Several weeks ago, Seth Jaffe posted a piece on this blog about the Comprehensive Environmental Response Compensation and Liability Act. I disagree with him. If you want to reduce the overall cost to the economy of the Superfund program, you should want more flexibility in remedy selection (probably underlain by full remedial investigations and feasibility studies), not less.
I write this with more than a little trepidation. Not only is Seth the master of this blog in terms of quality and frequency, he is one of its editors. But who doesn’t like a virtual food fight? If the topic weren’t so nerdy, it might juice readership.
As Seth observed, the budget cuts and regulatory upheaval being implemented by the federal administration seem to have left the Superfund program relatively untouched, and that makes little sense from the perspective of reducing risks to people and the environment. I agree.
If one believes, as the administration seems to do, that environmental regulation imposes too high a burden on the American economy, then one would want to reduce the overall cost imposed by CERCLA so that more cost could be imposed to preserve (or to achieve) clean air, clean water, or the climate. (To be fair, the administration does not appear to want to preserve the climate.) The way to spend less on CERCLA is to spend less on cleanup not less on process. Indeed, more process tends to defer cleanup costs, reducing the present value of costs.
The last few decades of experience with state voluntary response programs suggests that cleanups can achieve acceptable risk reduction by pathway elimination at lower cost than other strategies. But CERCLA and the National Contingency Plan impose a preference for “permanent” remedies. 42 U.S.C. § 9621(b)(1); 40 C.F.R. § 300.430(a)(1)(iii), (e)(9)(iii)(C). Adopting a less permanent remedy that eliminates pathways requires more complete study; CERCLA makes the choice of paving over contamination rather than excavating it less straightforward than it would be under other programs. And pavement is a simple form of pathway elimination. Pathway elimination at sediment sites, for example, is a little more complicated because the important pathway is often eating fish or shellfish.
In practice, however, complicated remedies are never really treated as permanent. If any hazardous substances remain at the site, the remedy must be subjected to a potentially endless series of five-year reviews. 42 U.S.C. § 9621(c). If you have to re-study a remedy that does not excavate and remove or treat every bit of hazardous to assure that the “permanent” remedy remains permanent, then you might equally re-study the effectiveness of less expensive, less “permanent” pathway elimination remedies.
We could spend a lot less on CERCLA remedies by making the standard for a “CERCLA quality cleanup” protectiveness for now subject to checking later, rather than protectiveness forever. Presumptive remedies and truncated RI/FSs will not generate the flexibility in remedy selection necessary to get to that point.
