The success of the Superfund program rests substantially on the ability of the Environmental Protection Agency (EPA) to induce major corporations to share in the cost of a multibillion-dollar hazardous waste site cleanup effort. Over the past decade, EPA enforcement strategy has evolved from highly accommodative to much more enforcement oriented. Reports also indicate a substantial increase in application of Superfund's most powerful enforcement tools. Industrial targets of EPA enforcement are attempting to shift partial liability and transaction costs onto third parties. Viewed against the economic and political evolution of EPA strategy, a continuation of the enforcement-first approach depends on the willingness of society to accept the costs of sanctioning the powerful.
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References
1.
1. Edwin H. Sutherland, White Collar Crime (New Haven, CT: Yale University Press, 1983), pp. 53-62.
2.
2. For recent discussion of the politics of environmental protection, see P. C. Yeager, The Limits of Law (New York: Cambridge University Press, 1991).
3.
3. Conceptualizing private sector contributions to hazardous waste site cleanup as a sanction is consistent with much of the corporate crime literature. See, for example, Marshall B. Clinard and Peter C. Yeager, Corporate Crime (New York: Free Press, 1980).
4.
4. The following analysis draws heavily on my research for a book on the Superfund program, Toxic Debts: The Superfund Dilemma, forthcoming from the University of North Carolina Press.
5.
5. The cleanup fund provides a unique opportunity for the EPA to leverage settlements on recalcitrant responsible parties. Most other regulatory programs do not allow an agency the resources to take corrective actions.
6.
idem , “Political Environments and Implementation Failures: The Case of Superfund Enforcement,”Law and Policy, 12:225-246 (July 1990).
7.
U.S., Environmental Protection Agency , The Effectiveness of the Superfund Program, CERCLA Section 301(a)(1)(A) Study, Final Report (Washington, DC: Environmental Protection Agency, 1984).
8.
8. For an excellent analysis of Sewergate, see Andrew Szasz, “The Process and Significance of Political Scandals: A Comparison of Watergate and the `Sewergate' Episode at the Environmental Protection Agency,”Social Problems, 33:202-217 (Feb. 1986).
9.
L. Maitland , “Top EPA Official Is Accused of Intervening in Behalf of Company,”New York Times, 24 Mar. 1983.
10.
10. The following discussion of EPA enforcement strategy draws on oral and submitted testimony of EPA Administrator Lee Thomas and Henry Habicht II, Assistant Attorney General, Land and Natural Resources Division, Department of Justice, in U.S., Congress, House, Committee on Public Works and Transportation, Subcommittee on Water Resources, Reauthorization of Superfund, 99th Cong., 1st sess., 1985, pp. 540-740.
11.
11. John C. Butler III, “Costs of Superfund Litigation,” in U.S., Congress, House, Reauthorization of Superfund, pp. 1300-1321.
12.
12. Frederick R. Anderson, “Negotiation and Informal Agency Action: The Case of Superfund,”Duke Law Review, 85:299 (Apr. 1985).
13.
proposal submitted by the American Insurance Association in ibid., pp. 1286-99.
14.
14. For the EPA and Department of Justice position on these issues, see U.S., Congress, House, Reauthorization of Superfund, pp. 540-740.
15.
15. For discussion of EPA post-reauthorization strategy, see Gene Lucero, “Son of Superfund,”Environmental Forum, 5:5-12 (Mar.-Apr. 1988).
16.
16. The EPA attempted to limit the number of sites in the cleanup program and to defer cleanup responsibilities to the states and to other federal programs. The agency proposed using explicit comparisons of the projected high cost of cleanup standards and permanent remedies to projected cleanup benefits. The Superfund Act only mandated consideration of the cost-effectiveness of a remedy.
17.
U.S., Office of Technology Assessment , Coming Clean (Washington, DC: U.S. Government Printing Office, 1989).
18.
18. Environmental Defense Fundet al., Right Train, Wrong Track, p. 54.
19.
19. Environmental Defense Fundet al., Tracking Superfund.
20.
20. The EPA implicitly acknowledged the validity of this critique by subsequently choosing to perform risk assessments.
21.
21. See William J. Reilly, A Management Review of the Superfund Program (Washington, DC: Environmental Protection Agency, 1989). Cleanup at the worst sites first was the second cornerstone of Reilly's strategy.
22.
22. Environment Reporter-Current Developments (Bureau of National Affairs), 16 June 1989, p. 428.
26. Major corporations and their insurers had hoped that a full debate over reauthorization would afford them the opportunity to present their case against Superfund liability standards and their case for a greater socialization of cleanup costs.
27.
27. See Bob Davis, “January Surprise: Bush Plans to Unveil a 90-Day Moratorium on New Regulation,”Wall Street Journal, 20 Jan. 1992.
28.
28. The following is based in part on interviews with Lloyd Guerci, former Director of the EPA Superfund enforcement division, 9 Aug. 1991; Dell Perelman, Assistant General Counsel, Chemical Manufacturers Association, 9 Aug. 1991; Arthur Weissman, Chief, Superfund enforcement guidance and evaluation branch, 8 Aug. 1991.
31. See U.S., General Accounting Office, Pollution Claims Experience of Property/Casualty Insurers (Washington, DC: Government Printing Office, Feb. 1991).
32.
32. See testimony of the Chemical Manufacturers Association on lender liability under Superfund before U.S., Congress, Senate, Committee on Environment and Public Works, Subcommittee on Superfund, Ocean, and Water Protection, 10 Apr. 1991, pp. 5, 17.
33.
and, more recently, Peter S. Menell, “The Limitations of Legal Institutions for Addressing Environmental Risks,”Journal of Economic Perspectives, 5:93-113 (Summer 1991).
34.
34. See “Toxic Waste: Paying for the Past,”Economist, 29 Feb. 1992, p. 80.
