The Comprehensive Environmental Response, Compensation, and Liability Act
| Author | Valerie Ann Lee/P.J. Bridgen |
| Pages | 19-55 |
Page 19
Chapter 4
The Comprehensive Environmental Response,
Compensation, and Liability Act
4.1 Introduction
In upstate New York, children played on grounds adjacent to an elementary school. Parents in the neigh-
borhood went about their business unaware of hidden risks. e school grounds sat on a canal dug by
William Love in 1890 and lled, decades later, with some 22,000 tons of toxic chemical wa stes.1 In the
mid-1970s, with contaminants entering basements in homes near the site and increasing complaints of ill-
nesses, birth defects, and cancers, t he government conducted tests. In 1978, “Love Canal” exploded into
the nation’s consciousness when both the governor and the president declared it an emergency area; young
children and pregnant women were urged to move away immediately.2
Stirred by the Love Canal disa ster and others like it, the U.S. Congress passed legislation in 1980 to ll
gaps in the government’s ability to address releases of haza rdous substances.3 Congress created a c ompre-
hensive scheme for federal and state governments to respond promptly to releases of haza rdous substances
and made four classes of pa rties, including past and present owners and operators of sites, liable for costs
of such responses. Congress a lso created a fund, known as Superfund, upon which the government could
draw for cleanups in the event that responsible parties could not be located or did not undertake response
actions themselves.
Although the primar y impetus for the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) in 1980 was the protection of health, Congress a lso imposed liability upon
responsible parties for natural resource damage (NR D) resulting from releases of hazardous substances. It
further directed that the U.S. Department of the Interior (DOI) promulgate regulations to guide trustees
in conducting natural resource d amage assessments (N RDAs) within two years of enactment.
In 1986, Congress amended CERCLA to clarify some of its more confusing provisions.4 In the face of
little use of CERCLA’s NRD provisions, Congress rearmed its interest in NRDs as an important remedy
under CERCLA. Because DOI had missed its rst statutory deadline to promulgate regulations to guide
trustees, Congress renewed its directive to DOI to promulgate NRDA regulations and commanded that
they be promulgated “not later t han 6 months after” Oct. 17, 1986.5 Congress a lso provided additional
statutory encoura gement for trustees to exercise their NR D authority by giving trustees the benet of a
rebuttable presumption in litigation when following the regulations.6
1. See Robert Emmet Hernan, A State’s Right to Recover Punitive Damages in a Public Nuisance Action: e Love Canal Case Study, 1 T E.
L.J. 47, 52-53 (1994).
2. See id. See also Mike Brown, Evacuation of Kids Urged, N G, Aug. 2, 1978, available at http://library.bualo.edu/specialcollec-
tions/lovecanal/documents/clippings/8-2-781.html.
3. e remarks of the president and Rep. Norman Lent (R-N.Y.) are illustrative of the type of concerns frequently found in the legislative his-
tory, particularly the need to ll a gap in the law relating to past disposal of chemical waste and the need to ensure adequate funding for the
program. See Remarks of President James Carter on Signing Public Law 96-510, 16 W C. P. Doc. 2797 (Dec. 11, 1980). See also
96 C. R. 31979 (1980) (Rep. Norman Lent’s (R-N.Y.) remarks).
4. ese amendments are known as the Superfund Amendments and Reauthorization Act (SARA) of 1986. See Pub. L. No. 99-499, 100 Stat.
1613 (1986).
5. Id. §107(d) (codied at 42 U.S.C. §9651(c)(1), ELR S. FWPCA §301(c)(1)).
6. See id. §107(d) (codied at 42 U.S.C. §9607(f)(2)(C), ELR S. FWPCA §107(f)(2)(C)). For a thorough discussion of changes that SARA
made to the natural damage provision in CERCLA, see E L I, S D (1986).
Page 20 Natural Resource Damage Assessment Deskbook
Since 1986, CERCLA has become an important tool upon which federal, state, and tribal trustees have
relied to redress natural resource injuries caused by hazardous substances. Federal, state, and tribal trustees
across the countr y have pursued claims under CERCL A at inland a nd marine sites. Marine sediments
contaminated by DDT and rivers a nd lake s contaminated by releases from historic mines a nd smelters
have been the topics of major NRD actions led in federal court.7 Such actions have resulted in multimil-
lion dollar settlements with funds going to federal, state, and tribal trustees to restore the injured resources
under their trusteeship and to pay for the costs associated with damage assessment.8
CERCLA NRD claims have oered challenges for responsible parties. Parties, struggling to understand
the reg ulatory thicket of CERCLA response actions, now must become conversant with the terms and
principles applied in the rapidly evolving eld of NR DA. As the recent settlements in Los Angeles Har-
bor bear witness, it is important for responsible parties to a ssess what “NRDs” at a site means for them
in terms of potential liability and, where possible, to work eect ively with government trustees to resolve
potential liability under CERCLA swiftly and cost-eectively, because the price for NRD liability, in some
instances, ca n be as high as the clea nup itself.
e complexity of the statute a nd the retroactive nature a nd breadth of the CERCLA liability scheme,
including its NRD provisions, have been vehemently criticized by some and applauded by others. Respon-
sible parties, concerned with size of cleanup and NRD bills, have denounced CERCLA’s liability scheme
as unfair. ere has been a urry of initiatives in recent years to fundamentally revise CERCLA, including
its NRD provisions. In January 2002, President George W. Bush signed legislation modifying the liability
sections of CERCLA. De spite the call for major revision, the amendments did not fundamentally cha nge
the act as some had requested. e struct ure of CERCLA and its liability scheme and NRD provisions
remain largely the same as when rst enacted, with some exceptions for response costs of small contributors
to sites.9 CERCLA endures as a strong arrow in federal, state, and tribal quivers for the recovery of NRDs.
4.2 Overview of Statutory Framework
As noted above, Congress’ goal in enacting CERCLA was to create a response, compensation, and liability
scheme to address relea ses or threatened releases of hazardous substances.10 First, it provided the federal
government, states, and tribes with the authority and mechanisms to respond to and clean up spills—t he
response action authority. Second, Congress created a right-of-action for federal, state, and triba l trustees
of natural resources to recover NRDs from responsible parties for injuries caused by releases of ha zardous
substances. Only trustees can make NR D claims.
e response and cleanup authority under CERCLA is bet ter known tha n the NR D authority. e
overwhelming majority of sections in CERCLA dene mechanisms and requirements for response actions.
In contrast, the NRD provisions of CERCLA a re diminutive in length but powerful in impact.
CERCLA places the regulatory authority for response actions and the assessment of NRDs in the hands
of dierent agencies. e U.S. Environmental Protection Agency (EPA) is the federal agency with the pri-
mary responsibility for implementing the response action authority for t he federal government. EPA does
so through myriad regulations and policies it has developed. NRDs, on t he other hand, are assessed by
federal, state, and tribal trustees, not EPA. DOI was tasked by Congress to develop regulations that can be
used by trustees for NR DAs.
Despite the fact that management and implementation responsibilities for response and NRDs reside
in dierent agencies, the t wo authorities under CERCLA are intertw ined. e administrative and regula-
tory framework of CERCLA response actions often provides a context for NR DAs because NRDs are
7. See California v. Montrose Chem. Corp., 104 F.3d 1507, 27 ELR 20508 (9th Cir. 1997) (DDT case); United States v. ASARCO, Inc., 214
F.3d 1104, 30 ELR 20654 (9th Cir. 2000) (historic mining operations).
8. See United States v. Montrose Chem. Corp., 793 F. Supp. 237, 22 ELR 21327 (C.D. Cal. 1992). See also United States v. Iron Mountain
Mines, Inc., 881 F. Supp. 1432, 25 ELR 21275 (E.D. Cal. 1995).
9. See Pub. L. No. 107-118, 115 Stat. 2356 (2002). Although CERCLA’s main structure withstood major revision, there undoubtedly will be
further calls for more revision.
10. See 42 U.S.C. §9604(a)(1), ELR S. CERCLA §104(a)(1). CERCLA response actions can also be triggered by a “release or substantial threat
of a release into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health
or welfare . . . .” Id. §9604(a)(1), ELR S. CERCLA §104(a)(1).
The Comprehensive Environmental Response, Compensation, and Liability Act Page 21
frequently sought at sites on t he National Priorities List (NPL) (sites where CERCLA response actions
occur). In addition, the liability schemes for the two authorities are similar, though not identical. As a
result, this chapter presents the basics of the structure of CERCL A, including its response authority and
NRD provisions.
4.2.1 The Superfund
To ensure that government response could be swift in the case of releases of hazardous substances and other
substances triggering CERCLA liability, Congress created the now famous Superf und. CERCLA allows
the government to draw on the fund to respond to releases in emergencies or other situations without wait-
ing until it receives funding from the parties CERCLA makes liable for cleanup and response costs.11
e Superfund is of less signicance to trustees pursuing claims for NRDs tha n it is to EPA. In 1986,
as a result of an amendment to the Internal Revenue Code contained in the Superf und Amendments
and Reauthorization Act (SARA), Congress made it impossible for trustees to draw on the Superfund for
NRDs and assessment costs.12 is feature of CERCLA, precluding use of the fund for NR Ds, is quite
dierent from that found in the Oil Pollution Act (OPA) of 1990, another major NRD statute. As we see
in this chapter, the fund created by the OPA is available for such purposes.
4.2.2 The National Priorities List
CERCLA requires that t he president (through EPA) develop criteria for determining priorities among
releases and t hreatened releases of hazardous substances and develop a collection of sites placed on a
national list of sites with high priority for evaluation and remedial action.13 is list is called the NPL and
is published as a part of EPA’s regulations.14 As of March 2013, there were 1,312 sites on the NPL.15
At the direction of Congress, EPA developed a haza rd ranking system (HRS) to a ssess the relative risk
to human hea lth and the environment posed by sites and facilities being reviewed by EPA.16 e HRS is
the mathematical screening tool or model that EPA uses to assist in deciding whether or not a site should
be listed on the NPL.17
e HRS calculates a numerical score for the risk associated w ith four dierent potentia l pat hways
by which people and sensitive resources in the environment can be exposed to hazardous substances at
a site—the surface water, groundwater, air, and soil pathways. For each of these “pathways,” site-specic
information useful to evaluate risk (and necessary for the calculation of the model’s equations) is input
to the model. For e xample, the model uses information such as the quantity of ha zardous waste, toxicity
of substances being released, amount of sh consumption, proximity of people a nd sensitive resources to
releases, and concentrations of hazardous substances that are background concentrations, i.e., naturally
occurring.18 Using this a nd other information, the HRS model generates a site score that is a combined
11. Id. §9611, ELR S. CERCLA §111.
12. When Congress enacted SARA, it amended the Internal Revenue Code to preclude the use of the Superfund for NRD claims and NRDA
costs. See 26 U.S.C. §9507(c)(1). CERCLA §111(b)(2)(A) also provides that no NRD claim can be paid from the Fund “unless the President
determines that the claimant has exhausted all administrative and judicial remedies to recover the amount . . . .” from parties potentially liable
under §107. 42 U.S.C. §9611(b)(2)(A), ELR S. CERCLA §111(b)(2)(A).
13. 42 U.S.C. §9605(a)(8), ELR S. CERCLA §105(a)(8).
14. 40 C.F.R. pt. 300, app. B (2001) (National Priorities List).
15. See 66 Fed. Reg. 47583, 47586 (2001) (National Priorities List for Uncontrolled Hazardous Waste Sites, Final Rule). See also http://www.epa.
gov/superfund/sites/npl/index.htm.
16. In 1986, EPA was directed to amend its HRS to ensure that, “to the maximum extent feasible” the HRS “accurately assesses the relative risk to
human health and the environment” posed by sites and facilities being reviewed. SARA, Pub. L. No. 99-499, §105(c), 100 Stat. 1613 (1986)
(codied at 42 U.S.C. §9605(c), ELR S. CERCLA §105(c)). Following this direction, EPA amended its HRS.
17. See 55 Fed. Reg. 51532 (1990).
18. e HRS rule actually refers to “human food chain production.” Human food chain production for the shery is based on estimated annual
production (in pounds) of human food chain organisms (for example, sh, shellsh) for that shery. See 55 Fed. Reg. 51532, 51620 (1990).
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