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The Superfund Cleanup: Mired in Its Own Mess


* At Eagleville, Pa., EPA put a 44-acre municipal and industrial landfill on the list in 1982. After three years, the agency identified 26 potentially responsible parties and moved ahead with a cleanup plan, only to be sued by several of them. In time, the list mounted to more than 160 parties with more than 90 law firms involved in litigation of various forms.

Other cases have escalated to even grander absurdity. In one case, a Girl Scout troop was implicated. In others, ordinary community residents have been swept into lawsuits merely because their household garbage had been taken to a landfill that became a Superfund site.

When cleanup efforts work their way through the bramble of negotiations and lawsuits, finally scaling the heights to a formal settlement conference, officials often find it necessary to rent an auditorium or a gymnasium to accommodate all of those who have been entangled in the mess.

Congress, which has a host of volatile environmental issues before it, including reauthorization of the Endangered Species Act, is about to address the Superfund once again.

It will be the third time the program has been extended. In 1985, Congress expanded the program fivefold. And in reaction to a Superfund scandal during the Ronald Reagan Administration, it strengthened the government's authority even more and attached strings now blamed for making its administration more cumbersome and ineffective.

In 1990, Congress extended it for another five years without a hearing or recorded debate.

This week, the Clinton Administration is expected to give its first definitive view of the program when Environmental Protection Agency Administrator Carol Browner testifies before panels in both the House and Senate.

In spite of high priority and powerful political sentiment favoring Superfund reform, it appears that Congress will first move to reauthorize the nation's clean water program.

In the Senate, the Environment and Public Works subcommittee on Superfund, ocean and water protection, chaired by Sen. Frank R. Lautenberg (D-N.J.), has begun a series of hearings expected to run the rest of the year. Parallel House hearings are being conducted by Rep. Al Swift (D-Wash.) and his Energy and Commerce subcommittee on transportation and hazardous materials.

The issues may be further ventilated in other committees.

Optimists hope that lawmakers and the White House will be ready to move with legislation early in 1994. Congressional sources say that Rep. John Dingell (D-Mich.), chairman of the House Energy and Commerce panel, has already begun urging the White House to write its own Superfund reform proposal rather than wait for one to be developed on Capitol Hill.

Although the Administration has yet to detail its approach to reforming the program, rhetorical change is evident in the words of industry executives and environmentalists, as well as in the words of the President. The EPA, which has reacted to much of the Superfund criticism with staunch defenses of its administrative diligence, is conceding that change is indicated.

Given the interests at stake and the complexities, both technical and legal, the debate seems destined to be long and convoluted.

But the bottom line, says a Senate staffer preparing to live with Superfund reform over the coming months, is simple: "It is a question of who pays and how much."

"Congress needs to make Superfund efficient and fair," said John W. Johnstone, chairman and chief executive officer of the Olin Corp., one of several companies that have created something called Coalition on Superfund to lobby for change. "The current law is neither.

"Its most potent weapon, the (joint and several) liability scheme, both far-reaching and retroactive, is an inefficient device for promoting action," Johnstone said. "It forces responsible parties, sometimes hundreds of them at a single site, to spend enormous resources protecting their interests in court rather than working on cleanup. It is downright unfair to everyone, municipalities, financial institutions, and small companies that may have only been bit players at a site. It is unfair to big corporations; it is unfair to insurance companies. Literally everyone touched by Superfund's liabilities complains about its inequities."

Others are somewhat more charitable.

"The reason there has been such a proliferation of environmental lawyers is due to the enormous concern about environmental liability," said Lash of the World Resources Institute, "and that concern has had very positive effects. It has gotten a lot of voluntary cleanup done and it has led to a lot of voluntary pollution prevention efforts. Joint and several, along with public disclosure requirements in law, have given birth to an enormous greening among corporate leaders."

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