Introduction
One of the key legislative acts to be aware of in terms of hazardous waste management is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The federal government’s actions in terms of CERCLA liability involve short-term removal actions and long-term remedial actions.
These actions involve a prompt response or permanent/significant decrease in hazardous substances. They’re in line with the 1980-enacted CERCLA related to the Superfund cleanup of operational hazardous waste sites.
CERCLA provides the Environmental Protection Agency (EPA) with three primary options when a federal response is required. These actions involve who produces the hazardous waste cleanup, whether it’s the EPA, Potentially Responsible Parties (PRPs), or both. Besides the actual cleanup that either/both parties conduct, there’s the issue of who shoulders the cleanup costs.
What Is CERCLA All about?
Overview
Congress passed CERCLA four decades ago in 1980 then amended the federal legislation in 1986. CERCLA’s focus is on cleaning up (active) hazardous waste facilities.
The Congressional law also deals with other key components. This includes the legal responsibility of hazardous waste arrangers and transporters. There’s also the CERCLA liability of current/former owners regarding where they disposed of hazardous substances.
Federal Authority
CERCLA also grants the President the power to clean up hazardous waste sites based on the requirements known as “removal” and “remedial” provisions.
CERCLA’s implementation regulations are listed under the Hazardous Substances Pollution Contingency Plan or National Contingency Plan (NCP). When agencies remediate the hazardous waste facilities, they are required to follow the NCP’s stated standards and procedures.
Costs/Procedures
CERCLA details the types of parties that are legally responsible under CERCLA related to the total costs of responding to hazardous substances.
Furthermore, CERCLA includes provisions that state cases in which Federal installations are required to report hazardous waste releases. It also details the particular cleanup procedures that they must adhere to.
Response Authorities
Two basic methods exist to respond to a hazardous waste release:
REMOVAL: Includes a wide range of short-term actions
REMEDIAL: Permanent/Significant actions that might be taken alone or with removal actions
Enforcement
CERCLA provides the EPA with three main actions when a particular situation requires a response:
1. EPA conducts response
It attempts to recover the costs from PRPs in following cost-recovery action.
2. PRPs required to perform cleanup
This is through administrative/judicial processes.
3. Settlement with PRPs
This involves the PRPs conducting some or all the required work.
The EPA’s enforcement includes the following key elements:
Authority to allow EPA to secure the following:
- Administrative actions requiring private parties to conduct actions to reduce dangers
- Judicial order that requires PRP to reduce dangers to public health or local environment
- Settlements with private groups to conduct actions required to reduce dangers
Authority to allow government/private parties to cover response costs
Amendments
Congress passed the Superfund Amendments and Reauthorization Act (SARA) in 1986. This re-authorized federal law to maintain hazardous waste cleanups throughout the United States.
This legislation involved various definitions, clarifications, amendments, and technical requirements getting added to the original CERCLA. It included extra federal enforcement authorities. Be certain to be aware of the Emergency Planning and Community Right-to-Know Act (EPCRA).
Trust Fund
This is another issue related to CERCLA authority. It involves the Hazardous Substance Superfund or “Superfund.” The Superfund offers financing for cleanup/enforcement of various actions that include oversight.
The ideal goal is for the polluting parties to cover all expenses. However, the EPA must frequently use Superfund money to clean up hazardous waste sites when no PRPs exist to respond to toxic waste release.
This creates the need to provide EPA funding. In some situations, funds are also provided by private parties to cover expenses.
CERCLA Liability Definition
What is CERCLA liability?
The Superfund law enforces liability on various parties responsible in part or wholly for the existence of hazardous substances at a particular site. CERCLA liability is:
JOINT & SEVERAL
Any potentially responsible party (PRP) might be liable for the whole cleanup of a hazardous waste site. This happened when 2+ parties caused damage that can’t be separated.
RETROACTIVE
Responsible parties might be held legally responsible for particular acts that took place before Superfund was passed in 1980.
STRICT
A PRP is unable to state that it wasn’t negligent, or it was operating based on industry standards. In the case a PRP transported some of the hazardous waste discovered at the particular site, then that party is certainly liable.
CERCLA Liability Triggers
Superfund liability gets triggered in various situations, including:
Release or possible release of hazardous substance
This involves Superfund sites where hazardous waste is improperly managed. It can include the toxic waste getting dumped, remaining in the open, and so on. The types of locations where hazardous wastes can be released or possibly released include:
- Manufacturing Facilities
- Processing Plants
- Mining Sites
- Landfills
CERCLA was, in part, created when various contaminated sites made headline news during the 1970s. This included various ones, including Valley of the Drums and Love Canal. The public learned about the dangers to public health the contaminated sites caused.
Hazardous wastes exist at a particular facility
The EPA defines “hazardous waste” in various ways. This includes particular characteristics that qualify solid waste as such:
IGNITABILITY
Wastes that are hazardous based on the ignitability feature include:
- Non-liquids that trigger fires in particular situations
- Oxidizers
- Liquids with flashpoints under 60°C (140°F)
- Ignitable compressed gases
REACTIVITY
Hazardous wastes with this feature might:
- React with water
- Detonate/Explode when heated
- Be unstable in normal conditions
- Give off dangerous gases
CORROSIVITY
Toxic waste achieves that status if it has a pH level that’s equal/greater than 12.5 or equal/under 2. Another factor is whether or not the substance is able to corrode steel.
TOXICITY
These wastes are harmful when a person absorbs or ingests them. The toxicity level of a particular waste is based on the Toxicity Characteristic Leaching Procedure (TCLP).
Response costs were or will be implemented
Various types of response costs exist, including:
DIRECT COSTS
These expenses are directly linked to a particular activity like cleanup action. Some examples include on-site contractor costs, travel to/from site, equipment used on-site, etc.
CONTRACTORS’ ANNUAL ALLOCATION
This is money the government contractors spent on on-site work that’s not linked to a certain site. An example is training on how to handle hazardous materials. This training is critical for Superfund cleanup work.
INDIRECT WORK
This includes EPA expenses for the Agency’s management. The costs aren’t directly linked to particular cleanup activities. They include ones connected to personnel issues, administrative matters, and so on.
The defendant is one of the liable parties
A PRP could be liable for:
- Damage to various natural resources
- Government cleanup costs
- Injunctive relief including performing cleanup (site could be immediately/greatly dangerous)
- Costs of particular health assessments
Types of CERCLA Liable Parties
Owner of Facility
CERCLA establishes clear liability for an individual/group that owns a hazardous waste facility. Several courts have enforced CERCLA liability on facility owners even in the case the owner didn’t have control/responsibility regarding the disposal activity.
Courts have made several other rulings regarding the owners/operators of hazardous waste sites. For instance, the “owner” of such facilities can also include tenants that function as site operators.
Courts also agree that a parent company might be liable due to functioning as the owner of a subsidiary company. This includes situations in which authorities determine that it is critical for the corporation to hold legal responsibility for toxic waste sites.
CURRENT OWNER
This excludes property purchased through security issues or foreclosure. However, it still includes current owners regardless of whether they contributed to the hazardous waste’s release. The owners/operators of a particular facility are legally responsible for ensuring hazardous waste is disposed of properly as per federal, state, and local guidelines.
In a past New York case, a landowner that had bought a contaminated site with the goal of cleanup/development was liable for the cleanup costs. This was due to him knowing the land’s condition when he acquired it. Furthermore, he was aware that dumping was still taking place when he purchased the land.
PAST OWNER
This refers to previous owners/operators when the pollution took place. Both parties are responsible for the release of toxic substances that took place while they owned/controlled the particular land.
In fact, even when a party doesn’t/didn’t own a particular facility might be legally responsible as an operator. That’s due to them having significant control regarding the activities that led to the release of hazardous waste.
Operators of Facility
This involves CERCLA’s wording regarding the link between corporations and operators. In some situations, courts have ruled that CERCLA isn’t entirely clear regarding the liability of hazardous waste sites’ operators.
As a result, various courts have created different standards they use for assessing CERCLA liabilities of corporations, their subsidiaries, and officers/operators.
One key issue is whether or not a parent/sister corporation should be considered an operator of a hazardous waste facility.
AUTHORITY TO CONTROL
A crucial matter regarding operator ability is when a party only has the “authority to control.” In a 1992 case a contaminated site’s owner requested reimbursement for various costs related to the previous owners and site’s tenants.
ACTUAL CONTROL
Most courts have made the conclusion that CERCLA liabilities can be enforced on different parties, including:
- Parent/Sister companies
- Shareholder
- Director
- Officer
This is the case when facts show that the group or individual has active or significant control of a corporation/facility.
Arrangers
When a party isn’t arranging for waste disposal, then they’re not within the system. Therefore, a generator of a particular chemical that’s sold to be used doesn’t qualify as an arranger.
Transporters
Liability is based on whether or not a transporter had some sort of role in selecting a site for transporting hazardous waste.
Furthermore, if the transporter relocates a hazardous substance from one contaminated area to another contaminated area, a transporter is still legally responsible.
Liability Exemptions
CERCLA provides various exemptions from liability, including the following:
Recyclers and Service Station Dealers
Parties that arrange for recycling of particular materials receive an exemption from Superfund generator/transporter liability. However, they’re required to meet particular requirements set by the Superfund Recycling Equity Act (1999).
The Service Station Dealer Exemption (SSDE) applies to various service station dealers that take DIY used oil then send the oil to a different facility to be recycled. More information about SSDE plus other “green” issues related to service station dealers are available at the homepage of the National Automobile Environmental Compliance Assistance Center (NAECAC).
Creators of Municipal Solid Waste (MSW)
In 2002 a CERCLA amendment provided a Superfund exemption including certain generators of MSW at National Priorities List (NPL) sites including:
- Residential
- Small Business
- Non-Profit
The Superfund cleanup policy includes details about this particular CERCLA liability exemption.
Liability Protection
Lenders
Public/private lenders generally have protection from various owner/operator legal responsibility for loans conducted for facilities that could become contaminated with hazardous waste. More info about EPA policy regarding secure creditors like lenders is available at the Superfund cleanup policy/guidance database.
Landowners/Purchasers
Congress amended the CERCLA statute in 2002, which added new liability protections for landowners that met particular requirements. This included landowners who meet the criteria of:
- Innocent Landowner
- Bona-fide prospective purchaser (BFPP)
- Property owner with Superfund liability protection
State/Local Governments
Local and state governments aren’t liable for costs that are triggered due to emergency responses to release/threatened release of hazardous substances. The exception is due to intentional misconduct or negligence.
Furthermore, in the case that a state/local government purchases a contaminated property, including a Superfund site using one of CERCLA’s acquisition methods, it might be protected from liability. This is the case if it didn’t cause or worsen the contamination.
Cleanup Contractors
Companies/Individuals that are contracted to conduct investigation/cleanup projects at Superfund sites receive protection from Superfund liability. The exception is cases of intentional misconduct or negligence.
Good Samaritans/Rendering Care
CERCLA states that people aren’t liable for costs/damages due to actions/inactions that take place in providing care/assistance/advice based on the NCP.
The EPA’s Good Samaritan initiative (2007) offers liability clarifications for third parties that conduct volunteer cleanups under CERCLA at non-operational hard rock mine sites even when they don’t own the property and have no intentions of owning it.
The EPA provided guidance related to Good Samaritans, which is available at the Superfund Enforcement Policy.
Conclusion
Since its Congressional passage in 1980, the so-called Superfund has been effective in cleaning up hazardous waste that exists at particular sites. The goal is to reverse the damage that’s taken place due to the generation, storage/treatment, transport, and disposal of toxic wastes. Since its creation, the EPA has spent over $4.5 billion on superfund cleanup sites, according to the US agency’s homepage.
It’s important for hazardous waste generators, local residents, and advocacy groups to be aware of the basics of this federal legislation. That includes CERCLA basics, triggers, and liable parties. Such issues are closely linked to CERCLA liability and the crucial cleanup of toxic waste sites.
