Comprehensive Evironmental Response, Compensation, and Liability Act (1980)

Gregory S. Weber

Excerpt from the Comprehensive Environmental Response, Compensation, and Liability Act

Whenever ... any hazardous substance is released or there is a substantial threat of such a release into the environment ... the President is authorized to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant or contaminant at any time (including its removal from any contaminated natural resource), or take any other response measure consistent with the national emergency plan which the President deems necessary to protect the public health or welfare or the environment.

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (P.L. 96-510, 94 Stat. 2767) is known both by its acronym, CERCLA (pronounced "SIR-cluh"), and by one of its major program components, the Superfund, described below.

BACKGROUND

When enacted, CERCLA addressed a substantial gap in national environmental law. The Resource Conservation and Recovery Act of 1976 (RCRA) had addressed the cleanup of active hazardous waste sites. Yet the late-1970s saw a series of front-page stories of property contamination and human sickness associated with abandoned waste sites, such as at Love Canal, New York. Faced with the cleanup of thousands of such sites across the nation, congressional committees held hearings in 1979 that highlighted the potential costs and complexities of the cleanup efforts. In late 1980, with both a lame-duck Congress and president, the bill that became CERCLA was introduced and passed virtually overnight.

Critics have traced many problems in CERCLA's implementation to this hasty legislative process. Indeed, as originally enacted, CERCLA lacked many critical details and left limited legislative history. While these criticisms have merit, the statute's principal amendment, the Superfund Amendments and Reauthorization Act of 1986 (SARA), addressed many of the charges. SARA added many detailed provisions and provided substantial legislative history.

THREE PRINCIPAL ELEMENTS

Three key elements underlie CERCLA. These include: (1) the EPA's cleanup authority and processes; (2) cleanup liability; and (3) the Superfund.

EPA Cleanup Authority and Processes. CERCLA authorizes the Environmental Protection Agency (EPA) to respond to releases or threatened releases into the environment of hazardous substances from vessels or facilities. Hazardous substances are broadly defined to include just about anything that is toxic or hazardous, except petroleum-based substances. (Given this exclusion, cleanups of petroleum-based substances are best addressed under RCRA, which contains no such exclusion.) Facility covers just about any kind of structure, pipeline, pit, or container, except a "consumer product in consumer use." Release includes all accidental and intentional discharges, except for motor vehicle emissions or radioactive materials. And finally, as its responses, the EPA may conduct either short-term removals or long-term remedial response actions. The former apply when prompt action is needed. Examples include fencing a site. The latter apply to all other situations. Examples include pumping and treating contaminated groundwater. These long-term actions may cost millions of dollars and take decades to complete.

A complicated array of procedures details how EPA prioritizes and supervises the cleanup work. Only sites placed on a National Priority List (NPL) are proper subjects for long-term remedial actions. The EPA places sites on the NPL by assessing their relative risks to the public under a detailed Hazard Ranking System (HRS). Guiding the EPA's cleanup efforts at these sites is the National Contingency Plan (NCP). The NCP details each step of the cleanup process, from initial site assessment and inspection, through remedy selection, to remedy implementation. Among other matters, the NCP has substantial provisions addressing public participation in site planning.

Cleanup Liability. CERCLA casts a wide net over those potentially responsible parties (PRPs) who are liable for site cleanup costs. Four classes of PRPs exist: (a) present site owners or operators; (b) those who owned or operated at the time of disposal; (c) persons who arranged for disposal; and (d) transporters who selected the disposal site. Hundreds of court cases have fleshed out these categories. For example, courts have addressed the liabilities of parent corporations, successor corporations, individual shareholders, and those who have loaned money to a PRP for its use on the site. Congress eventually addressed the latter issues in the Asset Conservation, Lender Liability, and Deposit Insurance Act of 1996.

An equally large number of cases have extended liability in other ways. Under case law, liability is strict, that is, no fault needs to be proven. Liability is also joint and several, that is, any individual PRP is liable for the entire site cleanup costs, even if it only contributed a small amount of the waste. (EPA, however, generally offers small contributors special settlement terms in amounts proportionate to the amount and type of waste involved.) Finally, liability is retroactive, that is, applies to disposals that occurred prior to 1980.

The principal defense to CERCLA liability requires proof of a PRP's lack of knowledge or reason to know that hazardous substances had been released on a site. Few PRPs have succeeded in providing such proof. Because enormous financial consequences may come with even unwitting ownership of a hazardous waste site, prospective property owners now must thoroughly inspect property prior to purchase. Reluctance to purchase possibly contaminated property led to what became known as brownfields. Brownfields are abandoned sites, largely in urban areas, with contamination issues. To encourage development of these areas, Congress has authorized the EPA to offer financial assistance to help fund their cleanup.

The Superfund . The Superfund is an EPA-administered trust that ensures the availability of cleanup funds. Supported by taxes on, among other things, crude oil and certain chemicals, the Superfund totals $8.5 billion. EPA can use it to pay response costs, natural resource damages, and research, development and demonstration costs.

Because even at $8.5 billion the Superfund is inadequate to pay the full cleanup costs of all the NPL sites, EPA hoards it carefully. As a result, EPA's favored CERCLA enforcement tool is to negotiate a settlement among a site's PRPs. Under the settlement, the PRPs will clean up the site under EPA's supervision. Any cleanup costs expended by EPA and recovered from a PRP are returned to the fund to finance future cleanups.

ACCOMPLISHMENTS AND CHALLENGES

In a report commemorating CERCLA's twentieth anniversary, EPA summarized its progress in hazardous waste cleanup. It noted that it had taken over 6,400 emergency actions; had completed construction at 757 NPL sites; had gotten PRPs to conduct cleanup work at 70 percent of all NPL sites; had secured $18 billion from PRPs to fund cleanups; and had de-listed 219 sites. Nevertheless, because new sites frequently arise or are discovered and because cleanups often require decades to complete, CERCLA-like legislation likely will be needed for the foreseeable future.

See also: Hazardous and Solid Waste Amendments of 1984; Toxic Substances Control Act.

BIBLIOGRAPHY

"CERCLA Overview." U.S. Environmental Protection Agency. July 2003. <http://www.epa.gov/superfund/action/law/cercla.htm>.

Cooke, Susan M. The Law of Hazardous Waste: Management, Cleanup, Liability, and Litigation. New York: Matthew Bender, 1992.

Grad, Frank. Treatise on Environmental Law. New York: Matthew Bender, 1993.

Moya, Olga L., and Andrew L. Fono. Federal Environmental Law: The User's Guide. St. Paul, MN: West Group, 2001.

Rogers, William H., Jr. Environmental Law, 2d ed. St. Paul, MN: West Publishing Co., 1994.

Sprankling, John G., and Gregory S. Weber. The Law of Hazardous Wastes and Toxic Substances in a Nutshell. St. Paul, MN: West Publishing Co., 1997.

Stensvaag, John-Mark. Hazardous Waste Law and Practice. New York: Wiley, 1989.

Love Canal

Love Canal, envisioned as a route for ships to bypass Niagara Falls, was created in the nineteenth century by entrepreneur William T. Love. After only one mile of canal had been excavated, however, Love was forced to abandon his project for lack of funding, and in 1920 his land was sold and the trench became a municipal and chemical dump. During the 1940s and early 1950s the landfill was used by the Hooker Chemical Company to bury 20,000 tons of chemical waste. When the trench reached capacity, Hooker covered it with dirt and donated the land to the city of Niagara Falls for $1. Although the transfer paperwork included a warning that the property had been used to dispose of chemical waste, a neighborhood of single-family homes grew up around the land and a school was built directly on the site of the former canal. Residents frequently complained of "seepage" of chemicals into their yards and basements, and by the mid-1970s, many were suffering from serious health problems, including birth defects, miscarriages, and kidney and bladder problems. The situation was brought to public attention by Michael Brown, a reporter for the Niagara Falls Gazette, and Lois Gibbs, a twenty-seven-year-old mother of two who was elected president of the Love Canal Homeowners' Association. In 1978, after conducting tests, New York State Health Commissioner Robert Whalen announced that Love Canal was a "great and imminent peril to the health of the public." The state paid for pregnant women and children under the age of two to relocate out of the area; however, once the children passed the age of two, they were expected to return, despite the demonstrable health hazards. Finally, in 1980, the state agreed to buy 800 homes and relocate 1,000 families. After a protracted legal battle, in 1995 Occidental Chemical Company, which had purchased Hooker Chemical, agreed to pay $129 million for the cleanup of the site. The public health disaster at Love Canal led Congress to pass the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.