Tom Bliley's Aug. 16 op-ed piece, "Superfund Law Needs a Cleanup," said, "Superfund is a statute with fundamental flaws. Its liability scheme has created 20 years of litigation . . . and delayed cleanup[s]." What Mr. Bliley doesn't explain is that it is not the law that is flawed, but the way the Reagan administration implemented the program.
The problem with Superfund is that the polluters, or "responsible parties," are involved in every aspect of site assessment and cleanup. There is an inherent conflict between corporations concerned with minimizing their costs and communities concerned with health risks and damaged property. Yet these parties are asked to agree on a cleanup plan before work can begin. In no other instance do we allow the perpetrator of a crime to sit at the table with the victim and have equal voice in defining how badly the victim was harmed and what the proper recourse is. If the polluter was taken out of the decision-making process, sites would be cleaned up much more quickly.
The law creating Superfund dealt with this conflict. The program was supposed to identify sites, assess the extent of contamination and develop a cleanup plan. Then, the Environmental Protection Agency was to give the polluter the option of paying these costs without litigation. If the polluter decided not to pay and wanted to go to court, EPA could sue for triple damages. Clearly, the threat of losing in court and having to pay triple damages serves as the right incentive to settle out of court quickly.
If the program had operated this way from the beginning, we would not be faced with the delays and litigation costs we see today.
The tax on chemical producers that fund the program has gone uncollected for several years; to date, the uncollected total is $5 billion. And it is general revenues -- our tax dollars -- that are now being used to clean up polluted sites.
If nothing else, Superfund reform must take the polluter out of decision-making and reinstate the tax that funds cleanups.
Center for Health, Environment and Justice Falls Church
The writer was the community leader at Love Canal, which served as the impetus for the creation of Superfund.
The Aug. 10 op-ed column praising Superfund [`Superfund, Super Star"] needs to come back down to earth. In its 20-year history, the Superfund program has cleaned up only a few hundred sites at a tremendous cost. More than 60 cents on each dollar spent in the Superfund program has gone to transaction costs, lawyers and consultants.
Moreover, the Superfund program employs half of all EPA employees -- somewhere around 11,000. EPA has placed as much staff into one program as it put into all of its other programs combined (air, water, waste, regulatory reinvention, pollution prevention, oil spills, toxic releases and pesticides).
But Superfund is doing something far worse than wasting money and creating a large bureaucracy -- it significantly contributes to urban sprawl and the blight of urban areas.
By linking the Superfund liability structure (joint, several and retroactive liability) to all sites that might contain any contamination, EPA and the Department of Justice have caused developers to stay away from redeveloping such sites. This linkage, more than any other factor, has created the 500,000 brownfield sites that dot our nation.
Congress needs to ramp down the Superfund program and separate brownfields from Superfund liability so that these sites can be returned to commercial viability. This would be a valuable legacy for Congress and the Clinton administration.
Environment and Regulatory Affairs
U.S. Chamber of Commerce