36 years of CERCLA: Has it Really Served its Purpose?

Camila Diaz Cano Bellido[1]

President Jimmy Carter approved in 1980 the Comprehensive Environmental Response, Compensation, and Liability – CERCLA (aka The Superfund) which is intended to cleanup, establish engineered controls and site restrictions to reduce possible risks to humans and the rest of the environment, but also to return the site to productive use[2]. After 36 years, this regulation passed through different governments who made different kinds over 36 years, but has it really served its purpose? Is it consistent with environmental regulations?

Background

This environmental step was in a moment in which the world and specially The United States began to worry about the consequences that arise after years of human damage to the environment.[3] The 1970’s late revelations regarding hazardous waste contaminating sites such as Love Canal or the Valley of drums, make the Americans concerned about hazardous waste deposited in the American soil, which in fact was a constant risk to human health, unless it was removed.

At the beginning of the following decade CERCLA was approved and gave to The Environmental Protection Agency – EPA the authority (and resources) to clean and remediate the contaminated sites.[4] There is two types of clean up: short–term removal[5] and long-term removal[6], depending on the classification made by the EPA in the NPL.

It is necessary for a site to be in the National Priorities List – NPL[7] to be eligible for a remedial investigation and remedial clean up. By 2021 NPL contemplated 1322 sites on the list, of which51 have been proposed for the list and 447 sites were deleted form the list.[8]

 “Polluter pays” principle

The polluter pays principle is one of the most important principles in current environmental law[9], which establishes that those who produce the pollution in the environment (to any of the elements, that is to say earth, water or soil). One of the ways to apply this principle is through a so-called pollution price. In other words, is a charge after the pollution emitted (in this case, over the soil) that would be equivalent to the cost caused.[10]

The Superfund created a tax on oil and chemical companies. Those taxes funded the federal Superfund. However, in 1995, Congress changed the path in which the Superfund was financed as they suppressed the tax.[11][12] In 2003, the Superfund was exhausted. [13] Therefore, taxpayers are the ones who sustain the Superfund, taking into account that the pollutant should pay at least 50% of the cost of the cleanup, but the pollutant is not always capable to pay.[14]

CERCLA provides different obligations, including the one which make the polluter to pay for the pollution created, however, sometimes is not possible to in force it. It is possible to say that the comply with the disposition are hard to comply both for the administration and for the administered parties, since the administration must track the administered who allegedly contained (who can stop existing, can become in bankruptcy) and if is lucky would find a company who is still operating and have enough money to pay for the cleanup. On the other side, the administer should be in some capacity to cover the costs (bit same as the case of the administration, the polluter can have for example financial problems).

The statics proof that what happened is that EPA was not able to track the companies who caused the contamination and also that a group of companies who recognized the pollution were not able to cover the costs.[15] A consequence of these problems, taxpayers are the ones who finally pays for the pollution cause by third parties.[16]

Without any respect to the tax polluter pays principle, is the application of CERCLA is constant with environmental regulations? Is CERCLA is aiming its purpose?[17] Is it an enforceable regulation?

If a third party is “complying” other administrator duties, it is not possible to establish that the previous questions are positive.

What happened with those sites not included with CERCLA?

CERCLA has many problems[18] and flows, as the regulation has no possibility to include everything in the paper. Back to basics, CERCLA has the aim to cleanup pollutes sites in order to protect human and environmental health.

Then, it is important to know when someone is liable, which seems easier to identify, however, reality presented cases where it is not possible to determine if a person is liable or not. That is the application of Section 113(f)(3)(B).

According with a new decision of the US Supreme Court[19],  there should be an explicit reference to CERCLA-specific liability in section 113(f)(3)(B), the Court interpreted that provision within the “interlocking language and structure” of the section “113(f) family of contribution provisions,” all of which focus on “contribution,” which is a “tool for apportioning the burdens of a predicate ‘common liability’ among the responsible parties.” Also, they should see in CERCLA’s reticulated statutory matrix of environmental duties and liabilities.[20] Thus, CERCLA-specific liability is required to trigger the availability of the contribution action under section 113(f)(3)(B).[21]

Moreover, for other parties whose CERCLA cost recovery actions may undermine the defendant’s secret defense, the non-CERCLA settlement reached by the plaintiff previously resolved its CERCLA liability and triggered the “must use” Article 113(f)[1] Claims where the statute of limitations clock has expired. If the non-CERCLA administrator incurred in cleanup costs (they will then seek cost recovery or donations) and entities that may be affected by such actions.

Again, the same questions sat in the beginning, has it really served its purpose? Is it consistent with environmental regulations?

In this case, after the decision of the Supreme Court, it is possible to say that CERCLA won a little victory, nonetheless it is still a fuzzy view of this regulation.

[1] Camila Diaz Cano Bellido received her Law degree from Universidad de Piura, Lima, Peru in 2017.  She received an Advanced Master in Legal Sciences Degree from Universitat Pompeu Fabra, Barcelona, Spain in 2021. Miss Diaz Cano has worked in Environmental Law, Regulatory Compliance and White-Collar Crimes in diverse important law firms of Peru. She is also Assistant Chair of Criminal Procedural Law at Universidad de Piura, Lima, Peru.

[2] 42 U.S.C. §§9601

[3] 42 U.S.C. §§9607

[4] https://www.epa.gov/superfund/superfund-cercla-overview

[5] Short-term removals, where actions may be taken to address releases or threatened releases requiring prompt response. See: https://www.epa.gov/superfund/superfund-cercla-overview.

[6] Long-term remedial response 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. These actions can be conducted only at sites listed on EPA’s National Priorities List. See: https://www.epa.gov/superfund/superfund-cercla-overview

[7] Has the purpose to identify sites polluted by hazardous materials as a result of mismanagement of them, and the identification of the parties who cause it.

[8] According with Superfund: National Priorities List. Washington, D.C.: U.S. Environmental Protection Agency (EPA). 2021-02-08. See in: https://www.epa.gov/superfund/superfund-national-priorities-list-npl.

[9] Principle set in the principles to guide sustainable development worldwide or Rio Declaration of 1992, after which was take into account by environmental regulations of diverse countries including The United States of America.

[10] Then it is applied the cost internalization costs, which will aim to reduce the quantity of pollution.

[11] Congress allowed the levy of tax to expire in 1995, after what the tax was suppressed.

[12] Many experts, as well as the author are convinced that the tax over the oil an chemical producers must be reimpose, and even include other industries, in order to comply with the polluter pays principle (which is also a fair duty to be comply by any polluter)

[13] Superfund Program: Updated Appropriation and Expenditure Data” (PDF). U.S. Government Accountability Office. February 18, 2004. p. 6. Retrieved January 27, 2014.

[14] Thomas Voltaggio and John Adams. “Superfund: A Half Century of Progress.” EPA Alumni Association. March 2016.

[15] Bryan Anderson. “Taxpayer dollars fund most oversight and cleanup costs at Superfund sites”. See: https://www.washingtonpost.com/national/taxpayer-dollars-fund-most-oversight-and-cleanup-costs-at-superfund-sites/2017/09/20/aedcd426-8209-11e7-902a-2a9f2d808496_story.html. Also, “Who pays?” See: https://nepis.epa.gov/Exe/ZyNET.exe/91003GO2.txt?ZyActionD=ZyDocument&Client=EPA&Index=1986%20Thru%201990&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&UseQField=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5CZYFILES%5CINDEX%20DATA%5C86THRU90%5CTXT%5C00000019%5C91003GO2.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=2.

[16] Another case in which a third party assumed a liability that has not caused was the assumption of the remediation of the soil of Callao Port by the proponents of the concession (so they were assuming a liability to participate in the bid). APM Terminal – Callao won the bid, therefore is assuming the cleaning of the soil of the port which are trying to request payment from the Peruvian government.

[17] Ibid. Furthermore, more than half of the original 406 sites added onto the NPL in 1983 remain on the list today, showing an inexistence improvement regarding the environmental problem and an inefficiency of the regulation.

[18] There are many problems in addition to those we are dealing with in this article.

[19] Which surprise with an unanimity.

[20] Territory of Guam v. United States, 2021 WL 2044537, at *3-4.

[21] Alos See: https://www.jdsupra.com/legalnews/u-s-supreme-court-decision-revives-guam-7352008/#_edn11