For many attorneys and consultants, Superfund has been one of the best full-time employment acts ever created. For business people, Superfund has been one big nightmare. And for the federal EPA and Congress, Superfund has hopefully been viewed as an embarrassment.

Currently, there are approximately 50 bills in Congress which would alter Superfund. But past attempts to reform have been unsuccessful. Hopefully, something good will come out of these current bills.

What is Superfund?
Superfund is the nickname for the Comprehensive Environmental Response, Compensation and Liability Act, also referred to as CERCLA. The stated goal of Superfund was to protect human health and the environment by promptly addressing some of the nation's most polluted sites. The facts show that this objective is far from satisfied.

Though figures vary, it appears that as of April 1996 about $30 billion (with a "B") was paid by companies and the government to address only 350 Superfund sites. Of every dollar spent on Superfund cleanups, 47 cents goes to lawyers and overhead. The program is inefficient, ineffective, and often grotesquely unfair.

Problems With Superfund
Problem 1 - it is too easy to be sued. There are four different ways in which one can be liable under the Superfund law: as an owner (1) or operator (2) of a contaminated site; (3) as one who arranged for the disposal at a site; (4) and as a generator of a hazardous substance taken to the site. Category 4, the "generator" category, catches most people in the Superfund net.

Basically, one is a generator if he produced anything that is a hazardous substance and ends up at the Superfund site. It does not matter whether what you did was legal at the time, it does not matter if what you generated has no bearing on what needs to be cleaned, it does not matter if you did what you did because the government instructed you to do so -- if you made it and it is there, you are in the case.

This includes deli owners, pizza parlors, auto lube shops, printers, companies with septic tanks, school districts, municipalities, etc. etc.

Problem 2: costs to defend. These cases can be costly to defend. Much of the cost is administrative -- which makes the process even more maddening. Often, a judge requires all defendants to split the costs of "liaison attorneys" or $400/hour mediators. These costs alone can run into the thousands of dollars per defendant, and they buy no peace whatsoever with that money.

Businesses often file insurance claims. However, carriers have historically denied coverage, which again means hiring a lawyer to fight with an insurance company. And many liability policies written after 1986 do not cover pollution claims.

Problem 3: joint and several liability and retroactive liability. Many cases have held that Superfund defendants are "joint and severally" liable for cleanup costs. This means that if you are just barely liable at all, in theory the government can force you to pay 100% of the cleanup costs. Though this result is unlikely, it makes it difficult to negotiate fair settlements. In addition, liability is retroactive. Thus practices that are now illegal but were legal 40 years ago are subject to Superfund liability.

Changes to Superfund Currently Being Considered
Nearly 50 bills which would alter Superfund in some manner have been proposed in both sessions of the 105th Congress. Some of the more interesting proposals are set forth below:

1. "S 8". Sponsors Lott/Nickels:
   The proposal would use a fair-share allocation method to determine who should pay what percentage of cleanup costs. It also eliminates small parties from potential liability and provides millions of dollars for brownfields development. This bill underwent a re-draft in March of this year. It is currently a serious contender.
   

2. "S 18". Sponsor Lautenberg:
   The proposal would make grant money available to state governments for brownfields redevelopment projects. It also limits the liability of innocent purchasers of contaminated properties.
   

3. "S 235". Sponsor Moseley-Braun:
   The proposal would authorize a tax deduction for contaminated property cleanups. The philosophy is that the lost taxes will be recouped several times over by the creation of new, productive properties.
   

4. "HR 2727". Sponsor Sherwood Boehlert:
   The Superfund Acceleration, Fairness and Efficiency Act is another attempt to reform the program, and is the "hottest" current bill in Congress concerning this issue. It provides protections for "innocent landowners," limits liability for "small" businesses, certain generators, haulers, and municipalities, establishes a procedure for determining share of liability between companies, and provides some government funding in cases where the responsible parties are bankrupt or defunct. In March 1998, this was forwarded to a Senate Committee for review.

The fact that there are now 50 bills pending in Congress shows that Congress is talking about change. However, unless business groups, property owners and operators make their collective voices heard, history suggests that nothing real will come from this heightened interest by the 105th Congress.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.