Super Slow on Superfund

The term "slow-moving crisis" may be an oxymoron, but it fits toxic waste cleanup. The disastrous contamination of Love Canal, in upper New York State, came to light 20 years ago and pushed the problem to the forefront of national concern. Occasional waste horror stories since then have kept it there. One in four Americans - including a disproportionate number of poor, minority citizens - lives near a toxic waste site.

The response to this crisis hinges on the country's major toxic-waste cleanup law, known as Superfund, which is badly in need of reform. Congress has been at the task for six years. It is trying again this year. Numerous bills are in the hopper, but the outlook for reform remains dim.

Meanwhile, work at the 1,197 toxic-waste sites currently listed by the Environmental Protection Agency for cleanup under the Superfund law has progressed only slightly faster than the legislating. Once sites are formally on the list, they're considered top priority, clearly in need of action.

Since the law went into effect in 1980, about 520 sites have undergone major cleanup work with the EPA's supervision. That means problems have been identified, a remedy has been determined, and construction related to the cleanup has been completed. Final removal of contaminants can take years, if not decades, especially when pumping of ground water is needed.

Superfund action has accelerated under President Clinton, for two reasons. First, this administration gives environmental enforcement higher priority than its two predecessors. Second, the EPA has in recent years aggressively pursued administrative changes in order to make the law work better. For instance, the agency, under director Carol Browner, has put aside money to hasten cleanups when the legally liable major polluter is insolvent. It has also taken steps to remove from liability minor polluters that can't afford to pay.

Liability tangles

The liability question, and the engulfing litigation it has spawned, underlie Superfund's ongoing problems. The philosophical heart of the law is a common-sense dictum: the polluter pays. But in the case of vast chemical dumps and oozing landfills, it's hard to pinpoint just who the culprit is. Further, even if major culprits can be identified, what they did decades ago may have been perfectly legal then. And the complications don't end there. Lots of culpable companies - including some responsible for past "midnight dumping" - are defunct, or were bought out by another company that closed the polluting units.

Still, about 75 percent of cleanups to date have been paid for by private firms. The EPA has chipped in money from the Superfund trust fund when culpable parties can't be identified or have no means to pay.

The Supreme Court has just stepped into this bog, ruling that companies are not legally bound to pay for cleaning up a site owned by a subsidiary - unless the parent company itself directly participated in or controlled the site.

A June 10 Special Report in the Monitor highlighted another twist: the complications that can set in when the government itself may be a major polluter. The report explored allegations of past dumping of radioactive waste by Department of Energy contractors at the Lowry Landfill near Denver.

Litigation wars

Faced with billions of dollars in cleanup costs, companies have launched legal counteroffensives to spread the liability as widely as possible. Some industries argue that because liability is so diffuse, and the public interest so broad and compelling, the burden of cleanup logically falls on the public. Some of the reform proposals before Congress lean in that direction, trying to strip liability from companies who polluted before the polluting was illegal.

That approach could easily go too far, depriving cleanup efforts of needed funds and too easily lifting responsibility from implicated parties. But reforms will, inevitably, have to narrow liability, focusing on parties found responsible for major contamination at specific sites. Without that, the litigation will continue its relentless spread, and too much of the money that should go to cleanup will flow into lawyers' pockets while cleanup languishes.

Meanwhile, some localities are taking the initiative to get cleanup moving. A toxic waste site in Wells, Maine, could soon begin cleanup under a plan that allows one firm to collect the estimated cleanup costs from a host of potential litigants and then proceed to do the cleanup itself. Near Burlington, Vt., a committee embracing city and state representatives, local environmentalists, companies liable for the cleanup, and EPA officials hammered out an innovative plan for cleaning a site polluted with coal tars.

Congress should note such examples and get on with the work of crafting Superfund reform that breaks the litigation logjam while preserving tough cleanup standards and continuing to hold private, as well as public, polluters responsible.