NEWS OF THE WEEK
Chemical industry urges Superfund changes Calling it a "fair share" liability system, the Chemical Manufacturers Association (CMA) last week tendered a Superfund reform proposal it says would speed cleanups and slash costs. CMA's fairshare standard would replace the current joint and several liability scheme. CMA's standard upholds the polluterpays principle of the current liability system by retaining strict and retroactive liability. A liable party that released waste to the environment would remain responsible for the cost of reducing the risks, proportionate to its share of the waste at a Superfund site. At the core of CMA's proposal is allocation of liability by government administrative law judges, who would apportion cleanup costs among responsible parties. The burden of finding all responsible parties would fall to the Environmental Protection Agency. Under joint and several liability, a single responsible party can be saddled with die full cost of cleaning up a Superfund site, even if it has contributed only minimal waste to the site. CMA contends that joint and several liability acts as a disincentive for EPA to identify all potentially responsible parties. Indeed, to lighten their financial burden, EPA-named liable parties usually are forced to find and then sue other potentially liable companies or individuals to make them pay their share of cleanup costs at a site. In weighing a party's contribution to contamination of a site and, hence, its cleanup responsibility under CMA's plan, administrative law judges would use the "Gore factors," named for then Rep. Al Gore (D.-Tenn.). These criteria include volume, toxicity, and degree of care taken. The Superfund's trust fund— accumulated from general revenues and from taxes on chemical feedstocks— would be tapped when a responsible party no longer exists, cannot be found, or is insolvent. CMA believes this requirement would prod EPA to find all potentially liable parties. CMA argues that the present liability system has resulted in costly, protracted litigation that feeds the coffers of attorneys and consultants (so-called transaction costs) but drastically slows the pace of cleanups. CMA's proposal, however, would "knock two to three years off' the time for cleaning up a typical Super4
AUGUST 23,1993 C&EN
fund site, and "save hundreds of millions of dollars a year in transaction costs," contends Robert N. Burt, president and chief executive officer of Chicago-based FMC Corp., and a member of CMA's board of directors. The time and cost savings are possible, CMA explains, because its fairshare system would reduce litigation. The judges' decisions would be binding and appeals would be difficult. John Pendergrass, a senior attorney with the nonadvocacy, Washington-based Environmental Law Institute, disagrees: "I would predict a significant amount of litigation challenging [judges'] decisions based on assertions that the decisions are arbitrary and capricious." Pendergrass welcomes CMA's detailed proposal, but cautions that it tries to "force the government to pick up more costs and responsibility throughout the process." To the extent financial and investigative burdens are shifted from responsible parties to government, "we'll have fewer cleanups or cleanups that are less protective," he says. However, responds CMA counsel Michael W. Steinberg, "We are not proposing greater burdens for EPA. We're giving EPA greater incentives to do a better job at the front end." By weighing in now with its liability scheme and shortly with an additional proposal, CMA hopes to sway Congress as it overhauls Superfund's implementing legislation, which expires Sept. 30, 1994. CMA will soon unveil the second part of its reform package: revision of the remedy selection process. hois Ember
Du Pont settles first Benlate court battle The first trial on claims that Du Ponf s systemic fungicide Benlate harmed rather than helped plants has been settled out of court during jury deliberations. Du Pont chairman Edgar S. Woolard Jr. calls the settlement a victory. In the five-and-a-half week trial at the federal district court in Columbus, Ga., four commercial plant growers sued Du Pont for $430 million in compensatory and punitive damages. They claimed that Benlate killed their ornamental plants, and that Du Pont did not compensate them properly for damages. The settlement was for $4.25 million,
less than 1% of the amount sought. As part of the settlement, a $1 million administrative fine assessed against Du Pont by Judge J. Robert Elliott will be dropped. He imposed the fine because he believed the company withheld important evidence at the trial. "We rightfully view this outcome as a victory for Du Pont," says Woolard. "We remain as convinced as ever that our product did not cause the damage claimed. We believe in the integrity of our science. And we firmly believe that our employees have always told the truth." Du Pont believes strongly it would have been cleared by the jury, but calls the settlement a business decision, made to avoid the heavy costs of probable appeals and retrials. Plaintiffs' attorney C. Neal Pope apparently concluded a settlement was advisable while the jury met for a second day. T v e been around a long time, and you've got to know when to hold 'em, know when to fold 'em," he reportedly explained. Du Pont already has settled with 10 other claimants he represented. The Benlate controversy arose in 1991 when a number of farmers and nursery owners noticed that their crops wilted and died shortly after Benlate was applied. Concerned the fungicide was contaminated with an herbicide, Du Pont recalled it and began paying insurance claims for damages. By last November, the company had paid more than $500 million on about 1900 claims. But Du Pont also began intensive r e search to find the cause of the plant damage. After more than a year, it found nothing and concluded Benlate did not cause plant damage, and stopped paying claims (C&EN, Nov. 16, 1992, page 4). About 400 claims are still outstanding and more trials are to come. E)u Pont is currently defending Benlate in a trial in El Dorado, Ark. Another major trial is scheduled to begin this week in Broward County, Florida. This trial has only one plaintiff, but is expected to set an important precedent because most of the remaining damage claims originate in Florida. Attorneys not associated with the Georgia case think that the settlement— although small in relation to the total payment sought—will encourage future plaintiffs also to hold out for settlements. Since Du Pont has stopped paying claims, this would be their only means of receiving compensation. David Hanson
