Environmental Law – Midterm Discuss CERCLA’s liability scheme and clean-up process. How do they work? Have they improved since SARA? Consider at least three major criticisms that have been leveled against CERCLA. Do you think these criticisms are accurate or not? Could CERCLA be improved? How? The Comprehensive Environmental Response Cleanup and Liability Act (CERCLA), also known to the general public as the Superfund program, was passed by Congress on December 11, 1980.
CERCLA was enacted, along with its sister law RCRA which came before it, to deal with the environmental damage that was being caused by improper waste disposal. CERCLA’s goals are to clean up old dump sites and discourage future illegal dumping. CERCLA imposes few direct regulatory obligations and is designed to force cleanups and allocate the cost of cleaning up via its liability and cleanup provisions. The basic principle is that the potentially responsible parties such as waste generators, transporters, and/or owners & operators of facilities that are responsible for hazardous waste pollution should pay for its cleanup.
Through CERCLA’s strict liability scheme any company that illegally spills or dumps hazardous substances is liable for the clean-up whether or not the action was negligent. Also, through joint and several liability, each party that contributed waste to a site is responsible for its cleanup. So if Joe Blow is found liable for the clean-up of a site and happens to find any evidence that another company may have contributed as well, Joe Blow can legally pursue them to pay their “fair share” of the clean-up costs.
A perfect example of this was the Girl Scout story told in our environmental law class where a Girl Scout cookie box was found in a site by a company that was fingered for clean-up. The company then tried to accuse the Girl Scouts organization of having to pay the cost of clean-up as well. Furthermore, through retroactive liability, all responsible parties have to clean-up the site even if the damage was done before the law was enacted. CERCLA has criteria for its two types of clean-up procedures which are removal and remedial.
Removal actions are generally short term actions such as fencing off an area, studying the soil and removing the hazardous substances to remove the immediate threat from the site. Remedial actions are generally long term actions necessary to clean-up sites to meet final clean-up standards which may include removal or incineration of the contaminated soil to reduce the threat from the site. Through these liability & clean-up provisions CERCLA strives to achieve its purpose.
CERCLA was later amended in 1980 by SARA (Superfund Amendment & Reauthorization Act), enacted to strengthen CERCLA by requiring that site cleanups be permanent and that they use treatments that significantly reduce the volume, toxicity, or mobility of hazardous pollutants. SARA not only increased the size of the Superfund but imposed more stringent requirements when it established more detailed clean-up standards, added new settlement procedures, established mandatory schedules for federal facility compliance, and added provisions to expand the involvement of states and citizen groups in the decision making process.
Some major criticisms of CERCLA are that it has been ineffective in cleaning up the nation’s hazardous waste sites, that it has wasted more money on transaction and litigation costs than on clean-up, and that it is unfair to parties that contribute minimally but are liable for the total cost of the clean-up of a site. As for it being ineffective, my opinion is that it is effective because it could be much worse.
Craig Collins, a professor of environmental law and the author of “Toxic Loopholes: Failures and Future Prospects for Environmental Law” points out that “the dramatic decline in ‘midnight dumping’ since CERCLA became law reveals how effective this liability threat can be” (p. 88). He also has shared within his classroom that mismanaged hazardous waste spills and dumps which used to be commonplace before CERCLA are rare these days. Has the Superfund been wasteful?
Clearly you would think this if you’re looking at the percentage of money that has gone into legal fees and litigation costs alone but according to Collins, Superfund has also funded aid for “toxic terrorism and natural disasters such as the World Trade Center collapse and the devastating Midwest floods of 1993” (p. 99). When looking at it from that lens I can see that it has been just as helpful in many areas as it may have been considered wasteful in others.
Regarding unfairness to those who minimally contribute but face the total cost of clean-up, a provision of CERCLA, as addressed by SARA, swiftly settles the liability of those parties through de minimis settlements. Don’t think I don’t understand that just as CERCLA could be worse it could also be better. First of all, it could work a lot better if the people creating laws, such as CERCLA, were actually more concerned about the environment than their powerful colleagues and certain incentives.
More specifically, if we continued to allow corporate taxes which supplied money for Superfund clean-ups (which Bush allowed to expire in 1995) we would have money to clean-up many of the orphaned sites that now go uncleaned. Furthermore, if CERCLA forced all companies to use and help promote the “zero waste” approach, we could then prove that experiences such as the Love Canals, Times Beach Missouri, and Grand Bois actually did mean enough to all of us to do something more unified and serious about it.