A Response To Rogers, Three Years of Superfund

Joel Mintz

Mr. Mintz is an Assistant Professor of Law at Nova University Law Center in Fort Lauderdale, Florida. He teaches torts, land-use planning, and environmental law.

[14 ELR 10036]

In the November 1983 News & Analysis, James A. Rogers reviewed the first three years of the federal government's implementation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).¹ Mr. Rogers was sharply critical of the government's litigation strategy. In particular, he argued that the Environmental Protection Agency (EPA) and the Department of Justice have delayed the effective implementation of Superfund by adopting expansive interpretations of the reach of its liability provisions. Decrying the government's views as "extreme" and "patently unfair," Rogers states that "further progress has been blocked by EPA's counterproductive insistence on preserving maximum potential generator liability."²

I ardently disagree with Mr. Rogers' assessment. Though Rogers correctly observed that Superfund has had a "tempestuous early history," tainted by scandal and weakened by administrative inconsistency, his notion that the government's legal positions have thwarted the prompt realization of the Superfund's basic goals is entirely misguided. In fact, viewed in the context of the enormous hazardous waste site problem, with the practical difficulties of pinpointing responsibility for many releases and the inequities of not construing Superfund to create extensive generator liabilities, the government's legal posture seems not only reasonable but also necessary for effective implementation of the Act.

Background: The Realities of Contemporary Hazardous Waste Site Problems

During the debates that preceded the passage of Superfund, Congress was very much aware of the widespread and severe dangers posed by the improper disposal of hazardous wastes at abandoned dump sites.³ The congressional discussion⁴ cited preliminary EPA estimates of some 30,000 to 50,000 improperly managed sites around the country, of which some 1,200 to 2,000 were a "significant problem."⁵ Though EPA has since decreased its estimates of the total number of abandoned sites, it has greatly raised its initial assessment of the amount of hazardous wastes being generated — and the long range dangers posed by these chemicals.⁶

It is now clear that the Superfund itself is too small to clean up more than a fraction of the nation's abandoned sites. In the words of William Hedeman, now in charge of Superfund's implementation, it is a "fundamental reality" that "the resources of the fund simply are not adequate to deal with the array of problems that exist."⁷ [14 ELR 10037] Indeed, in Hedeman's view, the fund's scope does not even "scratch the surface" of the hazardous waste dilemma.⁸ For this reason, government policies that conserve the Superfund, and expend its resources wisely and effectively, are certainly appropriate. Every dollar the government can recoup from private parties in reimbursement of a cleanup expense is a dollar needed elsewhere in the effort to protect the public's health.

Another relevant aspect of the abandoned site problem is the difficulty, at many sites, in identifying which generator's wastes are present, what quantity of wastes any particular generator contributed, and what happened to any given shipment of disposed chemicals. Operators' records are often inadequate, abandoned drums are often unmarked or unreliably labeled, and wastes from many sources are often intermixed, perhaps to form new, more dangerous, compounds. Under these all too common conditions, no one can accurately assess how much of whose waste the government is cleaning up with Superfund monies. To require proof of waste origin, as a precondition to the government's gaining reimbursement of its remedial expenses, is to foreclose recovery in a great many cases.

The Logic of the Government's Position

In the light of these critical considerations, the government's positions in Superfund § 106 cases and cost-recovery actions seem far less irrational and overreaching than Mr. Rogers would have us believe. The government has taken three positions to which Rogers particularly objects. First, the government believes that Superfund is a strict liability statute. Responsible parties, under this view, are liable for cleanup activities regardless of whether they exercised due care in the handling of their wastes. Second, the government contends that CERCLA creates joint and several liability among responsible parties. And third, the government argues that to establish a causal nexus between generator and a release of hazardous substances, it need only prove that (1) the generator arranged to have its hazardous wastes disposed of at the dumpsite, (2) that facility now contains hazardous substances of the same type disposed of by the generator, and (3) the same or some other type of hazardous substance has been released at the dump. On analysis, each of these interpretations appears consistent with the language and intent of the Act. Each is also fair and sensible in view of the realities of the hazardous waste picture.

To begin with the strict liability issue, the statute itself gives strong support to the government's position. Though Superfund does not directly call for strict liability, § 101(32) provides that the term "liable" or "liability" shall be construed to embrace the standard of liability under § 311 of the Federal Water Pollution Control Act (FWPCA).⁹ Since the courts have uniformly construed that section of the FWPCA to embody a strict liability standard,¹⁰ it follows that strict liability principles apply under Superfund. In addition, § 107(b) of the Act creates a limited affirmative defense of due care, under narrowly defined circumstances.¹¹ The creation of such a defense would be illogical if strict liability were not the prevailing standard.

This reading of Superfund, which has been widely accepted by commentators,¹² finds strong support in the Act's legislative history.¹³ Furthermore, this view is well buttressed by considerations of public policy. In the words of one U.S. district court, "[t]hough strict liability may impose harsh results on certain defendants, it is the most equitable solution in view of the alternative — forcing those who bear no responsibility for causing the damage, the taxpayers, to shoulder the full cost of the clean up."¹⁴ A strict liability rule generally places the onus of cleaning up hazardous waste on parties who have profited from its creation or handling. And even those responsible parties who have not profited from hazardous waste disposal are usually still better positioned than the general public to control conditions at disposal sites, and to bear and spread the costs of cleanup measures.

The government's view that Superfund gives rise to joint and several liability is also logical and firmly based in public policy. The Act is silent on the issue, and its legislative history evidences congressional intent to adopt common law standards.¹⁵ Imposing joint and several liability is not only consonant with the common law, it is a practical necessity if the government is to regain its cleanup expenditures in many situations.

Very often, releases of hazardous substances cause "single, indivisible harms." As noted above, it is often impossible to prove how much each responsible person actually contributed to the problem. Under analogous circumstances, the common law has developed a number of forms of joint and several liability to allow innocent plaintiffs to avoid this practically insurmountable obstacle [14 ELR 10038] of proof.¹⁶ A similar approach seems rational in the Superfund context, and two U.S. district courts thus far have adopted this view.¹⁷

The government's position on the causal nexus that must be proven in Superfund cases is the focus of much of Mr. Rogers' criticism. Regrettably, his comments and hypothetical examples appear to misapprehend the government's stance. For example, Mr. Rogers writes that, under the government's interpretation:

[E]ven if a generator sent materials [to a hazardous waste site] that were incinerated, that generator is still responsible for all of the cleanup costs brought about by the spread of, for example, ruptured drums of polychlorinated biphenyls sent to the site by another party. Moreover … it would appear that anyone who sent drums of material to be stored, and eventually retrieved all of his drums of wastes, would likewise become liable for government costs incurred in responding to groundwater pollution involving other chemicals.¹⁸

Both of these examples are incorrect. If a generator could truly demonstrate that all of its wastes at a given site had been incinerated or retrieved, the facility would no longer contain the generator's wastes,¹⁹ and one of the preconditions for linking that generator to the site, under the government's theory, would not have been met.

In the real world, however, such a situation is unlikely. As I have discussed, at many sites it is utterly impossible to trace the fate of any particular generator's wastes. To force the government to do so, by rigid application of traditional doctrines of causation obviously designed for different circumstances, is to foreclose recovery of Superfund expenditures in many cases. In fact, such a result would all but eviscerate the Act and guarantee the rapid depletion of the fund's desperately limited monies.

The common law, which Rogers points to as authority for his cramped reading of Superfund's causation requirement, is hardly so inflexible as Rogers contends. In fact, in the last 40 years, the courts have evolved a number of novel approaches to causation requirements where considerations of fairness and justice have made them appropriate.²⁰ Similar judicial creativity is clearly called for in the Superfund context, and it is noteworthy that the only court to have considered the government's position with respect to causation has squarely adopted that view.²¹

Conclusion

In view of the urgent need to conserve the Superfund's very scarce resources, and the practical realities of conditions and recordkeeping practices at abandoned hazardous waste facilities, the government's interpretations of liability under Superfund constitute sensible public policy, fully in keeping with the public interest. By contrast, the positions of Mr. Rogers and industry defencants appear narrow and self-serving.

Rather than accuse the government's attorneys of "counterproductive" policymaking, Mr. Rogers and his colleagues might do better to reexamine the implications of their own positions, and to engage in a more realistic and constructive critique of the Act. This is far from a perfect statute. The fairness of its taxing scheme, the workability of its procedures, and the clarity of its standards could all be improved. If industry's representatives address these issues in a reflective and serious way, rather than engage in self-serving discourse on the government's legal stands, the possibility for constructive dialogue — and truly rational reform — will surely be enhanced.

1. Rogers, Three Years of Superfund, 13 ELR 10361 (1983).

2. Id. at 10362.

3. See H.R. REP. NO. 1016, 96th Cong., 2d Sess. 17, reprinted in 1980 U.S. CODE CONG. & AD. NEWS 6119-20.

4. Id. at 18, reprinted in U.S. CODE CONG. & AD. NEWS 6120.

5. Fred C. Hart Associates, Preliminary Assessment of Clean-up Costs for National Hazardous Waste Problems (EPA 1979).

6. In August 1983 EPA disclosed that the amount of hazardous waste material that had been generated during 1981 was well in excess of 150 million metric tons, nearly four times the Agency's initial estimate. See Hazardous Waste Exceeds Estimates, N.Y. Times, Aug. 31, 1983, at 1, col. 1. Indeed, the amount of hazardous waste being generated appears to be increasing every year. See U.S. GENERAL ACCOUNTING OFFICE, HAZARDOUS WASTE MANAGEMENT PROGRAMS WILL NOT BE EFFECTIVE: GREATER EFFORTS ARE NEEDED (1979); Costle & Beck, Attack on Hazardous Waste: Turning Back the Toxic Tide, 9 CAP. U.L. REV. 425, 426 (1980).Commentators have variously described the improper disposal of hazardous wastes as "the most serious environmental problem in the United States today" and "a problem of epidemic proportions." Note, The Regulation of Hazardous Waste Disposal: Cleaning up the Augean Stables With a Flood of Regulations, 33 RUTGERS L. REV. 906, 907 (1981); Note, Liability for Generators of Hazardous Waste: The Failure of Existing Enforcement Mechanisms, 69 GEO. L.J. 1047 (1981).

7. Ward, A Conversation With Superfund Chief Bill Hedeman, ENVTL. FORUM, Aug. 1983, at 13.

8. Id. at 13. Another EPA official, Lee M. Thomas, Assistant Administrator for Solid Waste and Emergency Response, has stated that at current levels Superfund can be used to clean up approximately 170 hazardous waste sites out of an estimated 15,000 to 16,000. See Thomas Says EPA Task Group Created to Set State Goals for RCRA, Superfund, ENV'T REP. (BNA) 338 (July 1, 1983).

9. 42 U.S.C. § 9601(32), ELR STAT. 41944.

10. See generally Note, Liability Without Fault Under the Federal Water Pollution Control Act, 19 NAT. RESOURCES J. 687 (1979). See also United States v. Le Boeuf Bros. Towing Co., 621 F.2d 787, 10 ELR 20548 (5th Cir. 1980); United States v. Hollywood Marine, Inc., 625 F.2d 524, 10 ELR 20718 (5th Cir. 1980); United States v. Tex-Tow, 589 F.2d 1310, 9 ELR 20006 (7th Cir. 1978); United States v. Marathon Pipeline Co., 589 F.2d 1305, 9 ELR 20004 (7th Cir. 1978); Tug Ocean Prince v. United States, 436 F. Supp. 907, 926 (S.D.N.Y. 1977); United States v. General Motors Corp., 403 F. Supp. 1151, 1157, 6 ELR 20248 (D. Conn. 1975); United States v. Eureka Pipeline Co., 401 F. Supp. 934, 942, 6 ELR 20088 (N.D.W. Va. 1975). For a cogent review of the legislative history of FWPCA § 311, see Steuart Transp. Co. v. Allied Towing Corp., 596 F.2d 609. 613, 9 ELR 20237, 20239 (4th Cir. 1979).

11. 42 U.S.C. § 9607(b)(3), ELR STAT. 41947.

12. See, e.g., R. DeC. Hinds, Liability Under Federal Law for Hazardous Waste Injuries, 6 HARV. ENVTL. L. REV. (1982); Note, The Regulation of Hazardous Waste Disposal, supra note 6, at 958; Comment, Hazardous Waste Liability and Compensation: Old Solutions, New Solutions, No Solutions, 14 CONN. L. REV. 307 (1982); Note, Hazardous Wastes: Third-Party Compensation for Contingencies Arising From Inactive and Abandoned Hazardous Waste Disposal Sites, 32 S.C.L. REV. 543, 549 (1982).

13. See 126 CONG. REC. S14,964 (daily ed. Nov. 24, 1980) (statement of Sen. Randolph) and 126 CONG. REC. H11,787 (daily ed. Dec. 3, 1980) (statement of Rep. Florio).

14. United States v. Price, 13 ELR 20843, 20847 (D.N.J. July 28, 1983); compare United States v. Wade, 546 F. Supp. 785, 12 ELR 21051 (E.D. Pa. 1982).

15. See statement of Sen. Randolph, supra note 13.

16. See, e.g., Michie v. Great Lakes Steel Division, National Steel Corp., 495 F.2d 213, 4 ELR 20324 (6th Cir. 1974); Phillips Petroleum Co. v. Hardee, 189 F.2d 105 (5th Cir. 1951); Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952). See also RESTATEMENT (SECOND) OF TORTS § 975; W. PROSSER, A HANDBOOK OF THE LAW OF TORTS 315-16 (4th ed. 1971).

17. See United States v. Chem-Dyne Corp., 13 ELR 20986 (S.D. Ohio Oct. 11, 1983) and United States v. Wade, 14 ELR 20096 (E.D. Pa. Dec. 22, 1983).

18. Rogers, supra note 1, at 10364.

19. See CERCLA § 107(a)(3), 42 U.S.C. § 9607(a)(3), ELR STAT. 41947.

20. See, e.g., Hall v. E. I. DuPont de Nemours & Co., 345 F. Supp. 353 (E.D.N.Y. 1972); Sindell v. Abbott Laboratories, 163 Cal. Rptr. 132, 607 P.2d 924 (1980); Summers v. Tice, 33 Cal. 2d 80 (1948).

21. United States v. Wade, 14 ELR at 20097-98. It is also significant that the U.S. district court in which the "Bluff Road case" is pending, United States v. South Carolina Recycling and Disposal Inc., No. 80-1274-6 (D.S.C.), has informed the parties that it too intends to accept the government's view on this point.Telephone conversation with C. Lawrence, Assistant Chief, Environmental Enforcement Section, U.S. Department of Justice, Jan. 13, 1984.