Unit 9 Lecture Notes - Management of Abandoned Hazardous Waste Sites

Congress passed the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in 1980 in response to several highly publicized hazardous waste incidents.   Hazardous waste under CERCLA borrows definitions from the Solid Waste Disposal Act (SDWA) with modifications.  The most important of these is that petroleum is not a hazardous waste for CERCLA purposes.

There are three components to CERCLA.  The first is mandatory reporting of releases of CERCLA hazardous substances to EPA's National Response Center (which was established under the Clean Water Act.)  Second, the EPA is authorized to respond and remediate hazardous waste sites and spills.  A fund, the Superfund, was established to provide monies for this purpose.  The EPA may seek reimbursement for its costs from the responsible parties.  Third, the EPA is required to list the worst sites on the National Priorities List.

The most controversial part of CERCLA is the requirement that responsible parties pay for cleanup.  There are three components to cleanup liability under CERCLA.   First, liability is strict or without fault.  If you meet the definition of a responsible party you have cleanup liability.  It is no defense that all laws in force at the time of the waste disposal were complied with.  Likewise use of the best available technology is no defense.  Second, borrowing from tort law, liability is joint and several.  Joint and several liability means, that where more than one person is a responsible party, the government can recover the entire cleanup cost from one, all, or some combination thereof.  The person who pays the government may then sue the other parties for contribution, which is defined as their equitable share.   Third, liability under CERCLA is retroactive.  It doesn't matter when the waste was dumped.  As you will see when you read the Bradley case, liability can exist for waste that was created in the nineteenth century.

The CERCLA definition of potentially responsible party is very broad.  It includes the owner or operator of a facility - this includes current owners who are unaware that the waste is on the property.  Additionally, any person who owned the facility at the time of disposal, and anyone in the chain of title between that person and the current owner is also a potentially responsible party.  Any person who arranged for disposal, treatment or transport of the waste is also a potentially responsible party.  Any person who transported the waste is a potentially responsible party.  The definition includes individuals, firms, corporations, associations, partnerships, consortiums, joint ventures, commercial entities, and local, state and federal governments - indeed almost anyone.  The U.S. Department of Defense is one of the largest potentially responsible parties, with numerous sites scattered across current and former bases in US territory.

There are a few defenses to CERCLA cleanup liability.  If the waste was deposited on the property as the result of an act of war, an act of God, or the act of a third party to whom the property owner has no relationship, then CERCLA cleanup liability may be avoided.  A potential purchaser of real property may use the 'innocent landowner defense', if the purchaser exercised due diligence prior to purchasing the property and found no waste.  In the context of commercial property transactions, due diligence usually is fulfilled by conducting a preliminary environmental site assessment that reveals no waste problems with the property.  These defenses do not, however, clean up the property.  If the owner proceeds to move the waste around or otherwise disturb it, the owner may acquire liability.  Thus there may be very little value remaining in the property for the owner. 

There are also limited exemptions for lenders, heirs, fiduciaries, and governments that receive property by forced sale.  The security interest exemption exempts lenders with indicia of ownership (e.g., a mortgage) that have done no more than engage in normal lending practices.  Congress has amended CERCLA to clarify this exemption.   Nonetheless, lenders that go beyond normal lending practices may find themselves on the hook for CERCLA cleanup costs.

As with many environmental laws, CERCLA contains a citizen suit provision that permits citizen enforcement of CERCLA if neither federal nor state governments have taken enforcement action.  Attorney fees may be available to the prevailing party.