Superfund The debate drags on
Michael R. Detand EKT,Concoril,MA
EPA’s recent promulgation of regulations implementing the Resource Conservation and Recovery Act of 1977, provides the mechanism, albeit cumbersome and controversial, to control from “cradle to grave” the disposal of hazardous wastes now being generated. Still lacking, however, after two years of congressional discussion, is legislation which addresses the vast quantity of hazardous waste which has been accumulating for years in dump sites throughout the country, many of them now abandoned. Thanks in part to the wide publicity given Love Canal, there is a chance for passage this session of the long awaited “superfund” legislation. Support for some version of remedial legislation is broad, ranging from a plank of the Democratic Party platform calling for a “major effort to clean up hazardous waste dump sites of which there are thousands throughout the country,” to the more qualified endorsement of Irving Shapiro, chairman of DuPont, who recently cited abandoned hazardous waste sites as a “particularly vexing probiem” and backed a proposed House bill as the “best answer” to cleanup. 0013-936X/80/0914-1175$01.00/0
Congressional debate There are currently three separate superfund bills being debated in Congress, H.R. 7020, H.R. 85 (which is limited to discharges into navigable waters), and S. 1480. Of these, the Senate bill is the most comprehensive, calling for the establishment of a $4.085 billion fund over six years; the House proposals establish a range from $600 million to $1.2 billion over four years. Still being debated is the size of industry’s share: likely to be 75-80% of the total, funded by a “front-end fee” approach. Environmental and labor groups understandably endorse the Senate approach, while industry, feeling some bill is inevitable, is lobbying for the House version. Lawyers for the chemical industry have fundamental objections to S. 1480, namely, that it is “unduly broad in scope, lacking in meaningful statutory standards, ambiguous and uncertain as to its intent and effect, and impermissibly vague and burdensome.” Their more specific criticisms include the notification requirements, the removal of remedial provisions, and liability questions. The Senate bill currently requires notification, both for sites at which hazardous substances are stored or disposed of and for “releases” of hazardous materials to the environment. This reporting duty extends to virtually anyone having any present, past, or conceivable future association with the site. The remedial and removal orders are similarly broad, giving the EPA administrator authority to establish such requirements as he “deems appropriate” to protect public health, welfare, and the environment. The question of assignment of liability is likely to remain among the most controversial. S. 1480 contains stringent liability provisions based on several factors, the key of which is the
@ 1980 American Chemical Society
assumption that those “who have been generically associated with such problems in the past and who today profit from products and services associated with such substances” should bear the brunt of the cost of cleanup. This approach results in the establishment of absolute liability for generators of hazardous waste, regardless of any intervening role played by third parties. The only defenses to this are an act of God or of war. Industry argues that this unfairly creates “a retroactive liability for events which have occurred in the past and for which the enterprises bearing the liability have no casual responsibility whatever.” Ultimate resolution? While few question that something must be done to “defuse” the abandoned waste sites, characterized by Administrator Costle as “ticking time bombs,” a concensus on a sensible approach remains elusive. Crystallized within the debate over the “superfund” are disturbing questions which will continue to confront us in the 1980s. New discoveries have shown longaccepted practices to be an insult to our environment and a threat to our health. How many more Love Canals are there? Will the cost to “cure” the next one fall within EPA’s estimated range of $3.6 billion to $44 billion or be closer to CEQ’s estimates of $28.4 billion to $55 billion? Given such disparity, do those estimates serve a useful purpose? Science has advanced sufficiently to unearth new problems, but their resolution, or even accurate risk assessment, must await further progress. Meanwhile, Congress, in the face of technical uncertainty, is left to find political solutions, subjecting the process to new strains and taxing the patience of a public justifiably awaiting results. Volume 14, Number 10, October 1980
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