Revising the Superfund: this time let's get it right.

• Author: Mahoney, Richard J.

Most observers would agree that the current Superfund law is among the most poorly crafted and counterproductive statutes of recent years. Because of its perverse and conflicting incentives, parties are inclined to litigate and delay, rather than clean up.

However, the law and its follow-on regulations, which led to expenditures through Fiscal Year 1994 of about $28,000,000,000 (not including corporate legal costs) have not been a total waste. While the price per site cleanup has been exorbitant, at least something got done.

At 293 Superfund sites, according to Environmental Protection Agency (EPA) assessment, the cleanup process is complete and more than half of the remaining sites are moving along in the process. The EPA is targeting 650 completions by the year 2000. Yet, the approximately 1,300 Superfund National Priority List (NPL) sites potentially are only the beginning. There still are some 19,000 sites that have had a preliminary EPA assessment indicating that they "appear serious" and need a site inspection to determine if they officially should be placed on the Superfund List. Thus, one can not be complacent about the "progress" of cleaning up the current NPL sites.

Nearly 4,000 emergency removal procedures have been carried out at NPL sites and many more sites not yet officially on the list. Emergency removal, as defined in the Superfund statute, is designed to remove and provide remedial actions for "any pollutant contamination which may present an imminent and substantial danger to the public health or welfare." In theory, therefore, at least by this definition and assertion, the "imminent and substantial danger to the public" is largely past. Some would argue, then, that - to paraphrase Sen. George Aiken's (R.-Vt.) advice on the Vietnam War - "It's time for Superfund to declare victory and go home." They cite the origin of the statute, which came in the aftermath of Love Canal in the 1970s. At the outset, the intent was limited to removing hazardous waste. The expanded purposes of returning the site to "pre-disposal conditions" came later in the enlargement of the legislative debate. Many, though - particularly site neighbors - would dispute the idea that the risk has passed, and others would argue that environmental repair remains largely to be done.

Hazardous waste disposal practices have been changed dramatically. For most companies, it would be inconceivable that the old practices would return. The consequences of improper disposal now are clear to all, and the Resource Conservation and Recovery Act provides future deterrent incentives.

In an ironic way, the Superfund process and its incredible cost for limited cleanup have been a rallying point around which all participants can coalesce. Indeed, the Superfund Commission, in 1993-94, brought the various constituencies together to hammer out compromise legislation. That, however, failed passage in the contentious closing days of the 103rd Congress.

The constant debate about Superfund over the years has resulted in some principles for which there is the basis for general agreement - with admittedly a good deal of give and take needed in the details. Among the points of agreement are:

* Cleanup standards should meet the intended end use. An industrial warehouse and a playground need very different remedy approaches, and costs could be reduced dramatically with...