Monday, May 19, 2014

CERCLA Makes Polluters Clean Up Their Own Messes

Q:       What is CERCLA?
A:        The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is a federal law passed in 1980 to address contamination cleanup. CERCLA created a tax on the chemical and petroleum industries and provided broad federal authority to respond directly to releases or threatened releases of hazardous substances that might endanger public health or the environment. This tax money was used to create a “Superfund” to pay for cleaning up abandoned or uncontrolled hazardous waste sites.

Q:       Why was CERCLA enacted?
A:        For most of U.S. history, no laws controlled the handling of hazardous chemicals, and little was known about the dangers of chemicals used in manufacturing and their byproducts. Hazardous waste was typically dumped on the ground, buried or poured into rivers and lakes. As a result, thousands of U.S. sites, including dumps, factories, warehouses and harbors, became seriously contaminated and potentially unsafe. Congress passed CERCLA to address the potential long-term environmental and health risks from industrial contamination.

Q:       How does CERCLA work?
A:        CERCLA forces those responsible for causing hazardous waste site contamination to clean it up or pay to clean it up. It also makes corporate successors responsible, even if the problem was created by a predecessor no longer in existence. CERLA also established a trust fund to pay cleanup costs when no responsible party can be identified. Under CERCLA, EPA can take three types of “response actions”: emergency responses, early actions, and long-term actions. EPA issues an emergency response when immediate action is required to eliminate serious risks to human health and the environment (e.g., cleaning up chemicals spilled from an overturned truck on the highway). An early action is used to address an imminent contamination threat  (e.g., by providing clean drinking water to a neighborhood, removing hazardous materials from a site or preventing contaminants from spreading). A long-term action is used where cleanup requires years or decades (such as groundwater cleanups). Early and long-term actions may be performed together, such as when leaking storage drums are removed while contaminated soil is being cleaned up.

Q:       Who pays for environmental cleanup under CERCLA?
A:        Four classes of “potentially responsible parties” (PRPs) can be compelled to pay cleanup costs under CERCLA: 1) the site’s current owner or operator; 2) a person who owned the site when hazardous waste was deposited there; 3) persons who arranged for hazardous substance disposal; and 4) persons who transported the substance to the site. Individuals and companies may be liable under these four categories. EPA often negotiates with PRPs, but if no agreement is reached, EPA can ask a court to order the PRP to do the work. Sometimes EPA pays for the cleanup out of Superfund money and sues the PRPs for its costs. Even when a PRP agrees to perform a cleanup action, EPA still supervises the work and can bill the PRP for its oversight costs.

Q:       What if multiple parties are responsible for site contamination?
A:        Usually, the government identifies several PRPs that can be sued to perform a cleanup action. Sometimes a PRP will identify other PRPs to share cleanup responsibility. Since CERCLA sites can be very old, identifying PRPs can be difficult. Also, those identified as PRPs often argue about who should bear what percentage of the cost. CERCLA allows a PRP to sue the government and other PRPs for a court determination of its fair share of cleanup costs. Federal courts may review decades’ worth of historical records to determine how costs should be shared. These complex cases can take years to resolve.

Q:       How does CERCLA affect me as an average citizen?
A:        CERCLA helps to provide citizens with a cleaner environment and enables the remediation of old hazardous waste sites that might otherwise be ignored. Also, EPA encourages community involvement in CERCLA actions by listening to community concerns, informing the community of ongoing and planned activities, changing planned actions when community concerns have merit, and explaining what EPA has done and why. For information about CERCLA community involvement, visit

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Leslie G. Wolfe, a senior associate in the Cleveland office of Walter | Haverfield LLP and a member of the firm’s environmental law group. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek the advice of a licensed attorney.

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