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GOP CONGRESS SHOULD TERMINATE SUPERFUND’S RETROACTIVE POWERS

SHARE GOP CONGRESS SHOULD TERMINATE SUPERFUND’S RETROACTIVE POWERS

TWO RECENT EVENTS - passage of the minimum wage increase in the House and a Superfund ruling in Alabama - are yet more reminders that Republicans do not make a difference.

Everyone knows - including those who voted for it - that a higher minimum wage causes unemployment among the least skilled. Of all policy issues, opposition to minimum wage hikes is the easiest issue upon which to take a principled stand. Republicans, however, couldn't find any principles.Neither could they find any 16 years ago when, after the Ronald Reagan sweep of the presidency and Senate, the Republican leadership insisted upon cooperating with the lame-duck Jimmy Carter administration to pass a retroactive Superfund law in December 1980.

We were reminded of this lack of principle on May 21 when U.S. District Judge W. Brevard Hand of the Southern District of Alabama struck down the retroactive application of the 1980 hazardous waste disposal site cleanup law known as Superfund.

Superfund has cleaned up very few sites, but it has enriched lawyers by ruining many small businesses and depleting the life savings of many people who could be connected in any way with waste disposal practices that were perfectly legal at the time. It also has hurt shareholders in large companies, banks and insurance companies that have been arbitrarily assigned retroactive liability by federal bureaucrats and courts.

For example, banks that foreclosed on businesses linked to a waste site have been held liable, as have insurance companies that insured truck fleets. The liability is so broadly defined that anyone who used a contaminated site, regardless of whether their refuse was hazardous, could be forced to pay damages.

One sign painter had to pay, for example, because wood scrap from his signs found its way to a site. A contractor was forced to pay because his broken bricks were found on a site later declared to contain hazardous waste. The same happened to a pizzeria, identified by discarded cardboard boxes.

EPA's effort to pin cleanup costs on a New Jersey gas company for a site polluted in the 1880s, 100 years before passage of the Superfund law, has created the new field of "insurance archaeologists." These specialists attempt to unearth how liability might be assigned on the basis of leases held by corporate predecessors who had no idea that they were violating a law that would be passed 100 years in the future.

In 1991 George Clemon Freeman Jr., chairman of the business law section of the American Bar Association, said Superfund's retroactive liability is "without any precedent in the civilized or uncivilized world." That such an abomination as Superfund could be on our law books signifies not concern with the environment but the complete divorce of law from blame, guilt and fairness.

Superfund symbolizes the unprincipled pursuit of raw power.

When it entered Hand's courtroom, he threw out a consent decree that EPA had already obtained with a company after the company's legal counsel said the agreement "gives the EPA carte blanche over the company treasury."

The judge noted that the alleged contamination occurred prior to Dec. 11, 1980, when Superfund was signed into law. That it took 16 years for the courts to note the obvious shows the extent to which American law has been replaced by brute force.

If the GOP Congress had any integrity, it would enact Hand's ruling as law and terminate the toxic legal waste known as Superfund retroactive liability.