial waste, but that were also approved to accept municipal solid waste. Commerce Comm. Hearings on H.R. 2500, supra note 132, at 283 (statement of Richard F. Engel, New Jersey Deputy Attorney General).

230. S. 1834 (with amendment), supra note 200, § 410; H.R. 4916, supra note 198, § 414; H.R. 2500, supra note 206, § 215.

231. H.R. 2500 (Comm. Print), supra note 209, § 203.

232. In upholding the district court's assessment of a $ 3.5 million penalty against a secondary lead smelter for environmental violations, the court of appeals in United States v. ILCO, Inc., 996 F.2d 1126, 23 ELR 21437 (11th Cir. 1993), recounted the history of environmental and health problems the industry has created:

The smelters were themselves a major source of pollution; surface water run-off and process water discharged by smelters created very real health-threatening problems; on-site and off-site storage or disposition of waste became an increasing risk to the quality of life; and even the air was dangerously polluted by emissions from the smelters.

996 F.2d at 1128, 23 ELR at 21437-38.

The ILCO facility, which is an NPL site, is a particularly egregious example of environmental degradation caused by a battery recycling facility. Dr. Philip J. Landrigan of Mount Sinai Medical Center in New York, one of the governments' expert witnesses in the enforcement action against ILCO, reached the following conclusions about the facility:

I conclude on the basis of the data which I have summarized above, that substantial…environmental pollution with lead exists in and around the ILCO smelter in Leeds [, Alabama]. Contamination of air, soil and water in the surrounding community has been amply documented. In addition, increased lead absorption has been documented in children living near the plant. The pattern of increased lead absorption in these children indicates clearly that a principle source of the lead which they have absorbed is the ILCO smelter….Children who live in the vicinity of the ILCO smelter in Leeds, on the basis of the evidence presented in the health department report, must be considered to have already suffered irreversible neurological damage, as the result of the absorption of lead emitted into the surrounding environment by the plant.

Letter from Philip J. Landrigan, M.D., Mount Sinai Medical Center, to Jeremy Ray Akers, U.S. Department of Justice 5 (Mar. 8, 1988) (on file with ELR). In addition to ILCO, numerous battery recycling facilities have been listed on the NPL.

233. When Congress enacted the 1984 amendments to RCRA, it recognized the magnitude of the problem caused by improper recycling of used oil:

There is abundant evidence of harm due to improper recycling of used oil, such as incidents at Times Beach, Missouri, involving dioxin-contaminated used oil sprayed onto roads; incidents of used oil contaminated with other hazardous waste being burned in large quantities for heating purposes; and the many used oil recycling sites on the list of Superfund National Priority Sites.

H.R. CONF. REP. NO. 1133, 98th Cong., 2d Sess. 113 (1984), reprinted in 1984 U.S.C.C.A.N. 5649, 5684, and in 2 SENATE COMM. ON ENVIRONMENT AND PUBLIC WORKS, A LEGISLATIVE HISTORY OF THE SOLID WASTE DISPOSAL ACT, AS AMENDED, 102d Cong., 1st Sess. 2311, 2423 (1991).

In 1986, Dr. J. Winston Porter, then EPA Assistant Administrator, noted that "25 used oil recycling sites have been placed on the Superfund National Priorities List [which then numbered 700 sites], many of which have caused ground water contamination." Used and Recycled Oil—Pending EPA Rulemaking: Hearing Before the Subcomm. on Energy, Environment, and Safety Issues Affecting Small Business of the House Comm. on Small Business, 99th, 2d Sess. 68 (1986) (statement of J. Winston Porter, Assistant Administrator, Solid Waste and Emergency Response, EPA).

234. S. 1834, supra note 194, § 409; H.R. 3800, supra note 193, § 409; S. 1285, supra note 205, § 501; H.R. 2500, supra note 206, § 207.

235. See Randy M. Mott, Allocation Arbitration Provisions Pose New Problems, ENVTL. COUNS., Aug. 15, 1994, at 12 (concluding that "the proposed legislation [introduced by Senators Baucus and Swift] does not fix anything that is broken and will probably add to transaction costs and settlement delays").

236. Environment Comm. Hearings on S. 1834, supra note 199, at 404 (statement of Tom Udall, New Mexico Attorney General).

237. 42 U.S.C. § 9622(e), ELR STAT. CERCLA § 122(e).

238. See supra text accompanying notes 171-72.

239. SUPERFUND ADMINISTRATIVE REFORMS 1996 REPORT, supra note 156, at 36.

240. Environment Comm. Hearings on S. 1285, supra note 185, at 403-04 (statement of Carol M. Browner, EPA Administrator), 701-02 (statement of Christine O. Gregoire, Washington Attorney General).

241. S. 1285, supra note 205, § 501 (proposed § 132(c)(4) of CERCLA); H.R. 2500, supra note 206, § 207 (proposed § 128(b)(4) of CERCLA).

242. See United States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984, 995, 14 ELR 20272, 20276 (D.S.C. 1984) (apportioning the costs of cleanup is a matter "more appropriately considered in an action for contribution between responsible parties after [the government] has been made whole"), aff'd sub nom. United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989).

243. S. 1834, supra note 194, §§ 501-503; H.R. 3800, supra note 193, §§ 501-504; S. 1285, supra note 205, §§ 402-404; H.R. 2500, supra note 206, §§ 101, 102.

244. S. 1834, supra note 194, § 503; H.R. 3800, supra note 193, § 503; S. 1285, supra note 205, § 402; H.R. 2500, supra note 206, § 102. The CERCLA provision is discussed above. See supra text accompanying notes 81-82.

245. S. 1834, supra note 194, § 502; H.R. 3800, supra note 193, § 503.

246. S. 1285, supra note 205, § 402 (proposed § 121(a)(4)(E) of CERCLA) ("A remedial action that uses institutional and engineering controls shall be considered…on an equal basis with other remedial action alternatives"); H.R. 2500, supra note 206, § 102 (proposed § 121(c) of CERCLA) ("a remedial action may achieve protection of human health and the environment through…containment or other engineering controls to limit exposure").

247. E.g., CONGRESSIONAL OFFICE OF TECHNOLOGY ASSESSMENT, ARE WE CLEANING UP?: 10 SUPERFUND CASE STUDIES (1988); NATURAL RESOURCES DEFENSE COUNCIL ET AL., RIGHT TRAIN, WRONG TRACK: FAILED LEADERSHIP IN THE SUPERFUND CLEANUP PROGRAM (1988); Douglas W. Wolf, Superfund Implementation, The Polluter Must Be Made to Pay, ENVIRONMENT, Jan./Feb. 1989, at 42; Douglas Wolf & Jacqueline M. Warren, How Clean Is Clean?, ENVIRONMENT, Jan./Feb. 1988, at 3.

248. S. 1285, supra note 205, § 402 (proposed § 121(a)(1)(B)(i) of CERCLA).

249. H.R. 2500, supra note 206, § 102 (proposed § 121(b)(3), (4) of CERCLA).

250. 40 C.F.R. § 300.430(e)(2)(i)(A)(2) (1996).

251. Id. § 300.430(e)(2)(i)(A)(1) (emphasis added).

252. S. 1285, supra note 205, § 402 ("A remedial action for contaminated groundwater may include point-of-use treatment"); H.R. 2500, supra note 206, § 102 ("a remedial action may achieve protection of human health and the environment through … point-of-use treatment").

253. S. 1285, supra note 205, § 402 (proposed § 121(a)(4)(C) of CERCLA).

254. H.R. 2500, supra note 206, § 102 passim.

255. Id. § 102 (proposed § 121(f)(2) of CERCLA).

256. See supra text accompanying note 93.

257. H.R. 2500, supra note 206, § 102.

258. S. 1285, supra note 205, § 402(2).

259. GENERAL ACCOUNTING OFFICE, SUPERFUND: OPERATION AND MAINTENANCE ACTIVITIES WILL REQUIRE BILLIONS OF DOLLARS 10-11 & app. III (GAO/RCED-95-259) (1995).

260. S. 1285, supra note 205, § 404.

261. Id.

262. E.g., Environment Comm. Hearings on S. 1285, supra note 185, at 699-700 (statement of Christine O. Gregoire, Washington Attorney General).

263. S. 1285, supra note 205, § 406; H.R. 2500, supra note 206, § 115(b).

264. Environment Comm. Hearings on S. 1285, supra note 185, at 400 (statement of Carol M. Browner, EPA Administrator).

265. Commerce Comm. Hearings on H.R. 2500, supra note 132, at 157 (statement of Carol M. Browner, EPA Administrator).

266. SARA § 121(b), Pub. L. No. 99-499, 100 Stat. 1613, 1678 (1986) (SARA § 121(b) was not codified in CERCLA); see also H.R. CONF. REP. NO. 962, 99th Cong., 2d Sess. 184 (1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3277, and in 6 A LEGISLATIVE HISTORY OF SARA, supra note 38, at 4818, 5000.

267. H.R. 2500, supra note 206, § 114.

268. S. 1285, supra note 205, § 407.

269. Commerce Comm. Hearings on H.R. 2500, supra note 132, at 242 (statement of Lois J. Schiffer, Assistant Attorney General for Environment and Natural Resources).

270. S. 1285, supra note 205, § 802.

271. H.R. 2500, supra note 206, § 502(a).

272. Environment Comm. Hearing on S. 1285, supra note 185, at 705 (statement of Christine O. Gregoire, Washington Attorney General); Transportation Comm. Hearings on H.R. 2500, supra note 211, at 292 (statement of Alan C. Williams, Minnesota Assistant Attorney General); Commerce Comm. Hearings on H.R. 2500, supra note 132, at 327 (statement of Tom Udall, New Mexico Attorney General).

273. According to one study, the NPL cap would shift to the states responsibility for an estimated 1,400 to 2,300 sites, and cleanup costs estimated at $ 8.4 to $ 19.9 billion. GENERAL ACCOUNTING OFFICE, IMPACT ON STATES OF CAPPING SUPERFUND SITES (GAO/RCED-106R) (1996).

274. S. 1834, supra note 194, § 201; H.R. 3800, supra note 193, § 201; S. 1285, supra note 205, § 201; H.R. 2500, supra note 206, § 501.

275. S. 1834 (with amendment), supra note 200, § 206; H.R. 4916, supra note 198, § 207; S. 1285, supra note 205, § 601; H.R. 2500, supra note 206, § 601.

276. S. 1285, supra note 205, § 201; H.R. 2500, supra note 206, § 501.

277. E.g., Environment Comm. Hearings on S. 1285, supra note 185, at 697-98 (statement of Christine O. Gregoire, Washington Attorney General, on behalf of the National Association of Attorneys General); Transportation Comm. Hearings on H.R. 2500, supra note 211, at 297 (statement of Randolph Wood, Director, Nebraska Department of Environmental Quality, on behalf of the National Governors' Association); Commerce Comm. Hearings on H.R. 2500, supra note 132, at 32 (statement of James C. Colman, Assistant Commissioner, Massachusetts Bureau of Waste Site Cleanup, on behalf of the Association of State and Territorial Solid Waste Management Officials).

278. See supra text accompanying notes 126-27.

279. S. 1285, supra note 205, § 704(b).

280. As of June 1992—more than three years before the date the Smith bill was introduced—1,188 sites had been finally listed on the NPL. 40 C.F.R. pt. 300, app. B (1992).

281. See supra text accompanying note 124.

282. H.R. 2500, supra note 206, § 401(b)(1)(G).

283. The cap was originally proposed by Sen. Howard W. Cannon (D-Nev.) as an amendment to S. 1480, the Senate Superfund bill. He explained the purpose of the amendment by stating: "Concern has been expressed that without such liability limitations, it would be difficulty [sic], if not impossible, for potentially liable persons to obtain insurance to cover their operations." 126 CONG. REC. 27085 (1980) (statement of Sen. Cannon), reprinted in, 3 A LEGISLATIVE HISTORY OF CERCLA, supra note 8, at 184.

284. S. 1285, supra note 205, § 701(d). The Smith bill would have created a nebulous distinction between "primary restoration," which is restoration of the injured resource to its original condition, and "compensatory restoration," which is compensation for the lost use of the injured resource until restoration is complete. Id. § 701(a)(2).

285. S. 1285, supra note 205, § 701(c)(4).

286. H.R. 2500, supra note 206, § 401(c).

287. S. 1285, supra note 205, § 701(c)(3)(D) ("There shall be no recovery under this Act for any impairment of non-use values"); H.R. 2500, supra note 206, § 401(c) (proposed § 107(f)(C) of CERCLA) ("There shall be no recovery…for any impairment of nonuse values").

288. Frank B. Cross, Natural Resource Damage Valuation, 42 VAND. L. REV. 269, 315 (1989).

289. 43 C.F.R. § 11.83(c)(2)(vii) (1996).

290. See, e.g., KEVIN M. WARD & JOHN W. DUFFIELD, NATURAL RESOURCE DAMAGES: LAW AND ECONOMICS 311-50 (1992); ROBERT CAMERON MITCHELL & RICHARD T. CARSON, USING SURVEYS TO VALUE PUBLIC GOODS: THE CONTINGENT VALUATION METHOD (1989); Peter A. Diamond & Jerry A. Hausman, Contingent Valuation: Is Some Number Better Than No Number?, 8 J. ECON. PERSP. 45 (1994); Jeffrey C. Dobbins, The Pain and Suffering of Environmental Loss: Using Contingent Valuation to Estimate Nonuse Damages, 43 DUKE L.J. 879 (1994); Cross, supra note 288, at 315-21; Charles J. Ciccetti & Neil Peck, Assessing Natural Resource Damages: The Case Against Contingent Value Survey Methods, 3 NAT. RESOURCES & ENV'T 6 (1989).

291. KENNETH ARROW ET AL., REPORT OF THE NOAA PANEL ON CONTINGENT VALUATION 2 (1993), reprinted in NOAA, Advance Notice of Proposed Rulemaking, app. I, 58 Fed. Reg. 4601 (Jan. 15, 1993).

292. Id. at 42.

293. Ohio v. U.S. Dep't of the Interior, 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989) (upholding federal regulations allowing recovery for lost passive use values); Utah v. Kennecott Corp., 801 F. Supp. 553, 571, 23 ELR 20257, 20266 (D. Utah 1992) (refusing to approve a natural resource damage settlement because it did not include any consideration of lost passive use values), appeal dismissed, 14 F.3d 1489, 24 ELR 20798 (10th Cir. 1994).

294. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 23 ELR 20979 (1993). In Daubert, the Supreme Court held that scientific evidence can be admitted only if the trial court finds that it is both relevant and reliable. Under this ruling, a trial court must determine the reliability of scientific evidence by considering several factors: (1) whether the scientific methodology has been tested; (2) whether the methodology has been subjected to peer review and publication; (3) the rate of error of the methodology; and (4) the general acceptance of the methodology in the relevant scientific community. Id. at 592-95, 23 ELR at 20982.

295. S. 1285, supra note 205, § 701(c)(3)(D).

296. Id. § 701(a)(1).

297. H.R. 2500, supra note 206, § 401(a).

298. S. 1285, supra note 205, § 701(c)(3)(D); H.R. 2500, supra note 206, § 401(c).

299. H.R. 2500, supra note 206, § 401(c) (proposed § 107(f)(3)(E) of CERCLA).

300. S. 1285, supra note 205, § 702(a); H.R. 2500, supra note 206, § 401(c).

301. E.g., Environment Comm. Hearings on S. 1285, supra note 185, at 482-86 (statement of Douglas K. Hall, Assistant Secretary for Oceans and Atmosphere, U.S. Department of Commerce), 712-17 (statement of Joseph P. Mazurek, Montana Attorney General), 669-78 (statement of Michael J. Farrow, Director, Department of Natural Resources, Confederated Tribes of the Umatilla Indian Reservation); Commerce Comm. Hearings on H.R. 2500, supra note 132, at 302-09 (statement of Douglas K. Hall, Assistant Secretary for Oceans and Atmosphere, U.S. Department of Commerce), 322-26 (statement of Tom Udall, New Mexico Attorney General), 350-55 (statement of Michael J. Farrow, Director, Department of Natural Resources, Confederated Tribes of the Umatilla Indian Reservation).

302. Commerce Comm. Hearings on H.R. 2500, supra note 132, at 322 (statement of Tom Udall, New Mexico Attorney General).

303. The number of CERCLA enforcement actions EPA has initiated declined in fiscal year 1995 and the first half of fiscal year 1996. See [27 Current Developments] Env't Rep. (BNA) 632-34 (July 26, 1996); EPA, ENFORCEMENT AND COMPLIANCE ASSURANCE ACCOMPLISHMENTS REPORT: FY 1995 (July 1996).

304. See supra note 6.

305. A funding shortfall seriously disrupted the Superfund cleanup program in 1986 before Congress passed SARA. See Casey Bukro, Stalemate Stalls Toxic Clean-up, CHI. TRIB., Sept. 29, 1986, at 2. A funding shortfall disrupted the program again in 1995 and 1996 during the budget stalemate and the shutdown of the federal government. See John H. Cushman Jr., Program to Clean Toxic Waste Sites Is Left in Turmoil, N.Y. TIMES, Jan. 15, 1996, at A1, A14.

306. In 1729, Jonathan Swift published an essay entitled A Modest Proposal for Preventing the Children of Poor People in Ireland From Being a Burden to Their Parents or Country; and for Making Them Beneficial to the Publick, a biting satirical indictment of Great Britain's treatment of its Irish subjects. (Ireland was, at the time, still part of Great Britain.) THE WRITINGS OF JONATHAN SWIFT 502 (Robert A. Greenberg & William Bowman Piper eds., W.W. Norton & Co. 1973). While the title of this Article is, admittedly, a less than subtle allusion to that great work, none of Mr. Swift's irony is intended here.

307. See, e.g., Environment Comm. Hearings on S. 1285, supra note 185, at 700 (statement of Christine O. Gregoire, Washington Attorney General); Transportation Comm. Hearings on H.R. 2500, supra note 211, at 58, 282-83 (statement of Alan C. Williams, Minnesota Assistant Attorney General, on behalf of Attorney General Hubert H. Humphrey III); Environment Comm. Hearings on Superfund Reassessment and Reauthorization, pt. 2, supra note 132, at 175 (statement of R. Brian McLaughlin, New Jersey Deputy Attorney General, on behalf of Governor Christine Todd Whitman and Attorney General Deborah T. Poritz); Environment Comm. Hearings on S. 1834, supra note 199, at 356, 401-02 (statement of Tom Udall, New Mexico Attorney General); letter from Deborah T. Poritz, New Jersey Attorney General, to Sen. Robert C. Smith 1-2 (Apr. 27, 1995) (signed by 43 attorneys general), reprinted in Environment Comm. Hearings on Superfund Reassessment and Reauthorization, pt. 2, supra note 132, at 233-34 [hereinafter Poritz letter] (the signatures of the attorneys general of Idaho, Indiana, and Guam were inadvertently omitted from this copy of the letter).

308. Supra text accompanying notes 145-49.

309. Representatives of industry have also raised this issue. E.g., Environment Comm. Hearings on Superfund Reassessment and Reauthorization, supra note 132, pt. 2, at 22-23, 31, 117 (statement of Mary P. Morningstar, Assistant General Counsel, Lockheed Corp.); Ridgway M. Hall Jr., What Will Superfund Reauthorization Look Like?, [26 Current Developments] Env't Rep. (BNA) 236, 236 (May 19, 1995).

310. See Schiffer, supra note 145, at 27.

311. KATHERINE N. PROBST & PAUL R. PORTNOY, RESOURCES FOR THE FUTURE, ASSIGNING LIABILITY FOR SUPERFUND CLEANUPS: AN ANALYSIS OF POLICY OPTIONS 37 (1992).

312. E.g., Poritz letter, supra note 307, at 2.

313. Supra text accompanying note 166.

314. See supra note 44 and accompanying text.

315. E.g., United States v. Acton Corp., 733 F. Supp. 869, 20 ELR 21191 (D.N.J. 1990) (intervenors argued that the toxic effects of the waste they contributed was no greater than that contributed by the settling de minimis parties); United States v. Cannons Eng'g Corp., 720 F. Supp. 1027, 1044, 20 ELR 20159, 20165 (D. Mass. 1989) (nonsettlors argued that EPA definition of de minimis was arbitrary and unfair), aff'd, 899 F.2d 79, 20 ELR 20845 (1st Cir. 1990); United States v. Hardage, 19 Chem. Waste Litig. Rep. (Andrews) 132, 136 (W.D. Okla. Sept. 22, 1989) (nonsettlor argued that EPA failed to account for toxic effects of waste in determining de minimis qualification).

316. S. 1834, supra note 194, § 408(6); H.R. 3800, supra note 193, § 408(k); S. 1285, supra note 205, § 501 (proposed § 132(m)(1) of CERCLA); H.R. 2500, supra note 206, § 203(a).

317. For example, some 350 parties sent a total of over 20 million gallons of industrial waste to the Hardage site in Criner, Oklahoma. United States v. Hardage, 750 F. Supp. 1460, 1467, 21 ELR 20721, 20725 (W.D. Okla. 1990). If EPA had applied a 1 percent de minimis level, nearly all of the 350 liable parties at the site would have been considered de minimis. In fact, EPA entered into a de minimis settlement with 177 of the Hardage parties based on a de minimis level of 0.25 percent. United States v. Hardage, 19 Chem. Waste Litig. Rep. (Andrews) 132, 144 (W.D. Okla. Sept. 22, 1989).

318. United States v. Keystone Sanitation Co., No. 1-CV-931482 (M.D. Pa. Apr. 29, 1996) (rejecting the argument that EPA had no authority to enter into a de micromis settlement not based on the proportionate volume of waste the settling party contributed to the site).

319. The reauthorization bills introduced in the 103d Congress would have set a de micromis level of 100 pounds of solid waste or 55 gallons of liquid waste. S. 1834 (with an amendment), supra note 200, § 403(a); H.R. 4916, supra note 198, § 403(a). The bills introduced in the 104th Congress would have set a de micromis level of 200 pounds of solid waste or 110 gallons of liquid waste—twice the level of the earlier bills. S. 1285, supra note 205, § 504(b); H.R. 2500, supra note 206, § 203(a).

At many sites, 100 pounds of asbestos or 55 gallons of benzene, for example, would hardly be "miniscule." Moreover, these levels are incongruous. Assuming a density of water, 55 gallons of liquid weighs 440 pounds (most hazardous liquids have a density fairly close to that of water; petroleum-based liquids have a slightly lesser density, while chlorinated solvents have a slighter greater density). Thus, a much higher quanity of liquid hazardous waste (440 pounds) than solid hazardous waste (100 pounds) would qualify for the exemption. Yet liquid hazardous waste is likely to be much more mobile in the environment, much more bioavailable, and much more difficult and expensive to remediate.

320. EPA, Interim Policy on CERCLA Settlements Involving Municipalities or Municipal Waste 8 (OSWER Directive No. 9834.13) (Dec. 6, 1989), reprinted in 54 Fed. Reg. 51071 (Dec. 12, 1989), ELR ADMIN. MAT. I. 35225.

321. E.g., B.F. Goodrich v. Murtha, 958 F.2d 1192, 22 ELR 20683 (2d Cir. 1992).

322. 54 Fed. Reg. 51071 (Dec. 12, 1989).

323. The National Commission on Superfund recommended a 10 percent cap on liability for municipal solid waste. NCS, supra note 192, at 19. Each of the reauthorization bills adopted this recommendation. S. 1834, supra note 194, § 403(a); H.R. 3800, supra note 193, § 403(a); S. 1285 (Amendment No. 3563), supra note 212, § 501(a); H.R. 2500, supra note 206, § 203(a) (proposed § 107(n)(7) of CERCLA).

324. For example, the definition of "municipal solid waste" in S. 1834, supra note 194, § 605, was criticized as overly broad. Environment Comm. Hearings on S. 1834, supra note 199, at 403 (statement of Tom Udall, New Mexico Attorney General).

325. See supra note 46 and accompanying text.

326. As discussed previously, the Smith and Oxley bills would have required the allocation to be completed before an enforcement action to require cleanup could commence. Supra notes 241-42 and accompanying text.

327. Supra note 52.

328. As explained by then Assistant Attorney General for Land and Natural Resources Henry Habicht, the Department of Justice "has consistently taken the position that under our constitutional scheme, disputes of a legal nature between two or more executive branch agencies whose heads serve at the pleasure of the President are properly resolved by the President or by someone with authority delegated by the President." Environmental Compliance by Federal Agencies: Hearings Before the Subcomm. on Oversight and Investigations of the House Comm. on Energy and Commerce, 100th Cong., 1st Sess. 206 (1987) (statement of F. Henry Habicht II, Assistant Attorney General for Land and Natural Resources); see also Maine v. U.S. Dep't of the Navy, 702 F. Supp. 322, 338 n.8, 19 ELR 20614, 20617 n.8 (D. Me. 1988) (noting that attorneys for the United States argued that EPA had no authority to bring an action against the Navy), vacated & remanded, 973 F.2d 1007, 23 ELR 20211 (1st Cir. 1992). See generally Michael W. Steinberg, Can EPA Sue Other Federal Agencies?, 17 ECOLOGY L.Q. 317, 325-31 (1990).

329. As the district court observed in ruling on the cleanup of the Rocky Mountain Arsenal:

The Army … seeks full and unbridled discretion, subject only to E.P.A.'s input through the same attorneys who represent the Army, to regulate the Basin F cleanup, a process that has been ongoing for more than five years and is still nowhere near completion or resolution…. Having the State actively involved as a party would guarantee the salutary effect of a truly adversary proceeding that would be more likely, in the long run, to achieve a thorough cleanup.

Colorado v. U.S. Dep't of the Army, 707 F. Supp. 1562, 1570, 19 ELR 20815, 20819 (D. Colo. 1989).

330. U.S. Dep't of Energy v. Ohio, 503 U.S. 607, 615, 22 ELR 20804, 20805 (1992).

331. 503 U.S. 607, 22 ELR 20804 (1992).

332. Id. at 615-28, 22 ELR at 20805-09.

333. In response, Congress enacted the Federal Facility Compliance Act of 1992. Pub. L. No. 102-386, 106 Stat. 1505. Congress intended the legislation to "reaffirm the original intent of Congress that each department, agency, and instrumentality of the United States be subject to all the provisions of federal, state, interstate, and local solid waste and hazardous waste laws and regulations." H.R. CONF. REP. NO. 886, 102d Cong., 2d Sess. 18 (1992), reprinted in 1992 U.S.C.C.A.N. 1317, 1318. Further, Congress expressly stated that "this amendment overrules the Supreme Court holding in U.S. Department of Energy v. Ohio." Id.

334. Rospatch Jessco Corp. v. Chrysler Corp., 829 F. Supp. 224 (W.D. Mich. 1993); Redland Soccer Club v. U.S. Dep't of the Army, 801 F. Supp. 1432 (M.D. Pa. 1992), aff'd in part, rev'd in part on other grounds, 55 F.3d 827, 25 ELR 21026 (3d Cir. 1995), cert. denied, 116 S. Ct. 772 (1996).

335. 132 CONG. REC. 28414 (1986) (statement of Sen. Stafford), reprinted in 6 A LEGISLATIVE HISTORY OF SARA, supra note 38, at 5177.

336. See United States v. Nordic Village, Inc., 503 U.S. 30, 45 (1992) (Stevens, J. dissenting) ("The Court's stubborn insistence on 'clear statements' burdens the Congress with unnecessary reenactment of provisions that were already plain enough when read literally.").

337. Supra note 333.

338. See, e.g., Stephen Merrill Smith, CERCLA Compliance With RCRA: The Labyrinth, 18 ELR 10518 (Dec. 1988).

339. The National Commission on Superfund adopted a similar recommendation. NCS, supra note 192, at 7.

340. See supra note 92.

341. For example, § 3006(b) of RCRA provides that a state may obtain authorization to administer and enforce its own hazardous waste program in lieu of the federal program if such state program is "equivalent" to the federal program. 42 U.S.C. § 6926(b), ELR STAT. RCRA § 3006(b). The implementing regulations provide that "nothing … precludes a State from adopting or enforcing requirements which are more stringent or more extensive than those required under" RCRA. 40 C.F.R. § 271.1(i) (1996). Similarly, § 402(b) of the Clean Water Act provides that a state may administer its own permit program for discharges of pollutants into navigable waters in lieu of the federal program. 33 U.S.C. § 1342(b), ELR STAT. FWPCA § 402(b). The implementing regulations likewise allow a state to adopt and enforce more stringent or more extensive requirements. 40 C.F.R. § 123.1(i) (1996).

342. See infra notes 360-69 and accompanying text.

343. See Environment Comm. Hearings on Superfund Reauthorization, supra note 143, at 408-09 (statement of Linda E. Greer, Senior Scientist, Natural Resources Defense Council) (describing recent problems with containment remedies).

344. Environment Comm. Hearings on S. 1285, supra note 185, at 424 (responses by Carol M. Browner, EPA Administrator).

345. Id. at 477-78 (statement of Richard C. Fortuna, Executive Director, Hazardous Waste Treatment Council).

346. NCP Preamble, 55 Fed. Reg. 8666, 8710 (Mar. 8, 1990); EPA, Land Use in the CERCLA Remedy Selection Process (OSWER Directive No. 9355.7-04) (May 25, 1995).

347. S. 1834, supra note 194, § 503; H.R. 3800, supra note 193, § 503; S. 1285, supra note 205, § 403; H.R. 2500, supra note 206, § 102.

348. Basing remedy decisions on expectations of probable future land use raises a number of difficult issues. For a thoughtful discussion of some of these issues, see George Wyeth, Land Use and Cleanups: Beyond the Rhetoric, 26 ELR 10358 (July 1996); see also Karen Florini, Hard Questions Must Be Asked—and Answered, ENVTL. F., Nov./Dec. 1993, at 37.

349. See Wyeth, supra note 348, at 10361.

350. United States v. Hooker Chems. & Plastics Corp., 722 F. Supp. 960, 961-62, 20 ELR 20354, 20354-55 (W.D.N.Y. 1989).

351. Wyeth, supra, note 348, at 10361.

352. NCP Preamble, 55 Fed. Reg. 8666, 8706 (Mar. 8, 1990).

353. David F. Coursen, Institutional Controls at Superfund Sites, 23 ELR 10279 (May 1993).

354. Environment Comm. Hearings on Superfund Reauthorization, supra note 143, at 354 (statement of Alan C. Williams, Minnesota Assistant Attorney General).

355. S. 1834 (with amendment), supra note 200, § 503 (proposed § 121(b)(4) of CERCLA); H.R. 4916, supra note 198, § 506; H.R. 2500, supra note 206, § 113.

356. Supra note 255.

357. See supra notes 80 and 84 and accompanying text.

358. See Michael S. Baram, Cost-Benefit Analysis: An Inadequate Basis for Health, Safety, and Environmental Regulatory Decisionmaking, 8 ECOLOGY L.Q. 473, 481-92 (1980).

359. See supra note 266 and accompanying text.

360. Supra text accompanying note 94.

361. EPA & ASSOCIATION OF STATE AND TERRITORIAL SOLID WASTE MANAGEMENT OFFICIALS, A REPORT ON STATE/TERRITORY NON-NPL HAZARDOUS WASTE SITE CLEANUP EFFORTS FOR THE PERIOD 1980-1992, at 11-12 (1994).

362. See Association of State and Territorial Solid Waste Management Officials, Comprehensive Cleanup Program—State Authorization Delegation (Jan. 24, 1994) [hereinafter ASTSWMO Cleanup Program], reprinted in Environment Comm. Hearings on S. 1285, supra note 185, at 661.

363. S. 1285, supra note 205, § 201(a); H.R. 2500, supra note 206, § 501(a).

364. S. 1834, supra note 194, § 201(a); H.R. 3800, supra note 193, § 201(a).

365. 42 U.S.C. § 6926(b), ELR STAT. RCRA § 3006(b); 33 U.S.C. § 1342(b), ELR STAT. FWPCA § 402(b).

366. See ASTSWMO Cleanup Program, supra note 362, at 665-66.

367. S. 1834 (with amendment), supra note 200, § 201(a); H.R. 4916, supra note 198, § 201; S. 1285, supra note 205, § 201(a); H.R. 2500, supra note 206, § 501(a).

368. The Oxley bill would have deemed such a state to be qualified to implement the CERCLA cleanup program. H.R. 2500, supra note 206, § 501(a).

369. See Environment Comm. Hearings on Superfund Reauthorization, supra note 143, at 266 (statement of Thomas C. Jorling, Commissioner, New York State Department of Environmental Conservation).

370. S. 1834, supra note 194, §§ 101-105; H.R. 3800, supra note 193, §§ 101-105; S. 1285, supra note 205, § 101; H.R. 2500, supra note 206, §§ 103-104.

371. The National Commission on Superfund recommended the establishment of community working groups. NCS, supra note 192, at 28-30. Each of the reauthorization bills adopted this recommendation and provided for some form of community working group or community assistance group. S. 1834, supra note 194, § 103; H.R. 3800, supra note 193, § 103; S. 1285, supra note 205, § 101(a); H.R. 2500, supra note 205, § 104.

372. The National Commission on Superfund developed detailed recommendations for expanding TAG grants. NCS, supra note 192, at 31-33. Again, each of the reauthorization bills contained a provision to expand the TAG grant program. S. 1834, supra note 194, § 102(b); H.R. 3800, supra note 193, § 102(b); S. 1285, supra note 205, § 101(a); H.R. 2500, supra note 206, § 103.

373. Environment Comm. Hearings on Superfund Reassessment and Reauthorization, supra note 132, pt. 2, at 821 (statement of Kevin L. McKnight, Aluminum Co. of America) ("There is … good reason to regard [natural resource damage] liability as an awakening 'sleeping giant.'").

374. See Superfund Reauthorization: Hearings Before the Subcomm. on Water Resources and Environment of the Comm. on Transportation and Infrastructure, 104th Cong., 1st Sess. 979 (1995) (statement of Douglas K. Hall, Assistant Secretary for Oceans and Atmosphere, U.S. Department of Commerce). As Mr. Hall stated, "Less than 5 percent of the sites on the [NPL] have required compensation for natural resource injuries in addition to remediation. The compensation for natural resource damage[s] at all NPL remedial sites has been less than 1 percent of the cost of remediation." Id.

375. GENERAL ACCOUNTING OFFICE, SUPERFUND: OUTLOOK FOR AND EXPERIENCE WITH NATURAL RESOURCE DAMAGE SETTLEMENTS 1 (GAO/RCED-96-71) (1996).

376. See, e.g., United States v. Montrose Chem. Corp., 883 F. Supp. 1396, 25 ELR 20809 (E.D. Cal. 1995) (declining to follow the recommendations of the special master and holding that the trustees had "discovered" the loss and its connection to the release of hazardous substances more than three years before filing the lawsuit), rev'd on other grounds sub nom. California v. Montrose Chem. Corp., 104 F.3d 1507 (9th Cir. 1997).

377. Section 301(c)(2) of CERCLA as enacted in 1980 requires the DOI to promulgate two types of regulations: (A) "standard procedures for simplified assessments requiring minimal field observation" ("Type A" procedures); and (B) "alternative protocols for conducting assessments in individual cases" ("Type B" procedures). 42 U.S.C. § 9651(c)(2), ELR STAT. CERCLA § 301(c)(2).

The DOI promulgated Type B regulations in August 1986 and Type A regulations for coastal and marine environments in March 1987. 51 Fed. Reg. 27674 (Aug. 1, 1986) (Type B regulations); 52 Fed. Reg. 9042 (Mar. 20, 1987) (Type A regulations). These regulations were challenged by states, environmental organizations, and industry, and were found by the D.C. Circuit to be legally defective in several respects. Ohio v. U.S. Dep't of the Interior, 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989) (Type B regulations); Colorado v. U.S. Dep't of the Interior, 880 F.2d 481, 19 ELR 21127 (D.C. Cir. 1989) (Type A regulations).

The DOI promulgated revised Type B regulations to conform to the Ohio decision in March 1994. 59 Fed. Reg. 14262 (Mar. 25, 1994); 43 C.F.R. pt. 11 (1996). These revised regulations were also challenged by industry, and were upheld in nearly all respects by the D.C. Circuit. Kennecott Utah Copper Corp. v. U.S. Dep't of the Interior, 88 F.3d 1191, 26 ELR 21489 (D.C. Cir. 1996). The DOI promulgated final Type A regulations to conform to the Colorado decision in May 1996, but only for coastal and marine environments. 61 Fed. Reg. 20560 (May 7, 1996).

378. Kennecott Utah Copper Corp. v. U.S. Dep't of the Interior, 88 F.3d 1191, 1209-13, 26 ELR 21489, 21495-97 (D.C. Cir. 1996) (the regulatory prong began to run when the DOI promulgated the Type A regulations in 1987); United States v. Seattle, 33 Env't Rep. Cas. (BNA) 1549 (W.D. Wash. Jan. 23, 1991) (same); United States v. Montrose Chem. Corp., 883 F. Supp. 1396, 25 ELR 20809 (E.D. Cal. 1995) (the regulatory prong began to run when the original Type B regulations were promulgated in August 1986), rev'd sub nom. California v. Montrose Chem. Corp., 104 F.3d 1507 (9th Cir. 1997); Idaho v. M.A. Hanna Co., No. 83-4179, slip op. at 8-9 (D. Idaho July 17, 1995) (the regulatory prong will not begin to run until Type A regulations for rivers, streams, and mountains are promulgated).

379. See United States v. Hardage, 663 F. Supp. 1280, 1283, 17 ELR 20741, 20741 (W.D. Okla. 1987). The Hardage court "strongly admonished the government" for having brought an action for injunctive relief under CERCLA that was "premature and violated Rule 11, Fed. R. Civ. P." because the government "was unable to articulate the nature of the relief it sought." Id.

380. Pub. L. No. 101-380, 104 Stat. 484.

381. S. REP. NO. 94, 101st Cong., 1st Sess. 16 (1989), reprinted in 1990 U.S.C.C.A.N. 722, 738; H.R. REP. NO. 242, 101st Cong., 1st Sess., pt. 1, at 14 (1989). (House Report No. 242 is not reprinted in U.S.C.C.A.N.)

382. H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 23, 121 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 799.

383. 33 U.S.C. § 2717(f)(1)(B), ELR STAT. OPA § 1017(f)(1)(B).

384. Such a statute of limitations would not create any incentive for trustees to delay preparation of a damage assessment in order to postpone the running of the limitation period. Trustees have a strong interest in expeditiously pursuing their natural resource damage claims and obtaining restoration of injured resources or compensation for the injuries. Completion of a damage assessment is an essential step in pursuing such a claim.

385. 5 U.S.C. § 706(2)(A), available in ELR STAT. ADMIN. PROC.

386. 42 U.S.C. § 9613(j), ELR STAT. CERCLA § 113(j).

387. This issue is currently before the district court in United States v. ASARCO, Inc., No. CV 96-0122-N-EJL (D. Idaho motion on standard and scope of review filed Oct. 4, 1996).

388. See United States v. Hardage, 750 F. Supp. 1460, 1462, 21 ELR 20721, 20722 (W.D. Okla. 1989) (after having ruled that the remedy selected by EPA for the cleanup of the Royal Hardage Superfund site would be reviewed de novo, the court was presented with "competing remedies" each supported by dozens of opposing expert witnesses), aff'd in part, rev'd in part on other grounds, 982 F.2d 1436, 23 ELR 20624 (10th Cir. 1992), cert. denied sub nom. Advance Chem. Co. v. United States, 510 U.S. 913 (1993).

389. See Letter from Dr. John W. Farrington, Woods Hole Oceanographic Institute, to Dr. Frank Press, National Academy of Sciences (July 10, 1989) [hereinafter Farrington letter], reprinted in Environment Comm. Hearings on S. 1834, supra note 199, at 427. Dr. Farrington worked on natural resources restoration planning following the Exxon Valdez oil spill. In his letter, he laments the "nondisclosure instructions" from the attorneys handling the litigation, which he asserts reduced the effectiveness of scientific research. Farrington letter, supra, at 2.

390. For a good discussion of this issue, see NOAA Notice of Proposed Rulemaking, 57 Fed. Reg. 8964, 8987-88 (app. III—Judicial Review of the Assessment/Restoration Process) (Mar. 13, 1992).

391. The Administration recently proposed such an approach. Letter from Edward B. Cohen, Deputy Solicitor, U.S. Department of the Interior, and Douglas K. Hall, Assistant Secretary for Oceans and Atmosphere, U.S. Department of Commerce, to Sen. Max Baucus (Oct. 7, 1996) (on file with ELR).

392. 42 U.S.C. § 9611(c)(1), (2), ELR STAT. CERCLA § 111(c)(1), (2).

393. 26 U.S.C. § 9507(c)(1).

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