Date: 1981-09-09
Speaker: EDMUND B. FROST (democrat)
Chamber: S

1sqC.. Vice President and General Counsel. Cheicat Manufacturers Association. Washington. D.C. DEAR MRt. FROST: You have asked for our views as to the position apparently taken by Assistant Attorney General Carol Dinkins and EPA Administrator Anne Gorsuch at an Oversight Hearing before the House Subcommittee on Commerce. Transportation and Tourism on July 29. 1981 that the Comprehensive Environmental Response. Compensation and Liability Act of 1980. Pub. L. No. 96510 (Superfund") authborizes the imposition of joint and several liability. In our view. the apparent position of Assistant Attorney General Dinkins and Administrator Gorsuch is not only unsupported by the language of the statute and Its legislative history. but is In direct conflict with the statutory principles and procedures designed to ensure that the responsibility for and costs of abatement are fairly allocated among private parties. and between them ond the fund. There Is no doubt In this case that the failure of Congress to provide In Superfund for "joint and several liability" was Intentional. The predecessor bills In both the House and Senate contained explicit provision for such a liability scheme. See. 1 3071 (a) (1) of H.t. 7020. 1 4(a) of S. 1480. Unlike these predecesuor bills. Superfund nowhere provides for joint and several liability. The reason for this Is clear from the legislative hitutory: a statute with those provisions would not have neen enacted. As the regular second session of the. 96th Congress came to a close. Superfund (8. 1480) was stalled In the Senate because of controversy over a number of Issues. includIng joint and several liability. After the 1980 election. Senator Stafford. the ranking minority member of the Senate Committee on EnVironment and Public Works. offered an extensive compromise to get Superfund passed before the advent of the new Congress and the new administration. Hie circulated his compromise bill to all 99 of his colleagues together with a summary which said that the compromise "Eliminated joint and several liability." This summary Is recorded at 128 Cong. Rec. S. 15004 (daily ed. Nov. 24. 1980). Since there is no committee report on the compromise bill that passed. this summary should be considered an authoritative source of Congressional Intent. Senator Helms remarks clearly reflect this understanding of the compromise: As originally Introduced on July 11. 1979. S. 1480 Imposed an unprecedented scheme of strict. joint and several liability. .. Retention of joint and several liability In S. 1480 received intense and welldeserved criticism from a number of sources. The drafters of the Stafford -Randolph substitute have recognized this unfairness. and the lack of wisdom In eliminating any meaningful link between culpable conduct and financial responsibility. Conesquently. all references to joint and several liability in the bill have been deleted. 126 Cong. Rec. S. 15004 (daily ed. Nov. 24. 1080). In place of the earlier scheme. Congress enacted a statute that Identifies a relatively broad group of parties who may In appropriate circumstances be held liable. under 1107. for response costs Incurred by the Government or other persons as long as those costs are consistent with the NCP. Nothing In those provisions suggests the scheme that the Government advances. Furthermore. joint and several liability Is Inconsistent with the Statutory scheme of Superfund. which Is designed to promote a fair allocation of responsibility among private parties and. even more Importantly. between those parties and the fund. Suiperfunds provisionsparticularly 1111(a) (2). which provides for payment by the fund to persons who Incur response costs consistent with the National Contingency Plan. and �112(b) (2) (B). which provides for payment by the fund when the responsible party is unknown or unavailablebelie the notion that Superfund may be used to require any particular defendant(s) to bear the total cost of abatement where other parties are also responsible. Moreover. since the fund is available to pay for abatement costs not attributable to available private parties. the hazard posed by the site or release In question can be adequately addressed without resort to a rigid and inequitable joint and several. liability scheme. Certain of Assistant Attorney General Dinkins remarks at the Oversight Hearing suggest that the Justice Department may not endorse joint and several liability where available parties caused only a. portion of the total harm. For example. in response to a question from Rep. Lent as to the Justice Departments position In cases where some of the contributors to the harm are defunct or insolvent. Ms. Ulakins replied: "The hard cases. and the cases that I really cannot give you an answer on. are those where you may hc~ve perhaps only 20 or 30 percent of the contributors present and able to pay. "And I do not know how we will handle those cases." (Transcript. p. 40) We would hope that these remarks are a more accurate reflection of the Governments position than other statements suggesting that joint and several liability under Superfund i approl.riate. The reluctance of the Justice Department to impose liability where it does not belong Is not only sound policy from the standpoint of equity. as we have discussed above. a contrary position Is inconsistent with the language and structure of Superfund and with Congressional Intent. Sincerely yours.