Superfund Amended: a New Emphasis on the Public Health

Publication year1987
CitationVol. 16 No. 10 Pg. 1845
16 Colo.Law. 1845
Colorado Lawyer

1987, October, Pg. 1845. Superfund Amended: A New Emphasis on the Public Health


Vol. 16, No. 10, Pg. 1845

Superfund Amended: A New Emphasis on the Public Health

by James M. Strock

Amidst the more celebrated changes wrought by the Superfund Amendments and Reauthorization Act of 1986 ("SARA")(fn1) lie often overlooked provisions relating to protection of the public health. This article focuses on expanded health authorities and community "technical assistance" grants. Depending on their clients' needs, practitioners may also want to be aware of related sections imposing a federal statute of limitations on claims for injuries from exposure to hazardous substances,(fn2) as well as reporting and notification requirements in the new Title III, Emergency Planning and Community Right-to-Know Act ("EPCRA").(fn3)

New Health Authority Provisions

One of the overarching issues of the Superfund debate since its inception nearly a decade ago has been the question of what effect inactive hazardous substance facilities have on the public health.(fn4) In the face of a generally acknowledged lack of health data, but armed with viewpoints derived from other contexts, some have argued forcefully for the establishment of a Superfund-related program specifically aimed at providing compensation for putative injuries; others have fought such efforts on the alternative assumption that there are few, if any, personal injuries arising from such exposures. Both sides of that debate came together during Superfund reauthorization in support of the dramatic expansion of the health-related authorities of the Environmental Protection Agency ("EPA") and the Agency for Toxic Substances and Disease Registry ("ATSDR") of the Department of Health and Human Services.(fn5)

Concerned at the apparent resistance of the Reagan Administration to providing sufficient funding for ATSDR under the original Superfund, Congress included detailed direction to the executive branch in the new health authorities provisions. As a first step, the Administrators of ATSDR and EPA are directed to

. . . prepare a list, in order of priority of at least 100 hazardous substances which are most commonly found at facilities on the National Priorities List and which, in their sole discretion, they determine are posing the most significant potential threat to human health due to their known or suspected toxicity to humans and the potential for human exposure to such substances at facilities on the National Priorities List or at facilities to which a response to a release or a threatened release under this section is under consideration.(fn6)

Following the listing, ATSDR is charged with preparing "toxicological profiles" of such listed hazardous substances. The profiles, to be prepared in accordance with "guidelines" developed by ATSDR and EPA, are intended to be broad in scope, with the goal of compiling and interpreting existing toxicological and epidemiological information on specific hazardous substances "in order to ascertain the levels of significant human exposure for the substance and the associated acute, subacute, and chronic health effects."(fn7) Where available information is not adequate to make such a determination, the government is to ascertain whether such information is in development and what type of additional toxicological testing may be needed "to identify the types or levels of exposure that may present significant risk of adverse health effects in humans."(fn8)

In order to ensure scientific rigor, "[a]ny toxicological profile or revision thereof shall reflect the Administrator of ATSDR's assessment of all relevant toxicological testing which has been peer reviewed."(fn9) With respect to each listed hazardous "substance for which adequate


information is not available (or under development) .," the Administrator of ATSDR, in consultation with the Administrator of EPA and other specified agencies, is to "assure the initiation of a program of research designed to determine the health effects (and techniques for development of methods to determine such health effects) of such substances."(fn10)

While the toxicological profiles are the basic building blocks in the development of health data, the most important provisions, from a practical standpoint, may be those...

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