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Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)


In response to hazardous waste disasters such as Love Canal , New York, in the 1970s, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), better known as Superfund, in 1980. The law created a fund of $1.6 billion to be used to clean up hazardous waste sites and hazardous waste spills for a period of five years. The primary source of support for the fund came from a tax on chemical feedstock producers; general revenues supplied the rest of the money needed. CERCLA is different from most environmental laws because it deals with past problems rather than trying to prevent future pollution , and because the Environmental Protec- tion Agency (EPA), in addition to acting as a regulatory agency, must clean up sites itself.

Throughout the decade before the creation of Superfund, the public began to focus increasing attention on hazardous wastes. During this period, an increased number of cases involving such wastes contaminating drinking water, streams, rivers, and even homes were reported. Citizens were enraged by dangers posed by leaking landfills, illegal dumping of hazardous wastes along roads or in vacant lots, and explosions and fires at some facilities.

A strong catalyst for hazardous waste regulation was the Love Canal episode near Niagara Falls, New York. In the late 1970s, chemical wastes from an abandoned dump were discovered in the basements of some homes. Studies found significant health effects, including miscarriages and low-weight newborns. Residents worried about increased cancer and birth defect rates. In the federal emergency declaration, a school and 200 houses were condemned. The combination of public concern and media coverage, together with EPA interest, brought national attention to this issue.

Debate soon began over proper government response to these problems. Industrial interests argued that a company should not be liable for cleaning up past hazardous waste dumps if it had not violated any law in disposing of the wastes. The industry argued that general taxes, not industry-specific taxes, should be used for the clean-up, and it sought to limit the legal liability of manufacturers in regard to the health effects of their hazardous wastes. Industrial companies also pushed for one national regulatory program, rather than a national program and several state programs to complicate the situation.

When Congress began debating a Superfund program in 1979, EPA officials argued that industry must pay the bulk of the clean-up costs. They based this argument on the philosophy that the polluter should pay, and also the pragmatic reasoning that Congress could not be relied on to continue appropriating the funds needed for such an expensive and lengthy program. The Senate focused on a comprehensive bill that included provisions for liability and victims' compensation , but these were dropped in order to secure passage of the program through the House. The act was signed by President Carter in December 1980.

Under the law, the EPA determines the most dangerous hazardous waste sites, based on characteristics like toxicity of wastes and risk of human exposure, and places them on the National Priorities List (NPL), which determines priorities for EPA efforts. The EPA has the authority to either force those responsible for the site to clean it up, or clean up the site itself with the Superfund money and then seek to have the fund reimbursed through court action against the responsible parties. If more than one company had dumped wastes at a site, the agency is able to hold one party responsible for all clean-up costs. It is then up to that party to recover its costs from the other responsible parties. If those identified as responsible by the EPA deny their responsibility in court and lose, they are liable for treble damages. Removal actions, emergency clean-ups, or actions costing less than $2 million and lasting less than a year, can be undertaken by the EPA for any site. For federal hazardous waste sites, the clean-up must be paid for through the appropriation process rather than through Superfund. States are required to contribute 10 to 50 percent of the cost of cleanups within their boundaries; they are also responsible for all operation and maintenance costs once the job is finished. The EPA can also delegate lead clean-up authority to the states.

Major amendments to CERCLA were passed in 1986. As the scope of the problem grew, Congress re-authorized the Superfund through 1991 and increased its size to $8.5 billion. Plans indicated that the enlarged Superfund would be financed by taxes on petroleum , feedstock chemicals , corporate income, general revenue, interest from money in the fund, and money recovered from companies responsible for earlier clean-ups. The amendments required several areas of compliance: 1) The clean-ups must meet the applicable state and federal environmental standards; 2) The EPA must begin clean-up on at least 375 sites by 1991; 3) Negotiated settlements for clean-ups are preferred to court litigation; 4) Emergency procedures and community right-to-know standards, are required in areas with hazardous waste facilities (largely in response to the Bhopal, India toxic gas disaster); and 5) Federal agencies must comply with Superfund Amendments and begin the clean-up of federal facilities and sites. The 1991 Superfund Amendments and Reauthorization Act authorized a four-year extension of the taxes that financed Superfund, but the law was not changed significantly.

As of August 1990, 33,000 sites were listed as being potentially hazardous, 1,082 sites were on the NPL, and over 100 sites were proposed by the EPA to be added to the list. Of the sites that required preliminary EPA investigation, over 90% had been examined, but actual clean-up has been rather slow. In mid-1990, clean-up had been completed at only 54 NPL sites. However, funding had been approved for planning studies at over 1,000 sites, design work at over 400 sites, and remedial work at over 280 sites. Removal actions by the EPA or responsible parties had taken place at over 1,500 sites, most of which were not on the NPL.

Studies of Superfund implementation have been quite critical. Reports by Congressional committees, the General Accounting Office, and the Office of Technology Assessment (OTA) concluded that the EPA relied on temporary rather than permanent treatment methods, took too long to clean up sites because of poor management, too frequently opted to use the Superfund for clean-ups rather than requiring responsible parties to pay, and often lacked the expertise to oversee Superfund clean-up operations. In reality, early implementation efforts of Superfund were hampered by uncommitted EPA officials, lack of financial and staff resources, poor government coordination of policy objective, and by the complexity of identifying and exacting payment from responsible parties.

Another problem had been the amount of expensive and time-consuming litigation involved in the act. In some cases litigation costs to determine responsible parties and recover clean-up costs has exceeded the cost of clean-up itself. Between 1986 and 1988, the EPA only recovered 7% of what it spent on clean-up from private parties.

Implementation of CERCLA has also been marked by charges of corruption and political manipulation. Rita Lavelle, who was in charge of the Superfund program at EPA, resigned in 1983 amid charges that she was giving unduly favorable treatment to industry. She was later convicted on perjury charges. Also in 1983, EPA Administrator Anne Gorsuch Burford resigned, largely in response to the difficulties of Superfund implementation.

Thus far, CERCLA has proved to be a more complicated, costly, and time-consuming process than originally envisioned. A 1988 Congressional report estimated that between $16.7 and $23.8 billion of federal money would be needed to clean up the less than 1,000 sites then on the NPL. A 1989 OTA report estimated the cost of the program to be $500 billion in the long run, with as many as 10,000 sites eventually being placed on the NPL.

See also Hazardous material; Hazardous Materials Transportation Act; Hazardous Substances Act; Hazardous waste site remediation; Hazardous waste siting; Toxic substances

[Christopher McGrory Klyza ]


RESOURCES

BOOKS

Davis, C. E. The Politics of Hazardous Waste. New York: Prentice Hall, 1993.

Dower, R. C. "Hazardous Wastes." In Public Policies for Environmental Protection, edited by P. R. Portney. Washington, DC: Resources for the Future, 1990.

Hays, S. P. Beauty, Health, and Permanence: Environmental Politics in the United States, 1955-1985. New York: Cambridge University Press, 1990.

Mazmanian, D., and D. Morell. Beyond Superfailure: America's Toxics Policy for the 1990s. Boulder, CO: Westview Press, 1992.

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