Superfund at 40: Unfulfilled Expectations

AuthorKatherine N. Probst
Chapter 6: Superfund at 40:
Unfulfilled Expectations
Katherine N. Probst*
I. Introduction
e Comprehensive Environmental Response, Compensation, and Liabil-
ity Ac t1 (CERCLA), better known as “Superfund,” was signed into law by
President Jimmy Carter on December 11, 1980, in the waning days of his
presidency. Superfund lled a major gap in the nation’s environmental law s
by providing funding and authority for the U.S. Environmental Protec-
tion Agency (EPA)2 to respond to releases of hazardous substances at sites
across the country.3 In December of 2020, the program will celebrate its
40th birthday.
CERCLA was a direct response to the problems at the Love Canal site
in upstate New York and growing awareness among Members of Congress,
EPA, and the White House that there were in fact many such sites across
the country. In the late 1970s, local residents at Love Canal, horried by the
thick black substances oozi ng into their basements and concerned about pos-
1. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No.
96-510, 94 Stat. 2767 (1980).
2. CERCLA generally assigns authority to the President, and that authority is then delegated through
Executive Order 12580 to various federal departments and agencies. For the issues addressed in this
chapter, the authority has mostly been delegated to EPA. For ease of reading, we refer throughout to
EPA rather than the President.
3. Comprehensive Environmental Response, Compensation, and Liability Act of 1980 §104(a)(1).
Note that while CERCLA liability under section 107 attaches to hazardous substances as dened
by the law and subsequent EPA regulation, under section 104(a)(1)(B), the language for when EPA
can use its own authority to take action (i.e., use federal appropriations or Hazardous Substance
Response Trust Fund (Trust Fund) monies) is slightly dierent as it adds “pollutant or contaminant”
to hazardous substances.
* Katherine N. Probst is an independent consultant who has written widely about the Superfund
program. e author wishes to acknowledge the help of the many Superfund experts she spoke to in
writing this chapter. ey are too numerous to name here, but they include current and former U.S.
Environmental Protection Agency (EPA) and U.S. Department of Justice (DOJ) sta, members of
the private bar, and independent experts. All were extremely generous with their time and expertise;
some provided their recollections of how the Comprehensive Environmental Response, Compensa-
tion, and Liability Act (CERCLA) and the Superfund Amendments and Reauthorization Act (SARA)
came about, while others described the evolution of the cleanup and enforcement programs over the
past 40 years as well as where the program stands today. Without their help, this chapter would not
have been possible. Any errors or omissions are those of the author.
Copyright © 2020 Environmental Law Institute®, Washington, DC.
188 Looking Back to Move Forward: Resolving Health & Environmental Crises
sible health eects, sought help from state and local hea lth ocials. Residents
began aski ng questions about what ki nds of waste s were buried in their com-
munity and wanted information on the risks t hese substances presented.4
State and local agencies did not have the resources to clea n up the contami-
nation and neither did the federal government.5 Traditional federal env iron-
mental laws such as the Clean Water Act and the recently enacted Resource
Conservation and Recovery Act (RCRA) provided little help.
Nor did state tort law provide a workable approach for citizens seeking
cleanup of hazards or compensation for harm now, not years or decades in
the future. e major tort claims typically employed to redress harm—nui-
sance, trespass, negl igence, and strict liability for ultra-hazardous activ ities—
typically ta ke years to litigate and require a high bar to establish culpability
and causation.6 e path to redressing harm through state tort law was long,
dicult, challenging, and unpredictable.
It became clear to Congress, EPA, and the White House that new legisla-
tion was needed to provide the federal government with the authority and
funding to address contam inated sites across the country—e specially those
where contamination was the result of decades-old wa ste disposal from com-
panies that were no longer in business.
CERCLA’s focus is unusual for environmental legislation. Most of the
nation’s environmental laws focus on regulating ongoing industrial activities
and empower EPA to issue and enforce regulations that limit pollution or
control how wastes or substances are managed.7 In contrast, Congress fash-
ioned Superfund to facilitate cleanups rather than reg ulate existing practices.
As such, it served as a legislative solution to a challenging societal problem
that neither existing laws nor the court s were able to address.
e Superfund law created a two-pronged approach to address the cha l-
lenge of cleaning up sites contaminated with hazardous substances. First,
CERCLA created a powerful liability system. Under the law, liable parties
at a site—referred to as “potentially responsible parties” or PRPs—include
current and past owners and operators of a facility, generators of the haz-
ardous substances at the site, part ies that arranged for the disposal or tran s-
4. A G L, L C: S, P  P ch. 2 (1982).
5. New Jersey enacted the Spill Compensation and Control Act in 1976, which is widely credited to
be the rst such law in the nation and likely a model for CERCLA. e New Jersey law prohibited
the discharge of hazardous substances, provided for cleanups, and created a spill-compensation fund.
Spill Compensation and Control Act, N.J. S. A. 58 §§10-23.11–10-50 (2019).
6. Ronald G. Aronovsky, Federalism and CERCLA: Rethinking the Role of Federal Law in Private Cleanup
Cost Disputes, 33 E L.Q. 1, 9–12 (2006).
7. Under many of the major environmental laws, implementation and enforcement is delegated to
the states.
Copyright © 2020 Environmental Law Institute®, Washington, DC.
Superfund at 40: Unfulf‌illed Expectations 189
port of hazardous substance s, and transporters of hazardous substances
that selected the site where the hazardous substa nces were brought. ese
parties can pay for site response activities either by implementing cleanup
activities themselves or by paying for cleanup activ ities implemented by the
federal government.8
Second, CERCLA created a designated tru st fund—the Hazardous Sub-
stance Response Trust Fund (the Trust Fund)—to pay for site studies and
cleanups.9 Trust Fund monies can be used to remediate “orphan” sites where
the responsible parties are bank rupt or out of business as well as to pay for
cleanup when liable parties are reca lcitrant and will not agree to pay for or
conduct the work themselves. e law authorized new taxes on petroleum
and chemical feedstock s to serve as the primary source of monies in the
Trust Fund.
CERCLA also required EPA to create a list of national priority sites,
known as the National Priorities List (NPL), and to update that list at least
an nu a ll y.10 e NPL is the cornerstone of the Superfund program. Progress
cleaning up NPL sites is the most visible metric for evaluating t he program’s
success. While the statute authorizes EPA to engage in short-term “removal”
actions11 or bring enforcement actions at any site contaminated w ith haz-
ardous substances, the Agency cannot fund a longer-term “remedial action”
unless a site is listed on the NPL.
After the authorization to collect t he taxe s levied under CERCL A expired
at the end of 1985, the Trust Fund began to run out of money. e need to
reauthorize the Superfund taxes, as well as congressional f rustration with
the rst few years of EPA’s implementation of the law, led to over two years
of hearings about what kinds of changes should be made to the legislation.
In 1986, Congress enacted major amendments to the law, the Superfund
Amendments and Reauthorization Act, known as SAR A.12 ese changes
included authorizing a more than ve-fold increase in annual progra m fund-
ing, the creation of a new “corporate environmental income tax” to help pay
for this increase, tools to encourage private parties to settle with the govern-
8. Technically, the law addresses the “release or threatened release” of hazardous substances not “sites.” For
ease of reading, this chapter—and most articles and discussions—refer throughout to “contaminated
sites,” or sites contaminated with hazardous substances.
9. Comprehensive Environmental Response, Compensation, and Liability Act of 1980 §221.
10. Id. §105(8)(B).
11. Removal actions are dened under section 102(23) of CERCLA. Many NPL sites have removal ac-
tions as well as remedial actions. While removal actions can be implemented by either EPA or PRPs,
the majority of removal actions at non-NPL sites are implemented by EPA.
12. Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613
Copyright © 2020 Environmental Law Institute®, Washington, DC.

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