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RELIEF FROM SUPERFUND's retroactive liability provisions is not going to come from the courts.
That has been made clear time and again, most recently by the 11th U.S. Circuit Court of Appeal's reversal of a district judge's 1996 finding that Congress had never meant for Superfund to apply liability retroactively.
That decision comes as a disappointment to some Superfund reformers who followed the case, hoping it signaled an erosion of the retroactive liability scheme. But the original decision in United States vs. Olin was merely an anomaly; courts have uniformly upheld the retroactive liability provisions of Superfund.
With that spark of false hope extinguished, it is time for Superfund reformers to focus and redouble their efforts where it counts and where it belongs: in Congress.
Lawmakers have dragged out the debate over Superfund for far too long. The Comprehensive Environmental Response, Compensation and Liability Act that created Superfund was scheduled to be reauthorized in 1994 but still remains in limbo.
Indeed, this is the third Congress that has had the opportunity to reform the program. The 103rd and 104th Congresses failed to do so; it is now up to the lawmakers of the 105th.
With agreement among legislators and businesses that the current system is flawed, it is imperative that reformers take that sentiment and build on it. Even the Clinton administration agrees that some reform is needed, though it has failed to embrace any suggestions for doing so.
There is one reform bill before Congress, and it is inadequate. S. 8, proposed by Senate Republicans, would get rid of much of the imposition of joint and several liability and would inject a needed dose of good sense into remedy selection. But it also would leave retroactive liability largely intact.
Better legislation is needed, but it isn't going to happen without pressure on lawmakers and the administration from the business and insurance communities.
While the reversal of the Olin decision came as a disappointment to some, it still can do some good as a call to arm-twisting for Superfund reformers.
This is a legislative problem and demands a legislative rather than judicial solution.