54 



the plant and we will worry about that later, and that is what we 

 did for about 35 years and now we are trying to clean up. 



Some of those places I am not sure are ever going to get cleaned 

 up, because it is more expensive and more dangerous to more 

 people. If you try and take the waste out of a particular site and 

 move it some place, you may create far more hazard than if you 

 say, OK, put a barrier around this thing and a guard on the gate 

 and that is it for a while until we sometime maybe learn how to 

 handle it, and that may be the best use of our money — to build a 

 fence, rather than trying to dig up this waste. How you prioritize it 

 and put it into something that is doable, I don't know. 



Mr. Costle. 



Mr. Costle. Yes, I think you have touched on a fascinating ques- 

 tion, frankly, that there are now a lot of different groups wrestling 

 in anticipation of the reauthorization of the Superfund, wrestling 

 with what do you do about these things. You know, I have looked 

 at this to some degree and, of course, I was EPA Administrator 

 when we passed the bill, but it was in the lame duck portion of 

 1980 and I was not here to implement any of it. 



So I look at it probably from a more relaxed vantage point than 

 anybody who has got the present responsibility. But I am also 

 aware, having been a businessman and being in the environmental 

 business for a while, of some of other things that are happening 

 that have to be kept in mind, as you approach reauthorization of 

 the Superfund. 



The big controversy has been over the issue of joint and several 

 liability and that in fact is what is driving the transaction costs, 

 what sends companies to their lawyers, because of their fear that 

 they may be the deep pocket and they see no end to what their li- 

 ability might be. The fact is that provision has rarely been used. It 

 is considered to be the gorilla in the closet that may look more 

 emaciated, if you ever take it out of the closet, than it is in reality. 



But let me tell you for a fact, Mr. Chairman, that liability provi- 

 sion is doing more than any other single thing I can think of to 

 change the pattern of corporate behavior today. I mean they are 

 not creating new Superfund sites. They see increasingly the future 

 and it is the concern about liability that is causing them to see the 

 future in terms of how do you go to low-waste, no-waste technol- 

 ogies, how do we change our industrial technology, how do we posi- 

 tion ourselves to be able to account for what it is we produce in the 

 way of hazardous waste, and that we manage it more carefully in 

 the future. That is having a profound effect on current and future 

 corporate behavior. 



I think there are ways to get at the issue of past liability in the 

 context of these existing sites we are trying to clean up. I think 

 first you have got to bring certainty, some certainty to what the 

 cost is really going to be. EPA has got to foster joint settlement, 

 that is joint funding settlements where there is participation there. 

 You can create mechanisms for 



Chairman Glenn. How do you do that? How do you determine 

 the cost in advance? That has been the most indeterminate thing. 

 That is a problem. They start in the Superfund and they start into 

 a site and all at once the cost has quintupled and tripled all over 



