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Comprehensive Environmental Response, Compensation, and Liability Act (CERLA or Superfund)

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was enacted by Congress on December 11, 1980. This law created a tax on the chemical and petroleum industries and provided extensive federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment. Over five years, $1.6 billion was collected and the tax went to a trust fund for cleaning up abandoned or uncontrolled hazardous waste sites.

CERCLA established prohibitions and requirements concerning closed and abandoned hazardous waste sites; provided for liability of persons responsible for releases of hazardous waste at these sites; and established a trust fund to provide for cleanup when no responsible party could be identified for deposit of the hazardous substances.

CERLA authorized the Environmental Protection Agency (EPA) to identify parties responsible for contamination of sites and compel those parties to clean up the sites. When responsible parties cannot be found, the agency is authorized to clean up sites itself, using a special trust fund.

CERLA authorizes two kinds of response actions: i) ‘Short-term’ response actions or removal actions, where actions may be taken to address releases or threatened releases requiring prompt response.  Removal actions are classified as: (1) emergency; (2) time-critical; and (3) non-time critical.  Removal responses are generally used to address localized risks such as abandoned drums containing hazardous substances, contaminated surface soils posing acute risks to human health or the environment, etc. and ii) ‘Long-term’ response action or remedial actions, that permanently and significantly reduce the dangers associated with releases or threats of releases of hazardous substances that are serious, but not immediately life threatening and which lacks the time criticality of a removal action. They include such measures as preventing the migration of pollutants and neutralization of toxic substances.  These actions can be conducted only at sites listed on EPA’s National Priorities List (NPL).  NPL is the list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States and its territories. The NPL primarily guides EPA to determine the sites that warrant further investigation.

The identification of a site for the NPL is intended primarily to guide EPA in determining which sites warrant further investigation to assess the nature and extent of the human health and environmental risks associated with a site; identify what CERCLA-financed remedial actions may be appropriate; to notify the public of sites EPA believes warrant further investigation; and serving notice to potentially responsible parties that EPA may initiate CERCLA-financed remedial action.

Four classes of parties were termed “potential responsible parties” by the Act.  These parties may be held liable for contamination at a Superfund site.  They are: the current owner or operator of the site; the owner or operator of a site at the time that disposal of a hazardous substance, pollutant or contaminant occurred; a person who arranged for the disposal of a hazardous substance, pollutant or contaminant at a site; and a person who transported a hazardous substance, pollutant or contaminant to a site because that transporter must have also selected that site for the disposal of the hazardous substances, pollutants or contaminants.

The law provides that the government can order the “potentially responsible parties” to clean up the site themselves, because usually the superfund may not have enough funds for such clean up. If any party fails to comply with such an order, they may be fined up to $25,000 for each day that noncompliance continues.  A party that spends money to clean up a site may sue any “potentially responsible parties” (commonly called “PRPs”) under CERCLA.  A party that has reimbursed another party’s response costs may also seek contribution from other PRPs, during or after the original lawsuit.

CERCLA also enabled the revision of the National Contingency Plan (NCP). NCP provided the guidelines and procedures needed to respond to releases and threatened releases of hazardous substances, pollutants, or contaminants. The NCP also established the NPL.

Clean up process under CERLA provisions involve EPA clean up of sites or compelling the responsible parties to perform cleanups or reimburse the government for EPA-lead cleanups.   Upon notification of a potentially hazardous waste site, the EPA conducts a Preliminary Assessment/Site Inspection (PA/SI).  It involves records reviews, interviews, visual inspections, and limited field sampling.  Using the information from the PA/SI EPA develops a Hazard Ranking System (HRS) score to determine the CERCLA status of the site.  Sites that score high enough to qualify for the full program then proceed to a Remedial Investigation/Feasibility Study (RI/FS).  The RI includes an extensive sampling program and risk assessment to define the extent of the site contamination and risks.  The FS is used to develop and evaluate various remediation alternatives.  The preferred alternative is presented in a proposed plan for public review and comment.  The selected alternative is approved in a Record of Decision (ROD).  The site consequently enters into a remedial design phase and then a remedial action phase.  Many sites require long-term monitoring and 5-year reviews after the remedial action.

Approximately 70 percent of Superfund cleanup activities have been paid for by parties responsible (PRPs) for the cleanup of contamination.  The only time cleanup costs are not borne by the responsible party is when that party either cannot be found or is unable to pay for the cleanup.  For those sites, the Superfund law originally paid for toxic waste cleanups through a tax on petroleum and chemical industries.  The tax went to a trust fund for cleaning up abandoned or uncontrolled hazardous waste sites.  This fund was exhausted by the end of Financial Year 2003.  From then on funding for these orphan shares were appropriated by Congress out of general revenues.

CERCLA was amended by the Superfund Amendments and Reauthorization Act (SARA) on October 17, 1986.  The amendments increased Superfund appropriations and provided for studies and new technologies to be used.

Inside Comprehensive Environmental Response, Compensation, and Liability Act (CERLA or Superfund)