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

CERCLA Overview

The Comprehensive Environmental Response Compensation and Liability Act (CERCLA) (a.k.a. SuperFund) empowered the EPA with broad discretion to investigate and remediate the most contaminated waste sites in the U.S. Under this law, the United States Congress directed EPA to identify abandoned or uncontrolled hazardous waste sites and clean up the worst of these sites. The Agency carries out these responsibilities through the Superfund response process, according to procedures outlined in the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The NCP is a federal regulation that guides determination of the sites to be corrected under both the Superfund program and the program to prevent or control spills into surface waters or elsewhere 

CERCLA authorizes EPA to conduct a "Preliminary Environmental Site Assessment" – i.e. an initial investigation which entails a detailed review of the available background information followed by an inspection of the off-site and on-site areas. This process is also known as “environmental due diligence” which precedes the Phase I Environmental Site Assessment process.  CERCLA also includes what is known as “strict liability” (a.k.a. liability without fault) that would apply to a so-called innocent purchaser of a property who could nevertheless be held liable for contamination regardless of the absence of his role in creating the contamination in the first place. To a significant degree, CERCLA is the Congressional response to the Love Canal pollution case.

CERCLA  was enacted by Congress in December 1980, creating  a tax on the chemical and petroleum industries and providing EPA extensive federal authority to directly respond to the release (or threatened releases) of hazardous substances that may potentially endanger public or environmental health. So stated, CERCLA:

•  "established prohibitions and requirements concerning closed and abandoned hazardous waste sites;

•  provided for liability of persons responsible for releases of hazardous waste at these sites; and

• established a trust fund to provide for cleanup when no responsible party could be identified."

CERCLA authorizes two forms of response to polluters:

• Short-term removals, where actions may be taken to address releases or threatened releases requiring prompt response.

•  Long-term remedial response actions that permanently and significantly reduce the dangers associated with releases or threats of releases of hazardous  substances that are serious, but not immediately life threatening. These actions can be conducted only al sites listed on the EPA's National Priorities List (NPL).

Moreover, CERCLA  enabled the revision of the National Contingency Plan (NCP), which  provides guidelines and procedures for responding to both releases and threatened releases of  hazardous substances, pollutants, or contaminants. The NCP also established the NPL. CERCLA was amended by the Superfund Amendments and Reauthorization Act (SARA) in October 1986.

The following figure illustrates how CERCLA works:

So illustrated, CERCLA involves negotiating a set of sequential steps:

"Site Discovery
Potential CERCLA sites are typically identified through state and county inspections and reports from concerned citizens. Federal facilities, such as JPL, were required to conduct investigations of past waste management activities, in response to SARA Section 120(d) (Federal Facilities).

Preliminary Assessment and Site Investigation
The first step in the CERCLA process for a federal facility is two initial studies known as the Preliminary Assessment (PA) and Site Investigation (SI). Both studies include collecting and reviewing available information to determine the magnitude of the problem posed by the site. At the conclusion of the SI, the site is then scored by the EPA using a standard system called the Hazard Ranking System (HRS). The HRS considers potential relative risks to public health and the environment from release or threatened release of chemicals at the site.

NPL Listing
If the overall potential risks at a site are determined to be significant based on its HRS score, the site will be nominated for placement on the National Priority List (NPL). The NPL is a listing by the EPA of the top-priority sites that are eligible for investigation and remediation under the federal CERCLA program. Typically, sites must receive a score of at least 28.5 out of 100 to be included on the NPL. JPL received a score of 50.0.

Remedial Investigation and Feasibility Study
After a site has been placed on the NPL, two related studies, the Remedial Investigation (RI) and the Feasibility Study (FS), are planned and conducted. An RI/FS may take several years to complete depending on the size and scope of the site. This phase includes comprehensive sampling and data collection to evaluate the nature, extent, and magnitude of impacts both on- and off-facility. As part of the RI/FS, a risk assessment is performed to identify and quantify the risks that the site poses to public health, welfare, and the environment. The risk assessment evaluates present and future risks in the absence of any remediation and helps determine the need for and extent of remediation requirements. During the FS, remedial alternatives are identified and evaluated based on technical feasibility, protectiveness, effectiveness, impacts to the community, institutional concerns, conformance with other applicable relevant and/or appropriate environmental laws, and costs. A preferred cleanup alternative is proposed as part of the FS.

Removal Actions
A removal action can be conducted at any time during the CERCLA process, if the site poses an immediate threat to public health or the environment. A Removal Action is an immediate (short-term) action, such as the implementation of a temporary alternative water supply, which is taken to safeguard public health or the environment. In cases where more than a six month planning period exists before a removal action will begin, an Engineering Evaluation/Cost Assessment (EE/CA) is prepared in order to identify the objectives of the removal action and evaluate various alternatives with respect to cost, effectiveness, and implementability. After the Removal Action is completed, the environmental investigation or remediation process resumes according to the appropriate step in the CERCLA process.

Proposed Plan and Public Comment Period
Upon completion of the FS, a Proposed Plan is published, which summarizes the remediation alternatives evaluated in the FS. The Proposed Plan describes the preferred clean up strategy proposed by the lead agency and the supporting regulatory agencies. The Proposed Plan is then submitted for public comment for a 30-day period, which may be extended an additional 30 days upon timely receipt of a request from a member of the community.

Record of Decision
At the conclusion of the public comment period and following consideration of all community comments, the lead agency, with regulatory approval, will make the final remedy selection. This final remedy selection is issued in a Record of Decision (ROD), a legal public document that sets forth and explains the remediation alternatives to be used at a CERCLA site. The ROD includes a Responsiveness Summary that contains responses to all public comments received during the public comment period on the Proposed Plan.

Remedy Design and Implementation
After the ROD is signed, the Remedial Design (RD) phase of work is initiated. The RD includes preparation of engineering reports, technical drawings, and specifications to describe implementation of the selected remedy. Upon approval of the RD by the supporting regulatory agencies, the Remedial Action (RA), or the actual construction and implementation of the selected clean up alternative, is initiated. The final long-term remedial action may take one to two years to construct, although treatment may take several more years. The RA is implemented until cleanup objectives are achieved.

NPL De-Listing
A site may be removed from the NPL upon determination that no further response is required to protect human health or the environment. Under Section 300.425(e) of the NCP (55 FR 8845, March 8, 1990), a site may be de-listed after all appropriate response actions are completed. Partial deletions can also be conducted at NPL sites. For example, soil remediation may be completed and the vadose zone de-listed prior to de-listing groundwater at the same NPL site.

Long-Term Monitoring/Review
After RD/RA activities have been completed, the site is monitored to ensure the effectiveness of the response. Typically, CERCLA sites undergo reviews every five years after implementation of the remedy to evaluate the continued protectiveness of the remedy"

 CERCLA's Potentially Responsible Parties:

"Potentially Responsible Parties are individuals, companies, or any other parties that are potentially liable for payment of Superfund cleanup costs. Companies that generate hazardous substances disposed of at a Superfund site, current and former owners and operators of the site, and transporters who selected the site for disposal of hazardous substances may be responsible for part or all of the cleanup costs.

EPA attempts to identify PRPs early to achieve a PRP-lead cleanup rather than EPA performing a Superfund (Fund-lead) cleanup. A PRP search generally is initiated around the time of site discovery. EPA conducts a preliminary search to identify obvious PRPs. PRP searches include reviewing state and federal agency records, conducting title searches, interviewing site operators, and performing PRP financial assessments.

If a PRP having sufficient financial assets is unwilling to settle, EPA may issue a unilateral administrative order (UAO) under Section 106(a) of CERCLA. A UAO compels the party to conduct the cleanup. Failure to comply with a UAO may result in the imposition of fines, damages, and court orders to conduct the cleanups. If EPA feels the site requires immediate action, EPA uses Superfund monies to proceed with cleanup (a Fund-financed cleanup), with the authority to later recover its costs from PRPs through Administrative actions, if less than $500,000. When more than $500,000 is sought, EPA must go to court to recover its expenses. These lawsuits usually result in a settlement (consent decree), but may go to full trial."

Liability Under CERCLA:

The following table outlines how financial liability functions under CERCLA:

 Triggering Superfund Liability

"Superfund liability is triggered if:

·         Hazardous substances are present at a facility,

·         There is a release (or a release may occur unless something is done to prevent it) of these hazardous substances,

·         Response costs have been or will be incurred, and

·         The defendant is a liable party.

There are 4 classes of Superfund liable parties:

1.    Current owners and operators of a facility,

2.    Past owners and operators of a facility at the time hazardous wastes were disposed,

3.    Generators and parties that arranged for the disposal or transport of the hazardous substances, and

4.    Transporters of hazardous waste that selected the site where the hazardous substances were brought.

Potentially responsible parties are liable for:

·         The costs the government has incurred for cleanup,

·         Damages to natural resources (for example, to a fishery),

·         The costs of certain health assessments, and

·         Injunctive relief ( i.e ., performing a cleanup) where a site may present an imminent and substantial endangerment.

CERCLA liability is retroactive - Parties may be held liable for acts that happened before Superfund's enactment in 1980.

CERCLA liability is joint and several - Any one potentially responsible party may be held liable for the entire cleanup of the site (when the harm caused by multiple parties cannot be separated).

CERCLA liability is strict - A potentially responsible party cannot simply say that it was not negligent or that it was operating according to industry standards. If it is determined that the potentially responsible party sent some amount of the hazardous waste found at the site, it is liable. "

 CERCLA Defense:

There are several defenses that may be used to defend a CERCLA law suit. These include:

Good Samaritan Defense: Section 107(d) of the Superfund law provides that persons shall not be liable for costs or damages for actions or inactions taken in the course of "rendering care, assistance, or advice in accordance with the National Contingency Plan (NCP) or at the direction of an on-scene coordinator. . . ." These non-liable parties are frequently referred to as "Good Samaritans." EPA recently issued guidance relating to Good Samaritans performing removal work at hard rock mine sites.

Secure Creditor Exemption: An amendment to CERCLA that serves to immunize from liability lenders who otherwise would be liable as "operators" or "owners" due to their efforts to realize on their collateral. The exemption applies to any person who, without participating in the management of a facility, holds indicia of ownership primarily to protect his security interest in the facility.

Lenders: Generally, public and private lenders have some protection from owner/operator liability for loans made for facilities that may become contaminated. Further information on EPA's lender liability policy is contained in the "Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities".

The Innocent Landowner Defense: The Innocent Landowner defense arises out of the statutory definition of "contractual relationship" referred to in the third party defense. Congress defined "contractual relationship" to include real estate transactions, and then provided that an owner of contaminated property can establish a defense to CERCLA liability if (i) the property was acquired after the hazardous substance was disposed there and (ii) at the time of acquisition, the owner "did not know and had no reason to know" that the hazardous substance was disposed on the property. Further, an owner can establish that he or she had "no reason to know" only if he or she conducted appropriate due diligence prior to the acquisition.

To establish that the defendant had no reason to know…the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership AND uses of the property consistent with good commercial or customary practice in an effort to minimize liability.

… From 42 U.S.C §9601(35)(B) (emphasis added)

According to CERCLA all appropriate inquiry into the previous ownership must be undertaken to comply with the innocent landowner defense. As a party to a commercial real estate transaction it is imperative that the environmental due diligence adheres to both Statute 9601(35)(B) and ASTM Phase I ESA. The American Society for Testing and Materials (ASTM), which is a private not-for profit standards-writing organization, has developed a standard (Designation E 1527-00) for conducting a Phase I Environmental Site Assessment (ESA). The Phase I ESA standards were written to establish good site assessment."

Bonafide Prospective Purchaser Defense: Under SABRA, a purchaser of property, even environmentally contaminated property, acquiring a facility after December 20, 2001 and meeting the following conditions, may invoke the bona fide prospective purchaser defense to CERCLA liability: (1) all disposal at the site occurs prior to acquisition; (2) for commercial property, the person makes all commercially appropriate inquiries in accordance with the revised due diligence standard in §101(35), and for residential property, the person inspects the premises and searches the title to reveal that there is no basis for further inspection; (3) provides all legally required notices regarding the discovery of the hazardous substances; (4) exercises appropriate care by taking reasonable steps to stop any continuing release, to prevent future releases, and to prevent or limit human or environmental exposure to previous releases; (5) provides full cooperation to persons conducting response actions; (6) complies with any existing or clean-up derived institutional controls on the use of the land, such as types of development; (7) complies with requests for information from the U.S. Environmental Protection Agency ("EPA"); and (8) is not a potentially responsible party, or affiliated with another potentially responsible party through direct or indirect familial relationship, or through any contractual, corporate or financial relationship. The bona fide prospective purchaser can expect to have an EPA windfall lien placed on its property, which means that the EPA may impose a lien on the contaminated property for the amount equal to the appreciation in the property value as a result of the EPA response action. This lien, however, does not need to be satisfied until the property is sold.

Landowners and Contiguous Property Owners: In 2002, Congress added liability protections for landowners who meet certain criteria. Specifically, landowners who meet the criteria of a bona fide prospective purchaser, innocent landowner, or contiguous property owner are now protected from Superfund liability. Additional information is available from the landowner liability protections Web page and policy and guidance documents are available within the landowner liability category of the Superfund cleanup policy and guidance database. Under CERCLA, a contiguous property owner whose land has been contaminated by adjacent contaminated lands (generally by migration via groundwater) is generally liable for the contamination on his property. Under SABRA, however, there is a new defense for such contiguous property owners. SABRA allows a contiguous property owner to be relieved from liability by meeting the following conditions: (1) he did not cause or contribute to release; (2) is not affiliated with or successor to the person who is liable for release; (3) takes reasonable steps to stop any continuing release, to prevent future releases and to limit exposure to release; (4) provides full cooperation and access to response action providers; (5) does not impede any ongoing response action; (6) complies with requests for information; (6) provides all required notices of release; and (7) did not know about the release in the contiguous property at the time of purchase. Any purchaser who does not fit into the criteria of the contiguous property owner defense may still qualify for the bona fide prospective purchaser defense. However, if the purchaser qualifies for the contiguous property owner defense, he cannot pass the defense on to a buyer of his property once the contamination is known."

Divisibility" Exemption: A potentially responsible party may avoid joint and several liability if it can prove that the harm it caused can be separated from the harm caused by other potentially responsible parties (this is rare given the nature of hazardous waste sites). Although a cleanup is often divided among potentially responsible parties to perform or pay for, that does not mean that the harm caused by each potentially responsible party's waste can be separated. 

Service Station Exemption: The Service Station Dealer Exemption (SSDE) is for "service station dealers" that accept "do-it-yourselfer" used oil and send the used oil to another facility for recycling. The Service Station Dealer Exemption (SSDE) is for "service station dealers" that accept "do-it-yourselfer" used oil and send the used oil to another facility for recycling. Additional information is available from EPA's "Use of CERCLA Section 114(c) Service Station Dealers Exemption" and the "Model Application/Information Request for CERCLA Service Station Dealer Exemption".

Recycling Exemption: Those who arranged for the recycling of certain materials are exempt from Superfund generator and transporter liability, providing they meet certain criteria. Additional information is available from the policy document titled "Superfund Recycling Equity Act of 1999: Factors to Consider in a CERCLA Enforcement Action".

Cleanup Contractor Exemption: Companies/individuals contracted to perform investigation or cleanup activities at Superfund sites are protected from CERCLA liability, except in cases of negligence or intentional misconduct.

State & Local Government Liability Under CERCLA: State and local governments are not liable for costs resulting from an emergency response to a hazardous substance release or threatened release (unless gross negligence or intentional misconduct is involved). In addition, if a government "involuntarily" acquires a CERCLA facility, it is exempt from owner/operator liability (provided it did not cause or contribute to the contamination).

Municipal Solid Waste (MSW): Provisions in the 2002 amendments to the Superfund statute give a qualified exemption from Superfund liability to certain residential, small business, and non-profit generators of municipal solid waste at National Priorities List (NPL) sites. Information on this liability exemption is available from the "Interim Guidance on the Municipal Solid Waste Exemption Under CERCLA Section 107"

 Bush (George W. Bush) Administration Amendments to CERCLA:

"President Bush recently signed into law the Small Business Liability Relief and Brownfields Revitalization Act, the first substantial set of amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) in years.

The amendments are complex and cover many aspects of the Superfund program. Among the most significant changes are new provisions limiting liability for "innocent landowners," "bona fide prospective purchasers" and "contiguous property owners." The amendments also aim to encourage redevelopment of "brownfields" – commercial or industrial properties where contamination and potential CERCLA liability hinder development – by providing federal funding to states with voluntary site cleanup programs.

Innocent Landowner Defense Clarified

Prior to these amendments, the innocent landowner defense  – available to owners that did not know and had no reason to know of contamination upon acquisition – was so narrow that courts rarely accepted it. The amendments clarify with new detail that to be an innocent owner one must carry out "all appropriate inquiries" prior to acquisition and take "reasonable steps" to stop any new or continuing release.

As to the "all appropriate inquiries" requirement, the U.S. Environmental Protection Agency (EPA) is to promulgate detailed regulations by January 11, 2004. Until then, the amendments codify the use of an American Society for Testing and Materials standard (ASTM Standard E1527-97, "Standard Practice for Environmental Site Assessment: Phase 1 Environmental Site Assessment Process") for property purchased on or after May 31, 1997. For sites purchased prior to that date, courts must evaluate liability on a case-by-case basis guided by general statutory criteria. As to "reasonable steps," EPA may (but is not required to) issue guidance. Unless and until it does so, this new term is open to interpretation by the courts.

Bona Fide Prospective Purchasers Protected

Prior to the amendments, persons acquiring previously contaminated property, but who did not qualify as innocent landowners, were liable for cleanup of contamination regardless of the extent of their knowledge or care. To facilitate the sale and development of brownfields and similar property that is still suited for commercial or industrial use, the amendments establish standards of inquiry and conduct that may shield from such liability a purchaser who took ownership after January 11, 2002. To qualify, the owner must establish, among other things, that it made appropriate inquiries into the previous ownership and uses of the facility and took reasonable steps to stop any new or continuing releases.

If a landowner successfully establishes that it was a bona fide prospective purchaser, it will not be liable for any cleanup or remediation of the property. However, if EPA incurs unrecovered response costs at a facility for which an owner is not liable because of this exemption, and the fair market value of the remediated property exceeds its value prior to cleanup, EPA may impose a "windfall" lien on the facility for those costs.

Exemption Created For Contiguous Property Owners

Previously, a property owner could be liable under CERCLA for owning property contaminated by a hazardous substance released from a neighboring site owned by someone else. Under the new contiguous property owner exemption, a property owner who, among other things, conducted all appropriate inquiries when acquiring the property, did not know or have reason to know that the property was contaminated, and has taken reasonable steps to stop any new or continuing releases of hazardous substances will not be liable as an owner or operator. Although reasonable steps are required, a contiguous landowner need not conduct groundwater investigations or remediation if a hazardous substance enters groundwater beneath that landowner's property solely as a result of subsurface migration in an aquifer. (This provision codifies EPA's July 3, 1995 policy concerning owners of property overlying contaminated aquifers.)

EPA may issue an "assurance" that no enforcement action will be initiated against the owner and may grant protection against cost recovery or contribution claims. An owner who cannot qualify for this exemption, because of knowledge of the contamination at time of acquisition, may still qualify as a bona fide prospective purchaser.

De Micromis Exemption Adopted

Another exemption introduced by the amendments is the "de micromis" exemption, which eliminates liability for cleanup response costs and contribution actions to entities that contribute less than 110 gallons of liquid materials or less than 200 pounds of solid materials to a site. However, EPA may use its discretion to hold the contributor liable if the small contribution has had an overwhelmingly toxic effect that significantly contributes to cleanup costs."

Brownfields & CERCLA:

Properties containing high levels of contamination, and requiring extensive time and resources to remediate are referred to as "Superfund sites." However, only a small percentage of all contaminated sites, approximately 13,000, are designated Superfund sites, and ten percent of these are on the National Priorities List (NPL). By comparison, the term "brownfield" irefers to  the large majority of contaminated properties, which are typically smaller in size than Superfund sites and contain low to moderate levels of contamination. Under federal law, current and prospective brownfield property owners are subject to CERCLA requirements before a "brownfield" property can undergo redevelopment. CERCLA can be differentiated  from earlier environmental laws in that it revises the formula by which  liability and financial responsibility is allocated at the point of site cleanup. Prior to CERCLA's enactment,, liability was determined on the basis of (1) acts of negligence, (2) nuisance, (3) trespass, and similar common law standards. Upon the enactment of CERCLA in 1980,  liability was redefined to mean "strict, retroactive, joint and several," which now made current, former and prospective owners responsible for site cleanup.

 Brownfield Amendments: (Brownfields Revitalization Act)

"On January 11, 2002 President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act (the "Act"), often referred to as the CERCLA "Brownfields Amendments". EPA Administrator Christine Whitman described the passage of this legislation as a top environmental priority for the Bush Administration and believes the new law will make the cleanup of brownfields sites a more effective and cooperative effort.  The Act is designed to facilitate the cleanup and revitalization of abandoned brownfield sites. It has several key provisions. First, the Act contains small business and municipal solid waste liability exemptions to federal Superfund liability. Businesses may be shielded from Superfund liability if they did not contribute a significant amount of non-hazardous waste to the site, and did not add any hazardous wastes.

Second, the Act increases funding to state and local governments and provides some regulatory flexibility. $200 million will be provided annually over the next five years to states to clean and revitalize brownfields properties. States will receive additional assurances that the federal government will not later override brownfields cleanup decisions under state programs.

Third, protections are afforded to innocent parties, such as the owners of property adjacent to contaminated sites, prospective site purchasers, and landowners who did not contribute to the contamination of their property.

Small Business Liability Protection

Title I of the Act, the Small Business Liability Protection Act, provides some liability relief for certain categories of PRPs at CERCLA sites.

De Micromis PRP Exemption. The new de micromis PRP exemption applies to generators or transporters who arranged for the disposal, treatment or transportation of less than 110 gallons of liquid waste or 200 pounds of solid waste before April 1, 2001. The exemption does not apply if the PRP's hazardous substances contributed significantly or could contribute significantly to the cost of the response action or natural resource damages, if the person is impeding a response action, or the person has been convicted of a criminal violation relating to the conduct to which the exemption would apply. EPA's decision to withdraw the de micromis exemption will not be subject to judicial review.

Municipal Solid Waste ("MSW") Exemption. The new MSW exemption applies to MSW that was generated prior to April 1, 2001. The exemption does not apply to transporters of municipalities that own or operate an MSW landfill. MSW is defined as waste material generated by a household (including a single or multifamily residence); and generated by a commercial, industrial, or institutional entity, to the extent the waste material is essentially the same as waste normally generated by a household. The waste must be collected and disposed with other MSW as part of normal MSW collection services and contain a relative quantity of hazardous substances similar to that contained in waste generated by a typical single-family household.

The MSW exemption applies to an owner, operator, or lessee of residential property that generated municipal solid waste. Also exempt are businesses generating MSW that employed 100 or fewer workers during the three taxable years preceding receipt of a PRP notice and qualify as a small business concern under the Small Business Act; and 501(c)(3) non-profit organizations that employed fewer than 100 paid individuals during the taxable year preceding the PRP notice at the location that generated all of the MSW attributable to the organization.

The MSW exemption will not apply if EPA determines that the PRP's hazardous substances contributed significantly or could contribute significantly to the cost of the cleanup or natural resource damages, if the person is impeding the response action, or the person has been convicted of a criminal violation relating to the conduct to which the exemption would apply.

Inability To Pay Settlements. The Brownfield Amendments essentially codify the EPA policy on ability to pay determinations. A PRP that can demonstrate an inability or a limited ability to pay response costs may enter into an expedited settlement to resolve its CERCLA liability. EPA must take into account the ability of the person to pay response costs and still maintain its basic business operations. The PRP requesting the settlement must promptly provide EPA with all relevant information needed to determine the ability to pay response costs. The PRP will be required to waive all claims against other PRPs unless EPA determines that requiring a waiver would be unjust. The settlement does not relieve the responsibility to provide any information or access requested in accordance with the settlement or a CERCLA section 104(e) request for information. EPA's decision to enter or refuse to enter into a limited ability to pay settlement will not be subject to judicial review"

 Grants May Be Provided To Fund Brownfields Redevelopment

"In order to aid brownfields redevelopment, the amendments make federal grants available to states with voluntary cleanup programs that include a process for verifying and certifying that sites have been cleaned up to the appropriate state standard. Once a property receives state certification, its owner is no longer subject to enforcement actions or cost recovery claims initiated by EPA for past releases. Currently, about forty states have voluntary cleanup programs granting certification to sites that, although contaminated, have been cleaned up to suitable levels. With federal funds now available for such programs, more states may develop voluntary cleanup programs, more sites may be listed as brownfields, and more brownfields may be available for future development."

 Additional Elements Related to Cleanup Under CERCLA:

If a preliminary assessment of a contaminated site leads EPA to place the site on the National Priorities List, the site becomes subject to "remediation" (i.e., cleanup) under CERCLA's authority and rules. The next step at such a site involves a more detailed assessment-a "remedial investigation/feasibility study"-to characterize the extent of contamination. This study also uses a set of technical, social, and financial criteria to compare different alternatives for cleaning up the site. During the process outlined above, EPA also seeks to identify parties that can be held legally responsible for conducting the cleanup work

After the remedial investigation/feasibility study is completed, EPA decides what must be done by "potentially responsible parties" (see above) (PRPs) to remediate the site. EPA then formalizes this conclusion in a Record of Decision (ROD), which includes the cleanup levels to be met and the cleanup technologies to be used. In addition, EPA notifies PRPs of their liability and requests a good faith offer, i.e., a proposal describing how one or more PRPs plan to implement the work called for in the ROD.

If PRPs do not agree to conduct the work set out in the ROD, they may be placed under legally binding administrative orders specifying how and when the remedial measures should be implemented. Alternatively, EPA can complete the remedial actions and sue PRPs to recover cost. In either case, the final stage of the cleanup process involves the design and implementation of measures set out in the ROD. Work proceeds until the cleanup levels detailed in the ROD have been reached.

CERCLA specifies that any party that is potentially responsible for some or all of the pollution can be held liable under strict, joint, and several liability rules; i.e., any one PRP can be held liable for carrying out the entire cleanup operation. A PRP faces a fundamental choice. It can "settle," i.e., negotiate an agreement with EPA regarding specifics of how the remedial measures specified in the ROD will be carried out. Alternatively, the PRP can choose not to settle and risk being placed under legally binding administrative orders detailing its role in the remediation efforts. If there are multiple PRPs, some may choose to settle while others may risk being placed under orders.

There are pros and cons in settling. The main advantages of settling are (1)  PRPs can influence decisions related to the implementation of the remedy such as how and when work is scheduled and when progress reports need to be filed. (2) Settlers obtain "contribution protection," which means they cannot be sued for cleanup costs by non-settlers. (3) In addition, they obtain a "covenant not to sue" from the government, which precludes suits by EPA for additional work on matters covered in the settlement. One disadvantage of settling is that a PRP agrees not to challenge in court the remedy to pay some or all of EPA's past and future oversight costs.

PRPs who choose not to settle can often avoid paying past and future oversight costs, and they may avoid having to pay any costs at all if neither EPA nor PRPs who settle take action against them. However, PRPs who do not settle risk being placed under EPA administrative orders to perform work, and penalties for violating such orders can be up to $25, 000 per day. Alternatively, EPA may perform cleanup work and sue non-settling parties for cost recovery. Because non-settlers do not obtain contribution protection, they may also be sued for cost-recovery by PRPs who perform the work."

Superfund Reform (2006):

Here is a look at how one lobbying organization (the Grocery Manufacturers Association (GMA)) in Washington, D.C. regards the issue of CERCLA reform:

"Background

Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) -- commonly known as Superfund -- in 1980, to cleanup the nation's worst hazardous waste sites. Superfund widely is considered to be our nation's most costly and ineffective environmental law. It is mired in finger-pointing, litigation and bureaucratic inefficiencies, rather than focused on cleanup and public health.

The food and consumer product companies of the Grocery Manufacturers of America (GMA) are classic examples of unintended victims of this failed government program. GMA members are being held liable for large volumes of non-hazardous waste that was legally deposited at sites in the past, but that has since been co-mingled and contaminated with hazardous waste.

Current Problems

Discriminatory Liability Approach -- Because of Superfund's most fundamental flaw, retroactive liability, thousands of parties are being held liable for past, legal waste disposal practices. Parties that deposited non-hazardous waste are equally liable as those who contributed hazardous waste. The lack of records prior to 1987 often exacerbates this inequity.

Costly and Excessive Litigation -- According to a Rand study*, one-third of the $11.3 billion spent by the private sector on Superfund sites through 1991 was for litigation. In fact, as much as 72 cents of every dollar spent on Superfund is used for non-cleanup costs.

"Deep Pockets" Targeted -- EPA targets "deep pockets" and allocates liability based on the presence or absence of solvent potentially responsible parties (PRPs) and inadequate disposal records for sites. Considered "deep pockets" by EPA, food and consumer product companies are at a particular disadvantage because their involvement in Superfund sites typically results from disposal of large volumes of waste with very low toxicity. Despite the fact that their waste's characterization is similar to municipal solid waste, food and consumer product companies are treated as polluters, and are often required to pay for cleanup based on the large volume -- not toxicity -- of waste disposed.

Legislative Status

Despite significant effort in the 104th and 105th Congress', comprehensive reform of this highly unpopular and controversial statute remains elusive. After the protracted and difficult debates that took place in both sessions, questionable interest and momentum much less political willpower exists now to reform the statute. Should the need for program funds compel members to reauthorize the law, GMA will continue to advocate comprehensive reform of the statute once again, focusing first on repealing retroactive liability for waste legally deposited prior to 1987. As in the past, GMA will continue to advocate its members' interests directly to members of Congress and staff as well as indirectly through the Food Industry Environmental Council and Superfund Reform Coalition. "

Waste Related Terms:

NIMBY "(Not In My Back Yard) is a pejorative acronym for the phenomenon in which residents oppose a development as being inappropriate for their local area but, by implication, do not have a blanket opposition to such developments elsewhere."

"Recycled Oil": "Recycled oil, as defined in section 6363(b)(2) of EPCA is either (a) used oil from which physical and chemical contaminants acquired through prior use of the oil have been removed by refining or other processing, or (b) any blend of re-refined or otherwise processed used oil and new oil or additives, that, for either (a) or (b), the manufacturer has determined, pursuant to the Commission's rule, is substantially equivalent to new oil for a particular end use."

Antecedent Moisture Conditions: (AMC I, AMC II; AMCIII): "Antecedent moisture condition is an indicator of watershed wetness and availability of soil  moisture storage prior to a storm, and can have a significant effect on runoff volume. Recognizing  its significance, NRCS developed a guide for adjusting CN [runoff "curve number" used for measuring the direct runoff from rainstorms] according to AMC based on the total  rainfall in the 5-day period preceding a storm (USDA-SCS, 1985). Three levels of AMC are used  in the CN method: AMC-I for dry, AMC-II for normal, and AMC-III for wet conditions."

Hazardous Waste: "Hazardous waste is a legal term defined in Subtitle C of RCRA that describes certain toxic, ignitable, corrosive, or reactive solid wastes generated by manufacturing or other processes." 

Recycling: "Includes the use, reuse and/or recovery of waste residuals (that may be designated as a hazardous waste) or materials in a hazardous waste. A material is "used or reused" if it is used as an ingredient in an industrial process to make a product or if it is used as an effective substitute for a commercial product. A material is "recovered" if it is processed to recover a usable product, or if it is regenerated. This is known as materials recovery. In energy recovery, waste is converted into usable fuel."

Waste Minimization and Pollution Prevention: "Waste Minimization is a term found in the Resource Conservation and Recovery Act (RCRA) that refers to source reduction and environmentally sound recycling of RCRA hazardous waste. Pollution Prevention is a term found in the Pollution Prevention Act of 1990 that refers to source reduction of all toxic wastes, including those released to air, water and land resources. Source reduction includes any practice that reduces the quantity and/or toxicity of pollutants entering a waste stream prior to recycling, treatment, or disposal. Examples include equipment or technology modifications, reformulation or redesign of products, substitution of less toxic raw materials, improvements in work practices, maintenance, worker training, and better inventory control."