Fixing Superfund

Policy Review Magazine

Letters to the Editor

To the Editor:

James Strock incisively details some of the problems with Superfund's retroactive liability scheme. But Stock's worthwhile suggestions for reform stop far short of what is needed for a serious repair of the ailing Superfund program.

As an essential first step, Congress must provide better guidance for realistic cleanup standards. One reason that Superfund costs so much is that cleanups are frequently driven by a desire to chase tiny amounts of pollutants all the way down to the detection limit. And cleanup standards are frequently set on the basis of implausible land-use scenarios. For example, a tract in an industrial park may have to make its dirt so clean that small children could eat the dirt regularly without even a small risk of adverse effects.

In addition, Superfund's enforcement mechanisms are unfair. No matter how arbitrary or misguided an EPA cleanup order, recipients of the order are not even allowed to petition a court to review the order before the order is enforced.

The "entry" provision of Superfund's section 104 conflicts with the language and traditional understanding of the Fourth Amendment, since the provision allows any EPA employee to enter "any...facility, establishment, or other place or property where any hazardous substance or pollutant or contaminant may be or has been generated, stored, treated, disposed of, or transported from." Defenders of property rights should not tolerate a statute that literally authorizes EPA to search anywhere in the country. (Even a discarded bottle of nail polish, or an empty can of paint thinner counts as a "hazardous substance" under Superfund, thus authorizing EPA entry into any home in the United States.)

Finally, the question must be asked as to why there should be a federal Superfund law at all. States are perfectly capable of setting up their own programs and standards for the cleanup of contaminated sites within state boundaries. Only through a tenuous overextension of the Interstate Commerce power does Congress have authority to enact Superfund-type law in the first place. Perhaps it is time to recognize that for pollution cleanup--like grade school education, street crime control, regulation of doctors' offices, and a host of other issues--the United States would be better off if the federal government stopped intruding into areas which could be far more intelligently addressed by state governments.

David B. Kopel

Research Director

Independence Institute  

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