What you Need to Know About CERCLA Superfund
December 13, 2022
The so-called “Superfund” is the handmaiden of the Comprehensive Environmental Response and Liability Act (CERCLA). It empowers the EPA to remediate contaminated sites by forcing the alleged polluter to perform the cleanup—or pay the government for doing it.
This blog entry provides introductory Q&As about CERCLA Superfund liabilities. Among them:
1. What is CERCLA (aka Superfund)?
2. How does CERCLA Superfund work?
3. Who is subject to CERCLA Superfund penalties?
4. How does the EPA decide you’re a CERCLA Superfund site?
5. What is the CERCLA Superfund National Priorities List?
6. What is a CERCLA Superfund remedial investigation/feasibility study?
7. How are CERCLA Superfund sites remediated?
8. What triggers CERCLA Superfund liability?
9. What are potential CERCLA Superfund liabilities?
10. What if the party responsible for the pollution is entirely unknown?
11. Can a site be delisted from the CERCLA Superfund National Priorities List?
12. Where can you get advice about CERCLA hazmat liabilities?
1. What is CERCLA (aka Superfund)?
Congress established CERCLA in response to public concern about hazardous waste being dumped, left out in the open, or otherwise improperly managed at factories, processing plants, landfills, and mines. Two eye-popping examples are usually cited as prime catalysts for the legislation:
Love Canal. In 1892, businessman William T. Love proposed a canal to connect parts of the Niagara River in New York state. Never finished, it left a deep ditch. Trouble started in the 1920s when the ditch became the city dump. Then, in the 1940s, the ditch was purchased by a chemical company that used it to dump about 20,000 tons of detritus from manufacturing dyes, perfumes, and solvents. Nearby residents’ longstanding health issues include high white-blood-cell counts and leukemia (see source).
Valley of the Drums. As a 23-acre collection point for leaking, toxic, malodorous drums of discarded hazmat, Kentucky’s so-called Valley of the Drums lived up to its moniker. It became an environmental cause celebre when some of the drums ignited and burned for more than a week in 1966. A subsequent investigation revealed that over 100 thousand drums of waste were delivered to the site. As these drums deteriorated, the contents spilled into a nearby creek and the water table (see source).
2. How does CERCLA Superfund work?
CERCLA grants the EPA power to seek out those parties responsible for any release of ground contaminants—and assure their cooperation in the cleanup. (“Cooperation,” of course, is meant here like The Sopranos might use the word.) Your liability under CERCLA is a three-headed beast. Legally speaking, it’s:
1. Retroactive—meaning you can be held liable for acts that happened before CERCLA enactment in 1980
2. Joint and Several—meaning you can be held liable for the entire site remediation if the harm caused by multiple parties cannot be separated
3. Strict means you cannot simply say that you weren’t negligent or operating according to industry standards. If you sent only some of the hazardous waste to the site, you are liable (see source)
3. Who is subject to CERCLA Superfund penalties?
Your site can be subject to CERCLA Superfund penalties if the EPA deems that you have uncontrolled hazardous waste on your premises that is being discharged into the environment or has the potential to be. Be forewarned if you’re:
The current owner or operator of such a facility
The past owner or operator of the facility at the time the hazmat was disposed of
A generator or party that arranged for the disposal or transport of the hazmat
A transporter who selected the site where the hazmat was delivered
4. How does the EPA decide you’re a CERCLA Superfund site?
The EPA has developed a Hazard Ranking System (HRS) that depends on data inputs collected by states, tribes, various federal operatives, and the EPA itself about sites the agency has in its crosshairs (see source). Using its system, the EPA maintains a catalog of places that contain uncontrolled hazardous waste (see source) (see Q.5.)
5. What is the CERCLA Superfund National Priorities List?
This a government A-list you don’t want to be on. Intended primarily to guide the EPA in determining which sites warrant further investigation, the National Priorities List (NPL) is a catalog of U.S. sites having known or threatened releases of hazardous substances, pollutants, or contaminants. After being listed on the NPL, a remedial investigation/feasibility study is performed at your site (see source) (see Q.6)
6. What is a CERCLA Superfund remedial investigation/feasibility study?
Commonly referred to as “site characterization,” a CERCLA Superfund remedial investigation/feasibility study is a twofold exercise. The first is the investigative part, conducted to determine the nature of the waste on your site and assess its risk to human health and ecology. The second is the feasibility part, which evaluates the cost/benefit ratio for one or another remediation technique (see source).
7. How are CERCLA Superfund sites remediated?
Generally, remediation is done in one or both of the following ways:
Ex-situ methods involve extracting the contaminated soil and groundwater and then hauling the muck offsite to an appropriate treatment facility.
In-situ methods treat the soil and groundwater without removal. They involve such technologies as steam-enhanced extraction, chemical oxidation, bioremediation-phytoremediation, thermal desorption, and other chem lab esoterica.
8. What triggers CERCLA Superfund liability?
CERCLA Superfund liability is triggered if:
- Uncontrolled hazardous wastes are present at your site
- There is a release (or the possibility of a release) of such wastes
- Response costs have been incurred (or will be)
- It’s determined you’re the liable party (see source)
9. What are potential CERCLA Superfund liabilities?
You can be held liable for the following:
- Government cleanup costs
- Damages to natural resources
- Costs of specific health assessments
- Injunctive relief
10. What if the party responsible for the pollution is entirely unknown?
When no responsible party can be established for the pollution, CERCLA gives the EPA the money and authorization to remediate the contaminated site.
11. Can a site be delisted from the CERCLA Superfund National Priorities List?
Yes, if the EPA determines that no further response is necessary to safeguard human health and the environment. This can happen if:
The particular state and the EPA determined together that all appropriate response actions have been implemented, including (and especially) CERCLA-funded.
A remedial investigation/feasibility study demonstrates that the hazmat poses no significant threat to public health or the ecology, so corrective measures are unnecessary (see source).
12. Where can you get advice about CERCLA hazmat liabilities?
There are currently 1,334 uncontrolled hazardous waste sites doing time on the CERCLA Superfund National Priorities List, five of them added just this year (see source). If you even think you might have what the EPA deems “uncontrolled hazardous materials” on your premises, you should get expert advice—like yesterday.
Remember, the EPA might consider hazardous waste a moving target that can change with time and circumstance. As we’ve blogged about previously, too much of anything might be regarded as hazmat by federal and (especially) state authorities. (E.g., milk and beer. Would we kid you?)
Also, be mindful that one of the oft-forgotten imperatives of the Resource Conservation and Recovery Act (RCRA) is that you’re responsible for any hazardous waste you generate from “cradle-to-grave.” This also includes its transportation, treatment, storage, and disposal.
The upshot: It’s way too easy to make expensive (and possibly criminal) mistakes. If you’re generating, storing, and transporting uber-large amounts of waste, you should seek expert advice about whether it might be considered a hazardous “uncontrolled” substance by the EPA. The legal, financial, and reputational risks of not doing so are formidable.
Contact us today. And thank you for reading our blog!