27 ELR 10357 | Environmental Law Reporter | copyright © 1997 | All rights reserved

A Shorter, Simpler Approach to Superfund Reauthorization

Charles Openchowski

Mr. Openchowski is a senior attorney in the Office of General Counsel at the U.S. Environmental Protection Agency. His first ELR Dialogue concerning Superfund, entitled "Bankruptcy Is Not an Answer: A Rebuttal," was published in 1985 (15 ELR 10314). The views expressed in this Dialogue are those of the author and do not represent the views of any federal agency or department.

[27 ELR 10357]

Since its creation in 1980, the Superfund program has overcome a number of obstacles. It survived embarrassing political scandals in its first few years. It endured a failure to reauthorize the underlying statute1 in 1985, a lapse that led to widespread disruptions at the U.S. Environmental Protection Agency (EPA) and set the program back significantly. It has persevered in the face of attacks from many sides. Some have complained that the remedies selected are unnecessarily expensive, while others have claimed that cleanups are inadequate to protect nearby communities and natural resources. Some have complained that the liability scheme is too draconian and unfair, while others have accused the Agency of handing out sweetheart deals. And the program has continued to address contaminated sites, despite the failure of recent attempts to reauthorize and revise the statute.

In 1990, Congress passed a four-year, straight-line extension of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) without any real discussion. Two major legislative accomplishments—the Clean Air Act amendments and the Oil Pollution Act—dominated the environmental agenda that year and left no appetite to take on complicated, highly charged issues raised by the multibillion dollar federal cleanup effort. There was no desire to engage in a bruising fight like the first reauthorization process that eventually resulted in the Superfund Amendments and Reauthorization Act of 1986 (SARA), or to risk derailing the program for a second time. The debate was postponed.

In 1993, the prospects for successful legislative accomplishments increased as the same political party controlled the White House and Congress for the first time in a dozen years. Several environmental laws—including the Safe Drinking Water Act, the Federal Water Pollution Control Act (FWPCA), and CERCLA—competed for Congress' attention. To facilitate Superfund reauthorization, two separate, somewhat parallel efforts were undertaken to develop an acceptable bill. The objective was to deliver a widely supported piece of legislation, one that would be easy for Congress to pass and for the President to sign into law. Substantial efforts by the Keystone Commission and the Administration's National Advisory Council on Environmental Policy and Technology sought to achieve a broad consensus among disparate stakeholders interested in making changes to the federal cleanup program. Representatives from trade associations, individual companies, state and local governments, public interest groups, and community organizations worked for two years to forge a compromise. It was embodied in the Superfund Reform Act of 1994.2 But in the end, time ran out on the bill in the 103d Congress.

The 104th Congress brought new political dynamics into play. While Superfund reauthorization packages were introduced in both houses,3 the Administration opposed a number of their fundamental components. The bills never came up for a vote. CERCLA authorization lapsed on September 30, 1995. The Superfund tax was not renewed when it expired on December 31, 1996. It is against this background that the 105th Congress and the Clinton Administration will proceed to address CERCLA reauthorization during the next two years.

A Realistic Scope for "Comprehensive Reform"

For several years now, the phrase "comprehensive reform" has been used in close association with CERCLA reauthorization. The bills introduced over the past few years to achieve reform have been long and complicated. Perhaps more than they need to be. While it is true that there are a number of problems with the current Superfund statute and the way it is implemented, not all of the solutions need to be addressed in the same place at the same time. Some important aspects of this multibillion dollar program that do require legislative attention and refinement include the liability framework, the remedy selection process, andthe role of states and communities in the cleanup process. Many other parts of the statute and program, however, do not need legislative intervention or ratification.

Webster's dictionary defines "comprehensive" as "broad in scope" and "marked by or showing extensive understanding."4 The scope of a reauthorization bill can be broad without getting bogged down in details best left to administrative reforms, some of which have already been initiated.5 The bill can reflect a great deal of understanding by not attempting to solve every problem related to CERCLA, especially controversial issues that can be dealt with in separate legislation and that are not directly related to protection of human health and the environment.

For example, previous reauthorization discussions have explored various financial mechanisms to reduce the huge transaction costs associated with litigation over insurance policy coverage for cleanup liabilities. It would be more [27 ELR 10358] appropriate, however, to keep that effort on a separate track. The issues are largely driven by privately established contractual expectations and arrangements designed to apportion various financial risks (environmental cleanup being only one of those). The knowledgeable congressional committees and the legal concepts needed to address these issues are different from the ones needed to address environmentally oriented matters related to site remediation. While the transaction costs related to insurance litigation do arise as an indirect result of the Superfund program, they are not inextricably linked to CERCLA's objectives. A solution to such costs would not necessarily translate into quicker, more effective cleanup. They do not need to be part of the calculus for reform.

A great deal of comprehensive reform can be achieved by providing straightforward national policy direction on a few matters of the most concern. In particular, the statute could benefit from a set of clearly articulated, internally consistent policy goals. At present, CERCLA contains a number of "mixed signals" left over from unresolved policy disputes that occurred during the last major reauthorization effort in the mid-1980s. For over 10 years, some of these inconsistencies have whipsawed EPA. They also have provided a bountiful source for criticism and complaints on all sides. Although they do not explain all of the shortcomings in the program's history, they have been a major contributing factor to the disappointment frequently expressed about the law's implementation.

One example of CERCLA's mixed signals involves cost recovery. The statute creates a trust fund6 to ensure adequate resources for cleanup if the potentially responsible parties (PRPs) fail to undertake remediation efforts. A trust fund approach requires EPA and the U.S. Department of Justice to attempt to obtain full cost recovery whenever possible. That is certainly consistent with the views of EPA's Inspector General and the General Accounting Office. Their past audits and investigations have criticized the Agency for failing to achieve full cost recovery against the PRPs when trust fund money has been spent. Criticism has highlighted the inadequacy of EPA's indirect cost accounting practices and has uncovered a pattern of allowing some cost recovery claims against the PRPs to go uncollected. At the same time, however, EPA has come under heavy fire from some members of Congress and industry groups for its allegedly over-zealous, aggressive cost recovery efforts. Those complaints have fueled the debate on CERCLA's liability framework.

To help resolve this tension, Congress should clarify two important policy objectives. First, it should instruct EPA to pursue cost recovery without necessarily trying to recoup every last penny for the trust fund. Second, it should clearly provide EPA with explicit authority and money for more federal cost sharing to encourage settlements. Achieving a more flexible, equitable, and fair cost recovery process can be done simply and effectively by clarifying the appropriate policy direction EPA should follow and by giving the Agency the resources to carry it out. There is no need to add layers of complexity by articulating, in excruciating detail over pages and pages of statutory text, a burdensome, bureaucratic, and labyrinthine allocation process that will not necessarily save anyone time or money.

There are two reasons why comprehensive reform has a better chance of success if it is focused on a limited number of high priority, targeted refinements. First, mid-course corrections can be implemented more smoothly than a massive overhaul. Superfund is a mature program. Billions of dollars already have been spent. Thousands of pages of regulations, directives, and policy manuals reflecting years of experience already have been written and published. At this stage, incremental changes and mid-course corrections will be less disruptive to everyone affected by the law, from Agency officials charged with interpreting and implementing it, to the PRPs carrying out response actions, to people affected by contaminated sites. Measurable, positive improvements are more likely to occur within the established structure of the existing program, especially because the current statutory and regulatory framework is already flexible enough to accommodate significant reforms. On the other hand, imposing large-scale, fundamental changes of direction most likely would lead to significant disruptions and huge new delays in achieving the underlying remedial purposes of the law. EPA would be forced to rewrite many of its existing rules and policies, a process that would take years to complete. EPA took well over five years to modify the Superfund program in order to incorporate SARA's requirements; much of the criticism leveled at the Agency for its slow progress in completing construction at national priorities list (NPL) sites can be traced to that transition (as well as the lapse in funding during the first reauthorization cycle). In addition, a large-scale revamping of the current law certainly would lead to a new round of litigation to resolve disputes about the intended meaning of new statutory provisions. It would be reasonable to expect impressive additional transaction costs as scores of lawyers in and out of the government struggle to figure out what is new, how to interpret it, and how to apply it in actual scenarios.

Second, limited reform has a better chance of success because it should be easier to find a political consensus with a smaller package that has fewer opportunities for disagreement. Given the political landscape, a bipartisan agreement will be essential. Securing such an agreement for a large, complex reauthorization package will be more difficult than finding a compromise on a more narrow bill. Several previous experiences are instructive in that regard. The first major overhaul of CERCLA in the mid-1980s was contentious and drawn out, in part because of its scope and level of detail. The unsuccessful attempt in the 103d Congress was built around a bill that was complicated and hundreds of pages long; it failed even though the political setting was arguably much more favorable than the current situation.

Efforts to update the oil spill abatement program under FWPCA § 311 also offer a good lesson. During the 1980s, several attempts were made to amend this section to align it more closely with developments in other federal environmental laws, such as CERCLA. Controversial issues concerning liability and compensation, among others, prevented effective legislative reform and led to a long-lasting impasse. Congress struggled unsuccessfully for over a decade to develop and pass extensive changes to this major cleanup program, which in many respects had served as a starting point for the CERCLA model. It took three very visible environmental disasters—the Exxon Valdez, Mega Borg, and American Trader oil spills—to galvanize a consensus [27 ELR 10359] that finally led to the enactment of the Oil Pollution Act of 1990.

Environmental disasters also played a role in CERCLA's original passage in 1980. Love Canal, Times Beach, and Vertac largely were the impetus to create a federal cleanup program dealing with abandoned waste sites. Comparable horror stories, however, probably will not surface now to stir up public opinion and push Congress and the Administration into action. Years of more comprehensive hazardous waste management controls, together with the characteristically long-simmering nature of Superfund sites (e.g., slow-moving contamination migrating through soil and underground aquifers) make it unlikely that a sudden burst of new, made-for-television abandoned waste catastrophes will appear on the horizon to serve as a catalyst for reform.

Despite a great deal of criticism, no one has advanced a credible argument that the Superfund program is completely unnecessary. Nor has anyone made a convincing demonstration that CERCLA is fatally flawed in its design, and has been since the beginning. At the moment, there is a stalemate. For those who are unhappy with the current law, some meaningful reform should be better than no change at all. That reform could be achieved with a scaled-down package that focuses on a few significant, but manageable refinements to the existing statute.

A Statement of National Policies and Objectives

Given the size and complexity of CERCLA, it is not surprising that the statute contains ambiguities and contradictions. Reauthorization offers an opportunity to establish national policies and goals that would reconcile conflicting provisions and clarify the purposes and objectives of the Superfund program. While this process might foster a lively debate, a clearer national policy direction in the end would benefit EPA, the states, and all those directly affected by the Superfund program. An open and honest discussion of core principles also would help establish a more manageable analytic framework for addressing specific legislative reforms.

The national policies and goals should be added as a new section in CERCLA. At a minimum, the following principles should be addressed:

1. The objective of Superfund is to protect human health and the environment by remediating existing sites contaminated with hazardous substances, pollutants, and contaminants, and by preventing the creation of new contaminated sites;

2. It is the national policy that contaminated sites covered under this Act that pose the greatest threat to human health and the environment should be remediated first;

3. It is the national policy to ensure early, effective, and efficient remediation of contaminated sites that pose a threat to human health and the environment, in a manner that ensures meaningful public participation;

4. It is the national policy to avoid and prevent the intergenerational transfer of current environmental contamination problems;

5. The objective of this Act's liability framework is to establish a financing mechanism that provides the most efficient way to remediate contaminated sites posing a threat to human health and the environment;

6. It is the national policy to utilize appropriate incentives for encouraging the PRPs to undertake or finance response actions consistent with the overall objectives of this Act;

7. It is the national policy to replenish the trust fund established under this Act through cost recovery actions that are consistent with the overall objectives of this Act;

8. The purpose of the Superfund program is to complement, rather than substitute, other environmental laws that regulate waste management practices;

9. It is the national policy to encourage states with adequate legal authorities and resources to remediate some or all of the contaminated sites within their boundaries, consistent with federal minimum requirements established under this Act; and

10. It is the national policy to treat federal facilities in the same manner as any other PRP under this Act.

Liability

One of the biggest stumbling blocks to developing a consensus for CERCLA reauthorization has been the statute's liability scheme. While strict, joint and several liability has a solid footing in common law, it has been a controversial feature in CERCLA since its enactment in 1980.

One source of the controversy is the unique economic impact CERCLA imposes on the PRPs. Other federal environmental laws result in substantial compliance costs for regulated industries, costs that in the aggregate greatly exceed the Superfund totals each year.7 For the most part, however, the cost of pollution control devices or specified management practices under other laws is tied to individual members of a regulated industry and their individual actions. In addition, new regulatory requirements established by other federal environmental laws tend to be prospective in nature. In some cases, companies can avoid or minimize the impact of new requirements by changing equipment or production processes. In the end, a company largely only has to pay for its facility and its anticipated actions.

CERCLA, on the other hand, imposes strict, joint and several liability that applies retroactively to each party that has contributed contaminants to a site requiring remediation. In theory, one company can be forced to pay the cost of cleanup caused by many other parties, even if it only contributed a relatively small amount to the problem. Because the liability typically covers actions that took place in the past, a company cannot take many preventative actions to reduce the impact of its cleanup liability. Pollution prevention and source reduction are not possible for disposal actions that occurred years ago. Furthermore, liability may arise even for those who acted responsibly and relied on government sanctioned permits. Added together, it is not surprising that some members of the regulated community are hostile toward CERCLA's liability framework.

[27 ELR 10360]

CERCLA reauthorization presents an opportunity to better articulate the appropriate role of the statutory liability scheme in securing environmental cleanups. To begin with, it should be made clear that CERCLA's liability framework represents a financing mechanism to fund cleanups. It is not a penalty provision designed to punish past actions, or a moral judgment on previous disposal practices. It merely reflects the fact that the private sector is more efficient than the government in collecting and spending money needed for remediation. In reality, businesses generally do not absorb the actual cost of cleanup; they pass that expense on to consumers. Under the primary alternative financial mechanism under consideration, the government would assume responsibility for cleanup under a public works model. The same consumers, however, would still be asked to contribute—not in the form of higher prices for consumer products, but in the form of higher taxes.8 The main difference between the two alternatives is that the government is much less efficient in its actions. To achieve the same environmental result would cost the consumer/taxpayer a good deal more. If one accepts the premise that some kind of federal cleanup program is needed, relying primarily on the private sector is the most efficient way for society to pay for such a program.

In addition, it should be made clear that CERCLA's liability scheme is designed to complement the prospective, regulatory approach embodied in the Resource Conservation and Recovery Act (RCRA) and other federal environmental laws. The threat of future Superfund liability has created a strong deterrent to improper waste management and disposal practices. This deterrent has proven to be a powerful, effective behavior modifier, one that has hammered home the principle that there should be no profit from pollution. In the long run, this will mean fewer cleanups from current disposal activities and less money being drained from the economy to address future contamination problems. By helping generally to maintain higher environmental standards, the deterrent also pays off in the long run in terms of lower health care costs and better worker productivity (i.e., less time lost to illnesses).

Any fundamental changes to CERCLA's liability scheme would have a number of consequences regarding the law's existing financing mechanism and its deterrent effect. If nothing else, the extensive debate on abandoning the polluter-pays principle by repealing retroactive liability has made it clear that such a change would be expensive. The basic question has been—and will continue to be—how to pay for it fairly and without gutting the remediation program. Only two options appear possible: raise taxes or spend less on cleanups. Neither appears politically viable at the moment. Weakening the current law's deterrent effect seems equally problematic at this juncture. Such a move would suggest that the government may change its mind in the future about responsibility for current improper disposal practices. Thus, if a company decides now to improperly manage its waste to save on operating costs, there is a chance that the government will come along later and pay for the consequences. Given the recent trend at both the federal and state levels toward relaxing environmental requirements under RCRA, retaining the threat of future Superfund liability may be crucial to avoiding a new generation of contaminated waste sites and prolonging the need for a federal cleanup program.

Making fundamental changes to the liability scheme also would in effect penalize those PRPs that have stepped forward during the past and assumed cleanup responsibilities under the law. Even if they were to receive a "refund" of some kind, several messages would be sent clearly. There is no reason to step forward and cooperate with the government. Those who refuse to cooperate are vindicated in the end. If a company holds out long enough, it can profit from pollution. Once these messages are sent, it will be more difficult to obtain future settlements for remaining CERCLA cleanups.

Rather than replacing the existing liability framework, Congress should adopt refinements to it that will ensure a more reasonable, more equitable approach to the polluter-pays principle. Thus, CERCLA reauthorization efforts should focus on the development of appropriate incentives to achieve the optimal balance between environmental objectives and their economic trade offs. That balance will be easier to reach if CERCLA is perceived as fair. One way to approach a better equilibrium is to authorize the federal government to share some of the private-party costs of cleanup. In this vein, Congress should address three specific areas where relatively simple changes in the statute could encourage the PRPs to operate within the existing liability framework. They are federal cost share, additional incentives to settle, and disincentives for transaction costs.

Federal Cost Share

Determining a PRP's "fair share" of response costs at a multiparty site can be a nightmare. Poor recordkeeping, commingled waste streams, and remediation variables caused by volume and toxicity factors represent just some of the potential problems. Theoretically, under CERCLA's strict, joint and several liability framework, the absence of an allocation basis can leave one PRP responsible for more than it contributed, or even for the entire cleanup bill. In appropriate circumstances, however, the polluter-pays principle does not have to dictate such an extreme result.

To encourage meaningful federal cost sharing of cleanup expenses at certain Superfund sites, Congress should clarify and expand EPA's existing authority to enter into mixed-funding agreements. In particular, CERCLA should expressly authorize EPA to pay for federal cost sharing at certain sites, and should authorize specific, separate annual appropriations for this purpose. One category of appropriate sites that should qualify for federal cost sharing would be those with a significant "orphan" share. For example, where more than 50 percent of the contamination at a site cannot be accurately allocated to viable PRPs, and where all reasonable efforts by EPA and known PRPs have failed to identify additional viable PRPs, a federal cost share should be available to facilitate a settlement that provides for site remediation.9 A second category of sites that should qualify for a federal cost share include mixed-waste sites on the NPL where municipal solid waste (MSW) represents most [27 ELR 10361] of the volume of contamination needing remediation. For example, a federal cost share could cover up to one-third of the remediation expense attributable to the MSW at a site. Such a partial payment should encourage settlement by non-MSW contributors. It also would alleviate serious economic hardship for municipalities without removing the incentive for pollution prevention and recycling initiatives. A third category should include sites involving a large number of small businesses. Where EPA agrees to fully and quickly resolve the liability of small businesses by settling for a reduced amount from them, a federal cost share could be applied to cover a substantial portion of the differential that otherwise would normally be left for the larger PRPs to absorb. Finally, a federal cost share should be available in limited circumstances where it would render a treatment remedy practicable. One example in this category might be where selection of a treatment remedy makes sense for society in the long run but would result in severe economic hardship for a PRP paying its "fair share."10

The annual appropriation for each category should be capped and kept distinct from other Superfund expenditures. In addition, the appropriations level for federal cost sharing should be limited only by the amount of surplus funds (i.e., money in excess of the amount needed to administer the rest of the cleanup program) generated in any given year by Superfund revenue sources. Thus, the amounts used on federal cost sharing should not be deducted from appropriation levels for already established Superfund program activities, including cleanup of orphan sites, the removal program, remedial actions at the NPL sites, or the enforcement program. Otherwise, congressional appropriators should be the ones to decide as a policy matter how much federal cost sharing is desirable and affordable each year.

Congress should allow EPA wide flexibility to implement this authority. The primary administrative limitations should be undertaken through a requirement for an Agency determination, made in writing and incorporated into a settlement, that: (1) a federal cost share will promote a more equitable application of CERCLA's liability provisions, based on a "fair share" allocation of responsibility; (2) a federal cost share will expedite cleanup at the site; (3) the amount of a federal cost share at the site will not represent more than 30 percentof the total response costs;11 and (4) the PRPs receiving the benefit of a federal cost share have demonstrated that their disposal activities that led to the contamination at the site were undertaken in compliance with applicable laws and regulations in effect at the time of disposal. In addition, Congress should limit federal cost sharing to CERCLA liability at the NPL sites arising out of actions that occurred before 1986. Such a cutoff would preserve the deterrent effect of the current law and would be a fair dividing line, coinciding with the passage of SARA, and the promulgation of updated hazardous waste management standards under RCRA and the 1984 Hazardous and Solid Waste Amendments. Finally, Congress should specify that prospective settlements would receive priority consideration for federal cost sharing.

To facilitate congressional oversight over how federal cost sharing funds are spent and to ensure EPA aggressively effectuates the purposes of the new authority, Congress should require an annual report. The report should document how each federal cost share appropriation was spent, whether any funds remain to be carried over, a recommendation for the following year's appropriation levels for each separate category. The report should be required to be submitted by March 15th of each year so that it can be used effectively in the appropriation process.

Additional Settlement Incentives

Congress also should provide two other incentives to encourage settlements. One, EPA's oversight costs and indirect cost rate for the PRPs that settle quickly and perform well should be capped. The cap could be expressed as a percentage fraction of the direct costs incurred at the site. Indicators of performance would include: (1) whether delays in achieving a completed response action were caused by inadequate submissions or other deficiencies in the performance of work by the PRPs; (2) whether the dispute resolution clause was invoked; and (3) whether, and to what extent, EPA assessed stipulated penalties. In addition, Congress should clarify EPA's obligation to pursue full cost accounting in such settlements. Specifically, the statute should encourage EPA to pursue nonsettling PRPs for the amounts representing the difference between the Agency's actual oversight and indirect costs and the amount paid by the PRPs in the settlement, especially where the differential amount is substantial and there are viable, readily identifiable nonsettlers. The statute should not, however, require the Agency to do so in all cases.

A second way to encourage settlements would be to make final covenants not to sue concerning CERCLA liability easier to obtain. Currently CERCLA allows for covenants not to sue without reopeners in extremely limited circumstances. Section 122(f)(2)(B) conditions such covenants in part by requiring a remedial action that treats hazardous substances "so as to destroy, eliminate, or permanently immobilize the hazardous constituents of such substances, such that, in the judgment of the President, the substances no longer present any current or currently foreseeable future significant risk …."12 This provision should be modified to require only selection and implementation of a treatment technology that meets best demonstrated available technology (BDAT), and thereby satisfies current RCRA land disposal requirements designed to minimize threat. This would represent a more realistic approach to giving the PRPs greater legal certainty and finality regarding future CERCLA liability while still encouraging more protective treatment remedies. The economic trade of—possibly transferring the risk of remedy failure to the federal government in the long run—would be minimized and justified by the initial utilization of better remedies.

Reducing Transaction Costs and Litigation

One of the most persistent criticisms of CERCLA's liability scheme has been how it leads to tremendous transaction costs arising mostly from extensive litigation. While it is [27 ELR 10362] somewhat disingenuous to argue that the money currently spent on lawyers and litigation would instead be fully and voluntarily transferred by the PRPs to engineers and cleanup efforts, it is in society's interests to reduce unnecessary, wasteful lawsuits. Transaction costs clearly do nothing to improve the cleanup process.

An increased federal cost share that better approximates fair share allocations should go a long way toward reducing the scope and frequency of third-party litigation between the PRPs.13 So should caps on EPA's oversight and indirect costs. Nonetheless, other incentives could further reduce the need for and desirability of private-party contribution actions. For example, CERCLA could be amended to provide that a PRP that settles its liability with the United States and does not file a contribution action against other parties at the site would be given a financial credit that could be used in future settlements with EPA. That credit could be in the form of a reduced liability for EPA oversight and indirect costs, or a specific offset amount to be applied in future settlements.

Another incentive to reduce third-party litigation would be a fee-shifting provision that would penalize any PRP seeking contribution for matters covered by a settlement between a third-party defendant and the United States resolving CERCLA liability at a site. The fee-shifting provision could cover all expenses incurred by the third-party defendant, including reasonable attorneys fees and court costs.

In addition, to better effectuate the contribution protection provisions in § 113(f), Congress should clarify that the United States has the authority to resolve all environmentally related CERCLA liabilities associated with the cleanup of contamination at a Superfund site, including any private-party claims related to past and future liability. As a result, a comprehensive settlement with EPA could be available to provide complete protection against third-party litigation, at least with regard to issues arising from the costs incurred to study, remediate, and oversee cleanup at a Superfund site. Thus, if a nonsettling PRP chooses to pay for a "shadow" study or incurs costs to prepare adverse comments on a draft record of decision (ROD), it could not seek to recover those costs from a PRP that had already settled with EPA to completely resolve CERCLA liability at the site. On the other hand, a private contract dispute between a settling PRP and one of its cleanup contractors would not be subject to the expanded contribution protection coverage. To ensure appropriate use of this tool, Congress should require that all covenants not to sue be embodied in judicial consent decrees, and that EPA include as an attachment to any such consent decree a written determination setting forth the Agency's rationale for providing full protection against all environmental cleanup claims at the site.

Finally, to simplify cost recovery litigation, EPA should be authorized to prepare a schedule of rates and fees commonly associated with cleanup activities. The schedule would represent the presumptive baseline in cost recovery actions. Discovery on matters related to costs covered by the schedule would be limited to showing that EPA did not in fact conduct or pay for the activity. EPA would be allowed to seek cost recovery for an amount in excess of the schedule where the Agency could show that the additional amount of response costs was reasonable and necessary to ensure protection of human health and the environment. For example, a particularly complex waste stream or hydrogeology may increase EPA's cost by requiring more analysis in a remedial investigation/feasibility study (RI/FS).

The schedule, which could be expressed in dollar amounts or percentages of direct costs, should be updated annually to reflect inflation and other adjustments. It would be subject to abbreviated notice-and-comment rulemaking procedures (e.g., no more than a 30-day comment period; waiver of the Small Business Regulatory Enforcement Fairness Act's requirements), as well as expedited and limited judicial review in the District of Columbia Circuit Court of Appeals. To discourage frivolous challenges to the schedule, the statute should include a fee-shifting penalty for litigants who are unsuccessful in showing that the Agency acted arbitrarily and capriciously. In addition, the statute should authorize an automatic inflation adjustment that would go into effect if litigation over a modified schedule was pending.

Remedy Selection

Another controversial Superfund issue has been the cost of remedies. The stakes surrounding this aspect of the program can be high because of CERCLA's liability scheme. A more equitable polluter-pays approach should defuse some of the tension surrounding this aspect of the program. Nonetheless, CERCLA's two issues are likely to remain: the current law's preference for treatment remedies and the manner in which EPA identifies and evaluates the risks associated with Superfund sites. In addition, CERCLA reauthorization may provide an opportunity to establish a national cleanup goal and to provide flexibility for managing remediation waste.

Preference for Treatment

CERCLA § 121(b) currently establishes the following general rule: "Remedial actions in which treatment which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants and contaminants is a principal element, are to be preferred over remedial actions not involving such treatment."14 Furthermore, "the President shall select a remedial action that is protective of human health and the environment, that is cost-effective, and that utilizes permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable."15

The approach in § 121(b) is consistent with the land disposal restrictions (LDRs) contained in RCRA § 3004, as well as other similar technology forcing provisions in the FWPCA and the Clean Air Act. The underlying premise for these provisions is that it is more protective to treat sources of pollution as much as possible before contaminants are released into the environment. Technology-based standards like those used in the LDR program establish levels for [27 ELR 10363] treating hazardous waste to minimize threat before placement on the land. Using Best Available Technology (BAT), BDAT, or maximum available control technology mitigates harmful effects of pollution and ensures that the true costs of pollution are internalized to reflect a more accurate societal cost.16

Treating Superfund wastes to BDAT levels before disposal should reduce the chances that current practices will create sites requiring remediation in the future. This is especially true because containment remedies can be expected to fail eventually. Slurry walls and caps do not stay impermeable forever. If the hazardous characteristics of the contained material are somehow neutralized before that structural failure, the consequences may be minimal. If not, the underlying problem is merely postponed (or perhaps aggravated, if the contamination has been allowed to spread), and the reasons for having a Superfund program are perpetuated. For those who would like to see a scaled-back cleanup program, or an end to Superfund in the future, containment remedies today are not the answer.

There is nothing to suggest that the policy choice made by Congress in SARA regarding the preference for treatment was incorrect or misguided. It may, however, have turned out to be more expensive than anticipated. Rather than shift course, it may make more sense financially in the long run to retain the current preference for treatment and, at the same time, to implement a mechanism by which the government can help defray some of the cost of permanent treatment remedies through increased federal cost sharing in settlements.17

CERCLA's preference for treatment generates a great deal of controversy even though far from all of EPA's remedial actions utilize treatment remedies. In reality, the statute only contains a preference for treatment. It is not an absolute requirement, and has not been interpreted as such. Furthermore, the preference is qualified in the statute by the words "to the maximum extent practicable" (MEP). Rather than change the entire remedy selection framework, a more direct approach would be to clarify that the treatment remedies to be selected under CERCLA should be based on BDAT or BAT, and explain the intent of the MEP language and how it should be applied byEPA when selecting remedies.

In the 1986 amendments that added § 121, Congress did include several considerations for the President to take into account when evaluating various alternative remedial actions. These factors include long-term uncertainties associated with land disposal, long-term maintenance costs, and the potential for future remedial action costs if the alternative remedial action fails. However, no specific factors relating to the MEP language were included. Congress should include appropriate considerations for determining whether a treatment remedy is practicable, such as:

1. Reliability of currently available treatment technology that could address the contamination at a site;

2. Potential for newer, better, less expensive treatment technology to be available in the near future, and the extent to which there are active, well-funded research and development efforts already underway to make such treatment technology available;

3. The degree to which "hot spots"18 can be effectively isolated and treated separately from the remaining contamination at a site;

4. Financial consequences of not treating the source material at the present time, including the technical feasibility and additional expense of remediating existing site contamination in the future;

5. Adequacy of financial assurance mechanisms to ensure sufficient funding by the PRPs for any additional remediation costs at a later date in the event a nontreatment remedy fails;

6. Acceptability of a treatment remedy by the state in which the contaminated site is located and by the communities directly affected by that remedy; and

7. The extent to which implementation of a treatment remedy would result in severe economic hardship19 on one or more PRPs paying their fair share of the remediation cost.

In addition to clarifying the intent of the MEP qualification, Congress should authorize a new annual appropriation specifically for the purpose of encouraging meaningful federal risk sharing in developing effective treatment technologies. The money would be used to create a new "National Innovative Treatment Technology Fund." The fund would be available to support and actively promote the development of commercially promising innovative treatment technologies and to foster more widespread use of "available" treatment technologies.20 It could also be used to bring expensive treatment technologies within reach by providing money to actually implement them. Similar to the FWPCA's construction grants program,21 Congress should support a more productive partnership with the private sector and enhance the role of the federal government in ensuring implementation of treatment remedies that are more protective in the long term.

Congress also should provide further clarification concerning the appropriate use of alternative nontreatment remedial actions. Specifically, § 121(b) should be amended to provide an opportunity for a PRP to demonstrate that a treatment remedy is inappropriate at a given site. This approach would be consistent with RCRA's LDR program, which provides for limited exemptions from the general land disposal prohibitions.22 By analogy, a PRP should be allowed to overcome the CERCLA preference for treatment by demonstrating that it could meet a performance standard [27 ELR 10364] tailored to meet site-specific characteristics. Among other things, the performance standard should ensure that existing contamination at the site would not spread and that existing risks would not be aggravated. One model for this approach exists in EPA's no migration petition requirements, which requires petitioners to demonstrate with reasonable certainty that their hazardous wastes will not migrate beyond the unit boundary in order to be exempt from RCRA's LDR requirements.23 At a minimum, a PRP should be required to demonstrate that a treatment remedy is not necessary to ensure short- and long-term protection of human health or the environment based on: (1) the unique characteristics of the site (e.g., hydrogeologic features that preclude movement of source material beyond the site boundary or into an aquifer); and (2) the unique characteristics of the hazardous substances to be remediated (e.g., risks posed by the hazardous substances contained in the original process waste material at a site have been sufficiently neutralized).

As a condition for making it easier to select a nontreatment remedy, Congress should take adequate steps to protect the federal government from the financial consequences of possible future remedy failure. Although this is arguably one of the considerations to be evaluated under the existing statutory language when assessing alternative remedial actions, the real-world implications for this choice should be directly brought to bear. Thus, to reinforce the principle that all costs of production (including pollution caused by disposal activities) should be internalized and accounted for, the PRPs who seek and obtain approval for a containment remedy should be required either to pay a site-specific user fee or to establish a site-specific escrow account.24 A user fee approach would be based on collecting an annual "rental" for the right to pollute a natural resource.25 The amount of the fee would compensate the owner (typically some unit of government) for loss of use due to the remaining environmental contamination. It would be paid as long as the resource could not be used and would be set, in part, according to the past or reasonably anticipated use of the resource. In order to discourage making the user fee an ordinary cost of doing business, and to provide a continuing incentive for developing and implementing an appropriate treatment remedy at the site, the fee also should recoup a significant portion of the economic benefit attributable to the lower nontreatment remediation cost.

Alternatively, the PRPs who seek and obtain approval for a containment remedy should be allowed to establish a site-specific escrow account to cover the anticipated costs of a future treatment remedy. The up-front, lump-sum amount to be paid into the account would represent the cost differential between a containment and a treatment remedy. If a treatment remedy were to be implemented in the future, any excess amount in the escrow account left over after completion of the treatment remedy would be refunded to the PRP. Interest earned on the escrow account in the interim, however, would be applied to help fund the new National Innovative Treatment Technology Fund.

Risk Assessments

One of the main advantages of a technology-based treatment remedy is that a decision on cleanup levels would not have to rely on a site-specific risk assessment. As such, the remedy selection process could avoid some of the scientific uncertainties regarding a number of key variables and assumptions that keep risk assessments from achieving perfect answers and enjoying universal acceptance.

A definitive approach to conducting risk assessments is clearly still a matter of discussion and some dispute. There are very large differences of opinion on how to conduct an appropriate risk assessment and how to use it in making remedy selection decisions. Many PRPs have complained about the Agency's application of this tool. At the moment, however, there does not appear to be a sound scientific basis for changing the way EPA conducts its risk assessments in the Superfund program. Both the Science Advisory Board and the National Academy of Sciences have reviewed and evaluated EPA's risk assessment methodology. Neither entity has rejected the Agency's approach, but both have raised questions and made recommendations for relatively minor adjustments. Significantly, they have not suggested any fundamental changes in approach.

Until a well-founded consensus on how to achieve more accurate Superfund risk assessments is reached by scientific experts, it would be premature to abandon the current framework used by EPA to analyze risks and make decisions based on available information. Congress would only add confusion to the remedy selection process if it were to impose additional requirements for analyzing and communicating risk that are not relied on by the Agency in its decisionmaking process. It would also inevitably encourage a process of second guessing the Agency's decisions. The PRPs would be given ammunition to challenge a final EPA remedy selection decision by pointing to other competing risk management options that had been developed by the Agency itself, even if they were not considered in making that decision.

In the future, if experts can agree on appropriate ways to weigh scientific uncertainties and come up with acceptable methods to compensate for gaps in knowledge, it may be useful to add legislative language on these points. In the meantime, the use of conservative assumptions should continue to be one of the prices paid for not selecting technology-based treatment remedies.

Nonetheless, some areas of clarification could be useful. For example, Congress should require EPA to consider the full range of potentially adverse health risks at Superfund sites when conducting its risk assessments. Currently, EPA relies heavily on cancer risk when making remedy selection decisions.26 While cancer risk may be a key indicator and may be the subject of a great deal of past and ongoing scientific study, it is only one of many kinds of health threats. Other potential illnesses—respiratory, developmental, reproductive, hormonal—have been documented at Superfund [27 ELR 10365] sites.27 Relying too heavily on cancer risks is a one dimensional approach akin to basing automobile safety standards on head-on accidents without fully considering the potential for side and rear impact collisions. Congress also should clarify that all future CERCLA remedy selection decisions need to more clearly take these other health threats into account in order to provide a more realistic assessment of actual risks and to more accurately choose appropriate response actions. Existing remedy selection decision, however, should be left alone.

A National Cleanup Goal

In the past few years, several bills have been introduced to change the Agency's risk assessment and communication process. If the real purpose behind these initiatives is to weaken CERCLA's current protectiveness standard by suggesting that remedy selection decisions should be based on less conservative assumptions, that purpose should be discussed openly and debated in a transparent manner. Furthermore, the debate should occur in the context of establishing, as a matter of national policy, a national cleanup goal for all response actions. It would be entirely appropriate for Congress to establish a national goal for attaining protective cleanups. In this regard, a CERCLA reauthorization bill could ratify EPA's existing risk range established in the national contingency plan, or it could establish an equivalent goal consistent with other federal environmental laws (e.g., one in a million cancer threat; no adverse health threat, with an adequate margin of safety). While a national goal should be strictly health-based, the statute should clearly delineate the role of cost considerations, and require EPA to choose the most cost-effective remedy among the various options that could meet the goal. Once established, the national goal should serve as a rebuttable presumption when selecting cleanup remedies, and should be the basis for all CERCLA remedy selection decisions unless adequate, scientifically accurate information exists to require a different cleanup level.

Remediation Waste

An issue that in the past has been connected to CERCLA reauthorization involves barriers in RCRA that might stand in the way of facilitating cleanup of remediation waste. Thus far, the Administration has not supported the inclusion of RCRA amendments in a CERCLA reauthorization bill. To some degree, that position reflects a basic disagreement over the scope and contents of previous legislative proposals. If a RCRA remediation waste proposal does go forward, either as a stand-alone bill or as a part of CERCLA reauthorization, it should be designed to effectively address the most significant barriers (i.e., applicability of the LDRs and permit requirements) in a manner that ensures adequate protection of human health and the environment. It should also adopt a simple approach that will be quick to implement and will not adversely affect the integrity of the rest of the RCRA program.

To accomplish this result, any remediation waste legislation that is developed should narrowly define remediation waste to include only RCRA subtitle C hazardous waste that inadvertently has been mixed with media (such as soil or groundwater).28 The legislation should also provide an option for cleaning up remediation waste based on compliance with a remedial action plan (RAP). The RAP should be an enforceable document (such as an administrative order or permit, or a judicial consent decree) that establishes the requirements for remediation waste cleanup, that ensures a level of protection of human health and the environment consistent with CERCLA § 121, and that is issued by EPA (or an authorized state pursuant to state authorities) after an opportunity for public participation.29

To address potential LDR constraints, a new paragraph to RCRA § 3004(h) could be added, providing authority for a case-by-case exemption from the LDRs for remediation waste managed in accordance with a RAP. The exemption could be revoked for violation of a RAP. To address potential delays that might be caused by permitting procedures, a new subsection (k) to RCRA § 3005 could be added, providing that a RAP would be treated as a permit under the statute for cleanup actions managed in accordance with that RAP. To encourage streamlined state authorization procedures for the remediation waste portion of the RCRA program, a new subsection (i) to RCRA § 3006 could be added, providing for: (1) EPA review and approval within six months of a state's application, based on the existing statutory review criteria applicable to state authorization;30 and (2) EPA withdrawal of only the remediation waste portion of an authorized state program (without having to withdraw the rest of the program) if the state is inadequately enforcing the program.

Finally, EPA could be required to promulgate proposed regulations to implement the amendments to RCRA involving remediation waste within one year (and final regulations within two years) of date of enactment. Among other things, the regulations should provide minimum standards for treatment levels and public participation. Before the regulations are issued, Congress should require RAPs to be developed consistently with CERCLA's remedy selection provisions.

State Role

A common feature of many federal environmental laws is an authorization provision that allows qualified states to take the lead in administering various programs designed to protect human health and the environment.31 Typically, Congress establishes a federal floor that preserves minimum requirements across the country and provides [27 ELR 10366] a mechanism for EPA review and approval to maintain the federal floor in states that receive authorization. The authorization framework reflects a desire to allow states a great deal of flexibility in achieving the goals and objectives of federal environmental laws. It also reflects historical inadequacies in most state programs and enforcement that allowed poor waste management practices to occur, and that ultimately led to enactment of major federal environmental legislation in the 1970s.

Over the past two decades, state environmental programs generally have gained a great deal of experience in carrying out federal requirements under the various authorization provisions. With regard to cleanup of contaminated sites, for example, a number of states have been administering the RCRA corrective action requirements that in many respects address similar issues faced by the Superfund program. Other states have enacted state Superfund analogues, and have used them to remediate sites that do not rank highly enough to warrant EPA's attention. Thus, it is clear that some states are qualified to be authorized for cleanup. What is lacking is a CERCLA state authorization provision.32

Any Superfund authorization framework should be structured to be consistent with existing provisions under other federal environmental laws, particularly RCRA. That consistency would facilitate an integrated, holistic approach for waste management. It would foster development and implementation of cleanup programs that complement—not contradict or conflict with—pollution prevention and proper management practices. Thus, a CERCLA state authorization provision should reinforce the principle that cleanup programs are an approach of last resort, not a management option based on postponing adequate controls and allowing unsound practices to continue until they cause problems later.

In addition, a CERCLA state authorization provision should ensure a federal minimum floor to protect all stakeholders in the process, the PRPs as well as communities.33 The floor should be in place to make sure businesses throughout the country have the opportunity to operate on a level playing field. Thus, one company should not be forced to compete with a similar business located in another state where operational costs are lower due to environmental cleanup standards that might be more lenient. Furthermore, the true economic costs associated with waste management and disposal practices, as well as the expense of remediation, should be comparable for the PRPs in different states. No company should be forced to deal with site contamination issues without the benefit of the fair share settlement and cost sharing incentives outlined above.

By the same token, the floor should be in place to ensure that all communities receive the same degree of protection of human health and the environment, regardless of their location. Decisions concerning an appropriate remedy should be consistent across state lines, as should public participation opportunities and procedures. States should be given sufficient flexibility in meeting the federal-floor minimum requirements, but neither businesses nor individuals should be forced to "vote with their feet" because of wide discrepancies in CERCLA-approved state cleanup laws.

Criteria for Authorization

A CERCLA state authorization provision should establish the minimum criteria EPA would use to evaluate a state cleanup program. First, a state program should be authorized if the state demonstrates that its cleanup law and regulations provide for equivalent cleanup standards to those applied under the federal program. The degree of protection of human health and the environment should be at least as stringent as the federally established cleanup goal (whether set by Congress or EPA).34 In addition, the statute's preference for treatment, as clarified, should be reflected under state law. Finally, any waivers of standards (e.g., technical impracticability) should be available in a manner consistent with EPA's regulations.

Second, the way a state cleanup program operates should be consistent with the federal Superfund program. For example, public participation in the remedy selection process should be allowed at least to the same degree as it is available under CERCLA §§ 113(k) and 117. Furthermore, access to judicial review through citizen suits and intervention should be available to the same extent they are under CERCLA. Also, settlement authorities similar to those under § 122 should be in place to encourage the PRPs to take the lead in site remediation efforts. Finally, the new settlement incentives discussed earlier (e.g., cost sharing, fee shifting) should be available to the PRPs.

Third, an authorized state should have sufficient resources and adequate independent funding sources to fully carry out an effective enforcement program and ensure completion of response actions in situations where the PRPs are unable or unwilling to complete work at a site. To provide flexibility for this requirement, Congress should allow states to seek either full or partial authorization for the sites that otherwise would be subject to federal remediation. Thus, a qualified state should be able to seek and obtain authorization to administer the cleanup program for every site in that state, or for a subset of the sites within its borders (e.g., all mixed waste sites containing municipal solid waste), or should be able to take the lead for a single site. By providing flexibility in the scope of sites covered by authorization, Congress would allow states to tailor their role in a manner that is in line with their interests and abilities. This should [27 ELR 10367] encourage greater state participation than an all-or-nothing authorization approach.

Fourth, Congress should require EPA to factor in a state's experience in site remediation when making an authorization decision. A track record under RCRA corrective action or a state superfund analogue is a good indicator of ability and implementability. There are sufficient differences in all state administered programs, however, to warrant an independent EPA review before any authorization. As a result, CERCLA should not adopt an automatic approval or self-certification approach to authorization. In addition, EPA should be required to perform an annual review for each authorized state program under CERCLA to ensure that changes to state law or policy have not affected that state's ability to meet the authorization criteria. Recent experiences concerning state audit privilege and immunity laws underscore the importance of frequent communication and full disclosure between states and EPA to avoid inadvertent legal vulnerabilities in continued authorization of state programs.

Fifth, as with all other federal environmental statutes, Congress should provide for withdrawal of a state program in situations involving inadequate administration or enforcement. The withdrawal process should be flexible, allowing EPA to address a part or all of the universe of sites covered by the authorization. A petition process also should be provided, allowing the PRPs, individuals, community groups, or other public interest organizations to raise concerns about state implementation of an authorized Superfund program. Furthermore, Congress should include language holding states responsible for significant amounts of excess cleanup costs incurred by EPA at sites where authorization has been withdrawn. Due to the unique nature of the cleanup program, improper remedy selection decisions or lax oversight by an authorized state could result in large financial consequences. This situation might arise, for example, where a state fails to diligently pursue cleanup at a site, which in turn allows contamination to spread and leads to significantly greater response costs. If the site is withdrawn and EPA is unable to find viable PRPs to pay for the excess costs (or is unwilling to pursue them for equitable reasons), EPA should be authorized to withhold grants and other money normally made available to states under other federal environmental programs, until an acceptable federal-state cost sharing arrangement is achieved.

Finally, a CERCLA authorization provision should clearly address two areas of overlap between federal and state programs. First, the statute should clearly reserve EPA's ability to take appropriate response action at any site to address situations involving an imminent and substantial endangerment to human health or the environment. While it is unlikely EPA would ever need to exercise its response authorities at a site being addressed by an authorized state program, such a reservation of rights would ensure the integrity of a federal minimum floor across the country.

Second, any CERCLA state authorization provision should clearly establish the rules that would apply to remedy selection decisions at federal facility sites. A qualified state should be allowed to seek and obtain authorization for such sites. At the same time, however, the statute should allow the head of a federal agency or department responsible for the facility (e.g., the Secretary of Defense) to seek review by the EPA Administrator regarding a disputed remedy selected by an authorized state. The Administrator's review should be limited to situations where the federal agency or department can demonstrate that: (1) the state's remedy selection decision is inconsistent with other state program decisions in similar circumstances, if precedents do exist; (2) the remedy selected by the state is more extensive than what is necessary to protect human health and the environment; and (3) an alternative remedy would achieve the goals and objectives of CERCLA and would meet all applicable requirements of the statute and its implementing regulations. The Administrator should be allowed to overrule the authorized state's decision, but only after attempting to reconcile the dispute. Any alternative remedy would still have to comply with all applicable public participation procedures (e.g., notice and comment).

Community Participation

CERCLA §§ 113 and 117 currently establish extensive public participation opportunities in the remedy selection process. In addition, the Technical Assistance Grant (TAG) program under § 117 provides the financial means for communities to understand the cleanup program and take part in a more meaningful way in the site remediation process. Two changes to the statute could promote even better community participation in the Superfund program. First, Congress should require EPA to more fully disclose the basis for its decisions. Second, it should add a limited right to administratively appeal remedy selection decisions in certain circumstances.

Full Disclosure

TAGs are designed to help communities interpret information relating to Superfund response actions, thereby facilitating more meaningful participation. Another, more direct approach to improve community involvement, which would reduce the need to rely on such grants in the first place, would be to require EPA to adopt a more user-friendly approach in preparing and communicating its decisions. A more transparent process would assist affected communities in understanding the nature and scope of proposed remedies, the reasons for choosing one type of response action from the range of available alternatives, and the basis for evaluating risk reduction and overall protection of human health and the environment. With that information in hand, affected communities could more effectively voice their concerns and participate in an open remedy selection process. Such an approach could help reestablish confidence in the objectivity of the Agency's decisionmaking process.

To improve and complement the existing public participation structure in CERCLA, Congress should require EPA to implement a full disclosure approach for communicating relevant background information and the basis for decisions at each major milestone in the remedy selection process (e.g., RI/FS, ROD, Explanation of Significant Differences). All decision documents should be written in a "plain English" format that is understandable at the 12th grade level. EPA should be required to prepare and distribute summaries of technical and background documents in the same format. Those documents should contain all pertinent information relating to each major milestone, and should be made available [27 ELR 10368] in a timely manner that would facilitate their usefulness in subsequent steps of the remedy selection process. For example, EPA should be required to release and fully explain its risk assessment analysis, including a clear, understandable discussion of the Agency's assumptions and conclusions using nontechnical terms wherever possible, and an explanation of how it considered scientific uncertainties. Furthermore, each ROD should contain a clear, understandable discussion of EPA's risk management decision and the reasons for it, and state for the record how that decision is consistent with the statute's mandate to protect human health and the environment.

Remedy Selection Appeals

In SARA, Congress struck a balance between the desire for meaningful public participation in selecting remedies and the need to avoid delays in remediation. The statute provides extensive opportunities to take part in EPA's administrative decisionmaking process, but postpones judicial review of response action decisions until after completion of the remediation work.35 Some communities have argued that this arrangement imposes an untenable trade off jeopardizing their health. They have claimed that the ability to challenge EPA's response action decisions only after the remedy has been implemented delays review until it is too late to protect them.36

To address these concerns, a CERCLA reauthorization bill should further refine the existing balance between providing opportunities for public participation and avoiding cleanup delays. Specifically, Congress should add a narrow, limited administrative appeal mechanism for certain remedy selection decisions. The appeal should be heard by the Environmental Appeals Board (EAB). It should only be available for a member of a community alleging that a proposed Superfund remedial action could potentially cause direct adverse health effects. The petitioner should have the burden to prove that the remedy selected would not be adequate to protect human health and the environment, either because it is not scientifically or technically sound, or because its implementation would expose a clearly defined group of individuals (or species or habitat) to an immediate, irreversible, and unacceptable risk of harm. To be successful, then, the petitioner should have to demonstrate a failure to protect human health and the environment.37 Disagreements over most types of remedies, such as caps or pump and treat systems, should not qualify for this administrative appeal process.

In providing an administrative appeal opportunity, Congress should reaffirm the current law's presumption of regularity for federal agency decisions under Superfund, as reflected now in § 113. Thus, review by the EAB should be based on the administrative record already compiled by the Agency in issuing its ROD. Furthermore, judicial review of the EAB's decision should be governed by the existing language in § 113(h). In addition, an administrative appeal should be available prospectively only; no review of remedy selection decisions made before enactment should be available. Finally, to avoid undue delays in the cleanup program, Congress should provide that an administrative appeal must be filed within 15 days of ROD signature, and should be handled under expedited review procedures.

Conclusion

A failure in the mid-1980s to reauthorize CERCLA and renew its sources of revenue led to a number of serious disruptions in the Superfund program. When SARA finally was enacted, its complexity and size compounded the problems EPA had to overcome in order to get the remediation program on track.

From a historical perspective, one measure of success for this round of CERCLA reauthorization will be how much of the remediation problem will be left over for future Congresses and Administrations to address. Another inescapable yardstick will be how long it takes to agree on a compromise that defuses some of the tensions caused by existing law while preserving the underlying remedial purposes and objectives of the federal cleanup program.

Keeping everyone satisfied with the implementation of this multibillion dollar program is not a realistic possibility, but reducing the controversies associated with it through targeted refinements is achievable. Real improvements in fashioning a more equitable polluter-pays financing mechanism can occur without sacrificing a long-term view of effective remediation that considers all the real costs of pollution and cleanup. The chances of success for achieving that kind of comprehensive reform will be better in the context of a smaller bill that is less complicated to write and easier to implement.

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

2. S. 1384, 103d Cong. (1994).

3. See S. 1285, 104th Cong. (1995); H.R. 2500, 104th Cong. (1995).

4. WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 292 (1984).

5. See EPA, SUPERFUND ADMINISTRATIVE REFORMS: ANNUAL REPORT FISCAL YEAR 1996 (Dec. 1996); EPA, SUPERFUND ADMINISTRATIVE IMPROVEMENTS CLOSEOUT REPORT: JUNE 23, 1993-SEPTEMBER 30, 1994 (Feb. 1995).

6. The trust fund is called the Hazardous Substance Superfund. See 42 U.S.C. § 9611(a), ELR STAT. CERCLA § 111(a).

7. For example, the rough estimate for Clean Air Act compliance is about $ 22 billion each year; annual outlays for CERCLA cleanups amount to only a fraction of that figure. See Henry A. Waxman, False Alarms on Clean Air, WASH. POST, Mar. 5, 1997, at A21.

8. The taxes could be general revenue measures, or new taxes on industry (e.g., higher feedstock or environmental tax). The latter also just becomes an expense passed on to consumers in the form of higher prices.

9. The statute should clearly reserve EPA's right to pursue nonsettling and later identified PRPs at a particular site to obtain reimbursement for a federal cost share payment that has been made there.

10. Severe economic hardship should be narrowly construed as impeding the ability of a PRP to continue to operate as a viable business concern in a manner that could lead to bankruptcy.

11. A federal cost share amounting to more than 30 percent of total response costs should require a specific congressional appropriation for the settlement.

12. 42 U.S.C. § 9622(f)(2)(B), ELR STAT. CERCLA § 122(f)(2)(B).

13. As discussed earlier, transaction costs that arise from litigation between the PRPs and their insurance companies should be addressed separately from CERCLA reauthorization.

14. 42 U.S.C. § 9621(b), ELR STAT. CERCLA § 121(b).

15. Id.

16. The severely degraded ecosystems in portions of the former Soviet Union and Central and Eastern Europe illustrate the consequences suffered in the long run when a highly industrialized society fails to properly account for the true costs of pollution. Those consequences go far beyond mere aesthetics. They directly touch the health and productivity of entire communities and regions.

17. Increased federal cost sharing could be achieved through the new settlement appropriations described above, or through expenditures from the National Innovative Treatment Technology Fund, described below.

18. "Hot spots" include areas of serious contamination at a site that pose the greatest risks to human health and the environment due to their toxicity, mobility, and other characteristics.

19. See supra note 10 and accompanying text.

20. As such, this provision should be designed to go well beyond the current innovative treatment technology research and development program established in CERCLA § 311(b). See 42 U.S.C. § 9660(b), ELR STAT. CERCLA § 311(b).

21. See 33 U.S.C. §§ 1281-1299, ELR STAT. FWPCA §§ 201-219.

22. See 42 U.S.C. § 6924(h), ELR STAT. RCRA § 3004(h).

23. See 40 C.F.R. § 268.6 (1996).

24. Remedies that would qualify for the new limited exception under § 121(b) just described should not be subject to this requirement.

25. CERCLA's definition of "natural resources" includes land, air, water, groundwater, and drinking water supplies. See 42 U.S.C. § 9601(16), ELR STAT. CERCLA § 101(16).

26. The national contingency plan (NCP) discusses the acceptable exposure levels for known or suspected carcinogens that are to be considered when developing remedial alternatives in a feasibilty study. See 40 C.F.R. § 300.430(e)(2)(i)(A)(2) (1996). The acceptable levels expressed as a risk range of 10<-4> to 10<-6>.

27. These illnesses may be evaluated to the extent they fall within § 300.430(e)(2)(i)(A)(1), which addresses adverse effects for systemic toxicants; however, cancer is the only type of health threat specifically mentioned in this relevant portion of the NCP.

28. Congress should make it clear that this provision would not be available in situations involving intentional releases designed to create remediation waste. The Agency (or authorized state) should be required to make an eligibility determination along these lines as a threshold matter.

29. To the extent a RAP is like a ROD, it should be treated the same way for purposes of public participation and judicial review under CERCLA §§ 113, 117, and 310.

30. Some further acceleration would be appropriate for states with authorized RCRA corrective action programs in place already.

31. Some examples are state implementation plans and Title V permitting under the Clean Air Act, national pollutant discharge elimination system and § 404 wetlands permitting under the FWPCA, and RCRA's cradle-to-grave hazardous waste management program.

32. Consistent with the other major federal environmental laws, CERCLA should adopt an authorization approach, not a model based on delegation of federal authorities. This would ensure that a state seeking to administer the federal cleanup program has taken the time to enact appropriate legal authorities and made the effort to develop and fund a a state program whose track record can be evaluated. Using a delegation model would not provide an accurate indication of a state's capabilities, because a state would only begin to gain experience with administering newly granted federal authorities at the time of the delegation. It also would lead to a slower startup while a state took some time to learn how to implement its newly acquired authorities.

33. For the most part, CERCLA by itself cannot stop states from relaxing regulatory requirements that might eventually lead to the creation of future contaminated sites. Nor can the statute force states to bring already contaminated sites into the scope of its cleanup authorities; in fact, some states have quite openly refrained from recommending sites for inclusion on the NPL for years, even though the sites could score highly enough to be addressed by the federal program. Nonetheless, a CERCLA state authorization provision should not become a vehicle or a stamp of approval for allowing inadequate remediation.

34. As with other federal environmental laws, an authorized state should be free to require more stringent cleanup standards.

35. See 42 U.S.C. § 9613(h), ELR STAT. CERCLA § 113(h).

36. For example, in the context of incineration remedies, the argument has been made that once the remedy has been completed, the contamination is gone for the most part. Furthermore, any inhalation risks to nearby communities have already occurred and cannot be undone, so that there is not much point in proceeding with judicial review.

37. The PRPs unhappy with the cost of a particular remedy should not have access to the EAB appeal process. The Agency's existing Remedy Review Board process should address most of the cost-related concerns normally raised by the PRPs. Also, to the extent the PRPs' objections are typically driven by the cost of cleanup, those kinds of concerns can be heard and redressed, if appropriate, in a cost recovery or reimbursement proceeding after completion of the remedy.

27 ELR 10357 | Environmental Law Reporter | copyright © 1997 | All rights reserved