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Publication Citation

15 Yale Journal on Regulation 269 (1998)


Unlike most environmental statutes, CERCLA requires a lengthy period of labor-intensive activity to achieve its clean-up goals. This aspect of the Superfund program does not receive sufficient attention in policy and legal analyses of CERCLA, nor during site-specific remedy selection decision-making. The risks of the remediation period-to workers, to site neighbors, and to the natural environment-are substantial, as this Article illustrates. However, the confusing and sometimes dismissive treatment of remediation risk in the EPA 's detailed guidance for Superfund decision-makers invites the neglect of the short-term effectiveness criterion in the remedy selection process. A study of remedy selection documents in one EPA region suggests that this invitation has been understood and accepted by EPA officials. Remediation risk appears to play a very minor role in the site- specific decisions examined in this Article; indeed, in some cases the relevant managers seemed not to understand that remediation risk had any role to play at all. Since a more thorough consideration of remediation risk would probably suggest a different outcome in at least some site-specific remedy selection decisions, the EPA should implement administrative reforms to ensure the consistent and adequate inclusion of remediation risk criteria in the Superfund remedy selection process.