April 19, 2019 — The nation’s nearly four-decade-old Superfund program needs to be amended to more fairly assign liability for toxic waste mismanagement, an environmental lawyer said recently at the University of Houston Law Center.
Erich Birch of the firm of Birch, Becker & Moorman said he supports Superfund, but believes it is overly broad in how it assesses those responsible, oftentimes including those who were only peripherally involved in creating the hazard, if at all.
“Superfund is such an oppressive program and it is so bureaucratic,” he said. “It is a very difficult program to deal with.”
Superfund is the nickname for CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
“Since 1980, the Superfund program has helped protect human health and the environment by managing the cleanup of the nation’s worst hazardous waste sites and responding to local and national significant environmental emergencies,” said Birch, the latest speaker in a series hosted by the Law Center’s Environment, Energy & Natural Resources Center.
According to the law, a liable party is responsible for funding the government’s cleanup cost, financially compensating the public for damage caused by the hazardous waste, paying for health assessments, and performing injunctive relief by cleaning up the contaminated area.
“A current owner or operator, all past owners and operators, anyone from the entire chain from the time the waste first got disposed is liable,” Birch said. “It doesn’t matter how it ended up at the Superfund site. I could have sent it there; I could have given it to another third party; it could have been stolen from me and taken to the site — you are liable. The only thing that matters is it was your waste.”
CERCLA also designates generators and transporters of waste as liable if waste they have made or moved is improperly dealt with.
“Poor guy who’s operating the truck; they hire him, ‘Could you haul this waste to this site?’ and he did it,” Birch said. “He’s liable.”
Birch feels the current system of assigning liability incriminates innocent, law-abiding parties for the mismanagement or negligence of others, and that Superfund should be reformed to prevent such incrimination from occurring.
“By every measure of law other than Superfund, many of these (people and companies) are innocent parties,” Birch said. “They never did anything wrong, they had the permits, they researched when they disposed of something, they did everything right, but Superfund says, ‘Just because you are who you are, you’re liable.’”
While he values the work Superfund strives to do, Birch suggests several revisions be made to the law.
“They could fix the Superfund law because we still need it, we need Superfund to react to these big waste problems, but they could pick a day to change the rules. They could make a party that follows all the rules itself, not be a responsible party.
“There are existing liability relief provisions in the Superfund statute and we could look at expanding those. Take some of those existing things and start adding more people to that list, especially the innocent parties.”