WASHINGTON-Industry and Congressional Republicans are still estranged from state government and environmentalists on the issue of Superfund liability, witnesses showed at a June 22 hearing before the House Commerce Subcommittee on Commerce, Trade and Hazardous Materials. Retroactive and joint-and-several liability penalize honest businesses for waste disposal methods that were prescribed by law at the time the waste was discarded, and should be repealed, according to opponents. But state governments don't want to pay the extra money repeal would cost them, and environmentalists also feel rescission is too extreme.
House Commerce Committee Chairman Thomas J. Bliley Jr., R-Va., was outspoken in favor of repeal.
``There is no greater absurdity in the Superfund law.*.*.*than its system of strict, joint-and-several and retroactive liability,'' Mr. Bliley said. ``Over the past 15 years, this liability scheme, intended to ensure prompt and effective cleanups of hazardous waste sites, has instead created an enormous industry for lawyers, environmental consultants, and others feeding at the Superfund trough.''
DuPont Co. Staff Attorney Bernard Reilly, testifying on behalf of the Chemical Manufacturers Association, agreed.
Joint-and-several liability, Mr. Reilly said, can leave parties in a Superfund cleanup responsible for all cleanup costs, ``even if the contribution was small, very small, or almost non-existent.'' As for retroactive liability, ``parties were sometimes actually directed by state or municipal agencies to dispose of wastes in a certain manner, and later held liable under Superfund for the disposal.''
Rep. Bill Zeliff, R-N.H., said he will soon introduce a bill to replace retroactive and joint-and-several liability with a binding, ``fair-share'' arbitration system. But state officials and environmentalists were nervous about whether arbitration could work without liability to back it.
Eliminating liability would leave the states ``a massive unfunded federal mandate,'' said R. Brian McLaughlin, New Jersey deputy attorney general, representing the National Association of Attorneys General at the hearing.
``Further, the proposed repeal of retroactive liability would actually increase, rather than decrease, legal transaction costs,'' Mr. McLaughlin said.
Karen Florini, senior attorney with the Environmental Defense Fund, said the EDF favors expedited judgments and ``ability to pay'' determinations to protect small businesses from third-party lawsuits and disastrous financial losses. But repealing liability, she added, would create an enormous environmental mess taxpayers would be forced to pay for.
``If it is Congress' judgment that the federal government should pay for orphan shares (of Superfund cleanups), Congress should find the additional resources to do so and not place the burden on the backs of local communities,'' Ms. Florini said.