GOVERNMENT number of facilities to try to determine the accuracy of TRI data. Overall, EPA says total 1987 releases appear to have been underestimated by 2%, represent ing the net effect of overestimates and underestimates. For the 1988 data, EPA focused on the major industries of chem icals and petroleum, and found that the data were even better than in 1987. So the agency is convinced that companies are, in general, making serious attempts to provide accurate numbers. An incentive to produce even more accurate numbers comes from EPA's enforcement of the reporting provi sions. Since 1989 the agency has con ducted 2330 inspections of facilities and has filed 548 civil complaints, almost all for not reporting emissions. Penal ties in excess of $16 million have been assessed for not filing TRI data. The Chemical Manufacturers Associa tion, beating EPA to the draw, distribut ed TRI data of its member companies al most a month earlier than the govern ment. CMA says its 1470 facilities actually reduced releases of TRI chemi cals 30% from 1989 to 1990 and off-site transfers 27%, indicating the major chemical companies are doing a betterthan-average job of cutting emissions. Over the four-year TRI period, reduc tions totaled 42% for releases and 35% for off-site transfers. John W. Johnstone Jr., CMA chairman and president and chief executive officer of Olin Corp., says: 'These reductions are a good foun dation on which to build. Engineering further reductions will get harder and harder in the coming years as we ratchet down our waste generation/, CMA also points out that these re ductions in hazardous emissions oc curred over a period when chemical production in the U.S. rose 10% accord ing to Department of Commerce data. And the chemical trade surplus rose 74% to $16.5 billion in 1990. Johnstone says the increased public accountability forced on the industry by TRI has actu ally made the chemical industry more competitive. A recent program associated with TRI is the 33-50 program. EPA Admin istrator William K. Reilly established this voluntary release reduction pro gram in February 1991. He wrote to the 600 companies with the largest TRI re leases asking that they work to volun tarily reduce emissions for 17 of the most serious TRI chemical pollutants 33% by 1992 and 50% by 1995. Since 14
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then, 6000 companies have been invit ed to join the program. With about 1000 company responses so far, EPA says it has 730 firm commitments to re duce emissions at least 304 million lb by 1995. CMA says its members are well on their way to meeting this 33-50 goal. The trade association reports releases of the 17 target chemicals were down 17% and transfers were down 39% from 1988 to 1990. CMA says it strongly encourages this program because it is in keeping with the goals of Responsible Care, the industry's major stewardship initiative. TRI is required under the Emergency Planning & Community Right-to-Know Act, a part of the 1986 amendments to the Superfund law. Companies that meet the volume requirements and have at least 10 employees are required to file.
Even though more than 23,000 compa nies filed for the 1990 inventory, EPA es timates this may be only about 67% of the facilities that should be filing. The law also requires that EPA make TRI data available to the public. The agency has done this by contracting with the National Library of Medicine to maintain the information. The 1990 data, and all previous years' data, are available on the library's Toxnet na tional computer database and on com puter data tapes through the National Technical Information Service. Many public libraries also have the data available. Individuals can get more in formation on how to obtain TRI data by calling EPA's emergency planning and community right-to-know hotline at (800) 535-0202. David Hanson
Study offers Superfund liability options An all-too-familiar scenario is now be ginning to be replayed. Superfund—a major, convoluted environmental law with a highly controversial liability sys tem—is coming up for renewal next year. Nearly everyone involved—from industry officials to environmental groups to insurers—deems the system unfair, too slow, and too costly. Yet data are scarce or poor on how, or even whether, to change the law's liability provisions. Stepping into the breach with an analysis of policy options is Resources for the Future (RFF), a Washington-based think tank. The options RFF considers range from retaining the current liability pro gram to total abandonment of the present scheme at all Superfund sites at the date of renewal of the law. In be tween are permutations offering slight modifications to the current program. In all, RFF analysts evaluate five op tions, including the no-change option, against each one's effect on six criteria: speed of cleanup, transactions costs, voluntary cleanup at landfills not yet listed as Superfund sites, careful future management of hazardous waste, fair ness, and financial implications. Trans actions costs are those stemming from negotiations of settlements and/or from litigation. Analysts Katherine Ν. Probst, RFF fel low, and Paul R. Portney, RFF vice pres ident, recommend no single option. Nor do they rank the five possibilities in or-
der of fairness or effectiveness. They do find that modifying the current liability scheme could speed cleanups, cut trans actions costs, and address some inequi ties. But with modification comes some potential negatives: new inequities could be created and present incentives for voluntary cleanups and careful manage ment of hazardous wastes could be di minished. Under the present program, all socalled responsible parties are subject to retroactive, strict, and joint and several liability. This means liability without fault for any activities that took place before enactment of Superfund in 1980. And, any one party can be held respon sible for the entire cost of cleanup. Also under the present scheme, a trust fund financed primarily by petroleum excise taxes, a chemical feedstock tax, a cor porate environmental tax, and general revenues is generated to pay for all En vironmental Protection Agency Superfund activities. According to their analysis, the cur rent liability scheme contributes to de lays, can result in large transactions costs, and creates many inequities. But it does encourage voluntary cleanup of hazardous-waste landfills not yet listed as Superfund sites, and careful waste management practices. A slight modification of the current scheme, mixed funding, would have re sponsible parties pay for their share of the cleanup, but not for so-called orphan
shares. Orphan shares are those identi fied responsible parties that either refuse to pay or are financially unable to pay cleanup costs. Such orphan shares would be financed from the trust fund. Liability standards—strict, and joint and several—would not change. This mixed funding option, which better approximates the "polluter pays" principle than the current scheme and is therefore somewhat more fair, could speed cleanups and reduce transactions costs. It probably would not affect future waste management practices, but it would increase the trust fund's burden by about $326 million per year. A third option would have EPA use trust fund monies to clean up all sites that had accepted both municipal solid waste and industrial wastes as long as these sites were closed at the time of Superfund's next renewal. This option would speed cleanups at closed sites, practically eliminate transactions costs, but have no effect on future waste man agement practices. It would reduce vol untary cleanups at not-yet-listed but po tential Superfund sites. But it would be unfair in that liability would be deter mined solely by where the waste was sent, the RIT analysts claim. (If, for ex ample, the dump site contained no mu nicipal solid waste, industrial sources would be liable for all cleanup costs.) The increased burden to the trust fund: about $1 billion per year. Still a fourth alternative would re lease all responsible parties from liabil ity at all sites closed before Jan. 1,1981. Probst and Portney believe this option would expedite cleanups and eliminate
transactions costs at pre-1981 sites. But it could possibly delay cleanups and increase costs at some post-1981 sites. It would probably have no effect on fu ture waste management actions. But, by eliminating retroactive liability, it might send "the wrong signal," and distinguish unfairly among responsible parties, the analysts contend. The in creased burden on the trust fund would be about $2.3 billion per year. Under the final option, all responsible parties at all Superfund sites on the date of the law's renewal would be released from responsibility for the cost of clean up. Cleanups would be accelerated and transactions costs eliminated at affected Superfund sites. But the analysts believe this option would blunt the incentive for due care in future waste management actions, and would have "little appeal on grounds of fairness." The increased burden on the trust fund would be about $3.7 billion per year. The analysts recommend no single option because the importance of the study is to be found in "its framework, not in any of the specifics," explains Probst. 'We've tried to point out all the warts with every option, to lay out all the pros and cons to get people to see the various trade-offs," she adds. In the 18 months it's taken to complete the study, "we've tried to put as much flesh on the bones as we could, but without better data, it will be hard to go any fur ther than we did," Probst contends. Portney says he "hopes the study is a good starting place for debate." If it is, "then we've done our job." There are many facets to the liability
Probst (left) and Portney: offer options to spark debate
issue, and the analysts caution that they do not address several of them. These include lender liability, insur ance coverage, federal facilities, the role of states, and natural resource damag es. Their study is also silent on the ef fect that any change in liability would have on the types of cleanup remedies selected. And it does not address the issue of EPA's ability to effectively manage at one time the increased num ber of cleanup sites called for by sever al of the options. The liability issue in all its guises has been widely and loudly debated. But discussions to date have shed far more heat than light. So the analysts' simple goal of getting future debate on more solid ground may be achievable. Wheth er that goal is reached should become evident in 1993, when Superfund renew al gets under way in Congress. To make certain of having input into the renewal debates, the report has al ready been sent to several Congres sional offices, including the House En ergy & Commerce Committee and the Senate committees on Environment & Public Works and on Banking, Hous ing & Urban Affairs. The Chemical Manufacturers Association (CMA) and the American International Group (AIG), the largest U.S. underwriter of commercial and industrial insurance, have also received reports. "While we have serious concerns about some of the report's conclusions, we do believe that it will provide a use ful framework in beginning to think about changes to the liability system," says AIG spokesman Jan Edelstein. Based on a cursory review of the study, CMA attorney Dell E. Perelman says CMA "is disappointed in the report in that it doesn't per se look at our pre ferred option, which is eliminating joint and several liability and replacing it with proportional liability." The mixed funding option comes closest to CMA's preferred liability scheme, but it doesn't eliminate joint and several liability. The association is clear in its stance on the current liabili ty system—"It is disastrous," says Per elman—but it is open-minded about the other four options, though it en dorses none of them. "Assigning Liability for Superfund Cleanups: An Analysis of Policy Op tions" is available from RFF, 1616 Ρ St., N.W., Washington, D.C. 20036, for $15. Lois Ember JUNE 15,1992 C&EN
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