Hazards: Technology and Fairness (1986)

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FOCUSING PRIVATE-SECTOR ACTION ON PUBLIC HAZARDS 188 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. 2. Project management—planning and managing cleanups; and 3. Technical review and compliance—providing quality assurance and quality control of cleanups. Clean Sites Inc. was established on May 31, 1984, after a 10-month planning period by a steering committee comprising representatives from industry and the environmental communities, former government officials, and private citizens. Figure 1 depicts the organizational structure of CSI and lists its distinguished board of directors, recruited from industry, academia, the environmental community, and state and local government. Clean Sites is supported by contributions from well over 100 companies in a variety of industries, as well as donations from a labor union and some individuals. Industrial contributors include electrical manufacturers and chemical, steel, petroleum, and paper companies. It is important to note that these contributions support only CSI administrative costs—not the costs of cleanup, which must remain with the responsible parties. Clean Sites Inc. intends to build its current resources to support activities at approximately 60 sites; it is now active at more than 40 sites, helping the affected parties move toward settlement and remedial cleanup. One of the keys to CSI involvement at waste sites is an agreement reached in February 1985 with the EPA to indemnify CSI for certain negotiating and technical activities early in the Superfund process. This agreement was necessary because CSI found, after extensive discussions with the insurance industry, that adequate protection has become unavailable for many pollution- related activities and simply is not available for an organization like CSI. For a nonprofit institution, this is a life-threatening situation, and government indemnification is the only realistic alternative until the insurance market changes. WHAT CAN CLEAN SITES INC. DO? Clean Sites Inc. is now working in various ways to help accelerate the hazardous waste cleanup process. CSI's efforts include the following: • bringing new parties to the discussion; • achieving allocation among volume, hazardousness, and cost; • devising ways to avoid premature admissions; • possibly facilitating mixing of public and private funds; • working with potentially responsible parties to interpret evolving policy and mesh technical approach with government requirements; • certifying to government that cleanup proposals and work are worthy of evaluation and meet basic criteria; • establishing various project management roles, including direct project 

About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. Figure 1 members of board of directors. FOCUSING PRIVATE-SECTOR ACTION ON PUBLIC HAZARDS Clean Sites Inc. organizational structure and list of 189 

FOCUSING PRIVATE-SECTOR ACTION ON PUBLIC HAZARDS 190 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. management, access of other companies, and oversight of the work done by responsible parties; • anticipating and addressing community concerns; • effectively linking requirements of different governmental units and divisions of same unit; and • working out appropriate releases and relationships of nonsettling parties. In the initial stages of the process, CSI can bring parties into the discussions and strive for an appropriate allocation of costs. Yet CSI is more than just a negotiator or mediator. It can work with the potentially responsible parties to help them understand how government policy applies to their situation and to coordinate a technical approach that meets government requirements. These are issues that touch directly upon two other key equity criteria for industry—that their perceived share of the costs is proportionate to the contribution, and that others are participating in the same way. Additionally, CSI certifies to the government that a cleanup plan and the work that follows meet government standards. CSI can also help negotiate liability releases—when appropriate—and can help sort out the allocation relationships between the settling and nonsettling parties. From this activity can be derived industry's fourth equity criterion for cleanup of hazardous waste sites: restricting retroactive liabilities when the situation warrants. Even though the fairness and equity principles built into CSI are ideas few would disagree with, the CSI board and senior management recognize that the ultimate success of the Clean Sites concept must be based on more than an appeal to good will. CSI must be able to show—both at the specific sites where it becomes involved and in the models it builds—that there are ways to complete voluntary, private-party cleanups in a cost-effective manner that fully protects public health and the environment. Clean Sites settlements can save money in the construction, technical work, and transaction costs associated with hazardous waste cleanup. By the very nature of the settlement process—which typically involves prolonged litigation at multiparty sites—the most costly cleanups will be those in which the government must seek recovery of costs through administrative procedures and in the courts. In construction associated with waste cleanup, CSI's emphasis on private-sector initiatives can bring about more efficient management of cleanup projects. That is not CSI's judgment alone but the view of many people in government and industry as well. With regard to the technical work involved in waste cleanup, CSI's approach eliminates duplication of effort by potentially responsible parties at specific sites. At the same time, it is believed that the remedial investigation of the problem will be better focused. The use of CSI as a third-party facilitator in the settlement 

FOCUSING PRIVATE-SECTOR ACTION ON PUBLIC HAZARDS 191 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. process can also greatly reduce the transaction expenses for all sides. Simultaneously, this approach will help avoid the extraordinary costs of government recovery efforts. The CSI settlement support staff is the key to achieving this savings in transaction costs. CSI's first job in developing a settlement is to create an atmosphere conducive to problem solving. The CSI settlement support staff includes lawyers, mediators, and technical personnel experienced in the Superfund negotiating process. Because CSI is committed to the settlement process rather than to specific positions, it can help participants concentrate on the issues that will be important to resolve. As a facilitator only, CSI serves primarily as a catalyst—keeping the negotiations moving, providing a forum for airing ideas and suggestions, and continuing to work toward the goal of a negotiated settlement that is acceptable to all affected parties. It must be emphasized that CSI will not be involved throughout the process leading to cleanup at every site. Still, CSI's contribution can be greatest when it is brought in early and can provide continuity toward cleanup. Even if CSI provides just one service at a site—such as rendering a technical judgment that speeds progress toward settlement—it can make a critical contribution to the overall cleanup effort. Many sites will not require intervention by an independent third party. However, CSI may have a special role to play at sites where there are many potentially responsible parties but no dominant party taking the lead in negotiations or in management of the cleanup. These can include • sites where the allocation of liability for costs may need an independent party that can move from facilitating negotiations to formal arbitration, at the request of the parties involved; • sites where the availability of CSI's technical and project management skills may facilitate a settlement; • sites where distrust among potentially responsible parties shows the advantage of third-party intervention in bringing together the conflicting interests; • sites where there is need of a regional solution involving a cost- effective remedy that covers several sites clustered in a defined geographic area; and • sites where the possibility of both public and private funding may encourage a settlement. These include municipally owned or operated sites as well as sites where a party not involved in the settlement is blocking the actual cleanup. All sides in the process of cleaning up hazardous waste sites devote resources at every stage either to gathering evidence or to preparing a defense. Thus, although most voluntary settlements do save money, it is