Waste in Hazardous Waste Cleanup

October 18, 1993

Superfund has been a superfailure in 13 years of trying to clean up the nation's toxic legacy from decades of criminal and negligent disposal of hazardous waste.

Some $15 billion has been spent on Superfund projects, but only about 100 polluted sites out of 1,300 on the list have actually been treated or cleaned up. Most of the cleaning up has been done by lawyers and administrators, who have taken three-quarters of the money spent.

While steadfastly insisting that "the polluter pays," Superfund has never had the resources or the personnel to collect from every polluter. The agency has already written off $270 million in uncollectible fines -- the guilty culprits being bankrupt or out of business -- and that figure is expected to double in the near future.

Potentially liable polluters have spent billions on court fights against Superfund and against other polluters in an effort to avoid or shift blame and costs to others. The law and the courts have encouraged this blame-shifting through the "joint and several liability" standard that can make one liable party clean up the whole site even if others were also responsible.

That unlimited liability has panicked the insurance industry, which projects that Superfund claims could reach $1 trillion in the next 30 years. That could destroy the liability insurance market, and threaten the solvency of some companies.

The White House promises reform legislation for Congress by next month; reauthorization is needed in 1994. But the Environmental Protection Agency and the Treasury are divided on how to do it.

Treasury wants to limit "joint and several" liabilities for firms only tangentially responsible, and for ancient abuses. Taxpayers would assume more of the burden, fees would be raised on business and industry, and on insurers to establish a broader-based fund. The EPA proposal calls for federal arbitration of each dumper's liability, while keeping potential broad liability and retroactive responsibility provisions, and limiting government exposure.

As the enormous cost of Superfund remedies soars, the program is also challenged to set priorities for dumps that involve true human health hazards, instead of headline hunting, and to develop more cost-effective remediation plans. In some cases, containment and isolation would be as effective as outrageously expensive "risk-free" treatments such as massive soil removal, for instance.

Polluters should pay. But the Superfund focus should be on equitable, efficient and sensible cleanup programs that don't waste precious resources of time and money. Environmental stewardship demands effective management of those resources, not just creating a longer wish list of projects that will never be completed.

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