Using CERCLA to Clean Up Groundwater Contaminated Through the Normal Use of Pesticides

James L. Conner II

Editors' Summary: In October 1984, EPA proposed listing on the National Priorities List six groundwater sites on the Hawaiian island of Oahu. Those sites are the first to involve contamination by intentionally and legally applied pesticides. EPA's proposal to use CERCLA to respond to that contamination has caused a great deal of controversy, from an exchange of letters between Congressman Florio and EPA Administrator Thomas to submission of CERCLA amendments by the Administration that would explicitly exempt pesticide contamination from the statute's coverage. The author gives an overview of the problem, examines the statute for authority to respond to this sort of contamination, and briefly considers whether Congress should amend the statute to address the issue. He concludes that there is no compelling reason in law or policy for EPA to decline to exercise authority over the sites or for Congress to remove that authority; in fact, he argues, Congress would be better advised to broaden the liability provisions so that pesticide manufacturers could be more clearly held liable for this sort of contamination.

[15 ELR 10100]

In October 1984, the Environmental Protection Agency (EPA) added six unprecedented sites to its long and growing priority list for federal cleanup actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).¹ These sites, like many others on the list, are of particular concern because toxic chemicals have leached into groundwater from which drinking water is pumped. The distinctive feature of the sites — six wells all drawing from the basal aquifer in South Central Oahu, Hawaii — is that there are no drums, pits, or trenches of discarded chemical waste littering and scarring the ground or buried beneath its surface. The land is covered instead with pineapple fields. The problem is not the destructive disposal of chemicals, but their productive use; the groundwater contamination at the site is the result of intentional use of pesticides and their unexpected migration through the soil into the groundwater. Since the hazard to the public health ranks with those posed by toxic waste dumps across the country, EPA is considering using its CERCLA powers to clean up the contaminated aquifer or order it done. Ironically, EPA is concurrently arguing to Congress, which is in the throes of debate over reauthorization and revision of CERCLA, that CERCLA should be amended to prohibit the type of pesticide cleanup the agency is contemplating in Hawaii. EPA's proposal and Congress' consideration of CERCLA amendments bring to the surface important questions about pesticide contamination of groundwater and the role of CERCLA — questions probed, if not fully answered, in this Comment.

Background

About 1400 million pounds of synthetic organic pesticides are manufactured and sold in the United States each year.² Most of this vast product is applied: sprayed on fields, trees, and vines, injected into the soil to fumigate it, and soaked into the soil in a mixture with irrigation water.³ Application of pesticides stands alone, in a time of growing concern over hazardous substances, as a massive intentional dissemination of toxic chemicals into man's environment.

Though there has been some concern over such a dissemination ever since the early sixties, pesticides have generally been regarded as poisons with a purpose and a place; toxics whose introduction into the environment to produce more and cheaper food and fiber has more benefits than costs. Though questioning the purpose of these poisons remains confined to a relatively small group,⁴ [15 ELR 10101] the public at large has recently been given reason to question whether pesticides know their place.

Some pesticides are not staying put in the soil, quietly degrading away to innocuous substances. They are, in fact, seeping into the groundwater, a major source of drinking water. So far, sixteen different pesticides have been found in groundwater in twenty-two states.⁵ In all probability, those numbers are not larger only because we have not yet looked very hard.⁶ Testing for pesticides in groundwater is expensive and complicated; you must have an idea of what you are looking for before you test, which means finding out what chemicals have been sprayed and guessing which of those were most likely to have leached through to the groundwater. Soil type and an area's hydrogeology also have much to do with whether a pesticide leaches through to the groundwater in a specific area. Since we are most concerned with contamination of groundwater used for drinking, it is also important that pesticide contamination from spraying necessarily occurs in rural areas where public water systems are small and private wells common. Since the search cannot be localized to only a few areas from which large water companies draw, there is a significant needle-in-the-haystack aspect to the search.⁷

If finding pesticides in groundwater presents difficulties, finding the best response when they are discovered has proven no easier.⁸ State responses have varied from none whatever to Wisconsin's passage of a comprehensive groundwater protection statute,⁹ motivated at least partly by discovery of the pesticide aldicarb in groundwater in a section of the state with sandy soil. Some states have sought a middle ground, banning use of a single offending chemical or appealing to the federal government for help.¹⁰

But the hoped-for federal cavalry charge has not been forthcoming. There is no discrete body of federal law intended to deal with pesticide contamination of groundwater; in fact, there is no discrete body of federal law intended to deal comprehensively with groundwater contamination problems in general.¹¹ Indeed, the cavalry, in this case the EPA, has had its hands full trying to respond to the massive problem of unsafe dumps leaking toxic chemical wastes. Nonetheless, EPA has begun to seek responses to pesticide pollution as well, particularly means of preventing it.

The possible genera of responses to pesticide contamination of groundwater may be broken down into (1) prevention, (2) compensation, and (3) cleanup. Because actual removal of diffuse pesticide contaminants in groundwater is certainly expensive and probably impracticable,¹² prevention has much to recommend it. The Agency's primary tools for dealing with pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are labeling and registration requirements.¹³ With the aim of preventing future occurrences, EPA is looking into better, "enforceable" labels for pesticides, and looking more carefully at registrations of pesticides with the potential to leach into groundwater.¹⁴

[15 ELR 10102]

Though these EPA efforts are to be commended, one may reasonably question whether they will be successful. EPA has thus far been unable to compose a label that it feels will be up to the job.¹⁵ Moreover, even perfect labeling cannot overcome the problem of illiterate, non-English speaking, or simply heedless users. It is also unclear how reliably EPA can judge whether a given pesticide is likely to leach; at least one of the pesticides now found in aquifers was once judged unlikely to leach by EPA.¹⁶ Further, even perfect ability to predict the potential to contaminate groundwater on the basis of complete data does nothing for pesticides registered on the basis of inadequate data.¹⁷ As a publication of the University of Wisconsin Extension Service concludes, "[t]he only sure way to avoid contaminating groundwater with pesticides is not to use them."¹⁸ Perhaps a reasonable middle ground is the approach of Clarke County, Virginia, which restricts the use of agricultural chemicals in the recharge area of a spring which provides water for ten percent of the county's people.¹⁹ Of course, that approach requires research to determine where groundwater recharge areas lie, and would likely leave many individual wells unprotected due to the cost of doing such studies for every well.

Regardless of the efficacy of various prevention methods — and this brief discussion only touches on the possibilities — all the prevention in the world does not do anything for the people who have drinking water already contaminated by pesticides, or whose water will soon be tainted by pesticides now in the soil strata and moving downward. These people must look to cleanup, or, as a last resort, compensation.

The prospects for compensation under federal law are poor at present,²⁰ but EPA has proposed using CERCLA to clean-up pesticide-contaminated groundwater. On October 15, it proposed listing on the National Priorities List six sites, all wells drawing on an Hawaiian aquifer polluted by the pesticides dibromochloropropane (DBCP) and ethylene dibromide (EDB), and trichloropropane (TCP), "a likely contaminant of the pesticide D-D."²¹ The three pesticides "are allsoil fumigants that had been used as nematocides in Oahu pineapple fields."²² This listing, and what it portends, has been controversial. Opponents of the listing question whether EPA has authority to use CERCLA to respond to contamination not originating from a hazardous waste site. They also, in a time when it is unclear whether the Hazardous Substance Response Trust Fund (Superfund) will get enough money to clean up even the worst hazardous waste sites,²³ question whether it is wise to use limited Superfund money for other purposes.²⁴ The answers to such questions are particularly important because the Hawaiian sites are not test cases; EPA anticipates using more pesticide-contaminated aquifer sites in the future if these sites pass the test.²⁵

Legal Authority

CERCLA was enacted in 1980 to fill major gaps in the chemical control scheme established by the Toxic Substances Control Act²⁶ and "cradle to grave" program for regulating hazardous wastes created by the Resource Conservation and Recovery Act (RCRA).²⁷ Those statutes "authorize government review of new toxic chemicals being placed on the market, and impose standards for new hazardous waste disposal facilities."²⁸ But they left the problems of abandoned disposal sites and other releases of toxic chemicals unregulated.

CERCLA establishes, in essence, a four-part system for [15 ELR 10103] filling those gaps.²⁹ First, § 104 gives the government authority to respond to releases of toxic substances through removal and remedial actions.³⁰ Second, the government may also, by virtue of authority granted it in § 106, force private parties to abate imminent and substantial dangers caused by releases or threatened releases.³¹ Third, § 107 imposes liability on site owners and operators, as well as past owners and those who transported the toxics to an unsafe site or generated the substances, for the costs of government response and remedial actions, response costs incurred by private parties, and natural resource damages.³² Finally, the Act sets up the Superfund³³ to pay government response costs incurred under § 104 and other costs.³⁴

Congress clearly intended to give EPA broad powers to eliminate threats to public health and nature posed by "releases" of poisonous chemicals to the environment, but also intended, to some degree, to limit the use of these tools in cases of contamination from properly applied pesticides. Understanding exactly how much of CERCLA applies to pesticide-contaminated groundwater requires examination of the general legislative intent and several specific provisions of the statute.

General Congressional Intent

Congressional intent to give EPA legal authority under CERCLA to respond to toxic contamination of the environment from other than hazardous waste dumps is clear. The Senate Committee on Environment and Public Works report on S. 1480,³⁵ as authoritative as any of the pieces in the fragmentary legislative history of the Act,³⁶ is replete with references to releases of toxic chemicals other than from waste dumps. For instance:

The problem is much broader than those incidents involving disposal of hazardous substances. . . . Any legislative solution would also have to address, in addition to disposal sites, the closely related problems of spills and other releases of dangerous chemicals which can have an equally devastating effect on the environment and human health.

Frequently, these releases have resulted in the contamination of drinking water and long-term contamination of wells . . . .³⁷

The legislative history also evinces an intent that pesticide contamination be among the species of toxic chemical threats addressed by CERCLA. For example, the Senate report gives as one of four examples of non-waste contamination that needed to be addressed the pollution of drinking water by DBCP in the San Joaquin Valley.³⁸ The intent to cover pesticide pollution can also be deduced from the language of the statute itself, as is discussed below.³⁹ In sum, while it must be recognized that waste site problems were uppermost in the mind of Congress when it rushed CERCLA into law, it is just as clear that CERCLA was intended to address a broad range of toxic contamination problems. That range of problems includes pesticide contamination of groundwater.

Section 107 Liability

The liability provisions of § 107 certainly do not apply to the results of pesticide application, because of a specific exemption. Section 107(i) provides, in pertinent part, that "[n]o person (including the United States or any State) may recover under the authority of this section for any response costs or damages resulting from the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act."⁴⁰ Section 107(i) thus spares those responsible for the presence of registered pesticides in the environment from reimbursing government and private parties under § 107 for the costs they might incur in cleaning up the contamination resulting from pesticide spraying.⁴¹ The questions remain, however, whether CERCLA provides authority for § 104 response and remedial actions or § 106 abatement actions where groundwater contamination comes from spraying of a registered pesticide.

Section 104 Removal and Remedial Actions

The provisions of § 104 clearly apply to permeating of legally [15 ELR 10104] applied pesticides into groundwater. Section 104, in contrast with § 107, contains no pesticide exemption. Pesticide contamination meets all the requirements to allow the President "to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time (including its removal from any contaminated resource), or take any other response measure consistent with the national contingency plan."⁴²

Section 104 covers releases or threatened releases into the environment of hazardous substances and of pollutants or contaminants that may present an imminent and substantial danger.⁴³ "Release" is defined to include "pumping, pouring, [and] emitting,"⁴⁴ terms clearly broad enough to include any readily conceivable method of application of pesticides. "Hazardous substances" is defined by reference to designations of hazardous substances under other statutes and CERCLA § 102.⁴⁵ Whether DBCP and other pesticides found in groundwater are hazardous substances under that definition is problematic,⁴⁶ but the pesticides in question clearly are "pollutants or contaminants." The definition of the latter is broad, including any substance that may reasonably be anticipated to cause death or disease in any organism upon exposure.⁴⁷ Finally, "environment" is defined to specifically include groundwater and drinking water supplies.⁴⁸

Section 107(i), by its terms, is not applicable to § 104.⁴⁹ The legislative history of the paragraph, though skimpy, also shows that the exception was not intended to apply to removal or remedial actions. The report of the Senate Committee on Environment and Public Works, in its explanation of the pesticide application exemption, said: "The authorities in the bill for removal and remedial action apply to problems caused by pesticide releases, whether or not such releases were in accordance with existing Federal or state law."⁵⁰

Further, the structure of the statute also shows that Congress intended the 107(i) exemption to be limited to liability questions. First, Congress knew how to fully exclude something from CERCLA coverage when it wanted to. The "normal application of fertilizer" is excluded from the definition of release, which effectively and fully removes that agricultural activity from the ambit of the statute.⁵¹ Pesticide application received no such general exclusion.⁵² Second, in addition to the § 107(i) exemption, Congress exempted pesticide applicators from the notification of release requirement in § 103.⁵³ This would only have been necessary if the legislators thought that, without such an exemption, the application of pesticides and its results would have been subject to § 103.

Finally, excluding pesticide application from liability under § 107, but including it under response authority under § 104, is logical. In § 107, Congress stretched common law principles of liability to make those responsible directly or indirectly for the improper disposal of hazardous chemicals liable for cleanup costs.⁵⁴ Unlike the waste generators, haulers, and disposers held liable under § 107, pesticide manufacturers and applicators operated in compliance with specific federal directives designed to protect health and the environment. Even a hazardous waste site owner is exempt from liability under § 107 for releases contemplated in a federal permit,⁵⁵ but the federal government is not barred from cleaning up those releases under § 104. Thus, this reading of the two sections gives the broad cleanup that Congress sought, without undercutting existing regulatory programs.

Section 106 Abatement Actions

In accordance with its policy of using § 106 aggressively to force responsible private parties to clean up hazardous substance releases without first draining the Superfund,⁵⁶ EPA is considering use of § 106 to respond to the aquifer contamination in Hawaii.⁵⁷ Section 106 allows EPA to either issue an administrative order or seek a court injunction to compel private parties to eliminate the danger from a release or threatened release that constitutes an imminent and substantial danger to public health or the environment.⁵⁸

[15 ELR 10105]

The applicability of § 106 to pesticide contamination is less clear than that of either § 104 or § 107. Section 106 seems, on its face, to cover pesticide contamination, but that conclusion is not quite so easy to come by as a similar one for § 104, partly because it depends on what pesticide contaminates the aquifer.⁵⁹ On the other hand, equally strong arguments can be made that § 106 does not cover pesticide contamination because the 107(i) exemption applies to § 106 by implication.

Section 106 powers take effect "when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or theatened release of a hazardous substance from a facility."⁶⁰ "Imminent and substantial endangerment" is not defined in the Act, and has not been widely construed by courts. At least one decision suggests that it is enough if the substance in question is highly toxic in low doses and there is substantial likelihood of human and environmental exposure.⁶¹ DBCP, EDB, and many other pesticides are toxic in low doses,⁶² and contamination of a drinking water aquifer constitutes environmental exposure⁶³ and makes human exposure a certainty in the absence of a response. At any rate, the imminent and substantial endangerment language has not proved a major hurdle for EPA to jump in the courts.⁶⁴

"Environment" and "release" are discussed above in reference to § 104, and present no more problem for the applicability of § 106 than § 104. There are, however, two key differences between the language of §§ 106 and 104. First, § 106 applies to releases from a "facility," a term that does not appear in § 104. "Facility" is defined to include "any . . . equipment, . . . motor vehicle, . . . or aircraft [and] any . . . area where a hazardous substance has been deposited, . . . placed or otherwise come to be located."⁶⁵ Thus, although "facility" intuitively seems to refer to a hazardous waste site, the definition clearly includes equipment, vehicles, and aircraft used to apply resticides, as well as the area upon which they are applied if pesticides are "hazardous substances."

That is the second key difference between §§ 104 and 106. Section 106 applies only to hazardous substances; it makes no mention of "pollutants and contaminants." Though some pesticides, including EDB and D-D meet the definition of "hazardous substances," whether DBCP and other frequent leachers like aldicarb are "hazardous substances" is problematic. As mentioned above, the term is defined to include substances listed under five other statutory provisions and a sixth list promulgated under § 102 of CERCLA. The CERCLA § 102 list includes aldicarb and all three of the pineapple fumigants, along with a number of other pesticides, but that list, proposed in May 1983, has never been finalized.⁶⁶ Two of the cross-referenced lists include no pesticides,⁶⁷ and another contains no relevant pesticide.⁶⁸ The list promulgated under § 311(b)(2)(A) of the Federal Water Pollution Control Act contains a number of pesticides, including EDB and D-D, but neither DBCP nor aldicarb.⁶⁹

That leaves the "hazardous waste" lists promulgated under § 3001 of RCRA.⁷⁰ Though pesticides are not normally thought of as wastes, it is conceptually reasonable to term them so after they have finished their work and leached out of the zone of activity in the soil. The RCRA regulations seem to bear out this notion. The RCRA lists specifically, but conditionally, include both DBCP and aldicarb, in addition to EDB, D-D, and a variety of other pesticides.⁷¹ The regulatory definitions specify that the listed substances are hazardous wastes if they are "solid wastes."⁷² A solid waste is "any solid, liquid, semi-solid or contained gaseous material . . . which . . . [i]s discarded . . . or . . . [h]as served its original intended use and sometimes is discarded."⁷³ Pesticides that have leached to groundwater have certainly served their original intended use, and those listed therefore appear to qualify as hazardous wastes.⁷⁴

[15 ELR 10106]

The preamble to the lists themselves complicates matters, however, by redundantly but less flexibly stipulating that the substances listed are hazardous wastes "when they are discarded or intended to be discarded."⁷⁵ Purposefully applied pesticides cannot meet this requirement.⁷⁶ Why this redundancy exists is a mystery. Flow charts in an appendix to the regulations go through the straightforward definition process laid out above, with no mention of the overlaid "discarded" requirement.⁷⁷ Nevertheless, its existence clouds whether intentionally applied pesticides may be hazardous wastes under RCRA.

Though all of the relevant pesticides would be hazardous substances of purposes of § 106 if the CERCLA § 102 list were finalized, at this time the status of some of them is open to question. EDB and D-D are encompassed in the definition by virtue of the FWPCA § 311 list, but DBCP and aldicarb are apparently left out. EPA may need to address this point — by finalizing the CERCLA § 102 list, clarifying the RCRA definitions, or listing additional pesticides on the FWPCA § 311 list — if it intends to continue using CERCLA to address contamination by intentionally applied pesticides.

There remains the question whether the § 107(i) exemption carries over to § 106, and the question is substantial. Some courts have held, in other contexts, that liability under § 106 is determined by § 107. This reasoning might be applied to carry over the § 107(i) pesticide exemption. The court in United States v. Price held that "[t]he heading used for § 107, 'Liability" denotes an intention to have this section define liability for the entire act. As such, it appears that § 106(a) is dependent upon the substantive provisions explaining liability outlined in § 107."⁷⁸ The core of the court's reasoning was expressed by another district court in United States v. Outboard Marine Corp.: "Whatever the source of the substantive law to be applied in a 106(a) action, it is most probable that those who would be liable under Section 107 were intended to be liable in an action under 106(a) for injunctive relief."⁷⁹ By the same token, it seems logical to suppose that those who would not be liable under § 107 were intended not to be liable under § 106. those courts, by reading § 107 liability standards into § 106, were giving § 106 far-reaching standards of liability. It would seem anomalous to fail to exempt from § 106 liability those persons exempted under § 107, from which the broad standards came.

At least one other court has come to the opposite conclusion regarding whether the liability provisions of § 107 apply to § 106.⁸⁰ If that court's reasoning is followed, the argument that § 107(i) carries over vanishes, and the question would be answered with reference to the language of § 106 only. Regardless of which of the decisions ultimately carries the day, the fact remains that the Price and Outboard Marine courts were stretching a bit to give full effect to a provision worded in terms of urgency. It would be curious if reasoning meant to broaden the scope of § 106 were used to narrow it.

It would require a powerfulcrystal ball to predict the ultimate answer to this question. The bottom line, of course, is that § 106 contains neither a pesticide application exemption nor any reference to the exemption in § 107. Further, as is discussed above,⁸¹ there is at least some evidence that Congress intended to tailor the § 107 exemption narrowly. Nevertheless, those interested will have to await consideration by the courts for the ultimate answer.

Some Policy Considerations

Congress is now considering amendments to CERCLA. Among the questions it should consider are whether it should bar using CERCLA to clean up pesticide-contaminated aquifers or change § 107(i) to make the statute more useful in that context.

The Administration has proposed CERCLA amendments that would prohibit use of government response powers or the Superfund to clean up contamination from legally sprayed pesticides.⁸² There are several arguments in support of this proposal. Given the government's inability to recover response costs under § 107, such use of CERCLA raises the specter of rapid depletion of the Superfund. Some also argue that rural groundwater users would be getting a windfall by having the federal government clean their water, while city dwellers have to pay their water companies to decontaminate their water. Finally, EPA Administrator Lee Thomas calls non-waste-site use of CERCLA "another public works project" and questions whether the government should undertake it.⁸³ On closer examination, each of these arguments is flawed.

The first argument, that the exemption from liability [15 ELR 10107] makes pesticide contamination cleanup an unacceptable drain on the limited Superfund, is not persuasive. The concern for prudent use of limited cleanup resources is not easily dismissed, but this argument more directly questions the wisdom of the 107(i) exemption itself. First, the pesticide sites now being addressed by EPA are listed on the National Priorities List (NPL). They have been through EPA's Hazard Ranking System,⁸⁴ which indicates that they are as dangerous as the hazardous waste sites on the list.⁸⁵ Second, one of the purposes of the Superfund is to finance response and remedial actions for which no responsible party can be found. Third, CERCLA does not require that EPA find responsible parties before commencing § 104 actions and, in fact, EPA often launches § 104 actions with no responsible parties in sight.⁸⁶ That responsible parties are not available because of statutory exemption instead of bankruptcy or other reasons does not seem a crucial distinction. Fourth, the pesticide cleanup's drain on Superfund should be limited by CERCLA's several controls on unreimbursed Superfund expenditures.⁸⁷ Finally, if EPA can use § 106 as it has proposed, it would avoid at least some of the drain on Superfund.

As shown above, CERCLA was not meant to focus on waste sites to the exclusion of other hazardous substance pollution.⁸⁸ If EPA needs more money to cover pesticide-contaminated acquifers, that does not mean that such aquifers should be neglected, any more than a statement that a family's last child thereatens to bust the family budget reflects on whether that child should be cared for; it is simply a statement that more money is needed to meet total obligations.⁸⁹ Once a pesticide-contaminated aquifer site has made it through the review onto the NPL, the relevant questions have been asked and answered, and the site should be taken care of in order of priority along with all the other releases of hazardous substances, pollutants, and contaminants listed by EPA.⁹⁰

On the issue of government subsidies to clean up drinking water, it is not so clear that groundwater users would get an unfair bargain. The FWPCA doubtless has made drinking water cheaper and cleaner for those whose water comes from rivers, lakes, and other surface waters. The massive federal investment in municipal sewage treatment⁹¹ and the equally massive industrial investment in wastewater pollution abatement, which was forced by federal law, clearly benefit this category of water users.

The third argument for cutting pesticide-contamination coverage out of CERCLA goes beyond the specific problem under discussion here to the question whether the federal government should undertak "another public works project," that is, the project of responding to contamination not caused by hazardous waste sites. This argument raises issues of restraining federal budget demands and of the efficacy of public works programs in general. Those broad policy questions are beyond the scope of this Comment, but two points applicable to the narrow subject at hand should be made. First, sites that make it onto the NPL are, if EPA has done its job, every bit as hazardous as the waste-caused sites on the list. No reason is apparent for subjecting people to one set of risks but not the other. Second, pesticide pollution was caused by agents not only registered with and found safe by the federal government, but the use of which has been steadily encouraged by government policy for decades. To leave the burden of such government activity on the shoulders of a discrete group of presumptively innocent bystanders is hardly consonant with intuitive principles of good government.

The arguments against barring use of CERCLA to clean up pesticide-contaminated aquifers are so strong that perhaps Congress should go the other way and remove the pesticide exemption entirely. This would allow EPA to respond to the contamination, but solve the problem of these sites creating more than their share of drain on the Superfund. Of course, this also raises significant policy concerns, since it would expose the farmers the exemption was meant to protect to potentially bankrupting liability. There is something to be said for exempting from liability farmers who relied in good faith on government representations [15 ELR 10108] that the poisons were safe to use. It is true that the same argument might be made for waste site owners or operators who are held liable under CERCLA, despite having operated dumps that met then-extant government specifications. The extent to which the family farmer should be protected from the burdens other businessmen must bear — and even whether he exists — is controversial.⁹² The question itself is somewhat murky because policies meant to protect small, family farmers — who perhaps deserve protection as a unique and vital part of our culture⁹³ — often give greater benefits to large corporate agribusinessmen,⁹⁴ who arguably neither need nor deserve special protection. Suffice it to say here that given the current state of the farm economy, CERCLA liability for small farmers raises social policy questions that go well beyond the confines of environmental policy. Also, making farmers liable by erasing the § 107(i) exemption would not necessarily make available enough private resources to solve the Superfund drawdown problem.

Arguably, the real deep pockets here are pesticide manufacturers, and, handily, there is no particular equity in exempting pesticide manufacturers from liability. The testing on which government registration is based is supplied, by and large, by the manufacturers themselves. Unlike farmers, they have not relied on government representations.

Deletion of § 107(i) would not necessarily mean, however, that pesticide manufacturers would be liable as "generators." It is questionable whether they match the description of liable parties in § 107(a): those who "arranged for disposal .at any facility."⁹⁶ Courts have been willing to read this language broadly,⁹⁷ but not to extend liability to those who sold a "product" that after use by another became a waste.⁹⁸ If manufacturers are not among the parties liable under the general provisions of § 107, deletion of the § 107(i) exemption will only expand the private cleanup resources available to those found in the pockets of pesticide users. Thus, effective expansion of private liability might require further expansion of § 107.

A further amendment to bring in pesticide manufacturers, unless expressly limited to them, would expand the already broad reach of § 107 liability beyond waste generators to chemical manufacturers — a step whose wisdom is questionable and whose political viability is scant. Tailoring a narrow amendment is certainly possible, however, and it makes some sense to treat pesticide manufacturers differently from other chemical manufacturers who are not otherwise generators. Pesticide companies are in a considerably lower equitable position than most other sellers of chemical products. Pesticide companies know that their products will be disseminated into the environment; in fact, in many cases the companies know with great specificity how the products will be used — for example, as a soil fumigant on potato crops in sandy, permeable soil. In addition, pesticide company profits depend on the companies effectively encouraging others to disseminate their products into the environment. Making pesticide manufacturers liable for the results of that dissemination where it produces environmental harm would not only be equitable, it would encourage the companies to take greater responsibility for preventing such contamination in the future.

In sum, this analysis suggests that the status quo concerning the CERCLA pesticide exemption is not a bad resolution of the competing policy concerns. It enables EPA to respond to serious health threats of the type CERCLA was intended to remedy, while containing the possibility that the Superfund would be drained dry. Indeed, though EPA argues for a broader pesticide exemption, there are good reasons for Congress to consider striking or narrowing the existing exemption and extending the statute's scope to capture pesticide manufacturers in the liability net.

1. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

2. BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, 1984 STATISTICAL ABSTRACT OF THE UNITED STATES 213. The quantities listed for 1978 through 1981, the most recent year listed, range from 1416 to 1468 million pounds.

3. Total agricultural pesticide usage in 1980 was estimated at 846 million pounds, out of 1175 million total pounds applied. EPA, REPORT TO CONGRESS: NONPOINT SOURCE POLLUTION IN THE U.S. 2-8 (Jan. 1984).

4. That group is both growing and gaining a foothold in the mainstream. See, e.g., J. T. MacFADYEN, GAINING GROUND: THE RENEWAL OF AMERICA'S SMALL FARMS (1984) (an account of the ups and downs of organic, or sustainable, agriculture around the country); RESTRUCTURING POLICY FOR AGRICULTURE: PAPERS FROM A SYMPOSIUM (eds. Batie & Marshall) (1984) (published by the College of Agriculture and Life Sciences at Virginia Polytechnic Institute and State University, one of the land grant universities usually assumed to be opposed to the ideas of organic agriculture); USDA, REPORT AND RECOMMENDATIONS ON ORGANIC FARMING (1980). Rep. Weaver (D-Ore.) has introduced, with 40 co-sponsors, an organic farming bill in the House, H.R. 1383, 99th Cong., 1st Sess., 131 Cong. Rec. H945, E695 (daily ed. Feb. 28, 1985), that would establish 48 on-farm pilot research projects to investigate effects of a transition to sustainable farming.

5. Presentation by Dr. Stuart Cohen, Groundwater Team Leader, EPA Office of Pesticides, at Groundwater Protection: Emerging Issues and Policy Challenges — A National Policy Symposium (Mar. 11, 1985) [hereinafter cited as Cohen, National Symposium].

6. Id.; Presentation by Edwin H. Clark II, Senior Associate, The Conservation Foundation, at Groundwater Protection: Emerging Issues and Policy Challenges — A National Symposium (Mar. 11, 1985). EPA is preparing a plan for an extensive groundwater survey that would try to determine the extent of the pesticide contamination problem by sampling 1300 carefully chosen sites. Drinking Water, Pesticides Offices Eye $6-Million Groundwater Survey, INSIDE E.P.A. WEEKLY REPORT, Jan. 18, 1985, at 3. The plan was reportedly approved by EPA Administrator Lee Thomas in early April, though Office of Management and Budget approval was pending at press time. Thomas Okays $6-million Groundwater Pesticides Study, INSIDE E.P.A. WEEKLY REPORT, Apr. 12, 1985, at 8.

7. For a general discussion of hydrogeological investigations of groundwater contamination, see 1 U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, PROTECTING THE NATION'S GROUNDWATER FROM CONTAMINATION 111-39 (Oct. 1984) [hereinafter cited as OTA GROUNDWATER REPORT].

8. This discussion addresses only public response. Private actions include Union Carbide's voluntary installation of individual filters for people with wells contaminated with Temik (a brand name for the pesticide aldicarb), and filing of lawsuits against Union Carbide bv people not satisfied with that remedy. See Brusko, TEMIK Victims Sue Union Carbide, NEW FARM, Jan./Feb. 1984, at 21. See also Envtl. L. Inst., Toxic Tort Litigation: A Comparative Case Study of Resolved Personal Injury Actions in Connecticut 40 (June 1984) (describing settlement for $9600 in a suit against an exterminating company for contaminating well water).

9. Act of May 4, 1984, 1983 Wisconsin Act 410 took effect on May 11, 1984. Information Memorandum 84-11, describing the Act, is available from Legislative Council Offices, Room 147 North, State Capitol, Madison, WI 53702.

In February of this year, Governor Edward DiPrete of Rhode Island proposed a new groundwater protection plan for his state. The plan reportedly includes a $200,000 Pesticide Relief Fund to help homeowners with contaminated wells and a new Pesticide Advisory Board. Rhode Island Governor Proposes Groundwater Protection Plan, 24 AIR/WATER POLLUTION REP. 100 (March 11, 1985).

10. E.g., Rhode Island, which reportedly decided not to renew the registration of Temik (aldicarb) after it was found at high levels in groundwater. Massive Well Contamination Prompts Rhode Island to Ban Temik, 4 ST. REG. REP. 195 (Nov. 21, 1984); Letter from Lee Thomas, [then] Assistant Administrator, EPA, to Rep. James Florio (Nov. 29, 1984) (Hawaii requested listing of six sites on National Priorities List).

11. "There is no explicit, comprehensive national legislative mandate to protect groundwater from contamination. Federal laws and programs do not address all sources known to contaminate groundwater, the vast majority of substances that have already been found or have the potential to be found in groundwater, or all uses of groundwater." OTA GROUNDWATER REPORT, supra note 7, at 63.

12. The presence of very low concentrations of contaminants spread over a very large area — or stated differently, the absence of a concentrated plume — makes even the options that might be available to remove contaminants leached from a leaking hazardous waste dump impracticable in cases of pesticide contamination resulting from leaching over a large expanse of agricultural fields. Presentation of Dr. Stuart Cohen, Groundwater Team Leader, EPA Office of Pesticides, at The Third National Pesticide Forum (March 2, 1985) [hereinafter cited as Cohen, Pesticide Forum]. For a general discussion of correcting groundwater contamination, see OTA GROUNDWATER REPORT, supra note 7, at 177-231.

13. 7 U.S.C. §§ 135-135k, 136-136y, ELR STAT. 42301.

14. Cohen, Pesticides Forum, supra note 12. EPA has initiated a data call-in program "to accelerate the retrospective review of the groundwater contamination potential from existing pesticides," and would "use labeling restrictions or other means to restrict [use of pesticides found to pose a threat to groundwater] in certain geologic areas based on soil type, hydrogeology, and ground-water use." EPA, GROUNDWATER PROTECTION STRATEGY 39 (Aug. 1984). EPA would seek to encourage implementation of the restrictions by incorporating them in FIFRA state enforcement grant agreements and by providing technical assistance to those "who aid in informing pesticide users." Id.

15. Cohen, Pesticide Forum, supra note 12.

16. That pesticide is oxamyl. Id.

17. Senator Proxmire, in recently introducing amendments to FIFRA, claimed that "over 60 percent of major pesticides have not been tested for their potential to cause cancer. Over 90 percent of pesticides now in use have not been tested for their potential to cause genetic mutations and at least 70 percent of major pesticides in use have never been tested for their potential to cause birth defects." 131 CONG. REC. S786 (daily ed. Jan. 29, 1985). Though registration of new pesticides requires data on leaching potential, that data was not provided for many pesticides now in use. EPA GROUNDWATER PROTECTION STRATEGY 39 (Aug. 1984).

18. UNIVERSITY OF WISCONSIN-EXTENSION, COOPERATIVE EXTENSION PROGRAMS, PESTICIDES IN GROUNDWATER 5 (G. Jackson & B. Webendorfer eds. undated) (Pub. No. G3213).

19. Clarke County Seeks Groundwater Protection, WATER NEWS, Dec. 1984, at 1.

20. Victim's compensation provisions were removed from the CERCLA bill in 1980 in order to find an enactable compromise. 126 CONG. REC. S14967-68 (daily ed. Nov. 24, 1980) (statement of Senator Stafford). The CERCLA amendments reported by the Senate Committee on Environment and Public Works include a limited, five-year victims' compensation demonstration program. S. REP. NO. 11, 99th Cong., 1st Sess. 48 (1985).

21. Amendment to National Oil and Hazardous Substances Contingency Plan: The National Priorities List, 49 Fed. Reg. 40320, 40323 (Oct. 15, 1984) [hereinafter cited as NPL Amendment]. D-D is a mixture of dichloropropene and dichloropropane. 40 C.F.R. § 116.4. Since it was not clear that the EDB came solely from agricultural use, and TCP is an impurity, rather than a pesticide, id., the DBCP contamination presents the clearest case of pesticide contamination.

Promulgation of a National Priorities List is required by CERCLA § 105 (8)(B), 42 U.S.C. § 9605 (8)(B), ELR STAT. 41946. Though NPL listing does not guarantee government action on a site, it does, at a minimum, mean that EPA will further investigate the need for action at the site. NPL Amendment, at 40320-21. In addition, NPL listing is not a prerequisite to all CERCLA actions; "a site need not be on the NPL to be the subject of CERCLA-financed removal actions or of actions brought pursuant to section 107(a)(4)(B) of CERCLA." Id. at 40321.

22. NPL Amendment, supra note 21, at 40321. EPA has cancelled EDB's soil fumigation use, and D-D, though still registered, is no longer manufactured in the United States. Id. EPA has cancelled the last remaining use of DBCP, as a soil fumigant to kill nematodes in pineapple fields, effective approximately February 9, 1985 (depending on when registrants receive notice of the cancellation), because of its contamination of Hawaiian groundwater. Dibromochloropropane; Intent to Cancel Registrations of Pesticide Products Containing Dibromochloropropane, 50 Fed. Reg. 1122 (Jan. 9, 1985) [hereinafter cited as DBCP Cancellation]. EPA will allow use of existing stocks until January 1, 1987 on Maui, subject ao approval of each proposed use by a DBCP use panel set up by the Agency. Id. at 1126-27.

23. See, e.g., United States v. A & F Materials Co., 14 ELR 20105, 20108-09 (S.D. Ill. Jan. 20, 1984) (recognizing inadequacy of Superfund to pay for cleanup of "orphan" sites as reason for allowing use of § 106, 42 U.S.C. § 9606, ELR STAT. 41947, in tandem with § 107, 42 U.S.C. § 9607, ELR STAT. 41947, in tandem with § 107, 42 U.S.C. § 9607, ELR STAT. 41947, in cleaning up sites).

24. See, e.g., Chemical Manufacturers Association, Testimony Before the Senate Committee on Environment and Public Works on Superfund Reauthorization 4 (Feb. 27, 1985); Florio Questions EPA Plan to use Superfund to Clean Up Pesticide-Contaminated Aquifers, [14 Current Developments] Env't Rep. (BNA) 1007) (Oct. 19, 1984).

25. NPL Amendment, supra note 21, at 40323.

26. 15 U.S.C. §§ 2601-2629, ELR STAT. 41335.

27. S. REP. NO. 848, 96th Cong., 2d Sess. 2 (1980), [hereinafter cited as SENATE REPORT] reprinted in 2 ENVIRONMENTAL LAW INSTITUTE, SUPERFUND: A LEGISLATIVE HISTORY 477 (H.C. Needham ed. 1982) [hereinafter cited as ELI HISTORY].

RCRA is codified at 42 U.S.C. §§ 6901-6991i, ELR STAT. 41901.

28. SENATE REPORT, supra note 27, at 2.

29. For general descriptions of CERCLA, see Comment, CERCLA Litigation Update: The Emerging Law of Generator Liability, 14 ELR 10224 (June 1984) [hereinafter cited as CERCLA Comment].

30. 2 U.S.C. § 9604, ELR STAT. 41945.

31. 2 U.S.C. § 9606, ELR STAT. 41947.

32. 2 U.S.C. § 9607, ELR STAT. 41947.

33. § 221, 42 U.S.C. § 9631, ELR STAT. 41953.

34. § 111, 42 U.S.C. § 9611, ELR STAT. 41950.

35. SENATE REPORT, supra note 27.

36. Though the bill eventually passed by both houses of Congress was designated H.R. 7020 (apparently because the bill contained tax provisions and was therefore required to originate in the House), the text of the enacted bill was formulated by Senators Stafford and Randolph, with S. 1480, the subject of S. REP. NO. 848, as a base. The Stafford-Randolph substitute, as the enacted bill came to be known, was introduced and passed in the waning days of the lame duck 96th Congress. It has no independent legislative history other than the statements of those introducing it and the ensuing floor debate. See generally ELI HISTORY, supra note 27, at xviii-xxi. In his statement introducing the substitute, Senator Randolph listed the changes from S. 1480; none of them are directly relevant to the subject of this Comment. 126 CONG. REC. S14964 (daily ed. Nov. 24, 1980), reprinted in 2 ELI HISTORY, supra note 27, at 260. Further, Senator Stafford's statement introducing the substitute includes verbatim large segments of the first several pages of the Report. 126 CONG. REC. S14966-67 (daily ed. Nov. 24, 1980), reprinted in 2 ELI HISTORY, supra note 27, at 262-63.

37. SENATE REPORT, supra note 27, at 5, reprinted in 2 ELI HISTORY, supra note 27, at 479. The sentence omitted from the quote is: "When confronted with an incident of toxic chemical contamination, it is often difficult to distinguish whether it is the result of a spill, a continuing discharge, an intentional dumping, or a waste disposal site." Id. This difficulty exists at the Hawaii sites listed; it is not clear whether the EDB contamination came from agricultural application or from spills. NPL Amendment, supra note 21, at 40323. This gives support to the contention that seeking to limit CERCLA's coverage is based on an artifical distinction. See also 126 CONG. REC. S14963, S14694 (daily ed. Nov. 24, 1980), reprinted in 2 ELI HISTORY, supra note 27, at 259, 260.

38. SENATE REPORT, supra note 27, at 6, reprinted in 2 ELI HISTORY, supra note 27, at 479. see also 126 CONG. REC. at S14967 (statement of Senator Stafford, paraphrase of passage quoted).

39. See infra notes 51-53 and accompanying text.

40. 42 U.S.C. § 9607(i), ELR STAT. 41948. The remainder of the section reads:

Nothing in this paragraph shall affect or modify in any way the obligations or liability of any person under any other provision of State or Federal law, including common law, for damages, injury, or loss resulting from a release of any hazardous substance or for removal or remedial action or the costs of removal or remedial action of such hazardous substance.

41. Those responsible for pesticide contamination are not, however, exempted from common law liability for their actions. See supra note 40.

42. § 104(a)(1), 42 U.S.C. § 9604(a)(1), ELR STAT. 41945. "Removal" and "remedial action" are defined quite broadly by § 101(23) & (24) respectively, 42 U.S.C. § 9601(23) & (24), ELR STAT. 41943. The President delegated his authority under CERCLA, with certain exceptions, to the EPA Administrator by Exec. Order No. 12316, 46 Fed. Reg. 42237 (Aug. 20, 1981).

43. § 104(a)(1), 42 U.S.C. § 9604(a)(1), ELR STAT. 41945 reads in pertinent part:

Whenever (A) any hazardous substance is released or there is a substantial threat of such a release into the environment, or (B) there is a release or substantial threat of release into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare, the President is authorized to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action . . . .

44. § 101(22), 42 U.S.C. § 9601(22), ELR STAT. 41943.

45. § 101(14), 42 U.S.C. § 9601(14), ELR STAT. 41943.

46. See infra notes 66-77 and accompanying text.

47. § 104(a)(2), 42 U.S.C. § 9604(a)(2), ELR STAT. 41945.

48. § 101(8), 42 U.S.C. § 9601(8), ELR STAT. 41943.

49. § 107(i) provides that "[n]o person may recover under authority of this section for any response costs or damages . . . ." 42 U.S.C. § 9607(i), ELR STAT. 41948 (emphasis added). In addition, the exemption only precludes cost or damage recovery and § 104 does not speak to recovery.

50. SENATE REPORT, supra note 27, at 44-45, reprinted in 2 ELI HISTORY, supra note 27, at 498-99. Section 4(k) of S. 1480, as reported, was identical to § 107(i) except that it referred to "field application of a pesticide." The word "field was deleted from the Stafford-Randolph substitute. In the Senate debate on the substitute, Senator Randolph confirmed that the change was "intended only to insure that these exclusions indeed apply to all customary uses of . . . pesticides rather than just to such applications to fields." 126 CONG. REC. S15006 (daily ed. Nov. 24, 1980) (question from Senator Cannon).

51. § 101(22)(D), 22 U.S.C. § 9601(22)(D), ELR STAT. 41943.

52. Similarly, "federally permitted releases," which are similar to, but do not include, pesticide application, § 101(10), 42 U.S.C. § 9601(10), ELR STAT. 41943, are expressly exempted from liability by § 107(j), 42 U.S.C. § 9607(j), ELR STAT. 41948, but not from response authority under § 104.

53. § 103, 42 U.S.C. § 9603(e), ELR STAT. 41945.

54. see, e.g., CERCLA Comment, supra note 29.

55. § 107(j), 42 U.S.C. § 9607(j), ELR STAT. 41948.

56. See CERCLA Comment, supra note 29, at 10225, 10234.

57. EPA to Pursue Cleanup of Tainted Aquifers Using Superfund § 106 Orders, INSIDE E.P.A. WEEKLY REP., Oct. 26, 1984, at 1, 7. As of this writing, EPA has not yet made a decision whether to use § 106 or against whom it would use it. Telephone interview with J. Daniel Berry, Ass't General Counsel for Superfund Branch, Solid Waste and Emergency Response Division, Office of General Counsel, EPA (March 20, 1985).

58. § 106(a), 42 U.S.C. § 9606(a), ELR STAT. 41947:

In addition to any other action taken by a State or local government, when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require. The President may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and welfare and the environment.

59. See infra notes 62-72 and accompanying text.

60. § 106(a), 42 U.S.C. § 9606(a), ELR STAT. 41947.

61. United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823, 846, 14 ELR 20212, 20222 (Jan. 31, 1984). The court summarizes extant guidance on the meaning of imminent and substantial endangerment in footnote 28, at 846, 14 ELR at 20221.

62. See, e.g., DBCP Cancellation, supra note 22, at 1125 (DBCP estimated to cause between 9 and 90 cancers per million exposed persons at exposure rates of between 50 and 500 parts per trillion); Babich, Davis & Stotzky, Dibromochloropropane (DBCP): A Review, 17 THE SCIENCE OF TOTAL ENVIRONMENT 207 (1981) (copy on file at ELI library) (review of scientific literature on DBCP).

63. See definition of "environment," § 101(8), 42 U.S.C. § 9601(8), ELR STAT. 41943.

64. No case with a holding against EPA on this point has been published in ELR. Section 104(a)(1) also uses the imminent and substantial danger language. Though it is ambiguous whether the language in § 104 applies to releases both of hazardous substances and of pollutants and contaminants, or only to the latter, the presence of the language is some evidence that § 106 is not meant to be more of an "emergencies only" provision than § 104. See generally F. Anderson, Negotiation and Informal Agency Action: The Case of Superfund 28-32 app. (May 25, 1984) (report prepared for consideration by the Administrative Conference of the United States) (available in ELI library).

65. § 101(9), 42 U.S.C. § 9601(9), ELR STAT. 41943.

66. 48 Fed. Reg. 23552, 23570 (May 25, 1983). Aldicarb is listed at 23572, DBCP at 23580, D-D at 23581, and EDB at 23583. Trichloropropane is not on the list.

67. Clean Air Act § 112, 42 U.S.C. § 7412, ELR STAT. 42215; Toxic Substances Control Act § 7, 15 U.S.C. § 2606, ELR STAT. 41343.

68. Federal Water Pollution Control Act § 307(a), 33 U.S.C. § 1317(a), ELR STAT. 42129, list codified at 40 C.F.R. pt. 129. The list includes only aldrin/dieldrin, DDT, endrin, Toxaphene, benzidine, and PCBs.

69. 33 U.S.C. § 1321(b)(2)(A), ELR STAT. 42133, list codified at 40 C.F.R. § 116.4.

70. 42 U.S.C. § 6921, ELR STAT. 42011, lists codified at 40 C.F.R. pt. 261.

71. 40 C.F.R. § 261.33(e) (aldicarb) & (f) (DBCP, EDB, and D-D).

72. 40 C.F.R. § 261.2(a) & (b).

73. 40 C.F.R. § 261.3(a); see also 40 C.F.R. § 261.30.

74. Since § 106 applies to "releases," perhaps the pesticides must be hazardous substances at the time of release. It would follow that if the RCRA lists are used to determine whether the pesticides are hazardous substances, the pesticides must also be hazardous wastes at the time of release. Pesticides are certainly not wastes when they leave the spray nozzle. However, the definition of release in § 101(22) includes "escaping [and] leaching . . . into the environment." 42 U.S.C. § 9601(22), ELR STAT. 41943. "Environment" is defined to include groundwater. § 101(8), 42 U.S.C. § 9601(8), ELR STAT. 41943.So the time of release may reasonably be argued to be the time of leaching into the groundwater; at that time, the pesticides arguably are wastes.

75. 40 C.F.R. § 261.33.

76. A substance is discarded when it is "abandoned (and not used, reused, reclaimed or recycled) by being . . . disposed of," 40 C.F.R. § 261.2(c), and is disposed of if "discharged, deposited, injected, dumped, spilled, leaked or placed into or on any land or water so that such material or any constituent thereof may enter the environment or be emitted into the air or discharged into ground or surface waters." 40 C.F.R. § 261.2(d). Pesticides that have leached their way below the root zone of crops are surely abandoned, and otherwise meet all but one of the requirements setout.

The fly in the ointment is the parenthetical modifying "abandoned" that requires that substances not be "used" by being discharged. These pesticides are certainly not now being used, but at the time they were "placed on the land" they were, and that is what the parenthetical addresses.

77. 40 C.F.R. pt. 260 app. I, figs. 1 & 2.

78. 577 F. Supp. 1103, 1113, 13 ELR 20843, 20847 (D.N.J. 1983).

79. 556 F. Supp. 54, 57, 12 ELR 21153, 21154 (N.D. Ill. 1982), quoted in Price at 1113, 13 ELR at 20847.

80. United States v. Stringfellow, 14 ELR 20385 (C.D. Cal. Apr. 5, 1984).

81. See supra notes 49-53 and accompanying text.

82. S. 494, H.R. 1346, 99th Cong., 1st Sess. (1985). The Administration bill would amend § 104 by striking § 104(a)(2) and adding

(2) The President shall not respond under this Act to a release or threat of a release —

* * *

(B) resulting from the lawful application of a pesticide product registered under section 3, permitted under section 5, or exempted under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act.

The bill reported by the Senate Committee on Environment and Public Works, S. 51, though it incorporated much from the Administration bill, does not contain the above language or otherwise change the pesticide exclusion. S. REP. NO. 11, 99th Cong., 1st Sess. 16 (1985).

83. Reagan Superfund Would Add Waste Tax, Renew Fund at $5.3 Billion for Five Years, [15 Current Developments] ENV'T REP. (BNA) 1787, 1788 (Mar. 1, 1985).

84. 40 C.F.R. pt. 300 app. A, required by § 105(8)(A), 42 U.S.C. § 9605(8)(A), ELR STAT. 41947.

85. The six sites "all have Hazard Ranking System scores above 28.50." Letter from Lee Thomas, [then] EPA Ass't. Administrator, to Rep. James Florio (Nov. 29, 1984). EPA put the sites to be added to the NPL in the update into groups by score, corresponding to the groups of 50 sites each on the final NPL. The six Hawaiian sites fell into groups six, seven, and nine, out of eleven groups total. Because there were few new sites in the higher-ranked groups, however, only 52 of the 238 new sites ranked above the highest-ranked Hawaiian site. 49 Fed. Reg. 40320, 40321, 40326-32.

86. Letter from Lee Thomas, [then] EPA Ass't. Administrator, to Rep. James Florio (Nov. 29, 1984); see also CERCLA Comment, supra note 29, at 10225 n.14.

87. § 104(c), 42 U.S.C. § 9604(c), ELR STAT. 41945. Remedial actions must be cost-effective.§ 104(c)(4). The federal government may not undertake any remedial action until the affected state agrees to share the costs of the action. § 104(c)(3). Response actions are generally limited to $1 million until the state cost-sharing agreement is reached, unless an emergency requires immediate further response. § 104(c)(1).

88. See supra notes 35-39 and accompanying text.

89. EPA may wish its latest children were never discovered — as may the hypothetical family, at times — but that does not change the reality of their existence. Also like the hypothetical family, EPA might have avoided its regrettable situation by having used better birth control, in this case stricter control over pesticide approval under FIFRA.

90. This is a bit of an oversimplification, since EPA sees NPL listing as only a "guide . . . in determining which sites warrant further investigation designed to assess the nature and extent of the public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. Inclusion of a site on the NPL does not establish that EPA necessarily will undertake remedial actions." NPL Amendment, supra note 21, at 40320-21. The point remains, however, that this initial determination, then, indicates that the Hawaiian sites are every bit as dangerous as the other listed sites, and should receive further investigation and whatever remedial action that investigation shows necessary along with the other sites.

91. In the first nine years, over $30 billion was appropriated for construction grants. After highways, construction grants rank as the largest public works program in the nation's history. See K. Koch, Senate is Starting Reform of U.S. Construction Grants for Sewage Treatment Plants, 39 CONG. QUARTERLY 1043 (June 13, 1981).

If part of the "unfair bargain" argument is that rural water users get their water for free, while their city brethren have to pay for their treated water, that premise is also suspect. Owners of individual wells must pay to have the well drilled and the pump and pipes installed, pay for the electricity to run the pump, pay for maintenance to the system, and suffer through periods with no water when the pump breaks down, the electricity goes off, the supply pipes freeze, or drought or heavy neighboring usage lowers the water below the reach of the well, at which time more money must be spent to drill a deeper well. Users of small-community groundwater-supplied water systems undoubtedly pay widely varying costs, but it is doubtful whether they pay consistently lower rates than users of surface water. This writer's admittedly random experience would lead to the opposite conclusion; rates in Saxapahaw, N.C. — where a community well serves 50 houses — are about double those in suburban Takoma Park, Maryland.

92. R. HOFSTADTER, THE AGE OF REFORM 23-59 (1955):

[T]he articulate people were drawn irresistibly to the noncommerical, nonpecuniary, self-sufficient aspect of American farm life. To them it was an ideal. Writers like Thomas Jefferson and Hector St. Jean de Crevecoeur admired the yeoman farmer not for his capacity to exploit opportunities and make money but for his honest industry, his independence, his frank spirit of equality, his ability to produce and enjoy a simple abundance. The farmer himself, in most cases, was in fact inspired to make money, and such self-sufficiency as he actually had was usually forced upon him by a lack of transportation or markets or by the necessity to save cash to expand his operations . . . . The more commercial this society became, however, the more reason it found to cling in imagination to the noncommercial agrarian values. The more farming as a self-sufficient way of life was abandoned for farming as a business, the more merit was found in what was left behind . . . . The agrarian myth represents a kind of homage that Americans have paid to the fancied innocence of their origins.

Id. 23-24. In addition to the great thinkers of the past like Jefferson, many modern writers take a less cynical view of agrarian culture. The spiritual leader of these writers, Wendell Berry, gives the subject of agrarian culture and its destruction by modern policy profound treatment in W. BERRY, THE UNSETTLING OF AMERICA: CULTURE AND AGRICULTURE (1977). As for treating farmers differently than businessmen, . . . . see Sechler & Cook, Cut Costly Myths: The Family Farm Is Doomed, Washington Post, Jan. 20, 1985, at C1, col. 1.

93. See, e.g., W. BERRY, supra note 92.

94. See, e.g., Scher, Catz & Matthews, USDA: Agriculture at the Expense of Small Farmers and Farmworkers, 7 U. TOL. L. REV. 837 (1976).

96. § 107(a)(3), 42 U.S.C. § 9607(a)(3), ELR STAT. 41947.

97. See, e.g., United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984); CERCLA Comment, supra note 29, at 10226-27.

98. United States v. Westinghouse Electric Corp., 14 ELR 20483 (S.D. Ind. June 29, 1983) (manufacturer of PCBs not liable as a generator when the transformers in which the PCBs were contained were improperly disposed of by defendant Westinghouse). But see New York v. General Electric Co., 14 ELR 20719 (N.D.N.Y. June 26, 1984) (refusing to dismiss complaint on GE's argument that the PCB-contaminated used oil it sold a dragstrip to spray on the strip for dust suppression was sold as an article of commerce and not disposed of as a waste); United States v. A & F Materials Co., 14 ELR 20432 (S.D. Ill. Mar. 30, 1984) (§ 107(a)(3) covers the sale of wastes to a chemical disposal and recycling company for use in its reprocessing operation).