Where Do We Fit In?: U.S. Information Disclosure and Hazardous Waste Remediation Laws as Compared With the Policy Suggestions of the U.N. Environment Program

Joel A. Mintz

The author is a Professor of Law, Nova Southeastern University Law Center, Scholar, Center for Progressive Regulation, Prof. Joel A. Mintz received his B.A. from Columbia University; J.D. from New York University School of Law; and LL.M. and J.S.D. from Columbia University Law School. The author thanks Prof. John S. Applegate for his helpful comments and suggestions regarding an earlier draft of the Article.

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In May 2002, the United Nations Environment Program (UNEP) issued its long-awaited, authoritative report, Global Environmental Outlook 3 (GEO-3).¹ This 446-page document, which reflects the work of more than 1,000 scientists around the globe, surveyed the present state of the world's environment and offered provocative policy recommendations for addressing the regional and global environmental problems facing humankind over the next 30 years.

In this Article, I will summarize some critical aspects of GEO-3's analysis, including particularly its integrated discussion of recent global environmental trends, its presentation of alternative "scenarios" for responding to environmental issues and challenges, and the "lessons for the future" that those scenarios suggested to GEO-3's authors, by way of general policy guidance. Following that, I will assay the extent to which two important components of U.S. environmental law: our requirements for public access to and disclosure of environmental data, and our standards regarding the cleanup of misdisposed hazardous wastes, coincide with GEO-3's important suggestions respecting these critical aspects of environmental policy.

I. GEO-3: Evaluating the Planet's Prospects

UNEP's GEO-3 is the third report in the United Nation's (U.N.'s) "GEO-Project," a massive research effort initiated in response to a May 1995 decision of UNEP's Governing Council which requested a comprehensive report on the state of the global environment. GEO-3 attempts to provide "an integrated assessment of environmental trends"² over the 30-year period that followed the first international conference on the environment—the U.N. Conference on the Human Environment—convened in Stockholm in 1972.

The report begins with a detailed overview of the main environmental developments, over the past three decades, in seven defined regions of the globe (Africa, Asia and the Pacific, Europe, Latin America and the Caribbean, North America, the Polar Regions, and West Asia). It notes that even though the world has made "great strides" since the 1970s in placing the environment on the agenda at various levels,³ the environment is "still at the periphery of socioeconomic development" and "under enormous pressure" as a result of both excessive consumption and poverty.⁴ Because of this, GEO-3 indicates, "sustainable development remains largely theoretical for the majority of the world's population of more than six billion people. The level of awareness has not been commensurate with the state of the global environment today; it continues to deteriorate it."⁵

At least some ecological deterioration is noted in virtually all global regions for the seven resources examined in the report. With respect to land, for example, food production has placed great pressure on land resources. Land degradation has resulted from such human activities as deforestation, overgrazing, unsuitable agricultural land use, poor soil and management practices, removal of natural vegetation, frequent use of heavy machinery, and poor irrigation practices.⁶ Moreover, similar losses or declines were reported with respect to global forest areas,⁷ global biodiversity,⁸ freshwater resources,⁹ coastal and marine areas,¹⁰ air quality,¹¹ urban areas,¹² and the malevolent effects of natural disasters (such as floods, droughts, windstorms, heat waves, etc.).¹³

Although these environmental threats affect, to some extent, every global region, GEO-3 is careful to note that human exposure and vulnerability to them is quite unevenly distributed. People in developing countries (and particularly in the least developed nations) are far more vulnerable to environmental threats and global change than their counter-parts in developed nations; and they have much less capacity to adapt to change.¹⁴ Degradation of natural resources tends to threaten both the health and the livelihood of the poor much more than it threatens the wealthy¹⁵; moreover some locations, such as high latitudes, floodplains, river banks, small islands, and coastal areas are more vulnerable to environmental difficulties than are others.¹⁶

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From the present state of the world's environment, the GEO-3 report shifts to an examination of future environmental prospects and trends. The report's authors declare:

The next 30 years will be as crucial as the past 30 for shaping the future of the environment. Old troubles will persist and fresh challenges will emerge as increasingly heavy demands are placed upon resources that, in many cases, are already in a fragile state. The increasing pace of change and degree of interaction between regions and issues has made it more difficult than ever to look into the future with confidence.¹⁷

Rather than making a single prediction as to the environmental trends that will occur from 2002 to 2032, GEO-3 posited four contrasting scenarios "to explore what the future could be, depending on different policy approaches."¹⁸ The report's description of those largely plausible scenarios, denoted "markets first," "policy first," "security first," and "sustainability first," are provided in Appendix A. Briefly stated, the markets first scenario assumes a world in which market-driven developments prevail in industrialized nations. In a policy first setting, national governments undertake robust actions to accomplish specific environmental and social objectives. The security first scenario envisages a world of increasing disparities, where conflict and inequality prevail. Finally, in a sustainability first world, a new development paradigm, supported by new, more equitable institutions and values, emerges as a response to the challenges of sustainability. Under these varied scenarios, as one might expect, the future of the world's environment varies quite considerably.¹⁹

After exploring the numerous implications of its differing hypothetical scenarios, GEO-3 notes that there can be significant delays between human actions, including policy decisions, and environmental impacts. Thus "much of the environmental change that will occur over the next 30 years has already been set in motion by past and current actions [and] many of the effects of environmentally relevant policies put into place over the next 30 years will not be apparent until long afterwards."²⁰ The report cautions that "the achievement of environmental goals will require decisive action, will encounter unforeseen eventualities and will not happen overnight."²¹

On the basis of the above-described analysis, the authors of GEO-3 also posited a number of "lessons" that can help to provide "general policy guidance" in environmental matters. Those lessons are reproduced, in full, in Appendix B. Of those lessons, at least three may have special relevance for developed nations (including the United States) as they formulate and adjust their national approaches to ongoing environmental challenges.

First, GEO-3 concludes that ensuring timely public access to accurate information regarding the current state of environmental and social systems is a "crucial" and "robust" policy. Such access allows for early warning of environmental problems. Moreover, it can stimulate voluntary action by business and industry, and it can support market-based mechanisms that promote good environmental conduct.²² In view of this, GEO-3's authors state that, "efforts are required to ensure that key public information remains accessible, and that more [information] flows are established."²³

Second, GEO-3 observes that "achieving widely agreed environmental and social goals will require dramatic and coordinated action starting now and continuing for a number of years."²⁴ GEO-3 thus calls for "robust and coordinated action at all levels of government and among many different sectors of society."²⁵ It notes that adaptation policies may be needed to complement mitigation policies, since even the most effective policies may take long periods to implement with success.²⁶

Third, GEO-3 declares that "the establishment of strong institutions for environmental governance is a prerequisite for almost all other policies."²⁷ It recognizes that, above all else, the political will and vision of governments will play a crucial role in determining whether sustainable development will come within reach. Moreover, businesses, non-governmental organizations, and other elements of civil society also must play a role in establishing and maintaining sound environmental governance.²⁸

In view of these interesting and thoughtful recommendations from the world's scientific community, it seems sensible to ask how, and how much, the environmental laws of the United States are in consonance with the GEO-3 report. The following two sections consider that question in the context of U.S. laws requiring public access to environmental information and the Superfund program for the remediation of past hazardous waste contamination.

II. Access to Environmental Data Under U.S. Laws

Legal requirements respecting the disclosure of information have deep roots in the law of the United States. At common law, sellers of goods and services have duties to convey relevant information to potential buyers.²⁹ Similarly, since the New Deal, federal regulatory statutes—and agencies—have routinely required information from regulated parties.³⁰ In the environmental field, however, information disclosure did not become mandatory until the 1970s; and such disclosure requirements grew in significance—at both the federal and state levels—in the 1980s and 1990s.

Environmental disclosure mandates fall into two categories. One such set of disclosure requirements are aspects of more general laws, intended to provide citizens with access [33 ELR 10696] to reports, documents, records, and other materials produced by government officials and employees. In contrast, other environmental disclosure laws are sub-components of federal statutes specifically intended to protect particular environmental media or resources (such as air, drinking water, beaches, etc.).

In the remainder of this section, I will summarize the key federal environmental disclosure requirements that stem from both general legislation and specific environmental statutes—as well as one state law, California Proposition 65,³¹ which has received considerable notoriety since its enactment by California voters in 1988. I will then evaluate the efficacy of these environment information laws, as measured against the goals and lessons set forth in GEO-3.

A. General Information Disclosure Legislation

As noted, although they developed outside of the environmental context, a number of general legal provisions that guarantee public access to information are frequently employed with respect to environmental data. One such statute is the Freedom of Information Act (FOIA),³² which requires federal agencies and departments to furnish, to "any person," any reasonably described record(s) within their possession, within 20 days of agency or departmental receipt of a written request for such record(s).³³ FOIA creates exceptions for matters of national defense, trade secrets, intra-agency personnel questions, personal privacy, attorney-client privilege, and certain limited law enforcement records.³⁴ However, most courts have chosen to give those exceptions a narrow construction, and to create a presumption in favor of public access to requested documents.³⁵

A second general information statute with implications for environmental decisions is the Federal Advisory Committee Act (FACA) enacted by the U.S. Congress in 1972.³⁶ FACA requires that all advisory committees that are established to assist federal agencies to provide advance notice of the time and place of their meetings in the Federal Register. Such committees must open their meetings to the public; they must also grant public access to meeting minutes and other committee records.³⁷

The Government in the Sunshine Act of 1976 further promotes the availability of government environmental information.³⁸ It requires that "meetings" held by heads of federal agencies, i.e., all gatherings at which matters that are within the agency's formal delegated authority are considered, must be open to the public.³⁹ This requirement is subject to the same exceptions that apply to FOIA information requests (for national security matters, trade secrets, etc.).⁴⁰ In addition, under this Act meetings held by agency heads may be closed only where they involve discussions of pending civil litigation and ongoing formal agency adjudication, and/or where premature public disclosures of information are likely to "significantly frustrate implementation of a proposal for agency action."⁴¹

The Administrative Procedure Act,⁴² which applies to all federal agencies including those with environmental responsibilities, similarly requires that the public be provided with a considerable amount of information in this instance, prior to agency rulemaking. Most significantly, whenever it plans to engage in formal (or notice-and-comment) rulemaking, a federal agency must first provide a public notice regarding its proposed rule in the Federal Register. That notice must describe the substance of the proposed rule and the legal authority for it.⁴³ Following the notice, the agency must allow all "interested persons" to submit written comments on its proposed rule. The agency must then consider and respond to each of those comments before issuing a final rule.⁴⁴

Beyond this, the National Environmental Policy Act (NEPA) of 1969⁴⁵ requires the compilation and public dissemination of a good deal of information with respect to proposed federal agency actions. Under that statute, responsible federal officials must prepare a detailed environmental impact statement (EIS) for every proposal for legislation and every major federal action that may significantly affect the quality of the human environment.⁴⁶ The agency involved must publish a public notice for every draft EIS, make that proposed document publicly available, and take and respond to public comments regarding it, before issuing a final EIS regarding the proposal in question.⁴⁷

B. Media-Specific Environmental Information Requirements

Aside from the general informational statutes mentioned above, a number of pieces of federal (and some state) legislation require the public availability of environmental data as it pertains to particular environmental media, or to specific, identified natural resources. One of the most celebrated of these statutes is the Emergency Planning and Community Right-To-Know Act (EPCRA)⁴⁸ passed in 1986 in the aftermath of a release of the highly toxic compound methyl isocyanate from a Union Carbide facility in Bhopal, India, which killed several thousand people and injured hundreds of thousands of others. EPCRA requires firms, government entities, and individuals to report to certain state and local officials the quantities of hazardous chemicals they have stored or released to the environment.⁴⁹ On the basis of this information, the U.S. Environmental Protection Agency (EPA) publishes an annual toxic release [33 ELR 10697] inventory (TRI), a report—available on the Internet—that establishes an objective, cross-media measure of the environmental performance of particular industrial facilities.

The Clean Air Act (CAA)⁵⁰ requires that any records, reports, or information obtained by EPA—pursuant to its broad information-gathering authority under the Act—are to be available to the public.⁵¹ The only exception (which does not apply to "emissions data") is with regard to confidential trade secrets of the owners and operators of emissions sources.⁵² Moreover, under the 1990 Amendments to the CAA,⁵³ regulated facilities are required to compile, and to make available on the Internet, risk management plans that address worst-case scenarios for accidental releases from those facilities.⁵⁴

The Clean Water Act (CWA)⁵⁵ has an information disclosure provision that parallels that of the CAA.⁵⁶ Under it, the public is entitled to any and all records, reports, or information obtained by EPA under its CWA information-gathering authority, aside from trade secret information. The latter (other than effluent data) must be kept in confidence by agency personnel.⁵⁷

The Safe Drinking Water Act (SDWA) Amendments of 1996⁵⁸ require owners and operators of U.S. public water systems to prepare and distribute consumer confidence reports that disclose any violations of drinking water standards, the levels of specific contaminants in drinking water, and the potential health affects of all such contaminants.⁵⁹ Those amendments also broke new ground by establishing the National Drinking Water Contaminant Occurrence Database, an online resource that provides interested members of the public with data on chemical, physical, microbial, and radiological contamination events in public water systems.⁶⁰

Similarly, the Beaches Environmental Assessment and Coastal Health Act of 2000⁶¹ requires prompt local posting in the event that coastal waters become contaminated.⁶² It also mandates that EPA create a nationally accessible database with regard to the occurrence of coastal water pollution.⁶³

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)⁶⁴ regulations require that EPA create a community relations plan that will keep citizens abreast of the status of hazardous waste cleanups in their local communities.⁶⁵ EPA must also publicly disseminate information respecting hazardous waste treatment, storage, and disposal facilities under a provision of the Resource Conservation and Recovery Act (RCRA).⁶⁶ Moreover, the Toxic Substances Control Act (TSCA)⁶⁷ requires that the public be educated with regard to the potential health hazards posed by lead and by radon.⁶⁸

Certain state environmental laws supplement the information distribution requirements established at the national level. The most well known and far reaching of those state statutes is the California Safe Drinking Water and Toxic Enforcement Act of 1986,⁶⁹ popularly known as Proposition 65. This law, passed by the California electorate in the form of an initiative, requires business to provide a "clear and reasonable warning" before "knowingly and intentionally" exposing any individual to a list of more than 650 carcinogenic or reproductive toxicants included in the law.⁷⁰ The Proposition only excepts exposures or discharges below a de minimus level, which is defined as exposures or discharges that pose "no significant risk" of cancer, or that are below 1/1000th of the "no observable effect level" for reproductive toxicants.⁷¹

C. How Effective Are Our Informational Laws?: Successes and Continuing Problems and Needs

To what extent do U.S. public information laws measure up to the U.N. recommendation that national environmental laws ensure timely public access to accurate information? In some respects, at least, our nation's efforts in this area have been laudatory. Taken together, the statutory provisions referred to above do provide interested members of the U.S. public with a considerable volume and variety of governmental data regarding environmental quality, and the actual or potential environmental impacts of a number of products and projects. At the same time, however, problems remain.

Much of the publicly available information regarding the environment in the United States is media-specific and disorganized. Disclosure is sometimes costly. There have been cutbacks in governmental reports that provided a useful overview of U.S. environmental trends and conditions⁷²; and recent concerns for national security have created a climate in which public information disclosure has been less forthcoming in certain respects.

Some of the public information laws noted previously have been the subject of critical acclaim. Thus, for example, EPCRA and the TRI process has been viewed by the U.S. General Accounting Office (GAO) as a catalyst for innovative, cost-effective environmental programs at all levels of [33 ELR 10698] government.⁷³ Prof. Cass Sunstein has described EPCRA as "the wave of the future"⁷⁴ and "an exceptional success story, one that has well exceeded the expectations at the time of the statute's enactment."⁷⁵ Moreover, in a more detailed analysis, Prof. Bradley Karkainnen has contended that "TRI is a watershed, pioneering the systematic use of performance monitoring and benchmarking as regulatory tools."⁷⁶ He regards TRI as "the first regulatory instrument to exploit the revolutionary potential of contemporary information technology to store, manipulate, and disseminate large volumes of [facility-level] performance information efficiently, quickly, and cheaply."⁷⁷

Other knowing observers have stated, more generally, that "the United States has been an international leader in promoting transparency, participation, and accountability, both generally and in an environmental context."⁷⁸ In addition, in a thoughtful essay, Prof. Clifford Rechtschaffen has concluded that California's Proposition 65 "has achieved some noteworthy successes in reducing public exposures to lead in media as diverse as calcium supplements, brass kitchen fixtures, water well pumps, ceramicware, hair dyes, wine capsules, and factory emissions."⁷⁹

Notwithstanding these various strengths and successes, however, U.S. information disclosure laws—and their implementation by government agencies—do have drawbacks and shortcomings. As Frances Irwin and Carl Bruch have aptly noted, "although the United States has large amounts of environmental data, it has no independent bureau of environmental statistics, no agreed environmental indicators, and in recent years no regular state of the environment report has been issued to interpret and analyze the data."⁸⁰ The Federal Reports Sunset and Elimination Act of 1995 took a major step backwards, in this regard, by providing that the Annual Report of the Council on Environmental Quality (required under NEPA § 201) should no longer be produced unless it was specifically requested by Congress.⁸¹ This misguided legislation eliminated what had previously been an extremely useful, authoritative overview of U.S. environmental trends.⁸² Rather than do away with already existing, institutional efforts to integrate environmental data, Congress would do far better to delegate, to an independent federal agency, the responsibility for assessing continuing data needs, creating standard guidelines and protocols for data collection, and collecting, analyzing, and disseminating integrated and comprehensive statistics regarding U.S. environmental quality.⁸³

Beyond this, a number of the legal provisions that were intended to promote and facilitate public availability of environmental data have their own intrinsic limitations and flaws. Thus, as Professor Karkainnen has perceptively pointed out, the TRI information compiled under EPCRA is a rather narrow and potentially misleading indicator of environmental performance.⁸⁴ TRI is based on a short and incomplete list of toxic pollutants; and it ignores the relative toxicity of listed compounds and the generation and release of conventional pollutants and solid waste. TRI also takes no account of the despoliation of ecosystems and wildlife habitats. Moreover, much TRI data is based upon imprecise industrial estimates and—as a result of EPA delays in compilation, verification, and analysis—it is untimely when it is released to the public. These shortcomings are all in need of correction.⁸⁵

Proposition 65 is a similarly imperfect piece of legislation. As Professor Rechtschaffen observed:

Proposition 65's consumer product, environmental, and occupational warnings have been of very limited informational value. Many warnings go unnoticed, fail to inform the public adequately about its exposure to listed chemicals, and fail to communicate effectively the risk levels involved. Thus, all three types of warnings have poorly served the statute's goals of promoting informed choice and enhanced decision-making, and satisfying the public's right to know.⁸⁶

To remedy these difficulties, Professor Rechtschaffen has advanced several sound recommendations for reform.⁸⁷ Specifically, he suggests that warnings should contain design features that emphasize noticeability and readability, should disclose the names of any listed chemical(s) triggering the warning requirement, should inform recipients of their exposure to listed chemicals, and should disclose information about the approximate level of risk to which individuals are exposed. Moreover, Professor Rechtschaffen suggests, warnings should alert recipients to the fact that risk assessment is an uncertain process; and they should contain standard warning language (with limitations on additional statements). Businesses should be required to provide mailed notices when warning exposed individuals about off-site environmental exposures to toxins; and all warnings and risk assessments that result from Proposition 65 should be maintained in a central database that is available to the public.

Other critics have faulted U.S. environmental information laws for being needlessly costly and misdirected on occasion. Citing the high costs of compliance with certain Occupational Safety and Health Administration and U.S. Food and Drug Administration disclosure requirements, for example, Professor Sunstein argues that providing information [33 ELR 10699] may be more costly than it is worth, and that it is sometimes counterproductive and ineffectual.⁸⁸

Finally, in the period following the terror attacks of September 11, 2001, there has been a tendency among federal officials to cut back on the public availability of certain data. While an increased emphasis on domestic security concerns is certainly warranted in the current circumstances, the federal government must use great care not to limit unduly the public's access to needed environmental information. At this writing it is too soon to tell whether many needless limitations will emerge in the name of national security.⁸⁹ Nonetheless, supporters of environmental protection should be vigilant in seeing to it that much-needed public access to environmental data—most of which has no implications whatsoever for national security—remain continuous without undue constraint and inhibition.⁹⁰

III. U.S. Hazardous Waste Laws and GEO-3

To what extent do U.S. laws with respect to the remediation of hazardous wastes represent the "dramatic and coordinated action" endorsed by GEO-3? Are they sufficiently "preventative" in nature? And in what ways can they be strengthened and approved?

This portion of this Article addresses those questions. It begins with a brief summary of relevant aspects of the Superfund program, the principal legal means by which past hazardous waste releases are remediated in the United States. It then considers the extent to which Superfund satisfied the sensible recommendations of GEO-3's authors.⁹¹

A. Key Features of the Superfund Program

On December 2, 1980, President Jimmy Carter signed into law the so-called Superfund legislation, i.e., CERCLA.⁹² The statute, which was substantially amended in 1986 and modestly so three times thereafter,⁹³ is a very complex piece of legislation that is intended to foster extensive cleanup of hazardous substances (other than petroleum) that are released to the environment, as well as the cleanup of inactive waste disposal sites.

In its original form, the Superfund statute that Congress enacted included several, complementary (but distinct) types of programs and provisions. One such program is the "Removal Program," which is aimed at making quick governmental responses to situations that involve a release (or threatened release) of hazardous substances to the environment, or a threatened hazardous substance release that may present an "imminent and substantial danger" to public health or welfare.⁹⁴

In contrast to the Removal Program, Superfund's Remedial Program is aimed at the cleanup of long-term health and environmental problems created by hazardous substance contamination. Congress furnished EPA with two broad mechanisms for achieving long-term remedial cleanups: the Superfund trust fund and the statute's strict, far-reaching liability scheme. The Agency is authorized to use the trust fund to finance the cost of cleaning up "orphan sites," i.e., abandoned hazardous waste sites at which no financially solvent responsible party can be found, and also to initiate cleanup actions at sites where the responsible parties are (for whatever reason) resistant to taking cleanup actions themselves. In the latter situation, the Agency may subsequently recoup its expenses from the responsible parties and replenish the trust fund.⁹⁵

The Superfund statute also provides EPA with extensive authority to issue administrative orders and to bring legal actions against potentially responsible parties.⁹⁶ CERCLA provides broad liability for any person who owns or operates a facility where hazardous wastes are or were disposed of, or who arranges with a transporter the disposal or treatment of such wastes, or any person who accepts or has previously accepted hazardous substances for transport to a disposal or treatment facility.⁹⁷ Moreover, as the Act has been construed, Superfund liability is strict, joint and several, and retroactive. The only available defenses include: act of God, act of war, or third-party responsibility; and in the case of the defense of third-party responsibility, the presumptively liable party must exhibit by a preponderance of evidence that he or she exercised due care and took precautions against such third-party acts or omissions.⁹⁸

In response to its extensive statutory authorities, EPA established an administrative program to deal with CERCLA site response.⁹⁹ Under that program, Agency representatives first perform a preliminary assessment/site investigation [33 ELR 10700] (PA/SI) at hazardous waste disposal sites they become aware of. Where that assessment indicates a short-term need to protect public health or the environment, the Agency may initiate a removal action to remove surface drums, fence the site in question, provide temporary supplies of clean drinking water, or otherwise prevent or limit the immediate threat posed by the site.

Where appropriate, EPA will also conduct a remedial PA/SI at the site to determine (based on standardized criteria) whether the site is an appropriate candidate for longterm remedial response. If that is the case, the site will be placed on the national priorities list (NPL) and the Agency will undertake a remedial investigation/feasibility study (RI/FS) with regard to it. During this study, EPA will examine the nature and extent of the threat posed by the site's contamination problem and it will develop alternative approaches for managing that problem. The Agency will establish a preliminary remediation goal, it will review and screen a broad list of alternatives, and it will conduct a detailed analysis of a small sub-set of those alternatives using some nine pre-set remedy selection criteria.¹⁰⁰

Following this, EPA will select a remedy for the site that will be documented in a record of decision (ROD). The Agency will design, construct, and carry out the remedy it has chosen. Finally, when EPA's response action is complete, it will delete or reclassify the site in question on the NPL (whether or not continuing operation and maintenance activities are needed there).

After years of contentious debate, Congress amended Superfund in 1986 by enacting the Superfund Amendments and Reauthorization Act (SARA) of 1986.¹⁰¹ These amendments maintained intact the fundamental structure established in the Superfund statute. They also strengthened and clarified certain aspects of the Act with regard to the degree of cleanup to be attained at Superfund hazardous waste sites, the role of state agencies in the Superfund program, the redress of damage to natural resources, the settlement of enforcement cases, judicial review of the adequacy of response actions, and various other matters.

Under SARA, EPA was compelled to apply legally "applicable or relevant and appropriate" standards to determine the level of cleanup at particular hazardous waste sites.¹⁰² The Agency was also encouraged to seek voluntary settlements with potentially responsible parties (PRPs),¹⁰³ to provide PRPs with information regarding sites, and to allow a grace period for negotiations.¹⁰⁴ Moreover, as further incentives to settlement, EPA was empowered to engage in "mixed" governmental/private funding at hazardous waste sites, to provide PRPs with nonbinding preliminary allocations of responsibility (NBARs), and to enter into "de minimus" settlements with minor PRPs.¹⁰⁵

In 1996, the Superfund statute was amended to revolve conflicting judicial decisions to the extent to which the legislation's "secured creditor exemption" affords protection to lenders who foreclose on contaminated properties. Under the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996,¹⁰⁶ it is now clear that a lender who holds indicia of ownership in a contaminated facility primarily to protect its security interest is not an "owner or operator," subject to CERCLA liability, so long as the lender does not "actually participate in the facility's management." Lenders may undertake a variety of activities relating to the facility without incurring liability as PRPs. After foreclosure, a lender may maintain business at a contaminated facility where that lender divests itself of the property "at the earliest practicable, commercially reasonable time, on commercially reasonable terms."¹⁰⁷ Moreover, lenders are protected from post-foreclosure liability when they undertake certain response actions to abate or prevent hazardous substance releases.

The next significant set of recent amendments to Superfund was passed in 1999. Under the Superfund Recycling Equity Act,¹⁰⁸ the legislation was amended with the aim of promoting reuse and recycling of scrap materials. Persons who arrange for the recycling of scrap paper, plastic glass, textiles, or rubber (other than whole tires) are not to be considered PRPs under the statute so long as they can demonstrate that their transactions met five criteria set forth in the Act.¹⁰⁹ Transactions involving scrap metal or spent batteries are also exempt from CERCLA's liability provisions, so long as the five criteria for other scrap materials are met, the party involved complied with applicable standards associated with scrap metal or spent battery recycling, and the scrap metal or batteries in question had not been melted prior to the transaction.¹¹⁰

The final major recent change to the Superfund program was the enactment, in the final weeks of 2001, of the Small Business Liability Relief and Brownfields Revitalization Act.¹¹¹ This Act created some carefully limited exceptions to the scheme of responsible party liability created under CERCLA, and it authorized a set of federal grants and loans to encourage the cleanup and development of U.S. brownfield sites. Nonetheless, those amendments have left the essential liability structure of CERCLA largely intact.

Notwithstanding these changes, however, Congress has never seen fit to eliminate one very significant limitation on the scope of CERCLA's coverage. The statute thus continues to contain a "petroleum exclusion" that expressly excludes petroleum from the statutory definition of hazardous substance, including "crude oil, or any fraction thereof, which is not specifically listed or designated as a hazardous substance."¹¹²

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B. The Superfund Statute and GEO-3

In some respects, certainly, the Superfund program is consistent with the notion of "dramatic and coordinated action" that, as we have seen, the authors of GEO-3 believe is very much needed for the achievement of environmental goals. The statute's comprehensive scheme for identifying, investigating, and redressing hazardous waste contamination problems, along with its relative strict and extensive regime of private party liability, have yielded some notable successes.¹¹³ In other respects, however, CERCLA—as enacted, amended, and implemented—appears to fall short of the types of robust "dramatic and coordinated" efforts contemplated in GEO-3.

The authors of GEO-3 did not choose to define their phrase "dramatic and coordinated action." Nonetheless, it seems safe to presume that at least one component of such action—particularly where it is to be taken by a governmental institution—is an ample and stable level of funding. Regrettably, however, that firm financial foundation is not presently a characteristic of the U.S. Superfund program.

The specialized tax on certain industries that had been the basis for financing the Superfund effort was allowed to expire in 1995. As a result of this, the program has steadily declined. In 2002, it was reliably reported that the balance in the Superfund trust fund had plummeted from $ 3.6 billion in 1996 to a projected $ 28 million in late 2003.¹¹⁴ At the same time, a careful, independent analysis by Resources for the Future observed that "EPA's need for Superfund monies will not decrease appreciably below Fiscal Year 1999 expenditures of $ 1.54 billion until Fiscal Year 2006."¹¹⁵ Unless altered by Congress, this systematic underfunding of Superfund seems a far cry, indeed, from the "dramatic and coordinated action, starting now and continuing for a number of years"¹¹⁶ that GEO-3 appropriately calls for.

The Superfund statute is also flawed by its failure to include any provisions requiring hazardous waste generators to reduce the volume of the hazardous wastes that they generate.¹¹⁷ In order to achieve the "preventative" approach contemplated in GEO-3, the United States would thus do well to amend Superfund (and/or other pertinent federal laws) to require industrial facilities to decrease their generation of hazardous wastes in phased increments, by particular stated deadlines. Such requirements (which might include waste generation cap and trading programs in their early stages, to promote economic efficiency) could set numerical goals as to hazardous waste generation, while leaving it to waste generators to determine the specific techniques that they will employ to meet those goals. While they may be technically challenging and costly in some instances, mandatory waste reduction standards of this sort have great potential to prevent and minimize U.S. hazardous waste generation over the long term, while avoiding the immense costs of remediation that will result if hazardous byproducts are improperly disposed.

The Superfund program has also been hampered by the statute's continuing "petroleum exclusion," which carves an environmentally significant gap, for a highly toxic waste, into CERCLA's otherwise extensive coverage. Congress acted prudently when, as noted above, in 2001 it declined to extend this problematic exclusion to the federal brownfield program. Nonetheless, before Superfund can be said to be consistent with GEO-3's call for robust, environmental policy—and dramatic and coordinated action—the statute should also be amended to provide for the cleanup of improperly disposed petroleum products on land.

Finally, CERCLA will be more in line with the lessons of GEO-3 if it is amended to deny secured creditor exemption status to lending institutions that have the capacity to influence the hazardous waste management practices of borrower facilities in which they hold a security interest. At present, banks (and other lending institutions) can avoid Superfund liability by refraining from participation in the day-to-day management of hazardous wastes at their debtors' facilities.¹¹⁸ This arrangement, although obviously helpful to lenders, serves to eliminate a significant (and much-needed) source of private institutional pressure on hazardous waste site operators who borrow funds to manage hazardous waste disposal facilities in an environmentally sound manner.

IV. Conclusion

In the GEO-3 report, UNEP has done a first-rate job of analyzing the world's environmental successes and continuing needs. Its forthright "lessons" provide sound policy guidance to all nations, as well as a useful metric for measuring the effectiveness of national efforts to protect the environment.

When considered in light of GEO-3's suggestions, U.S. laws regarding distribution of environmental information and cleanup of misdisposed hazardous wastes present a decidedly mixed picture. The United States has a considerable body of specific and general information disclosure laws—at both federal and state levels—that, in the aggregate, mandate the public disclosure of a good deal of accurate environmental data. At the same time, however, much of the data currently available to the public is disparate and disorganized. The United States lacks both an independent bureau of environmental statistics and an agreed-upon set of environmental indicators. Even its most expansive public information laws—such as EPCRA and Proposition 65—have their loopholes and shortcomings; and the national [33 ELR 10702] climate since September 11, 2001, has raised concerns regarding potential future limitations on the public availability of environmental data.

With regard to hazardous waste remediation, the Superfund program provides a promising legal foundation for the coordinated, dramatic, and robust action toward protecting the environment urged by UNEP in GEO-3. However, as a result of systematic underfunding, a failure to mandate decreased industrial generation of hazardous wastes, and the continuing presence of legislative loopholes (such as the "petroleum exclusion" and an overly broad liability exemption for secured creditors) this program is currently failing to reach its widely accepted and highly appropriate objectives.

GEO-3 prescribes no legal standards. It is neither a proposed multilateral international agreement nor a panacea for the planet's environmental ills. Nonetheless, the UNEP report's well-documented analysis merits close attention and its prudent and measured policy guidance should not be ignored. Indeed, as GEO-3's authors have sensibly observed: "The future is not something we should wait for passively. Rather, the choices we have made in the past, those we are currently making and those we will make in the future all strongly influence in which world we will live."¹¹⁹

Appendix A: Scenarios for the Global Future Posited by GEO-3

1. Markets First

Most of the world adopts the values and expectations prevailing in today's industrialized countries. The wealth of nations and the optimal play of market forces dominate social and political agendas. Trust is placed in further globalization and liberalization to enhance corporate wealth, create new enterprises and livelihoods, and so help people and communities to afford to ensure against—or pay to fix—social and environmental problems. Ethical investors, together with citizen and consumer groups, try to exercise growing corrective influence but are undermined by economic imperatives. The powers of state officials, planners, and law-makers to regulate society, economy, and the environment continue to be overwhelmed by expanding demands.

2. Policy First

Decisive initiatives are taken by governments in an attempt to reach specific social and environmental goals. A coordinated pro-environment and anti-poverty drive balances the momentum for economic development at any cost. Environmental and social costs and gains are factored into policy measures, regulatory frameworks, and planning processes. All these are reinforced by fiscal levers or incentives such as carbon taxes and tax breaks. International "soft law" treaties and binding instruments affecting environment and development are integrated into unified blueprints and their status in law is upgraded, though fresh provision is made for open consultation processes to allow for regional and local variants.

3. Security First

This scenario assumes a world of striking disparities where inequality and conflict prevail. Socioeconomic and environmental stresses give rise to waves of protest and counteraction. As such troubles become increasingly prevalent, the more powerful and wealthy groups focus on self-protection, creating enclaves akin to the present day "gated communities." Such islands of advantage provide a degree of enhanced security and economic benefits for dependent communities in their immediate surroundings but they exclude the disadvantaged mass of outsiders. Welfare and regulatory services fall into disuse but market forces continue to operate outside the walls.

4. Sustainability First

A new environment and development paradigm emerges in response to the challenge of sustainability, supported by new, more equitable values and institutions. A more visionary state of affairs prevails, where radical shifts in the way people interact with one another and with the world around them stimulate and support sustainable policy measures and accountable corporate behavior. There is much fuller collaboration between governments, citizens, and other stakeholder groups in decisionmaking on issues of close common concern. A consensus is reached on what needs to be done to satisfy basic needs and realize personal goals without beggaring others or spoiling the outlook for posterity.

Appendix B: "Lessons for the Future" Identified by the Authors of GEO-3

LESSON ONE: Contrasting yet plausible stories can be told for how the world and its regions will develop in the next 30 years; each has fundamentally different implications for the environment.

LESSON TWO: There can be significant delays between human actions, including policy decisions, and associated impacts on the environment, specifically:

—much of the environmental change that will occur over the next 30 years has already been set in motion by past and current actions.

—many of the effects of environmentally relevant policies put into place over the next 30 years will not be apparent until long afterwards.

LESSON THREE: Achieving widely agreed environmental and social goals will require dogmatic and coordinated action starting now and continuing for a number of years. Steps must include policies based on prevention and adaptation.

LESSON FOUR: Important linkages exist between different environmental issues and between environmental and broader social issues. It follows that:

—policy can be made more effective by looking for synergies or "co-benefits."

—care must be taken to avoid conflicts between policies.

[33 ELR 10703]

LESSON FIVE: The establishment of strong institutions for environmental governance is a prerequisite for almost all other policies.

LESSON SIX: Ensuring timely access to accurate information is a robust policy, as it:

—allows for early warning of environmental problems.

—can stimulate voluntary action by business and industry.

—can support formal and informal market-based mechanisms that promote good environmental conduct.

LESSON SEVEN: Not all policy instruments are appropriate for all situations.

LESSON EIGHT: The achievement of environmental goals will require decisive action, will encounter unforeseen eventualities and will not happen overnight. Fortunately or unfortunately, much of the success or failure of this endeavor is in our hands.

1. UNITED NATIONS ENVIRONMENT PROGRAM, GLOBAL ENVIRONMENTAL OUTLOOK 3 (2002) [hereinafter GEO-3].

2. Id. at xix.

3. Id. at xx, 2-26.

4. Id. at xx, 32-61.

5. Id. at xx.

6. Id. at xx, 62-89.

7. Id. at 90-119.

8. Id. at 120-49.

9. Id. at 150-79.

10. Id. at 180-209.

11. Id. at 210-39.

12. Id. at 240-69.

13. Id. at 270-96.

14. Id. at xxv, 302-17.

15. Id. at 303-04.

16. Id. at xxv, 304-06.

17. Id. at xxiv.

18. Id.

19. Id. at xxvi-xxix, 328-93.

20. Id. at 395.

21. Id. at 397.

22. Id.

23. Id.

24. Id. at 395.

25. Id.

26. Id.

27. Id. at 396.

28. Id. at 397.

29. See WILLIAM L. PROSSER & W. PAGE KEETON, PROSSER AND KEETON ON THE LAW OF TORTS 677-724 (5th ed. 1984) and RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 (1998).

30. See, e.g., Securities Act of 1993, 15 U.S.C. §§ 77h, j; 21 C.F.R. § 201.57 (U.S. Food and Drug Administration (FDA) labeling requirements for prescription drugs); 29 C.F.R. § 1910.1200 (Occupational Safety and Health Administration (OSHA) standard requiring that chemical manufacturers notify their employees of workplace hazards).

31. CAL. HEALTH & SAFETY CODE §§ 25249.5 to 25249.13.

32. 5 U.S.C. § 552-552a, available in ELR STAT. ADMIN. PROC.

33. Id. §§ 552(a)(3) and (a)(6)(A)(ii), available in ELR STAT. ADMIN. PROC.

34. Id. §§ 552(b) and (c), available in ELR STAT. ADMIN. PROC.

35. See, e.g., Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 31 ELR Digest 20501 (2001); Department of Justice v. Julian, 486 U.S. 1 (1988); Assembly of the State of Cal. v. Department of Commerce, 968 F.2d 916 (9th Cir. 1992).

36. 5 U.S.C. app. 2, §§ 1-15.

37. Id.

38. 5 U.S.C. § 552b, available in ELR STAT. ADMIN. PROC.

39. Id.

40. Id. § 552b(c)(9)(B), available in ELR STAT. ADMIN. PROC.

41. Id.

42. Id. §§ 551-706, available in ELR STAT. ADMIN. PROC.

43. Id. § 553b, available in ELR STAT. ADMIN. PROC.

44. See 40 C.F.R. §§ 1502.9(b), 1503.4.

45. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

46. Id. § 4332(2)(C), ELR STAT. NEPA § 102(2)(C).

47. See 40 C.F.R. pt. 1503 (pertinent NEPA regulations promulgated by the U.S. Council on Environmental Quality).

48. 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

49. Id.

50. Id. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

51. Id. § 7414(c), ELR STAT. CAA § 114(c).

52. Id.

53. Pub. L. No. 101-549, 104 Stat. 2399.

54. Id. § 7412(8), ELR STAT. CAA § 112(8).

55. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

56. Id. § 1318(b), ELR STAT. FWPCA § 308(b).

57. Id. Unlike the CAA, the CWA authorizes the imposition of criminal penalties on government employees who knowingly or willfully disclose confidential trade secrets. Id.

58. Pub. L. No. 104-182, 110 Stat. 1613 (1996), codified in 42 U.S.C. §§ 300f to 300j-26, ELR STAT. SDWA §§ 1401-1465.

59. 42 U.S.C. § 300g-3(c), ELR STAT. SDWA § 1414(c).

60. Pub. L. No. 104-182, 110 Stat. 1613 (1996).

61. Pub. L. No. 106-284, 114 Stat. 871, codified in 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

62. 33 U.S.C. § 1346(a)(1)(B), ELR STAT. FWPCA § 406(a)(1)(B).

63. Id. § 1346(e), ELR STAT. FWPCA § 406(e).

64. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

65. 40 C.F.R. § 300.430(C)(2)(ii).

66. See 42 U.S.C. § 6921(b)(3(B)(ii), ELR STAT. RCRA § 3001(b)(3)(B)(ii). This was done by EPA, see U.S. EPA, Information Sources: Media-Specific Tools, at http://www.epa.gov/epahome/dmedia.htm#toxic (last visited June 16, 2003).

67. 15 U.S.C. §§ 2601-2692, ELR STAT. TSCA §§ 2-412.

68. Id. §§ 2663, 2686, ELR STAT. TSCA §§ 303, 406.

69. CAL. HEALTH & SAFETY CODE §§ 25249.5 to 25249.13.

70. Id. § 25249.6.

71. Id. § 25249.10.

72. See, e.g., the Federal Reports Sunset and Elimination Act of 1995, 33 U.S.C. § 1344(a), repealing the Annual Report by the Council on Environmental Quality unless specifically requested by Congress.

73. See U.S. GAO, TOXIC CHEMICALS: REPORT TO THE CONGRESS (1991).

74. Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 625 (1999).

75. Id. at 623.

76. Bradley Karkainnen, Information as Environmental Regulation: TRI and Performance Benchmarking, Precursor to a New Paradigm?, 89 GEO. L.J. 257, 260 (2001).

77. Id. at 261.

78. Frances Irwin & Carl Bruch, Public Access to Information, Participation, and Justice, in STUMBLING TOWARD SUSTAINABILITY (John C. Dernbach, ed. 2002).

79. Clifford Rechtschafffen, How to Reduce Lead Exposures With One Simple Statute: The Experience of Proposition 65, 29 ELR 10581 (Oct. 1999).

80. Irwin & Bruch, supra note 78, at 533.

81. 33 U.S.C. § 1344(a).

82. The elimination of Congress' Office of Technology Assessment (OTA) in the 1990s took away still another institutional resource for integrating disparate and heterogenous U.S. environmental data.

83. See NATIONAL ACADEMY OF PUBLIC ADMIN., REPORT TO CONGRESS: SETTING PRIORITIES, GETTING RESULTS 166-67 (1995).

84. Karkainnen, supra note 76, at 331-38.

85. Professor Karkainnen's thoughtful recommendations in this regard may be found at id. at 361-66.

86. Clifford Rechtschaffen, The Warning Game: Evaluating Warnings Under California's Proposition 65, 23 ECOLOGY L.Q. 303, 340 (1996).

87. Id. at 359-69.

88. Sunstein, supra note 74, at 626-28. I think that Professor Sunstein may have overstated this point. Professor Sunstein observes that disclosure strategies may have disproportionately little effect on people who are undereducated, elderly, or poor. However, his analysis ignores the very real possibility that persons in those categories may benefit nonetheless when informational statutes are enforced by other persons or institutions.

89. In this regard, one rather inauspicious sign may be found in a memorandum regarding FOIA by U.S. Attorney General John Ashcroft to the heads of all federal departments, dated October 12, 2001, which (somewhat ambiguously) discourages all information disclosure unless it is legally required. Memorandum from John Ashcroft, U.S. Attorney General, to All Federal Departments Regarding the Freedom of Information Act (Oct. 12, 2001).

90. See, e.g., 42 U.S.C. §§ 300i-2 to 300i-4, ELR STAT. SDWA §§ 1433-1435. In June 2002, the SDWA was amended adding §§ 300i-2 to 300i-4, which require community water systems to conduct vulnerability assessments to terrorist attacks. The assessments must be submitted to EPA, but are exempt from public disclosure requirements. Id.

91. In a previous writing, Joel A. Mintz, Time to Walk the Walk: U.S. Hazardous Waste Management and Sustainable Development, 32 ELR 10307 (Mar. 2002), I evaluated Superfund and RCRA in light of the commitments made by the United States at the Rio Summit in 1992. This section of this Article borrows considerably from that discussion.

92. Pub. L. No. 96-510, 94 Stat. 2767, codified at 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

93. Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613; Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996, included in Omnibus Consolidated Appropriations Bill for Fiscal Year 1997, Pub. L. No. 104-208, subtit. E (1996); Superfund Recycling Act, 42 U.S.C. § 9627, ELR STAT. CERCLA § 127; Small Business Liability Relief and Brownfields Revitalization Act of 2001, Pub. L. No. 107-118, 115 Stat. 2356.

94. 42 U.S.C. § 9604(a), ELR STAT. CERCLA § 104. "Renewal action" is defined at id. § 9601(23), ELR STAT. CERCLA § 101(23) and 40 C.F.R. § 300.5.

95. 42 U.S.C. § 9607(a)(4), ELR STAT. CERCLA § 107(a)(4).

96. Id. § 9606, ELR STAT. CERCLA § 106.

97. Id. § 9607, ELR STAT. CERCLA § 107.

98. Id. § 9607(b), ELR STAT. CERCLA § 107(b).

99. For an informative discussion of this program, see Lawrence E. Starfield, The 1990 National Contingency Plan—More Detail and More Structure, but Still a Balancing Act, 20 ELR 10222 (June 1990).

100. These criteria include overall protection of human health and the environment, compliance with applicable or relevant and appropriate regulatory requirements (ARARs), long-term effectiveness and permanence, reduction of toxicity, mobility or volume through treatment, short-term effectiveness, implementability, cost, state acceptance, and community acceptance. See 40 C.F.R. § 300.430(e)(9).

101. Pub. L. No. 99-499, 100 Stat. 1613.

102. 42 U.S.C. § 9621, ELR STAT. CERCLA § 121.

103. Id. § 9622, ELR STAT. CERCLA § 122.

104. Id. § 9622(e), ELR STAT. CERCLA § 122(e).

105. Id. § 9622(e)(3), ELR STAT. CERCLA § 122(e)(3).

106. See the Omnibus Consolidated Appropriations Bill for Fiscal Year 1997, Pub. L. No. 104-208, 110 Stat. 3001, subtit, E (1996).

107. For a succinct analysis of this set of amendments, see William W. Buzbee, CERCLA's New Safe Harbors for Banks, Lenders, and Fiduciaries, 26 ELR 10656 (Dec. 1996).

108. 42 U.S.C. § 9627, ELR STAT. CERCLA § 127. See Carol J. Miller, Retroactive Application of a New CERCLA Defense: The Superfund Recycling Equity Act, 31 ELR 10867 (July 2001).

109. 42 U.S.C. § 9627(c), ELR STAT. CERCLA § 127(c).

110. Id. §§ 9627(d), (f), ELR STAT. CERCLA §§ 127(d), (f).

111. Pub. L. No. 107-118, 115 Stat. 2536 (2001).

112. 42 U.S.C. §§ 9601(14), (33), ELR STAT. CERCLA §§ 101(14), (33). Notably, however, at § 211(a)(39)(D) of the Small Business Liability Relief and Brownfields Revitalization Act, Congress included within the statutory definition of a "brownfield site" all orphan sites that are contaminated with petroleum. Id. § 9601(39)(D), ELR STAT. CERCLA § 101(39)(D).

113. From January 1993 through September 2000, for example, EPA reported that it had completed construction on 757 high priority hazardous waste sites and that it had taken more than 6,400 removal actions. See U.S. EPA, Superfund Cleanup Figures, at http://www.epa.gov/superfund/action/process/mgmtrpt.htm (last visited June 16, 2003).

114. Katharine Q. Seelye, Bush Proposing Policy Changes on Toxic Sites, N.Y. TIMES, Feb. 24, 2002, at A1.

115. KATHERINE N. PROBST & DAVID M. KONISKY, SUPERFUND'S FUTURE: WHAT WILL IT COST? xxi (2001).

116. GEO-3, supra note 1, at 395.

117. In fact, the GAO has concluded that, notwithstanding voluntary pollution prevention efforts by some U.S. industrial companies, "additional opportunities exist for pollution prevention." U.S. GAO, EPA SHOULD STRENGTHEN ITS EFFORTS TO MEASURE AND ENCOURAGE POLLUTION PREVENTION 3 (2001). Notably, and regrettably, neither RCRA, 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011, nor the Pollution Pevention Act, 42 U.S.C. §§ 13101-13109, mandate a phaseout of U.S. hazardous waste generation.

118. 42 U.S.C. § 9607(n), ELR STAT. CERCLA § 107(n).

119. GEO-3, supra note 1, at 397.