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

Introduction

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also popularly known as Superfund, is legislation that went into effect in the United States on December 11, 1980. The purpose of the legislation was to create funding for clean-up of environmental contamination of sites that have been abandoned. The funds came from a five-year tax imposed on chemical and petroleum industries.

The CERCLA legislation also gave various federal agencies, such as the U.S. Environmental Protection Agency (EPA), the legal powers to respond to environmental contamination that were thought to be a health threat.

The program is run by the EPA’s Office of Solid Waste and Emergency Response, with short-term responses being the responsibility of the Office of Emergency Management, and long-term clean-up efforts being the co-responsibility of the Office of Superfund Remediation and Technology Innovation and Federal Facilities Response and Reuse Office.

As of 2008, there are more than 1,200 sites nationwide that have been designated as Superfund sites, and 61 new sites are being considered for clean-up funding. Since 1980, over 300 contaminated sites have been remediated under CERCLA. This is a very small proportion of the thousands of known contaminated sites in the United States.

Historical Background and Scientific Foundations

CERCLA was enacted on December 11, 1980 mainly in response to the toxic contamination at sites including Love Canal, New York. Love Canal became infamous as an example of the health consequences of toxic waste disposal in the environment, and of the problems in remediation of contaminated lands that have been abandoned.

The legislation imposed a five-year tax on U.S. chemical and petroleum companies. The $1.6 billion that was collected went into a trust fund that, until exhausted, was used to pay for the clean-up of sites that qualified for funding when those responsible for the contamination could not be identified.

The legal means necessary to obtain the commitment to pay for the remediation are part of the CERCLA legislation. As well, the legislation established criteria to screen sites and identify sites that qualify for Superfund remediation, and to indicate when their remediation is complete.

The original $1.6 billion grew to $6 billion by the mid-1990s. However, this fund had been depleted by 2003, as the number of sites requiring clean-up grew. Since 2003, money to maintain CERCLA has been designated by the U.S. Congress as part of the annual budget process.

To implement CERCLA, a series of guidelines and clean-up procedures known as the National Oil and Hazardous Substances Pollution Contingency Plan were revised, to enable the establishment of a nationwide system of toxic site identification and remediation. As well, the National Priorities List was created to screen, identify, and prioritize contaminated sites most in need of attention.

In the majority of cases, the responsible party can be identified and they bear some or all the costs of clean-up. This can be the current owner/operator of the site or the owner/operator at the time of contamination, the person who authorized the dumping of the noxious compounds on the site, or the person who transported the pollutants to the site. However, in about 30% of the cases, the responsible party cannot be identified or, if identified, does not have the financial means to pay for the clean-up. In these cases, the full cost of the remediation is paid for the government.

CERCLA authorizes two levels of response to contaminated sites. The first response deals with urgent needs, and seeks to do what is necessary to deal with the release of toxic material or the immediate possibility of a spill. Examples include the removal of abandoned drums lying on the surface and removal of soil known to be contaminated. The second level of response involves the longer-term efforts to remediate the contaminated site. The intent of the longer term response is to eliminate the danger posed by the contaminated site, via clean-up and, if clean-up cannot be completely done, isolation of the site from people and the surrounding environment.

Longer-term efforts, which can be more complex, involve the physical removal of soil from deeper underground as well as bioremediation (use of microorganisms to degrade the toxic compounds into by-products that are less harmful or harmless). Clean-up may be done in situ (on-site) or the contaminated soil may be removed and transported to another site for remediation.

Impacts and Issues

Since 1980, tens of thousands of contaminated sites have been identified as part of CERCLA-authorized inspections. However, being identified is not a guarantee that clean-up will be done anytime soon. The actual list of sites that have been or are being remediated as part of CERCLA—about 1,600—is far less. Nonetheless, the

WORDS TO KNOW

BIOREMEDIATION: The use of living organisms to help repair damage such as that caused by oil spills.

SUPERFUND SITE: A Superfund site is a location contaminated by hazardous waste that has been designated by the United States Environmental Protection Agency (EPA) for management and cleanup.

knowledge of the existence of the other sites is valuable in spurring their clean-up.

This huge number of sites that has been identified exemplifies how pervasive environmental contamination with industrial and agricultural chemicals remains. Indeed, the number of sites in need of remediation is far more than can be paid for under the Superfund budget.

Primary Source Connection

Throughout the 1970s, chemical companies in the United States underwent a period of enormous innovation. In particular, petrochemical companies discovered a wide variety of techniques for making synthetic chemicals. In many cases these production methods resulted in extremely toxic byproducts. Because regulations associated with dumping these byproducts were weak or poorly enforced, many companies simply released their wastes into oceans and rivers or buried them in the ground.

The seriousness of the problem was typified by events surrounding a toxic dump site in Niagara Falls, New York. The area known as Love Canal contained a landfill where barrels filled with toxic chemicals had been buried. Some of the chemicals leaked from the barrels and residents of the nearby community suffered health problems, including a high incidence of cancer, birth defects, and respiratory problems as a result of exposure to the toxins. Eventually, nearly 1,000 families were forced to leave their homes because of damage to the environment b the toxins.

In light of the Love Canal tragedy along with other environmental disasters stemming from the release of toxic wastes into the environment, the U.S. Congress enacted the Comprehensive Environmental Response Compensation and Liability Act—also called CER-CLA—on December 11, 1980. The act created a tax on petroleum producers and chemical companies. The money collected from the tax became known as Superfund, and it was used for remediation in the case of the release of hazardous materials that pose a threat to humans or the environment. In only five years, the tax resulted in a fund of $1.6 billion dollars.

COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA)

TITLE 42—THE PUBLIC HEALTH AND WELFARE

CHAPTER 103—COMPREHENSIVEENVIRONMENTALRESPONSE,COMPENSATION, ANDLIABILITY

SUBCHAPTER I—HAZARDOUSSUBSTANCES RELEASES, LIABILITY,COMPENSATION

Sec. 9605. National contingency plan

(a) Revision and republication

Within one hundred and eighty days after December 11, 1980, the President shall, after notice and opportunity for public comments, revise and republish the national contingency plan for the removal of oil and hazardous substances, originally prepared and published pursuant to section 1321 of title 33, to reflect and effectuate the responsibilities and powers created by this chapter, in addition to those matters specified in section 1321(c)(2) of title 33. Such revision shall include a section of the plan to be known as the national hazardous substance response plan which shall establish procedures and standards for responding to releases of hazardous substances, pollutants, and contaminants, which shall include at a minimum:

1. methods for discovering and investigating facilities at which hazardous substances have been disposed of or otherwise come to be located;
2. methods for evaluating, including analyses of relative cost, and remedying any releases or threats of releases from facilities which pose substantial danger to the public health or the environment;
3. methods and criteria for determining the appropriate extent of removal, remedy, and other measures authorized by this chapter;
4. appropriate roles and responsibilities for the Federal, State, and local governments and for interstate and nongovernmental entities in effectuating the plan;
5. provision for identification, procurement, maintenance, and storage of response equipment and supplies;
6. a method for and assignment of responsibility for reporting the existence of such facilities which may be located on federally owned or controlled properties and any releases of hazardous substances from such facilities;
7. means of assuring that remedial action measures are cost-effective over the period of potential exposure to the hazardous substances or contaminated materials;
8. 1. criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action. Criteria and priorities under this paragraph shall be based upon relative risk or danger to public health or welfare or the environment, in the judgment of the President, taking into account to the extent possible the population at risk, the hazard potential of the hazardous substances at such facilities, the potential for contamination of drinking water supplies, the potential for direct human contact, the potential for destruction of sensitive ecosystems, the damage to natural resources which may affect the human food chain and which is associated with any release or threatened release, the contamination or potential contamination of the ambient air which is associated with the release or threatened release, State preparedness to assume State costs and responsibilities, and other appropriate factors;
   2. ) based upon the criteria set forth in subparagraph (A) of this paragraph, the President shall list as part of the plan national priorities among the known releases or threatened releases throughout the United States and shall revise the list no less often than annually. Within one year after December 11, 1980, and annually thereafter, each State shall establish and submit for consideration by the President priorities for remedial action among known releases and potential releases in that State based upon the criteria set forth in subparagraph (A) of this paragraph. In assembling or revising the national list, the President shall consider any priorities established by the States. To the extent practicable, the highest priority facilities shall be designated individually and shall be referred to as the “top priority among known response targets,” and, to the extent practicable, shall include among the one hundred highest priority facilities one such facility from each State which shall be the facility designated by the State as presenting the greatest danger to public health or welfare or the environment among the known facilities in such State. A State shall be allowed to designate its highest priority facility only once. Other priority facilities or incidents may be listed singly or grouped for response priority purposes;
9. specified roles for private organizations and entities in preparation for response and in responding to releases of hazardous substances, including identification of appropriate qualifications and capacity therefore and including consideration of minority firms in accordance with subsection (f) of this section; and
10. standards and testing procedures by which alternative or innovative treatment technologies can be determined to be appropriate for utilization in response actions authorized by this chapter.

The plan shall specify procedures, techniques, materials, equipment, and methods to be employed in identifying, removing, or remedying releases of hazardous substances comparable to those required under section 1321(c)(2)(F) and (G) and (j)(1) of title 33. Following publication of the revised national contingency plan, the response to and actions to minimize damage from hazardous substances releases shall, to the greatest extent possible, be in accordance with the provisions of the plan. The President may, from time to time, revise and republish the national contingency plan.

United States Code

U.S. CODE “NATIONAL CONTINGENCY PLAN.” TITLE 42, CHAPTER 103, SUBCHAPTER I, SECTIONS 9605(A) AND 9605(B).

See Also Bioremediation; Chemical Spills; Groundwater Quality; Oil Spills; Spill Remediation; Superfund Site

BIBLIOGRAPHY

Books

Atlas, Ronald M., and Jim Philip. Bioremediation: Applied Microbial Solutions for Real-World Environment Cleanup. Washington: ASM Press, 2005.

Fletcher, Thomas. From Love Canal to Environmental Justice: The Politics of Hazardous Waste on the Canada-U.S. Border. Peterborough, Ontario, Canada: Broadview Press, 2003.

Macey, Gregg, and Jonathan Cannon. Reclaiming the Land: Rethinking Superfund Institutions, Methods and Practices. New York: Springer, 2007.