Unearthing CERCLA: Tracing Its Impact, Key Cases, and Future Frontiers (Part 1)

In this Part I, we will dive into the significance of impact and history of CERCLA, examine how it applies, discuss significant cases of concern, and look at how future amendments could help better address modern realities. In a forthcoming Part II, we will propose recommendations for ensuring CERCLA authority can permit the EPA to ensure responsible parties are held liable for the full range of harm done to the environment and communities of concern.

1. Introduction to CERCLA

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, is a significant environmental regulation enacted by the US Congress on December 11, 1980. CERCLA was established to provide a legal framework for the cleanup of hazardous waste sites that pose risks to human health and the environment.1 Unlike other environmental statutes, CERCLA focuses on addressing regions that have already been contaminated, rather than preventing pollution.2 The law grants the Environmental Protection Agency (EPA) broad federal authority to regulate hazardous substances, respond to releases of hazardous substances, and develop long-term solutions for the nation's most serious hazardous waste problems.3 CERCLA authorizes cleanup and enforcement actions to respond to actual or threatened releases of hazardous substances into the environment.4

CERCLA is significant in environmental law due to its provisions and requirements concerning closed and abandoned hazardous waste sites, liability of persons responsible for releases of hazardous waste at these sites, and the establishment of a trust fund to provide for cleanup when no responsible party can be identified.5 The law's severe, joint and several, and retroactive nature of responsibility imposed on potentially responsible parties makes it unique.6 CERCLA has been instrumental in cleaning up existing environmental contamination and reducing environmental pollution from hazardous waste.7 It also enables the EPA to go after potentially responsible parties for environmental cleanup and holds a wide range of parties liable, including current and past owners, arrangers, and transporters of hazardous substances.8

CERCLA is a crucial environmental law that empowers the EPA to address hazardous waste sites, hold responsible parties accountable, and facilitate the cleanup of contaminated areas, playing a vital role in protecting human health and the environment from the risks of hazardous substances. But, let’s take a moment to dig deeper and explore CERCLA and what can be done to address modern issues of urban communities.

II. Establishment of CERCLA

CERCLA was signed into law by President Jimmy Carter on December 11, 1980 in response to a growing desire for the federal government to ensure the cleanup of the nation's most contaminated sites to protect the public from potential harm.9 The law was a historic milestone, as it gave the Environmental Protection Agency (EPA) the authority to clean up uncontrolled hazardous waste sites and to compel responsible parties to perform cleanups or reimburse the government for EPA-led cleanups.10

CERCLA's provisions and requirements concerning hazardous waste sites were developed in the wake of the discovery of toxic waste dumps such as Love Canal and Times Beach. These actions can be conducted only at sites listed on EPA's National Priorities List. CERCLA also enabled the revision of the National Contingency Plan (NCP), which provided the guidelines and procedures needed to respond to releases and threatened releases of hazardous substances.11 The law created a tax on the chemical and petroleum industries, and over five years, $1.6 billion was collected and placed into a trust fund for cleaning up abandoned or uncontrolled hazardous waste sites.12

In urban communities, CERCLA has been applied to address existing environmental contamination and reduce environmental pollution from hazardous waste. The law has empowered the EPA to take cleanup actions at defunct waste sites containing hazardous substances, thereby protecting human health and the environment from the risks of these substances.13 CERCLA has also facilitated the coordination of Superfund site activities with state environmental protection agencies, ensuring a comprehensive approach to addressing hazardous waste sites in urban areas.14

III. Importance of CERCLA

Industrial pollution poses significant risks to both the environment and public health. Emissions from power plants and industrial facilities, such as nitrogen oxides, can lead to adverse health effects, including premature deaths, asthma, heart attacks, and lost school and work days.15 Air pollution, a byproduct of industrial activities, is linked to worsened asthma, hospitalizations, and premature death related to heart and lung disease, and exposure to toxic air pollutants from industrial sources can also cause cancer.16 Furthermore, individuals living in low-income communities are especially at risk for health impacts associated with poor air quality.17

When hazardous waste sites are discovered, federal authorities, particularly the Environmental Protection Agency (EPA), manage them under the CERCLA. The EPA conducts independent assessments, on-site assistance visits, and interfaces with other federal agencies to ensure compliance with CERCLA.18 Additionally, the EPA maintains a Federal Agency Hazardous Waste Compliance Docket, which contains a list of federal facilities that are managing or have managed hazardous waste pollutants or contaminants.19

In determining responsive actions and cleanup efforts, the EPA follows the guidelines and procedures outlined in the National Contingency Plan (NCP), which provides the framework for responding to releases and threatened releases of hazardous substances.20 The NCP includes methods for identifying, evaluating, and selecting appropriate response actions to address the release or threat of release of hazardous substances. The EPA also works to quantify near-source emissions and exposures, develop mitigation strategies, and reduce health effects associated with air pollution in urban communities.21

IV. Application of CERCLA

EPA's power to seek out responsible parties for releases and assure their cleanup. Coordination of Superfund site activities with state environmental protection agencies. Enforcement tools, private party cleanup, and cost recovery.

One of the things that makes CERCLA so unique is that it provides the EPA with the authority to seek out responsible parties for toxic releases and ensure their cooperation in the cleanup process. When potentially responsible parties cannot be identified or located, or when they fail to act, the EPA can clean up orphan sites. The agency uses various enforcement tools to obtain private party cleanup through orders, consent decrees, and other small party settlements. Additionally, the EPA recovers costs from financially viable individuals and companies once a response action has been completed.22

The EPA coordinates Superfund site activities with state environmental protection agencies to ensure a comprehensive approach to addressing hazardous waste sites. The agency is authorized to implement CERCLA in all 50 states and U.S. territories. Superfund site identification, monitoring, and response activities in states are coordinated through the state environmental protection agencies.23

In terms of enforcement tools, CERCLA provides the EPA with the authority to compel responsible parties to perform cleanups or reimburse the government for EPA-led cleanup work. The law also allows the EPA to recover costs from financially viable individuals and companies once a response action has been completed. The amount required to be paid by responsible parties is determined based on the costs incurred by the government for the cleanup efforts.24

V. Major Cases and Impact

The Love Canal and Times Beach are two major environmental contamination cases that have had a significant impact. Love Canal, located in New York, became a symbol of the environmental movement in the 1970s. It was discovered that the area, built on a former toxic waste dump, was causing adverse health effects in the local population. This led to the evacuation of over 800 families and the declaration of a federal emergency. Similarly, Times Beach, Missouri, was contaminated with dioxin, leading to the evacuation and buyout of the entire town. These cases highlighted the severe health and environmental risks posed by hazardous waste and the need for a legal framework to address such contamination.25

CERCLA enforces strict liability against responsible parties for cleanup and damages. This means that parties can be held liable for the costs of cleaning up a contaminated site, regardless of fault or negligence. The retroactive nature of liability under CERCLA is crucial, as it allows the EPA to hold responsible parties accountable for contamination that occurred before the law was enacted. This is important because it ensures that those who profited from the creation of hazardous waste sites in the past are held responsible for their cleanup, rather than leaving the burden to taxpayers or future generations.

Enforcing strict liability and retroactive responsibility under CERCLA has posed challenges, particularly in determining the extent of liability for each responsible party and the allocation of cleanup costs. However, these provisions have been essential in holding parties accountable for environmental contamination and ensuring that cleanup efforts are funded. The law's retroactive nature has been instrumental in addressing the legacy of hazardous waste sites and preventing future generations from bearing the financial and environmental burden of past contamination.

The primary question we are looking to address in this article however, is to determine how CERCLA can be further amended to address modern challenges, especially as we focus on developing issues of urban communities. Urban planners and economic developers need new tools that help to address primary concerns, especially those that help to democratize the expenditures of remediation and re-development.

In Part II, we will look at way to adapt CERCLA to address contemporary urban environmental issues.

#CERCLA #History #EnvironmentalLaw #LegalCases #FutureAmendments #EnvironmentalProtection #EPA #environment #SuperfundLaw #EnvironmentalPolicy #ToxicCleanup #LegalPrecedents #EnvironmentalJustice #PollutionControl #RegulatoryReform #PublicHealth #Sustainability #EcoLegislation

1. “Quick Guide & Summary of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)”. Butala, Sachin. RSB Environmental, 7 February 2023. <https://rsbenv.com/comprehensive-environmental-response-compensation-and-liability-act-cercla>.

2. ibid.

3. “Comprehensive Environmental Response, Compensation, and Liability Act”. US Department of Energy, Office of Environment, Health, Safety & Security. <https://www.energy.gov/ehss/comprehensive-environmental-response-compensation-and-liability-act>.

4. ibid.

5. “Superfund: CERCLA Overview”. Environmental Protection Agency (EPA), last updated 30 October 2023. <https://www.epa.gov/superfund/superfund-cercla-overview>.

6. Butala, Sachin. RSB Environmental, 7 February 2023.

7. ibid.

8. US Department of Energy, Office of Environment, Health, Safety & Security.

9. “Comprehensive Environmental Response, Compensation, and Liability Act: A Summary of Superfund Cleanup Authorities and Related Provisions of the Act”. Congressional Research Service, updated 14 June 2012. <https://crsreports.congress.gov/product/pdf/R/R41039>.

10. “Superfund Success Stories”. Environmental Protection Agency (EPA), last updated 30 October 2023. <https://www.epa.gov/superfund/superfund-success-stories>.

11. “Superfund: CERCLA Overview”. Environmental Protection Agency (EPA).

12. “Superfund: CERCLA Overview”. Environmental Protection Agency (EPA).

13. Butala, Sachin. RSB Environmental, 7 February 2023.

14. “Superfund: CERCLA Overview”. Environmental Protection Agency (EPA).

15. “Administrator Michael Regan, Remarks to CERAWeek About EPA’s Approach to Deliver Certainty for Power Sector and Ensure Significant Public Health Benefits, As Prepared for Delivery”. Environmental Protection Agency (EPA). 10 March 2022. <https://www.epa.gov/speeches/administrator-michael-regan-remarks-ceraweek-about-epas-approach-deliver-certainty-power>.

16. California Air Resources Board. Copyright 2023. <https://ww2.arb.ca.gov/our-work/topics/health>.

17. “EPA Research: Environmental Justice and Air Pollution”. Environmental Protection Agency (EPA), last updated 30 October 2023. <https://www.epa.gov/ej-research/epa-research-environmental-justice-and-air-pollution>.

18. US Department of Energy, Office of Environment, Health, Safety & Security.

19. US Department of Energy, Office of Environment, Health, Safety & Security.

20. Congressional Research Service, updated 14 June 2012.

21. “EPA Research: Environmental Justice and Air Pollution”. Environmental Protection Agency (EPA).

22. “Summary of the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund): 42 U.S.C. §9601 et seq. (1980)”. Environmental Protection Agency (EPA), last updated 6 September 2023. <https://www.epa.gov/laws-regulations/summary-comprehensive-environmental-response-compensation-and-liability-act>.

23. ibid.

24. “What is Superfund?”. Environmental Protection Agency (EPA), last updated 30 October 2023. <https://www.epa.gov/superfund/what-superfund>.

25. “The Love Canal Tragedy”. Beck, Eckardt. EPA Journal, January 1979. <https://www.epa.gov/archive/epa/aboutepa/love-canal-tragedy.html>.