Nonpoint-Source Responsibility After the Fact?

On July 23, USEPA announced it had reached an agreement with General Electric Company to take the first actions in cleaning up PCB-contaminated sections of the Hudson River. This highly publicized, decades-long case has held the attention of many in the surface-water-quality community. As sampling and sediment-characterization efforts–paid for by GE–get underway, this site and others like it could hold far-reaching implications for how other types of pollutants are handled. Conceivably, the model at work here could one day apply to nonpoint-source pollution as well. As with other companies in similar circumstances, GE has argued that dumping PCBs was not illegal when its plants were operating, and that PCBs’ effects on human health were not understood at the time. However, 1980’s Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly called the Superfund law) included controversial provisions to hold polluters retroactively liable for hazardous waste discharges, as is happening now with GE. Although most nonpoint-source pollution–and much of the point-source pollution implicated in impairing surface waters, for that matter–isn’t classified as hazardous waste and doesn’t fall under the same regulations, the costs associated with combating NPS pollution problems are immense. Perhaps more importantly, these costs are ongoing. While public funding is being used now, mostly at local levels, to catch NPS pollution and deal with the water bodies it impairs, cash-strapped municipalities are constantly seeking revenue. Rather than impose additional new taxes or utility fees on their own residents, they could eventually delve for what, by definition, NPS pollution doesn’t have, but what retroactive responsibility might nevertheless provide–a source. Suppose, for example, a particular metal used in automotive brake linings–or more conveniently still, in one manufacturer’s brake linings–is found in high concentrations in some places, and it’s reasonably certain that there is no other major source in the environment. Or suppose specific pesticides–now legal, but perhaps one day banned as they already have been in some areas–are identified as a major source of contamination, or as the one factor that limits beneficial use of a water body. Suppose these substances are found to pose definite health threats (as PCBs in fact have not, although evidence points to their being potential carcinogens, causing neurological problems, and affecting human fetal development). Might a local government be able to recover some of the costs of its local water-quality efforts from a manufacturer, even though actually releasing the pollutants into the environment was accomplished little by little–and legally–over widespread areas by the consumers of the company’s products? If more than one pollutant affects a water body, cleanup costs could be prorated among several companies–or, along the lines of CERCLA, we might see a new Superfund-like tax spread among certain types of industries, even those that are now unregulated, specifically to cover the costs of NPS pollution. Stranger things have happened in the legal system. GE’s electrical capacitor plants operated for 30 years along the Hudson–long enough to discharge at least a million pounds of PCBs into the river, but still a finite period of time in a single location. Although it might run to hundreds of millions of dollars, the cleanup work will eventually end; the mapping and sampling now underway is helping to determine exactly what the extent of the effort will be. In contrast, intercepting NPS pollution and dealing with the water bodies it impairs is an endless process. That’s a tremendous incentive for those who are now financially responsible to take a look over their shoulder for someone to bear, or at least share, the fiscal burden.