The Superfund Amendments and Reauthorization Act of 1986: Statutory Provisions and EPA Implementation

Abstract

The recently enacted Superfund Amendments and Reauthorization Act ("SARA") establishes a complex and detailed statutory scheme designed by Congress to expedite the cleanup of hazardous waste sites under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA", or "Superfund"). Whether this legislative goal will be accoplished, however, is problematic at best. For although SARA erects an unusually specific framework for both the administrative approach to site cleanups and the settlement of liability claims, ambiguities and other uncertainties throughout the statute suggest that the interpretative problems posed by its predecessor, CERCLA, may pale in comparison. Indeed, conflicts have already arisen between Congress and the Environmental Protection Agency ("EPA") over the intended meaning of SARA's cleanup standards, and the courts have thrown a few early curve balls at new provisions governing the scope and standard of judicial review of Agency decisionmaking. Unfortunately, the extensive legislative history of this legislation, replete as it is with something for everyone, is unlikely to shed much meaningful light on a number of fundamental issues. As a result, it is likely to be some time before one can discern whether Congress will have achieved its objective. A few conclusions would appear, nonetheless, inescapable. It is clear, for example, that although EPA's discretion has been curtailed in several significant respects, the Agency's cleanup and enforcement authorities have been enhanced considerably. It is also inevitable that the costs of cleaning up hazardous waste sites will rise dramati- cally, thereby creating powerful incentives for potentially liable parties to involve themselves early in the decisionmaking process. Perhaps somewhat less clear, but inevitably impacted, is the extent to which citizen groups will have been provided effective tools to be examine and influence the handling of hazardous substances by industry, and to bring suit for personal and property damages when releases of such substances occur. ("SARA") establishes a complex and detailed statutory scheme designed by Congress to expedite the cleanup of hazardous waste sites under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA", or "Superfund"). Whether this legislative goal will be accomplished, however, is problematic at best. For although SARA erects an unusually specific framework for both the administrative approach to site cleanups and the settlement of liability claims, ambiguities and other uncertainties throughout the statute suggest that the interpretative problems posed by its predecessor, CERCLA, may pale in comparison. Indeed, conflicts have already arisen between Congress and the Environmental Protection Agency ("EPA") over the intended meaning of SARA's cleanup standards, and the courts have thrown a few early curve balls at new provisions governing the scope and standard of judicial review of Agency decisionmaking. Unfortunately, the extensive legislative history of this legislation, replete as it is with something for everyone, is unlikely to shed much meaningful light on a number of fundamental issues. As a result, it is likely to be some time before one can discern whether Congress will have achieved its objective. A few conclusions would appear, nonetheless, inescapable. It is clear, for example, that although EPA's discretion has been curtailed in several significant respects, the Agency's cleanup and enforcement authorities have been enhanced considerably. It is also inevitable that the costs of cleaning up hazardous waste sites will rise dramati- cally, thereby creating powerful incentives for potentially liable parties to involve themselves early in the decisionmaking process. Perhaps somewhat less clear, but inevitably impacted, is the extent to which citizen groups will have been provided effective tools to examine and influence the handling of hazardous substances by industry, and to bring suit for personal and property damages when releases of such substances occur.