 |
| |
Spheres of Influence
|
| Off the Hook and How Clean is Clean?
Kathryn S. Brown, Harvey Black Abstract
 For 30 years, an Alabama plant released mercury and chloroform into wastewater. Under the Superfund program, Olin Corporation was named responsible for cleaning up the toxic waste at a cost of at least $10 million, and had agreed to do so. But during the routine signing of a payment agreement between the Department of Justice and Olin, Judge W. Brevard Hand dismissed the case, saying that Superfund could not be applied retroactively.
Superfund purposely does not address retroactive liability. The issue is left up to the courts and, to date, companies have been responsible for cleaning up their toxic waste, regardless of when the pollution occurred. The Olin decision may change all that.
The ruling exemplifies the controversy that has always raged around Superfund. In the words of Mark D. Tucker of Dow Chemical Company, "Everybody agrees they don't like Superfund the ways it is now [but] nobody can agree on what they want instead."
Congress has long debated the propriety of "polluter pays" reasoning, with many feeling that a company should not be penalized for acts that were legal at the time. Environmentalists argue that the legality at the time is irrelevant, that cleaning up the sites is the priority. Predictably, most companies that support Superfund retroactive liability have already paid off most or all of their environmental debt. However, for those companies who are only recently being held accountable for past polluting, the repeal or reform of Superfund could add up to huge savings.
Currently, private parties pay for the clean-up of over 75% of the Superfund sites. If the option of retroactive liability is eliminated, the government will have to come up with as much as $1 billion to cover the lost funds and toxic waste clean-up would slow to a crawl. In the meantime, an estimated 70 million Americans live near a Superfund site, all of which sit abandoned and incapable of supporting any type of home or business.
The full version of this article is available for free in HTML format. |
|
|
|
|
