Document Type

Article

Publication Date

1993

Abstract

Since the 1950s, commentators have been concerned about the "capture" of administrative agencies by the industries they regulate. From the time the federal Environmental Protection Agency (EPA or the Agency) was created in 1970, there has been concern that regulated industries or even EPA's own bureaucracy would capture the Agency. Today, there is considerable disagreement regarding whether EPA has been captured. Professors John P. Dwyer and Richard J. Lazarus each have argued that the traditional agency capture model does not apply to EPA. The congressional Office of Technology Assessment (OTA), however, in a study focusing on EPA's Superfund program rather than on EPA itself, essentially charged that certain EPA contractors have captured the Superfund programs.

Traditional agency capture theory focuses on the regulated industry's control of an entire agency. Yet, programs within agencies are subject to extrinsic control or influence. This Article explores the extent to which EPA's own contractors, along with the hazardous waste treatment industry and environmental groups, have captured the Superfund program and have pushed it to excessive spending. Additionally, this Article will examine the role of parties potentially responsible for cleanup costs in seeking to reduce those costs.

Generally, contractors hired to clean up waste sites reinforce EPA's tendency to adopt risk adverse, but often expensive, strategies for cleanup. This influence over EPA decisions is often abused. This Article will explore solutions designed to curb abuse and to reduce expenditures that do little to improve the public health or environment. Reform designed to minimize abuse is essential, particularly since Superfund contractors will likely continue to participate in many future cleanups.

Part I of this Article briefly reviews the history of Superfund contractors' involvement in the program and discusses how CERCLA settlement procedures affect EPA's use of contractors. Part II introduces issues relating to agency capture theory. Part III examines whether Superfund contractors have captured or unduly influenced the program. Finally, Part IV discusses ways in which EPA can improve the management of its contractors.

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