RE: [CPEO-MEF] Guardian Trust evaluated

[walshw@pepperlaw.com]

I have talked to the creator of the Guardian Trust.  He believes that
his concept addresses your concern.  First, since they are accepting a 
very long liability, they are adding in a cushion on the costs.  Second 
(and perhaps more importantly), he believes that any cost 
underestimation at one site will be balanced by cost overestimation at 
other sites.  Since they envision one organization handling the 
oversight for many sites, the cost inaccuracies would be smooth out.  In 
essence, this is an insurance economic model. Keep in mind, there are 
exceptions to the liability that they are assuming.  If a new waste 
disposal location is found that is not covered. The original concept is 
to limit the Trust to managing the oversight of institutional controls. 
I believe that is all that the pilot involved,
but I am not familiar with the details.  That is, they would not be
responsible for replacing ground water control systems or replacing 
caps.  Your point, however, is well taken because the creator of the 
concept (and I believe many governmental entities) would like to expand 
the Guardian Trust concept to cover all post-remedy stewardship 
activities.  The cost of the upfront payment would be higher obviously.

Third, in my opinion, the insurer of last resort would be the
government. This does not violate the polluter pays principle since the 
polluter is paying up front for 100%.  The government would be an 
insurer of last resort.

Obviously, for military sites, in my opinion, the government is unlikely 
to ever be off the hook for cleanup liability.

Finally, in my opinion, only by creating a mega-entity who has a very
large financial interest in cleaning these sites up to unrestricted use 
will there be a true incentive for research on permanent solutions.  DoD 
and EPA and several public/private partnerships have done a reasonable 
job, but until an inventor can go to a few entities and market a product 
that eliminates future operation and maintance costs, there is unlikely 
to be the investment of venture capital funds in companies attempting to 
devleop truly innovative
cleanup technology.

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