Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)

Overview

The Comprehensive Environmental Response, Compensation and Liability Act is better known as CERCLA. It is codified in 42 U.S.C. Chapter 103.

Also known as "Superfund," CERCLA is aimed at cleaning up sites contaminated with hazardous waste, as well as preventing contamination of future sites by assigning liability to parties involved.  The liability requires the parties to pay damages for the clean up of the sites.  

CERCLA invokes theories and elements of environmental law, property law, and tort law. The Environmental Protection Agency (EPA) is responsible for enforcing CERCLA.

Response Actions

The federal government may take 2 types of actions under CERCLA:

  1. Removal Actions: 
    1. These are short-term actions authorized by CERCLA; these may be be taken to address releases or threatened releases that require a prompt response.
  2. Remedial Actions:
    1. These are long-term actions authorized by CERCLA; these permanently and significantly reduce the risk of release of hazardous substances. These actions may only be taken at places on the National Priorities List (NPL). To be included on the NPL, a proposed site is first subject to a Preliminary Assessment / Site Inspection (PA / SI) and then to a Remedial investigation / Feasibility Study (RI / FS).

Liability

Scope of Liability

CERCLA casts a wide net in bringing in responsible parties. Under 42 U.S. Code § 9606, CERCLA allows for enforcement  "when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility."

Although there have been challenges to the apparently retroactive nature of this (as parties have been held liable for actions that predate the statute), the courts have held that if the problems caused by the waste are ongoing, and the statute is a reimbursement obligation rather than a punishment, the statute is not retroactive, and thus not unconstitutional. US v. Monsanto, 858 F. 2d 160 (4th Cir. 1988). The Monsanto court also justified the retroactive nature as such: "CERCLA operates remedially to spread the costs of responding to improper waste disposal among all parties that played a role in creating the hazardous condition." And it is also important to note that additional challenges under the Commerce Clause have been rejected as well.  See US v. Olin, 107 F.3d 1506 (11th Cir. 1997).

Potentially Responsible Parties (PRP)

To find PRPs, the "EPA looks for evidence to determine liability by matching wastes found at the site with parties that may have contributed wastes to the site." 42 U.S. Code § 9607 outline 4 different entities which qualify as PRPs:

  1. Current Owners / Operator.  Although this excludes property acquired through foreclosure or a security interest, this will still include current owners even if they made no contribution to the hazardous release. 
    1. In NY v. Shore, a landowner who had purchased a contaminated site with the intuition of cleaning it up and developing it, was held liable for clean up costs as he was aware of the condition of the land when he purchased it (and that dumping was still on-going at time of purchase).
  2. Past Owner / Operator at time the pollution occurred.  Prior owners / operators will be held liable as well for any release of toxic substance that occurred during their possession / control of the land. 
    1. Even a party who does not / did not own a facility may be liable as an "operator" if they had substantial control over the activities that lead to the release of hazardous substances. US v. Bestfoods, 524 U.S. 51 (1998).
  3. Arrangers (person who arranged for disposal of a hazardous substance at a site). 
    1. Under the "Useful products doctrine"  if you are not arranging for disposal, then you are out of the system.  Thus, a producer of a chemical that is sold for use (not disposed of) is not an arranger.  See the Burlington Northern note below.
  4. Transporters (person who transported a hazardous substance to the site). 
    1. Transporter liability is premised on the transporter playing some role in the selection of the site where the hazardous substances are taken.  (Tippins, Inc v. USX Corp., 37 F.3d 87 (3d. Cir.  1994)
    2. Additionally, even if the transporter moves the substance from one contaminated area of a parcel to another, uncontaminated area, the transporter will still be held liable.  (Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp.  (976 F.2d 1338 (9th Cir. 1992).

Defenses

Although CERCLA imposes Strict Liability as well as Joint and Several Liabilities, creating major liability for involved parties, there are limited defenses available to avoid CERCLA liability.

  • While the act has a strict liability standard, a defendant may be able to escape liability by proving that even though he had mere knowledge of the pollution, he took steps to reduce the likelihood of spills. 
    • In Burlington Northern v. United States, 129 S. Ct. 1870 (U.S. 2009), the Supreme Court found that Shell, who supplied chemical products to Brown & Bryant Inc (a chemical distribution business) was not an arranger and thus not responsible for Brown and Bryant's spills.  The court noted that Shell took numerous steps to reduce the likelihood of spills and that Shell's mere knowledge that spills and leaks contented to occur was insufficient grounds for including Shell as an "arranger" of disposal.
  • 42 U.S. Code § 9607(b) provides potential defenses: 
    • an act of God/an act of War
      • Courts have held these defenses do not apply to events that could be anticipated, such as heavy rains, or earthquakes;  rather these defenses would be limited to an exceedingly rare and unforeseen set of circumstances
    • a third-party defense
      • Third-party defense:  This defense will only apply if (1) the PRP can show they exercised due care and (2) there was no contractual relationship with the egregious third party.  Thus, this defense will not apply if the dumper was an employee, agent, parent company, subsidiary, or anyone in a contract with the PRP. 
        • For example, the third-party defense could apply in the case of a midnight dumper. Here, unbeknownst to the landowner, someone secretly dumps toxic waste on the landowner's land, and the landowner had no reason to suspect this might be happening.
  • Innocent Landowners:  In response to criticism, amendments to CERCLA known as the Superfund Amendments and Reauthorization Act (SARA), include a defense for innocent landowners who "undertook all appropriate inquiries" before purchasing the land, and "had no actual or constructive knowledge" of the hazardous substance.
  • De minimis settlements:  Should the EPA determine a PRP contributed only a minimal amount of hazardous waste (as compared to other wastes at the site), and this waste did not contribute significantly to the clean up, the EPA may offer a settlement to that PRP.  This policy is designed to protect small businesses who were not major contributors to the mess.
  • Separate Harm:  likewise, if a PRP can show that the mess was contained and removed (and thus contributed in no way to the hazardous release), the PRP may limit liability.
  • 42 U.S. Code § 9607(q) Contiguous Properties: This protects neighbors to polluted lands - a person who takes reasonable care and who is unaware of hazardous waste leaking onto her land from a contiguous property will not be liable 

Brownfields

A brownfield is a property whose use "may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant."

An unintended consequence of CERCLA was that that developers would refuse to purchase and attempt to clean brownfields for fear of potential liability for owning the land. In response, Congress created 42 U.S. Code § 9607(r) to protect developers and encourage them to clean up brownfields.  The statute prevents liability being assigned to a bona fide prospective purchaser, so long as the purchaser does not impede the performance of either a response action or natural resource restoration.

Further Reading

For more on CERCLA, see this Environmental Law Reporter article, this St. John's Law Review article, and this University of Michigan Law Review article.