Talking Points on the Environment #18

Cleaning Up the Superfund Mess: Five Steps to Recovery

Superfund, hurried through Congress during the final days of the Carter Administration, was created to force companies to clean up their hazardous waste sites that threaten the public health. However, Superfund has proven to be costly and ineffective at cleaning the nation's worst toxic dumps. Over the past 15 years, expenses have soared to more than $30 billion, while only a small fraction of the job has been finished.

But Superfund can be more effective and less expensive. Here are the suggested steps:

Superfund's primary focus should be the immediate danger to public health. The process of listing toxic waste sites for clean-up unwisely takes into account hypothetical future risks. Some of the risks considered involve future homes and playgrounds being built on land that previously was an industrial waste site. Although this may seem like "forward thinking," it strays from the primary mission of Superfund -- protecting against the immediate danger to public health. Nearly one-third of all sites currently pose no threat to the public. By squandering limited resources on hypothetical risks, opportunities to save lives are lost.

Appeals should be permitted before mandated clean ups are completed. Individuals who are forced to clean a site can only appeal the government's decision after they've completed the clean-up. The current process is unfair because an individual may be stuck with litigation and clean-up costs even if they prove that they are not the responsible party. This encourages additional litigation costs by forcing one party -- the one ordered by the EPA to pay clean-up costs -- to sue other potentially responsible parties (PRP) for recovery.

States should play a greater role. The federal government currently designates Superfund sites without input from state governments. Yet states can better understand the needs and priorities of local communities, and therefore should be given the option to have authority over the program. Listing a Superfund site is not without consequence. When a site is listed, property values in neighboring communities plummet. For many residents, calling a dump a Superfund site as opposed to just "the neighborhood dump" can mean a difference of thousands of dollars for individual home owners. Allowing states the option to have authority over Superfund will allow communities to play a role in the decision-making process.

The polluter should pay clean-up costs. Superfund's current liability scheme ignores the concept of the "polluter-pays," and instead adopts a witch hunt strategy for the "deepest pocket." A person who may have contributed a very small amount of waste to a site may be held accountable for the entire cost of the clean-up because of his ability to pay. And of course, any person who is identified as "responsible" has the incentive to prove that other parties are liable, so they aren't left paying the entire costs. This means even more litigation.

Retroactive liability should be abolished. Holding parties liable to spend tens of millions of dollars on site clean up for actions that were legal or standard business practice years ago is not only unfair, but stretches the constitution to the point of breaking. After-the-fact law and punishment is forbidden in the U.S. Constitution (Article I, Section 9, Clause 3). In addition, Superfund's retroactive liability scheme sets the stage for the costly and continuous litigation that is the chief cause of its failure. Retroactive liability diverts money from cleaning waste sites to legal teams filing lawsuits.

Based on information from U.S. Senator Jim Inhofe; John Shanahan of The Heritage Foundation; Red Tape In America: Stories From the Front Line, by Craig E. Richardson and Geoff C. Ziebart; Richard Barth of CIBA-Geigy Corporation; and Maurice R. Greenberg of American International Group.

Issue Date: August 31, 1995.

Talking Points on the Economy: Environment #18, published by The National Center for Public Policy Research, 501 Capitol Ct NE, Washington, D.C. 20001 Tel. (202) 507-6398, Fax (301) 498-1301, [email protected], http://www.nationalcenter/ For more information about Talking Points on the Economy: Environment #18 contact Bob Adams at (202) 507-6398 or [email protected]

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