WASHINGTON-The Clinton administration's plan for Superfund liability reform is encouraging to tire dealers and suppliers, but many still feel it isn't enough to protect them against possibly ruinous cleanup judgments. In particular, they are concerned that the Clinton proposal is non-mandatory and non-binding, for government and waste generators alike.
``That's a loophole the lawyers can drive a fleet of luxury cars through,'' said Bernard J. Reilly of DuPont and a spokesman for the Chemical Manufacturers Association.
Overhauling Superfund is one of the Environmental Protection Agency's top priorities, said Administrator Carol M. Browner at a Feb. 3 press conference announcing the administration's Superfund plan.
``We are proposing a liability scheme that protects the little guy while pursuing the principle that the polluter pays,'' she said. ``We want to make sure cleanup money goes to cleanup, not to lawyers.''
To expedite allocation of liability, the Clinton plan would assign a neutral, third-party Superfund professional at each multi-party hazardous waste site to assign shares of payment.
``Potentially responsible parties would be provided an opportunity to settle their liability based on the recommended allocation and thus obtain protection against future liability,'' an EPA position paper stated.
Very small or ``de micromis'' contributors to waste sites would be absolutely exempt from thirdparty lawsuits-i.e. lawsuits from major waste generators seeking to make all parties pay their share-and also exempt from paying a share of the cleanup unless their contributions added ``significantly'' to the cleanup costs.
Comparatively small or ``de minimis'' generators would find it easier to settle early in the process under the Clinton plan. Among other things, the government need only show that an individual generator's contributions, not the collected contributions of the de minimis class, were minimal in comparison to total waste, and that its waste was not significantly more toxic than the rest.
Industry is concerned not only that the third-party allocator's decisions are non-binding, but that the Clinton plan retains both joint-and-several and retroactive liability.
``The automotive aftermarket has to look at joint-and-several liability, which is dragging us into third-party suits,'' said Roy Littlefield, government relations director of the American Retreaders' Association.
Mr. Littlefield was encouraged by the Clinton plan's Environmental Insurance Resolution Fund, which would settle insurance claims for the cleanup of wastes discarded before 1986.
Although it isn't mandatory for generators to participate in the allocation process, and the allocator's decisions are not binding, there are powerful incentives for them to settle with the government, according to Ms. Browner.
Among other things, if a contributor to a waste site refuses to pay his allocated share, the government can stick him with the ``orphan share''-i.e. the shares from generators either unidentifiable or unable to pay. If all generators ante up, however, the government pays the orphan share.
This was why the Clinton administration decided to keep joint-and-several liability, Ms. Browner said. ``It's the vehicle that brings people to the table.''
Nevertheless, no one at the EPA has said what will happen if the government chooses to reject an allocator's decisions.
Small business would feel better about the bill if the Clinton administration would eliminate third-party litigation and ban legal challenges to Superfund allocations, said Harriet James of the National Federation of Independent Business, at the hearing.
``Unknown liability...is often a survival test for small business,'' Ms. James said. ``For businesses that exist on a very low profit margin, this huge unknown has a dramatic impact on their investment and expansion decisions, their employment decisions, and-most importantly-a detrimental effect on the amount of credit that is available to them.''