The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as “Superfund”, is one of the most contentious environmental laws in the United States (Salzman and Thompson 2019, 252). Hastily developed during a “lame duck” Congressional session before Reagan took office, this poorly drafted law is a simple statute requiring releases of hazardous waste to be reported to the EPA by any person who knows of it (Salzman and Thompson 2019, 254). The management of the cleanups comes from two sections that give the government the power to require cleanups and the ability of the government or private parties to recover cleanup costs (Salzman and Thompson 2019, 254). One of the most contentious issues of this law has to do with the fact that current owners and operators of facilities that were contaminated prior to their purchase are still liable for the cleanup costs.
This standard of liability creates concerns regarding fairness. If someone unknowingly purchased a site that was contaminated with PCBs for example, once it was identified that there were hazardous wastes in the soil, that new owner would be required to pay for remediation. While this does not directly seem fair, it does incentivize purchasers and developers to perform upfront work to establish the site is clean before purchasing. It also helps increase identification of sites by incentivizing potentially responsible parties (PRPs) to implicate other PRPs to avoid shouldering all the cleanup costs (Salzman and Thompson 2019, 258-259). This system, while not perfect, has led to over 6,400 removal actions while not directly costing taxpayers anything (Salzman and Thompson 2019, 269). However, nearly 40% of the multiple billions that have been paid out from Superfund has been to cover EPA’s litigation and administration costs (Salzman and Thompson 2019, 269).
While CERCLA has issues with fairness and cost-effectiveness, the liability standards should not be changed. Since one of the goals of the program was to ensure that taxpayers do not have to pay for the cleanups, any changes to the liability standards would increase liabilities for some and reduce it for others in a zero-sum game (Salzman and Thompson 2019, 269). Developers have gotten into the practice of vetting sites before they purchase and develop them to avoid taking on responsibility. CERCLA has also led to the understanding that anyone associated with the disposal of waste is responsible for ensuring that the waste is disposed of properly (Salzman and Thompson 2019, 270). The retroactive liability also ensures unknown contamination sources are identified as well. No environmental law is perfect, and CERCLA is most certainly no exception, however, it has led to improved awareness of hazardous waste, remediated thousands of sites, and helped to avoid future contamination issues (Salzman and Thompson 2019, 270). Changing CERCLA liabilities should not be undertaken until more comprehensive waste policies can be developed with a more holistic approach to all the waste stream pollutants.
Author: Logan Callen
Salzman, James, and Barton H. Jr. Thompson. 2019. Environmental Law and Policy. 5th ed. St. Paul, MN: Foundation Press.