The legislation of unintended consequences

Duke Environmental Law and Policy Forum

Volumn 9, Issue 1, 1998, Pages 95-111

  Steinzor, Rena I ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 1542709345     PISSN: 10643958     EISSN: None     Source Type: Journal    
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References (73)

1. Robert Tomsho, Pollution Ploy: Big Corporations Hit by Superfund Cases Find Way to Share Bill, WALL ST. J., April 2, 1991, at A 1 [hereinafter Tomsho].
2. "Superfund liability" refers, of course, to liability imposed under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or, as it is more commonly known, "Superfund," 42 U.S.C. §§ 9601-9675 (1994). In this article, all references to Superfund or CERCLA apply to the statute first enacted in 1980, Pub. L. No. 96-510, 94 Stat. 2767 (codified as amended in scattered sections of the I.R.C. and 33, 42, and 49 U.S.C.), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1615 (codified in scattered sections of the I.R.C. and 10, 29, 33, and 42 U.S.C.).
3. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1391-92 (1992).
4. At the time, it was called the Subcommittee on Commerce, Transportation, & Tourism of the Committee on Energy & Commerce of the U.S. House of Representatives. The subcommittee is now called the Subcommittee on Finance & Hazardous Materials of the Committee on Commerce.
5. See, e.g., Rena I. Steinzor & Linda Greer, In Defense of the Superfund Liability System, 27 Envtl. L. Rep. (Envtl. L. Inst.) 10,286 (1998); Rena I. Steinzor, The Reauthorization of Superfund: The Public Works Alternative, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,078 (1995) [hereinafter Superfund Public Works]; Rena I. Steinzor, The Reauthorization of Superfund: Can the Deal of the Century Be Saved?, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,016 (1995) [hereinafter Superfund Deal]; Rena I. Steinzor & David Kolker, To Pay or Not to Pay: Local Governments' Stake in Legislation to Reauthorize Superfund, 25 URBAN LAWYER 627 (1993) [hereinafter Steinzor & Kolker]; Rena I. Steinzor & Matthew F. Lintner, Local Governments and Superfund, 1992 Update: Who Is Paying the Tab?, 24 URBAN LAWYER 51 (1992) [hereinafter Steinzor & Lintner]; and Rena I. Steinzor, Local Governments and Superfund: Who Will Pay the Tab?, 22 URBAN LAWYER 79 (1990) [hereinafter Steinzor].
6. See, e.g., Rena I. Steinzor & Linda Greer, In Defense of the Superfund Liability System, 27 Envtl. L. Rep. (Envtl. L. Inst.) 10,286 (1998); Rena I. Steinzor, The Reauthorization of Superfund: The Public Works Alternative, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,078 (1995) [hereinafter Superfund Public Works]; Rena I. Steinzor, The Reauthorization of Superfund: Can the Deal of the Century Be Saved?, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,016 (1995) [hereinafter Superfund Deal]; Rena I. Steinzor & David Kolker, To Pay or Not to Pay: Local Governments' Stake in Legislation to Reauthorize Superfund, 25 URBAN LAWYER 627 (1993) [hereinafter Steinzor & Kolker]; Rena I. Steinzor & Matthew F. Lintner, Local Governments and Superfund, 1992 Update: Who Is Paying the Tab?, 24 URBAN LAWYER 51 (1992) [hereinafter Steinzor & Lintner]; and Rena I. Steinzor, Local Governments and Superfund: Who Will Pay the Tab?, 22 URBAN LAWYER 79 (1990) [hereinafter Steinzor].
7. See, e.g., Rena I. Steinzor & Linda Greer, In Defense of the Superfund Liability System, 27 Envtl. L. Rep. (Envtl. L. Inst.) 10,286 (1998); Rena I. Steinzor, The Reauthorization of Superfund: The Public Works Alternative, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,078 (1995) [hereinafter Superfund Public Works]; Rena I. Steinzor, The Reauthorization of Superfund: Can the Deal of the Century Be Saved?, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,016 (1995) [hereinafter Superfund Deal]; Rena I. Steinzor & David Kolker, To Pay or Not to Pay: Local Governments' Stake in Legislation to Reauthorize Superfund, 25 URBAN LAWYER 627 (1993) [hereinafter Steinzor & Kolker]; Rena I. Steinzor & Matthew F. Lintner, Local Governments and Superfund, 1992 Update: Who Is Paying the Tab?, 24 URBAN LAWYER 51 (1992) [hereinafter Steinzor & Lintner]; and Rena I. Steinzor, Local Governments and Superfund: Who Will Pay the Tab?, 22 URBAN LAWYER 79 (1990) [hereinafter Steinzor].
8. See, e.g., Rena I. Steinzor & Linda Greer, In Defense of the Superfund Liability System, 27 Envtl. L. Rep. (Envtl. L. Inst.) 10,286 (1998); Rena I. Steinzor, The Reauthorization of Superfund: The Public Works Alternative, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,078 (1995) [hereinafter Superfund Public Works]; Rena I. Steinzor, The Reauthorization of Superfund: Can the Deal of the Century Be Saved?, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,016 (1995) [hereinafter Superfund Deal]; Rena I. Steinzor & David Kolker, To Pay or Not to Pay: Local Governments' Stake in Legislation to Reauthorize Superfund, 25 URBAN LAWYER 627 (1993) [hereinafter Steinzor & Kolker]; Rena I. Steinzor & Matthew F. Lintner, Local Governments and Superfund, 1992 Update: Who Is Paying the Tab?, 24 URBAN LAWYER 51 (1992) [hereinafter Steinzor & Lintner]; and Rena I. Steinzor, Local Governments and Superfund: Who Will Pay the Tab?, 22 URBAN LAWYER 79 (1990) [hereinafter Steinzor].
9. See, e.g., Rena I. Steinzor & Linda Greer, In Defense of the Superfund Liability System, 27 Envtl. L. Rep. (Envtl. L. Inst.) 10,286 (1998); Rena I. Steinzor, The Reauthorization of Superfund: The Public Works Alternative, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,078 (1995) [hereinafter Superfund Public Works]; Rena I. Steinzor, The Reauthorization of Superfund: Can the Deal of the Century Be Saved?, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,016 (1995) [hereinafter Superfund Deal]; Rena I. Steinzor & David Kolker, To Pay or Not to Pay: Local Governments' Stake in Legislation to Reauthorize Superfund, 25 URBAN LAWYER 627 (1993) [hereinafter Steinzor & Kolker]; Rena I. Steinzor & Matthew F. Lintner, Local Governments and Superfund, 1992 Update: Who Is Paying the Tab?, 24 URBAN LAWYER 51 (1992) [hereinafter Steinzor & Lintner]; and Rena I. Steinzor, Local Governments and Superfund: Who Will Pay the Tab?, 22 URBAN LAWYER 79 (1990) [hereinafter Steinzor].
10. See, e.g., Rena I. Steinzor & Linda Greer, In Defense of the Superfund Liability System, 27 Envtl. L. Rep. (Envtl. L. Inst.) 10,286 (1998); Rena I. Steinzor, The Reauthorization of Superfund: The Public Works Alternative, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,078 (1995) [hereinafter Superfund Public Works]; Rena I. Steinzor, The Reauthorization of Superfund: Can the Deal of the Century Be Saved?, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,016 (1995) [hereinafter Superfund Deal]; Rena I. Steinzor & David Kolker, To Pay or Not to Pay: Local Governments' Stake in Legislation to Reauthorize Superfund, 25 URBAN LAWYER 627 (1993) [hereinafter Steinzor & Kolker]; Rena I. Steinzor & Matthew F. Lintner, Local Governments and Superfund, 1992 Update: Who Is Paying the Tab?, 24 URBAN LAWYER 51 (1992) [hereinafter Steinzor & Lintner]; and Rena I. Steinzor, Local Governments and Superfund: Who Will Pay the Tab?, 22 URBAN LAWYER 79 (1990) [hereinafter Steinzor].
11. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 859-65 (1984) (establishing a three-step test for statutory interpretation that looks to the plain meaning of the statute, its legislative history, and its overall purpose, in that order of importance).
12. See ARNOLD & PORTER, A LEGISLATIVE HISTORY OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (SUPERFUND), PUBLIC LAW 96-510, Comm. Print 1983 (7B) [hereinafter CERCLA LEGISLATIVE HISTORY]. "It is apparent we are practically drowning in our own toxic waste." Id. at 255 (statement of Mr. Biaggi). "Two million people on Long Island are potentially at risk because of the hazardous dumping that has gone on over the last 20 years." Id. at 259 (statement of Mr. Downey). "Almost daily another clandestine chemical dump is discovered and another threat to our health and the environment is known . . . Federal assistance in this area, therefore, is necessary if we are to make our Earth safe again." Id. at 265 (statement of Mr. Volkmer).
13. See ARNOLD & PORTER, A LEGISLATIVE HISTORY OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (SUPERFUND), PUBLIC LAW 96-510, Comm. Print 1983 (7B) [hereinafter CERCLA LEGISLATIVE HISTORY]. "It is apparent we are practically drowning in our own toxic waste." Id. at 255 (statement of Mr. Biaggi). "Two million people on Long Island are potentially at risk because of the hazardous dumping that has gone on over the last 20 years." Id. at 259 (statement of Mr. Downey). "Almost daily another clandestine chemical dump is discovered and another threat to our health and the environment is known . . . Federal assistance in this area, therefore, is necessary if we are to make our Earth safe again." Id. at 265 (statement of Mr. Volkmer).
14. See ARNOLD & PORTER, A LEGISLATIVE HISTORY OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (SUPERFUND), PUBLIC LAW 96-510, Comm. Print 1983 (7B) [hereinafter CERCLA LEGISLATIVE HISTORY]. "It is apparent we are practically drowning in our own toxic waste." Id. at 255 (statement of Mr. Biaggi). "Two million people on Long Island are potentially at risk because of the hazardous dumping that has gone on over the last 20 years." Id. at 259 (statement of Mr. Downey). "Almost daily another clandestine chemical dump is discovered and another threat to our health and the environment is known . . . Federal assistance in this area, therefore, is necessary if we are to make our Earth safe again." Id. at 265 (statement of Mr. Volkmer).
15. See ARNOLD & PORTER, A LEGISLATIVE HISTORY OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (SUPERFUND), PUBLIC LAW 96-510, Comm. Print 1983 (7B) [hereinafter CERCLA LEGISLATIVE HISTORY]. "It is apparent we are practically drowning in our own toxic waste." Id. at 255 (statement of Mr. Biaggi). "Two million people on Long Island are potentially at risk because of the hazardous dumping that has gone on over the last 20 years." Id. at 259 (statement of Mr. Downey). "Almost daily another clandestine chemical dump is discovered and another threat to our health and the environment is known . . . Federal assistance in this area, therefore, is necessary if we are to make our Earth safe again." Id. at 265 (statement of Mr. Volkmer).
16. See, e.g., CERCLA LEGISLATIVE HISTORY, supra note 7, Comm. Print (7A) at 776-80 (statement of Mr. Florio).
17. CERCLA § 9601(32). The Federal Water Pollution Control Act explicitly refers to imposition of strict liability, and the courts have consistently applied joint and several liability in conjunction with that standard. 33 U.S.C. § 1321 (1994); see, e.g., United States v. M/V Big Sam, 681 F.2d 432, 439 (5th Cir. 1982); United States v. Tex-Tow, Inc., 589 F.2d 1310, 1314 (7th Cir. 1978). Senate committee leaders Robert Stafford (R-VT) and Jennings Randolph (D-W.VA) explained the non-negotiable compromise in a letter to the House's chief sponsor, Rep. James Florio (D-NJ): That the bill passed at all is a minor wonder. Only the frailest, moment-to-moment coalition enabled it to be brought to the Senate floor and considered. Indeed, within a matter of hours that fragile coalition began to disintegrate to the point that, in our judgment, it would now be impossible to pass the bill again, even unchanged. We say this not in the spirit of ultimatum, but with the hope that you and your Members will appreciate the difficult situation here in the Senate . . . . CERCLA LEGISLATIVE HISTORY, supra note 7, Comm. Print 1983 (7A) at 774.
18. See CERCLA LEGISLATIVE HISTORY, supra note 7, Comm. Print 1983 (7A) at 774.
19. For a discussion of this early caselaw, see David E. Jones & Kyle E. McSlarrow, . . . But Were Afraid to Ask: Superfund Case Law, 1981-1989, 19 Envtl. L. Rep. (Envtl. L. Inst.) 10,430 (1989).
20. The provision imposing liability for releases of hazardous substances and specifically exempting "federally permitted releases" is CERCLA § 9607. The statute's broad scope is implemented through its definitional section. That section defines (1) "release" as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment . . . ," § 9601(22); (2) "hazardous substance" as any "element, compound, mixture, solution, or substance" regulated under one of the major federal environmental statutes, a group that includes some 700-800 common chemicals and metals, § 9601(14)(B) and 40 C.F.R. § 302.4; (3) "environment" as "navigable waters, . . . ocean waters, . . . any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States," § 9601(8); (4) "facility" as "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located . . . ," § 9601(9)(B); and (5) "federally permitted release" as "discharges in compliance with a permit," § 9601(10)(A).
21. See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1201 (2d Cir. 1992) (holding that Superfund liability attaches to the disposal of municipal solid waste, even if the waste only contains minimal amounts of hazardous substances); see also Transportation Leasing Co. v. California, 861 F.Supp. 931 (C.D. Cal. 1992).
22. CERCLA § 9605.
23. CERCLA, Pub. L. 96-510, 94 Stat. 2767 (1980). The NPL is now composed of 1,251 final and proposed sites. National Priorities List for Uncontrolled Hazardous Waste Sites, 63 Fed. Reg. 11,332, 11,335 (1998) (to be codified at 40 C.F.R. § 300.425).
24. See, e.g., CERCLA LEGISLATIVE HISTORY, supra note 7, Comm. Print 1983 (7B) at 258 (statement of Mr. Downey) ("Who should pay . . . . That, of course, centers around who is responsible. . . . It is clear, from the Commerce Committee's work, that the Fortune 500 companies are as responsible and probably more responsible than the small ones."); 266-67 (statement of Mr. Ambro) ("[T]he chemical industry as a whole has been guilty of callous disregard for the health and very lives of citizens . . . . Until recently, these same industrial polluters were asking this body to vote down a measure which will require them to assume a part of the fiscal burden of cleaning up the heritage of their blatant disregard for the health and safety of citizens . . . .").
25. For a description of such disposal sites from both a legal and technical perspective, see Steinzor & Lintner, supra note 5, at 90-130; Steinzor, supra note 5, at 102-16, 121-31.
26. For a description of such disposal sites from both a legal and technical perspective, see Steinzor & Lintner, supra note 5, at 90-130; Steinzor, supra note 5, at 102-16, 121-31.
27. See CERCLA LEGISLATIVE HISTORY, supra note 7, Comm. Print 1983 (7B) at 295 (statements of Mr. Florio and Mr. Stockman).
28. Id. at 300.
29. Id. at 309-10.
30. Id.
31. CERCLA LEGISLATIVE HISTORY, supra note 7, Comm. Print 1983 (7A) at vii.
32. Although the term "municipal solid waste" is not used in the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992k (1994), it is common parlance in the debate over municipal liability under Superfund. See, e.g., Superfund: Industry Groups Challenge EPA on Policy Offering Municipal Solid Waste Settlements, 29 Env't Rep. (BNA) 264 (1998) (reporting that industry groups had filed a challenge to an EPA policy suggesting how to allocate cleanup costs to entities that sent municipal solid waste to Superfund sites in the context of settlement agreements).
33. For descriptions of instances where litigation was filed or threatened against such entities, see Ted Cillwick, Big Polluters Find Way to Clean Up Balance Sheet: Soak the Little Guy, SALT LAKE TRIBE., Nov. 8, 1992, at A10; Tomsho, supra note 2.
34. For descriptions of instances where litigation was filed or threatened against such entities, see Ted Cillwick, Big Polluters Find Way to Clean Up Balance Sheet: Soak the Little Guy, SALT LAKE TRIBE., Nov. 8, 1992, at A10; Tomsho, supra note 2.
35. See CERCLA LEGISLATIVE HISTORY, supra note 7, Comm. Print 1983 (7B). "Since the close of World War II, the chemical and petrochemical industries have enjoyed incomparable growth. Unfortunately, there has not been a parallel development of preventive safeguards against oil and chemical spillages and sites where potentially hazardous wastes are located." Id. at 254 (statement of Mr. Weiss). "[W]hile I understand the claims of the chemical industry that society has benefited from their products and should pay the cost of cleaning up the wastes, I believe that the burden of cleanup must be placed on that industry." Id. at 265 (statement of Mr. Volkmer). "The threat of protracted litigation and large financial liability will force waste disposers to implement more stringent safeguards for disposal in the future." Id. at 266 (statement of Mr. Stangeland).
36. See CERCLA LEGISLATIVE HISTORY, supra note 7, Comm. Print 1983 (7B). "Since the close of World War II, the chemical and petrochemical industries have enjoyed incomparable growth. Unfortunately, there has not been a parallel development of preventive safeguards against oil and chemical spillages and sites where potentially hazardous wastes are located." Id. at 254 (statement of Mr. Weiss). "[W]hile I understand the claims of the chemical industry that society has benefited from their products and should pay the cost of cleaning up the wastes, I believe that the burden of cleanup must be placed on that industry." Id. at 265 (statement of Mr. Volkmer). "The threat of protracted litigation and large financial liability will force waste disposers to implement more stringent safeguards for disposal in the future." Id. at 266 (statement of Mr. Stangeland).
37. See CERCLA LEGISLATIVE HISTORY, supra note 7, Comm. Print 1983 (7B). "Since the close of World War II, the chemical and petrochemical industries have enjoyed incomparable growth. Unfortunately, there has not been a parallel development of preventive safeguards against oil and chemical spillages and sites where potentially hazardous wastes are located." Id. at 254 (statement of Mr. Weiss). "[W]hile I understand the claims of the chemical industry that society has benefited from their products and should pay the cost of cleaning up the wastes, I believe that the burden of cleanup must be placed on that industry." Id. at 265 (statement of Mr. Volkmer). "The threat of protracted litigation and large financial liability will force waste disposers to implement more stringent safeguards for disposal in the future." Id. at 266 (statement of Mr. Stangeland).
38. See CERCLA LEGISLATIVE HISTORY, supra note 7, Comm. Print 1983 (7B). "Since the close of World War II, the chemical and petrochemical industries have enjoyed incomparable growth. Unfortunately, there has not been a parallel development of preventive safeguards against oil and chemical spillages and sites where potentially hazardous wastes are located." Id. at 254 (statement of Mr. Weiss). "[W]hile I understand the claims of the chemical industry that society has benefited from their products and should pay the cost of cleaning up the wastes, I believe that the burden of cleanup must be placed on that industry." Id. at 265 (statement of Mr. Volkmer). "The threat of protracted litigation and large financial liability will force waste disposers to implement more stringent safeguards for disposal in the future." Id. at 266 (statement of Mr. Stangeland).
39. "Municipal" landfill is defined loosely to include dumps where municipal solid waste was disposed along with industrial hazardous waste. Some, but not all, of these sites were owned or operated by local governments. See HAZARDOUS SITE EVALUATION DIV., U.S. E.P.A., NATIONAL PRIORITIES LIST, SITES HAVING MUNICIPAL LANDFILL AS A SITE ACTIVITY, cited in Steinzor & Kolker, supra note 5, at n. 13.
40. "Municipal" landfill is defined loosely to include dumps where municipal solid waste was disposed along with industrial hazardous waste. Some, but not all, of these sites were owned or operated by local governments. See HAZARDOUS SITE EVALUATION DIV., U.S. E.P.A., NATIONAL PRIORITIES LIST, SITES HAVING MUNICIPAL LANDFILL AS A SITE ACTIVITY, cited in Steinzor & Kolker, supra note 5, at n. 13.
41. For a general description of the atmosphere and policies that afflicted Superfund during this period, see JONATHAN LASH ET AL., A SEASON OF SPOILS: THE STORY OF THE REAGAN ADMINISTRATION'S ATTACK ON THE ENVIRONMENT 82-130 (1984).
42. See id. at 83-92.
43. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); United States v. A & F Materials Co., 578 F. Supp. 1249 (S.D. Ill. 1984); United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D. Ohio 1983).
44. See Richard L. Revesz & Richard B. Stewart, The Superfund Debate, in ANALYZING SUPERFUND: ECONOMICS, SCIENCE, AND LAW 3, 9-10 (Richard L. Revesz & Richard B. Stewart eds., 1995).
45. See id.
46. See CERCLA § 9613.
47. See, e.g., B.F. Goodrich Co. v. Murtha, 958 F.2d 1191 (2d Cir. 1992).
48. See, e.g., ARNOLD & PORTER, A LEGISLATIVE HISTORY OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, PUBLIC LAW 99-499, part 23, "Superfund," Hearings before the Subcommittee on Commerce, Transportation, and Tourism, House Energy and Commerce Committee, 99th Congress, March 7, 21, April 2, and June 29, 1985, at 26-28 (1986).
49. See, e.g., ARNOLD & PORTER, A LEGISLATIVE HISTORY OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, PUBLIC LAW 99-499, part 23, "Superfund," Hearings before the Subcommittee on Commerce, Transportation, and Tourism, House Energy and Commerce Committee, 99th Congress, March 7, 21, April 2, and June 29, 1985, at 26-28 (1986).
50. Personal recollection of the author. From 1983-1987, I served as staff counsel to the Subcommittee on Commerce, Transportation, and Tourism of the Committee on Commerce of the U.S. House of Representatives, which was then chaired by James Florio (D-NJ).
51. See United States v. Wade, 577 F. Supp. 1326, 1340-41 (E.D. Pa. 1983).
52. See id. at 1341.
53. For a description of such cases, see Steinzor & Kolker, supra note 5, at 627-32.
54. See id.
55. For a description of a case in which such a formula was proposed, see Kevin Murphy, A Funny Thing Happened on the Way to the Landfill, or How 29 California Cities Discovered Superfund, WESTERN CITY, April 1991, at 3-5.
56. See Reform of Superfund Act of 1995: Hearing Before the Subcomm. on Commerce, Trade, & Hazardous Materials of the House Commerce Comm., 104th Cong., 1st Sess., 239-42 (1995) (statement of Boyd G. Condie, Council Member, City of Alhambra, C.A., on behalf of American Communities for Cleanup Equity). I represented this group during my career as a private sector lobbyist in 1989-95.
57. See, e.g., Financing Provisions of H.R. 3800, Superfund Reform Act of 1994: Hearing Before the House Comm. on Ways & Means, 103d Cong., 2nd Sess. 48 (1995) (statement of W. Lawrence Wallace, Executive Director, Alliance for Superfund Action Partnership); Superfund Reauthorization: Hearing Before the Subcomm. on Water Resources & Env't of the House Transportation and Infrastructure Comm, 104th Cong., 2d Sess. 264 (1997) (statement of John Weichsel, Town Manager, City of Southington, Connecticut).
58. See, e.g., Financing Provisions of H.R. 3800, Superfund Reform Act of 1994: Hearing Before the House Comm. on Ways & Means, 103d Cong., 2nd Sess. 48 (1995) (statement of W. Lawrence Wallace, Executive Director, Alliance for Superfund Action Partnership); Superfund Reauthorization: Hearing Before the Subcomm. on Water Resources & Env't of the House Transportation and Infrastructure Comm, 104th Cong., 2d Sess. 264 (1997) (statement of John Weichsel, Town Manager, City of Southington, Connecticut).
59. Senator Lautenberg's bill, the Toxic Cleanup Equity Act, capped the aggregate liability of those who arranged for the disposal or transported municipal solid waste that ended up at a Superfund site at 4 percent of total cleanup costs; it was approved twice on the Senate floor as part of a banking bill considered in the summer of 1992. See S. 2733, 102d Cong., 2d Sess. § 1065 (1992). See also Superfund: Municipalities, Industry Spar over Bill to "Fine Tune" CERCLA Liability, 22 Env't Rep. (BNA) 827, 828 (1991) (quoting a spokesman for the Chemical Manufacturers' Association as saying that "the only thing that is fair about Superfund liability is that it treats everyone unfairly").
60. Personal recollection of the author. In addition to writing extensively on the subject (see Steinzor, supra note 5), from 1989-95, I represented a coalition of local governments organized to obtain relief under Superfund for the disposal of municipal solid waste. This work involved extensive discussions with members of Congress, federal officials, and representatives of the chemical and insurance industries.
61. See Jennifer Silverman, Superfund: Inability to Produce Comprehensive Bill in 1998 May Trigger Narrower Legislation, 28 Env't Rep. (BNA) S-12, S-13 (1998).
62. See Superfund: Proposal on Municipal Liability Issue Draws Industry Fire, White House Intervention, 22 Env't Rep. (BNA) 2869 (1992) ("A CMA official told BNA that the policy would 'shift billions of dollars in cleanup costs onto industry . . . .'").
63. For a discussion of the technical arguments made with respect to the allocation of cleanup costs between generators of industrial hazardous waste and municipal solid waste, see Steinzor & Linter, supra note 5, at 115-30.
64. See, e.g., H.R. 4916, 103d Cong., 2d Sess. §§ 403, 412 (1994); S. 1834, 103d Cong., 2d Sess. §§ 403, 407 (1994).
65. The one exception was legislation to limit the liability of the banking industry, which passed both houses and was signed into law in 1995. CERCLA § 9601(20)(E).
66. See Superfund: Industry Groups Challenge EPA on Policy Offering Municipal Solid Waste Settlements, 29 Env't Rep. (BNA) 264, 264-65 (1998).
67. Superfund: Provisions to Shield Lenders Included in Banking Regulatory Relief Legislation, 26 Env't Rep. (BNA) 1056, 1056 (1995). The provision appears at CERLCA § 9601(20)(E).
68. See, e.g., Superfund: Any Reform Is Better than No Reform, Congressman Tells Chemical Makers, Daily Env't Rep. (BNA) No. 40, at D-16 (Mar. 2, 1994);
69. Superfund: Ruckelshaus Says Superfund Reform Critical, Hits EPA for Alienation of Concerned Citizens, 25 Env't Rep. (BNA) 278 (1994).
70. See, e.g., Superfund: GA O's New Evidence of Cleanup Delays Fails to Discourage EPA Official at Hearing, Daily Env't Rep. (BNA) No. 24, at A-9 (Feb. 5, 1998).
71. For an excellent exposition of this perspective, see Van Carson et al., Rebuttal: The Mixture Rule and the Environmental Code, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,244 (1995). For an equally insightful contrary perspective, see James E. Satterfield, EPA's Mixture Rule: Why the Fuss?, 24 Envtl. L. Rep. (Envtl. L. Inst.) 10,712 (1994); James E. Satterfield, EPA's Continuing Jurisdiction Regulation: A Response to the Mixture Rule and the Environmental Code, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,262 (1995).
72. For an excellent exposition of this perspective, see Van Carson et al., Rebuttal: The Mixture Rule and the Environmental Code, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,244 (1995). For an equally insightful contrary perspective, see James E. Satterfield, EPA's Mixture Rule: Why the Fuss?, 24 Envtl. L. Rep. (Envtl. L. Inst.) 10,712 (1994); James E. Satterfield, EPA's Continuing Jurisdiction Regulation: A Response to the Mixture Rule and the Environmental Code, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,262 (1995).
73. For an excellent exposition of this perspective, see Van Carson et al., Rebuttal: The Mixture Rule and the Environmental Code, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,244 (1995). For an equally insightful contrary perspective, see James E. Satterfield, EPA's Mixture Rule: Why the Fuss?, 24 Envtl. L. Rep. (Envtl. L. Inst.) 10,712 (1994); James E. Satterfield, EPA's Continuing Jurisdiction Regulation: A Response to the Mixture Rule and the Environmental Code, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,262 (1995).