WASHINGTON REPORT: Cleaning Up Superfund Law: Controversy over liability provisionsstalls reauthorization driveAuthor(s): ELIZABETH ROGERSSource: ABA Journal, Vol. 83, No. 12 (DECEMBER 1997), p. 91Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840163 .

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W^mt WASHINGTON REPORT

Cleaning Up Superfund Law Controversy over liability provisions stalls reauthorization drive BY ELIZABETH ROGERS

Efforts to reauthorize the Su

perfund program this Congress re main stalled by a number of unre solved issues, including disagree

ment over who is responsible for the cleanup of hazard ous waste sites.

The liability issues have plagued Superfund since its creation under the Comprehensive En vironmental Response, Compensation and Lia bility Act of 1980, hin dering Congress in its struggle over the past few years to make the program more equitable.

For example, under the law's most contro

versial provision?retro active liability?a party can be held liable for the cost of cleaning up waste deposited legally before cercla was even

enacted.

As a result of such provisions, critics say, Superfund has fostered

more long and costly legal battles than actual site cleanups.

Current proposals to rewrite the Superfund liability provisions before reauthorization are more modest than previous efforts.

Senate Bill Caps Liability In the Senate, a Republican ef

fort is being led by Sens. John H. Chafee of Rhode Island and Robert Smith of New Hampshire with S. 8, the Superfund Cleanup Acceleration Act of 1997. Unlike previous GOP reform proposals for Superfund, S. 8 would not eliminate all liability for pre-1980 disposal activities.

Instead, S. 8 would cap liabili ty of owners and operators of sites receiving municipal solid waste and sewage sludge. The bill also would exempt from liability all waste gen erators and transporters at co-dis posal landfills for conduct before 1997, as well as small businesses

Elizabeth Rogers is editor of Washington Summary, a bi-weekly publication of the ABA Governmen tal Affairs Office.

and individuals contributing only a minimal amount of waste to a site.

S. 8 would replace joint and several liability at multiparty sites with a "fair share" allocation sys tem in which responsible parties are required to pay only for the

Agents for EPA inspect a toxic waste site in Denver, Colo.

harm they actually cause. In the fall, markup of S. 8 was

repeatedly delayed after Carol M. Browner, Environmental Protection Agency administrator, voiced con cerns about provisions in the bill at a hearing of the Senate Committee on Environment and Public Works.

In the House, Republican Reps. Sherwood L. Boehlert of New York and Michael G. Oxley of Ohio have been working on their own drafts of bipartisan Superfund reauthoriza tion legislation. Both proposals were

expected to grant limited liability exemptions to certain minor parties with the aim of speeding cleanups.

The ABA's interest in compre

On the Hill RECENT ABA TESTIMONY

Mitchell F. Dolin of Washington, D.C., co-chair of the Litigation Section's Task Force on the Judiciary, testified Oct. 9 before a House Judiciary subcommittee to present the ABA's views on legisla tion concerning court improvements and alternative dispute resolution.

!

hensive Superfund changes dates back to 1992, when a working group of the association concluded that broad reforms were needed. The group's detailed recommendations for making the program more fair, cost-effective and efficient were - ^^?^ ^ adopted in 1994 by the

policy-making House of Delegates.

The ABA supports repeal of retroactive li ability and elimination of joint liability except in very special circum stances. The ABA also advocates the use of al ternative dispute reso lution instead of litiga tion to assign cleanup responsibility.

The association has worked with both par ties in Congress to enact these reforms, testifying in both the House and Senate during the 104th Congress.

In a letter to Boehl ert earlier this year, ABA Govern mental Affairs Director Robert D. Evans said "[B]y making all parties jointly liable for a given site, [Super fund] has resulted in imposition of liability which is grossly dispropor tionate to the conduct involved, per verting rather than implementing the polluter should pay' principle."

Evans added that the Super fund statute, as now written, inter prets and enforces results in "mas sive, wasteful and unproductive litigation" with the unintended con sequence of slowing the cleanup of hazardous waste sites.

At an October conference spon sored by the ABA Litigation Section, Boehlert thanked the ABA for play ing an important role in advancing Superfund reform. The problems as sociated with Superfund litigation, he said, "rest not with the lawyers but with an ill-conceived law that fosters litigation at every turn."

Boehlert concluded that "the ABA's call for the use of alternative dispute resolution, not litigation, to allocate responsibility, and a liabili ty scheme based on the actual con tribution of harm are principles ... we should all rally around."

PHOTO EDIT/A. RAMEY ABA JOURNAL / DECEMBER 1997 91

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