Superfund Reform Still Out of Sight

Published January 1, 1998

With the 105th Congress no more able to clean up the Superfund mess than any of its predecessors have been, the nation finds itself saddled with a law that continues to misdirect public and private resources while providing few, if any, environmental benefits.

The Superfund fiasco has become so obvious that few will defend it publicly. Yet it remains on the books year after year, entangling untold numbers of individuals, businesses, and communities in its suffocating litigation web.

“This persistence is a sobering commentary on the current state of environmental policy,” notes James V. DeLong. “Passage of a bad law can be understood–mistakes happen–but healthy institutions find their mistakes and correct them. A major signal of institutional distress is an inability to fix error, or even to admit it. By this standard, Superfund is a symptom of truly awesome pathology.”

In a thoughtful, if disturbing, analysis for the Competitive Enterprise Institute’s (CEI) Environmental Studies Program, DeLong points out that Superfund was conceived to address concerns about the sloppy disposal of hazardous waste, particularly at abandoned sites. Those concerns were valid, if overstated, DeLong observes. If Superfund had solely provided for emergency actions at abandoned waste sites, there would have been few problems or complaints, he says. “Instead, Congress passed a law covering every plot of ground on which any contaminant had been spilled, however small the amount or minor the risk.”

DeLong has nothing but bad news for those naive enough to believe that cleaning up the sites on the National Priorities List (NPL) will solve the Superfund problem. The Washington-based attorney notes that NPL sites represent only a small fraction of the total number of contaminated sites, and not necessarily the most important ones. “As long as the liability rules and cleanup standards remain unchanged,” he writes, “the Superfund problem will exist, whatever happens to the current NPL sites.”

Even after a site is cleaned up, the continuing possibility of Superfund liability “makes it a leper from the standpoint of investors,” DeLong explains. The post-remediation liability threat is so great that no one will touch a site even though it is declared clean. “Congress made every individual Superfund site into a tarbaby, exposing anyone with any connection to it to liability for all cleanup costs,” he says. “No ‘potentially responsible party’ (PRP) can defend on the grounds that it acted legally and responsibly. This regime gives PRPs strong incentives to engage in costly litigation, delaying cleanups and wasting financial resources.”

DeLong berates both the Clinton administration and the Republican-controlled Congress for failing to address the Superfund problem in a serious way. He finds the leading Congressional reform bill, “The Superfund Cleanup Acceleration Act of 1997” (S. 8), woefully inadequate. While the bill’s provision shielding any site cleaned up pursuant to a state plan from suit by the federal government or any private party has merit, the legislation otherwise has little to offer. “Mere lip service is paid to liability reform and risk assessments, and the provisions to delegate more authority to states are mostly a sham,” he observes. “Most unfortunately,” he continues, “passage of the proposals currently on the table would probably foreclose serious reform for another decade.”

The flaws of Superfund are so fundamental that it is simply not possible to achieve meaningful reform by tinkering with the present statute, DeLong argues. True reform of Superfund requires three steps, he says:

  • Repeal of the current statute and its approach to hazardous waste cleanup, including federal cleanup standards, taxes, and liability rules.
  • Replacing the program with nothing. Contaminated real estate is not a federal problem, but rather a state and local concern. States are already outperforming the federal government at hazardous waste cleanup, and would do more if they were permitted.
  • Establish transition rules to sweep up the debris of seventeen years of Superfund and provide a measure of justice to people enmeshed in the program, with particular concern for those sites that are already in the Superfund pipeline. The primary aim should be to expedite the process and transfer sites to state jurisdiction or, where possible, private hands.

DeLong concludes that the primary responsibility for cleaning up the sites should rest with the states, guided by the principles of common law. “Seventeen years of nonsense is enough,” he adds.