GSB Vol. 9, No. 6 - #3. Georgia's Hazardous Site Response Act: Growing Pains for Georgia's Baby Superfund.

• Author: By Robert D. Mowrey and Shelly Jacobs Ellerhorst

Georgia Bar Journal

Volume 9.

GSB Vol. 9, No. 6 - #3.

Georgia's Hazardous Site Response Act: Growing Pains for Georgia's Baby Superfund

Georgia State Bar JournalVol. 9, No. 6, June 2004"Georgia's Hazardous Site Response Act: Growing Pains for Georgia's Baby Superfund"By Robert D. Mowrey and Shelly Jacobs Ellerhorst The Comprehensive Environmental Response, Compensation and Liability Act (formally known as CERCLA)1 and its state counterparts place enormous power in the hands of both the government and the courts to require "polluters" to pay for the vast costs of cleaning up the legacy of this nation's industrial development. These statutes define "polluter" quite broadly, often sweeping a huge cross section of parties into a strict, joint and several, and retroactive liability net.2 An aggressive application of these statutes has resulted in the targeting, in some circumstances, of corporate officers and directors, parent and other affiliated corporations, and lenders. Plus, the potentially harsh application of these statutes has substantial political support. As part of the 2004 elections, the Sierra Club is running prominent television advertisements in battleground states against the Bush administration carrying the tag line: "Make the Polluter Pay."3 An article of faith among advocates of federal and state superfund liability is that the statutes' coercive aspects should be upheld as a legitimate exercise of the police power; that all doubts should be resolved in favor of broad liability because the statutes are "remedial" in nature; and that governmental cleanup mandates, no matter how questionable, should be immune to challenge. These beliefs are increasingly under question. The federal Court of Appeals for the D.C. Circuit recently authorized a challenge to the constitutionality of certain of CERCLA's most coercive features.4 The U.S. Supreme Court has granted certiorari to review the widespread use of CERCLA by private parties to bludgeon others into paying for cleanup costs.5 And, in 2002, Congress passed legislation to address at least a few of the most onerous aspects of CERCLA and to otherwise protect certain small businesses commonly caught up in CERCLA's web.6 Against this backdrop, Georgia's principal program for identifying and cleaning up historic contamination has faced considerable controversy of its own. The Hazardous Site Response Act (HSRA) was enacted in 1992 to "protect human health and the environment" by requiring "responsible parties" to investigate and clean up hazardous substances in the environment.7 Usually, the hazardous substances are a result of long-past practices that were the standard of the day. Often, the "responsible party" in fact had little or no involvement in the creation of the hazardous site. Sometimes, the "hazardous condition" has little realistic potential to actually threaten human health or the environment. And frequently, if there is a potential threat, it could be relatively easily managed in ways not allowed under the HSRA regulatory structure. In fact, the HSRA regulatory scheme is viewed by some as among the most rigid and expensive state superfund programs in the nation, leading, in a number of instances, to substantial pain-the expenditure of time, money and energy-for little environmental gain. Have the controversies that swirl around HSRA impeded the effectiveness of the program for those sites that unquestionably pose a risk to human health or the environment? Perhaps. The Georgia Environmental Protection Division (EPD) reports that over 90 percent of Compliance Status Reports-the first step in investigating a HSRA site-receive a "Notice of Deficiency." Environmental and community groups point to this statistic as proof that the regulated community intentionally thwarts HSRA's mandates in an effort to undermine the program and make enforcement unlikely given EPD's limited resources. The regulated community, on the other hand, sees this statistic as a symptom of serious problems inherent in the HSRA program: unrealistic rules, inflexible requirements, and a failure to correlate requirements to tangible environmental benefits. HOW COSTLY IS HSRA?

No certain method to project HSRA's costs exists and precise figures are not known. Although most HSRA costs will be incurred by the private sector (at least 65 percent of all identified sites are expected to be funded by private parties),8 costs projected by EPD shed some...