The Comprehensive Environmental Response, Compensation,

and Liability Act (CERCLA) of 1980

 

By: Mike Plante

 

Abstract

This document was written to fulfill the research requirements for Geography 8344 at the University of Minnesota, Twin Cities, and to fulfill required seminar credits for the Master of Geographic Information Science degree.  I chose the topic of CERCLA because it is an environmental policy that directly affects my career as a hydrogeologist.  Hopefully, the following pages will provide the reader with an overview of CERCLA, the legislative history that led to its becoming, and the affects that this legislation has on corporations.  The most important objective of this research was to learn the process of researching legislative materials, and to learn the legislative process of how a bill becomes a law.

 

Index

o  Flow Chart

o  Reportable Quantities

o  Penalties and Fines

o  Abatement Action

o  Liability

o  Post-Closure Liability Fund

o  Employee Protection

o  Uses of the Fund

o  Claims Procedure

o  Hazardous Substance Response Revenue Act of 1980

o  Hazardous Substance Response Trust Fund

o  Sunset Provision

o  Concluding Remarks, PL96-510

·         42 USC 9601

·         42 USC 9601, Amended

·         Legislative History and Summary

·         Code of Federal Regulations, Introduction

·         Code of Federal Regulations, CERCLA

·         40 CFR 307, Summary of CERCLA Claims Procedure

·         Authority: 52 FR 2923, Superfund Implementation, Summary

·         Source: 58 FR 5460, Response Claims Procedures for the Hazardous Substance Superfund, Summary

·         42 USCA 9601, Case Law

·         The Case: Westfarm vs. International Fabricare vs. Washington Suburban Sanitary Commission

o  Case Conclusion

 

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Note: References are linked in red and will bring you to the page of references.  Additional links open associated documents, images, or web pages.

 

Introduction

President Carter addressed the Congress on August 2, 1979 with an environmental message urging Congress to proceed with discussions to create legislation for several environmental issues (Carter, 1979).  In 1980, the U.S. Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund.  President Carter signed H.R. 7020 into law on December 11, 1980 (PL96-510).  The intent of this legislation was to regulate the clean up of disposal sites where hazardous waste was leaking into the environment. 

The superfund concept was a result of several environmental tragedies of the 1970’s.  Two such tragedies were the 1976 running aground of the Argo Merchant off the Massachusetts coast, which dumped 204,000 barrels of crude oil into the sea (Rose, 1979), and the 1978 unearthing of the Love Canal hazardous waste site near Niagara Falls, N.Y. where over 200 families were evacuated due to chemicals seeping into their yards and basements from a nearby underground abandoned dump (Koch, March 1980).  In June 1979, President Carter submitted to Congress a proposal designed to prevent such tragedies (HR 4571, S 1341) (Koch, March 1980).  His proposed legislation – the Oil, Hazardous Substances and Hazardous Waste Response, Liability and Compensation act – laid the groundwork to address contamination issues in navigable waters, ground waters, land, and air.  The legislation was designed to fill the gaps left open by the existing laws of the time.  An example is the Clean Water Act (PL 92-500), which provides money to clean up spills of oil and 297 toxic chemicals from navigable waters but does not address contamination on land, in the air, or in ground water, and it doesn’t provide funding to clean up hazardous wastes that are not in the list of 297 toxic chemicals (Koch, March 1980).  Another example is the Resources Conservation and Recovery Act (RCRA).  RCRA was designed to stop illegal dumping of hazardous wastes, but only applied to future or existing sites, not to the hundreds of unused, abandoned sites across the U.S. (Koch, March 1980).

A report completed for the U.S. Environmental Protection Agency (EPA) estimated that 33,000-50,000 dumpsites might contain hazardous wastes.  Of those, the EPA estimated that 1,200 to 2,000 may present significant problems, and that 500 to 800 may need to be eventually abandoned.  President Carter noted that the cost of cleaning up these sites would be in the billions of dollars, but the costs of ignoring the problem would be far greater (Carter {CQ}, 1979).

Superfund allows the EPA to clean up a site and recover the clean-up cost from the following people: 1) the person who generated the wastes disposed of at the site, 2) the person who transported the waste, 3) the person who owned or operated the site at the time of disposal, and/or 4) the current owner of the property (Clarkson et.al, 2001).  All of these people are referred to as a potentially responsible party (PRP).

The bill that was eventually enacted into law was H.R. 7020.  Other proposed bills had been introduced in the House and Senate prior to H.R. 7020.  Senate bill S 1480, sponsored by Edmund S. Muskie, D-Maine, dealt with hazardous waste cleanup, but did not make it past the hearing stage (Arieff, 1979).  Senate bill S 684, introduced March 15, 1979 by Senator Warren G. Magnuson, D-Wash. and would create a $250 million superfund, however it would only cover oil pollution associated with vessels, with a maximum liability of $300 million per gross ton.  House bills H.R. 85 introduced by Representative Mario Biaggi, D-N.Y., and H.R. 29 authorized by Representative Gerry E. Studds, D-Mass., would cover spills both on land and at sea.  Both of the House bills would produce a $200 million superfund, but provide different liability compared to S 684.  The liability imposed under H.R. 29 would be $50 million, versus $30 million for H.R. 85 (Rose, 1979). 

Legislators found strong opposition from chemical and oil industries as they began to campaign to kill a Senate bill that would make them pay to clean up chemical disasters and to compensate victims (Koch, September 1980).  Initially, one-third of the fund was to be used to compensate victims of chemical accidents.  As passed, only state or local governments could be compensated, and only for damages to trees and other natural resources, such as lakes or parks (Koch, November 1980).  Luckily for the chemical and oil industries, there was not large public support for the victim compensation section of the legislation (Koch, September 1980).  This is most likely due to the fact that people will not write their representatives unless they are directly affected by the contamination.   On the other hand, it was partially due to industry that helped pass the bill.  Industry favored the House bill (HR 7020) over the Senate bill (S 1480) partially because it did not provide money for victim compensation, and it included a weaker industry liability provision than the Senate bill (Koch, September 1980).  The Superfund legislation brought about minimal floor debate and drew broad bipartisan support for the proposed bill.  The lack of opposition and debate to the bill was likely due to the fact that no one wanted to go on record that they apposed hazardous substance cleanup (Koch, September 27 1980).

Members and staffers on both sides of Capitol Hill were confident that both chambers would pass superfund legislation by year-end 1980 (Koch, August 1980).  As time neared the introduction of the CERCLA into public law, it was evident that President Carter was also confident the legislation would pass.  Carter’s fiscal year environmental budget proposed a greatly expanded program for funding the clean up of chemical waste dumps.  To increase the hazardous waste control programs, Carter asked for a 47% increase in funds and a 91% increase in personnel over the fiscal 1980 numbers (Koch, February 1980). 

In December 1980, the House adopted the Senate-passed version of the bill (HR 7020).  The bill was finally sent to President Carter to be signed into law (PL96-510).  Much to Carter’s disappointment, the bill was much weaker than his original proposal, and did not include oil spills (CQ Almanac, 1980). 

The Superfund appeared to face financial demise when President Reagan introduced his 1982 financial budget, where he was going to create one of the largest budget slashes ever, cutting over half of the EPA’s budget (Koch, March 1981).  These proposed cuts created strong opposition from congressional supporters of the EPA (Koch, June 1981). 

Since the inception of CERCLA, as summarized on the EPA Superfund web page (http://www.epa.gov/superfund/action/process/mgmtrpt.htm), 757 Superfund sites have had all cleanup construction completed.  There are 1450 final NPL sites: 1330 of these sites (92%) are either undergoing cleanup construction (remedial or removal), are completed, or are deleted (218 are deleted).  410 of the 1450 sites (28%) have cleanup construction underway and an additional 187 (13%) have had or are undergoing a removal cleanup action.  There are 59 sites proposed for listing on the NPL. Of these sites, 35 have had or are undergoing a cleanup action (remedial or removal).  Over 1,000 sites have all final cleanup plans approved.  Over 6,400 removal actions have been taken at hazardous waste sites to immediately reduce the threat to public health and the environment.  Since fiscal year 1992, responsible parties continue to perform over 70% of new remedial work at NPL sites (as of fiscal year 1999).  Over the life of the Superfund program, EPA has reached settlements with private parties with an estimated value of over $16 billion (as of FY 1999).  Key dates affecting the history of Superfund are linked at this document.

 

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The Legislative Process

            The legislative process is dynamic and iterative, and creates the laws that rule the behavior that affects us.  Legislation is enacted by Congress and is meant to contain broad policies or public laws.  Congress gives the legislative mandate to who is in charge of creating the exact regulatory values to the law. Congress delegates certain agencies to promulgate the statutory acts as administrative laws, rules, or regulations.  For example, Congress enacted the Clean Water Act but they delegated the EPA to establish the acceptable levels of contaminants in water.  Agency rules must be within the scope of the original legislation.  Legislation documents the congressional decision(s) at a particular point of time.  Statutes and Regulations are both codified.  Codification is the congressional decision throughout time, and it also decides how to fit the new legislation into the existing statutory framework.  More importantly, the U.S. Code marks the congressional thinking of that time.  Bills can be introduced by both the House of Representatives and Senate, however, they must both decide on one bill to be signed by the President.  A bill does not become law until it is signed by the President.  If a bill does not get passed it has to be re-introduced during the next session.  The following flow diagram generalizes this process.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


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CERCLA Public Law:  PL96-510

            Public Law 96-510, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, provides for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites.  President Carter wrote PL96-510 into law, on December 11, 1980.  The law begins with many definitions, most notably, the definition of “release” and “environment”.  A release is defined as, “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment…”.  The term “environment” is described as, “the navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the Magnuson-Stevens Fishery Conservation and Management Act [16 USC 1801 et seq.], and any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.

Reportable Quantities

            The Administrator of the EPA has the authority to revise and promulgate, when appropriate, regulations designating hazardous substances, which when released into the environment, may present a substantial danger to public health or welfare of the environment.  The Administrator may determine that a single quantity can be a reportable quantity for any hazardous substance, regardless of how the substance is released.  This means that any release should be reported.  

Penalties and Fines

As soon as a person has knowledge of a release, they should immediately contact the National Response Center established under the Clean Water Act.  Anyone who fails to notify the U.S. Government of such a release shall, when convicted, be fined not more than $10,000 or imprisoned for not more than one year, or both.  Within one hundred and eighty days after this act was enacted, anyone who owned or operated at the time of disposal, or who accepted hazardous substances for transport, disposal, or storage must notify the Administrator of the EPA of the existence of such facilities or activities.  Any person who knowingly fails to notify the Administrator will also be, upon conviction, fined not more than $10,000, imprisoned for a maximum of one year, or both. 

The law states "not-to-exceed" values for fines incurred.  The greatest of these not-to exceed values is $50,000,000.  This, however, is an enormous fine and could ruin many companies.  If any person who is liable for a release of a hazardous substance fails to provide sufficient removal and remedial action required under this Act, the person may be liable for punitive damages in the amount of, and not more than three times, the amount of any costs incurred by the Fund as a result of failing to take proper remedial action.

Abatement Action

Any person who willfully violates, or refuses to comply with this law will be subject to a fine of not more than $5000 for each day in which the violation occurs or occurred and failure to comply continues.

Liability

PL 96-510 list many potential persons or entities that may be liable under this legislation.  Below is only a sampling of those who may be liable under CERCLA.

1)       The owner and operator of a vessel… or facility,

2)       Any person who owned or operated a facility at the time at which the hazardous substances were disposed of,

3)       Any person who by contract or agreement arranged for the disposal or treatment of hazardous substances owned by such person or someone else,

4)       Any person who accepts or accepted hazardous substances for transport to disposal facilities.

The above mention are liable for all costs for removal and remedial action incurred by the national contingency plan, any necessary costs of response incurred by any other person, and/or damages for injury to, destruction of, or loss of natural resources, including the costs of assessing such damages.  There is no liability if the damages are caused solely by and act of God, and act of war, or an act of omission of a third party.

Post-Closure Liability Fund

            This Act established a Post-Closure Liability Fund to pay for costs for monitoring, maintenance, and care of a site incurred by others persons after the period of monitoring required by regulation under the Solid Waste Disposal Act.

Employee Protection

            No person can fire, or in other ways discriminate against, any employee or representative who provided information to the Federal Government.  If an employee believes they have been fired or discriminated against because of this may, within 30 days of the firing or discrimination act, apply to the Secretary of Labor for a review of the firing or alleged discrimination.

Uses of the Fund

            The President of the United States may use the Fund for many purposes, including,

1)       payment of government response costs,

2)       payment of any claim for necessary response costs incurred by any person pursuant to the NCP,

3)       the costs of assessing both short-term and long-term injury to, destruction of, and loss of any natural resources,

4)       the costs of Federal or State efforts to restore, rehabilitate, or replace and natural resources injured or destroyed by the release of a hazardous substance,

5)       the costs of a program to identify, investigate, and enforce and abatement action necessary.

Money in the Fund cannot be used for the payment of any claim where costs were incurred due to the injury or loss resulting from long-term exposure to ambient conditions.  In any fiscal year, 85% of the money credited to the Fund shall be available for payment of claims.  No money in the Fund shall be made available for remedial action at federally owned facilities, except to reimburse the costs for Federal efforts to restore, rehabilitate, or replace natural resources damaged by the release of a hazardous substance. 

Claims Procedure

            All claims against the Fund shall be presented first to the owner, operator, or guarantor of the vessel or facility from which the hazardous substance was released, and to any other person that may be liable.  If the claim has not been satisfied within sixty days of presentation, the claimant may commence an action in court against the owner, operator, guarantor, or other person or to present the claim to the Fund for payment.  Where the liable party is unknown or cannot be determined, the claimant and the President shall arrange to make a settlement of any claim against the Fund.  The President is authorized to award and make payment from such a settlement. 

            Hearings conducted with regard to Fund claims must be public and held in a place that is agreed upon by the PRPs, or where the President designates will be the most convenient for all parties involved.  All costs and expenses approved by the President attributable to the employment of any member of the Board shall be payable from the Fund, including fees and mileage expenses for witnesses summoned.

Hazardous Substance Response Revenue Act of 1980

            This Act is included as Title II of PL96-510.  This Act establishes environmental taxes on petroleum, petroleum product, and chemicals.  Subchapter B of this Title presents a table, which lists chemicals and their associated tax, in dollars per ton, for chemicals sold by the manufacturer, producer, or importer.

Hazardous Substance Response Trust Fund

            Subtitle B of Title II, the Hazardous Substance Response Revenue Act of 1980, is where the Hazardous Substance Response Trust Fund is created.  Taxes collected under the Hazardous Substance Response Revenue Act of 1980 are transferred to the Response Trust Fund.  Any claim filed against the Response Trust Fund (Superfund) may only be paid out of the Trust Fund.  Nothing in this Act authorizes payment to be made from the United States Government of any amount related to any claim to the Fund.  If at any time the Response Trust Fund is unable to pay for claims, the claims will be paid in the order in which they were finally determined. 

Sunset Provision

            An expiration date was originally written in to the CERCLA, which designated the cessation of the tax collection to support the Fund.  Unless reauthorized by Congress, the authority to collect taxes by this Act was to terminate on September 30, 1985, or when the sum of money in the Fund reached $1,380,000,000, whichever occurred first.

Concluding Remarks, PL96-510

            The President is authorized to delegate and assign duties or powers, and to promulgate any regulations necessary to carry out the provision of this Law. 

 

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42 USC 9601

            CERCLA is codified in the United States Code as 42 USC 9601.  The most recent version of the code is from 1994, U.S. Code 1994 Edition, Volume 23, Title 42, with supplemental amendments listed in Supplement V of the U.S. Code, 1994 Edition, Title 42.  The Code is very similar to that which is described above in PL96-510.  There are, however, a few notable changes in the code versus the original statute. 

            The major difference is in the described use of the Fund.  42 USC 9601 states that the authorized appropriation of the Hazardous Substances Superfund is not more than $8,500,000,000 for the 5-year period beginning on October 17, 1986, and not more than $5,100,000,000 for the period commencing October 1, 1991, and ending September 30, 1994.  The sum of money was designated to be available for claims until it was expended.  The Code also lists the sums authorized to be appropriated to the Fund for fiscal years 1987 to 1994. 

            Highest priority was given to areas where the hazardous substance release was in the vicinity of or resulted in the closing of a drinking water supply.  The addition of an indemnification clause was also noted.  The President may agree to hold harmless and indemnify any response action contactor meeting the requirements of [the Act] against any liability (including expenses of litigation and settlement) for negligence arising out of the contractors performance in carrying out response action activities under [this subchapter], unless such liability was caused by grossly negligent or intentional misconduct.  

 

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42 USC 9601, Amended

            Amendments to 42 USC 9601 are included in the United States Code, 1994 Edition, Supplement V.  This supplement is a compilation of the previous supplements so; it is unnecessary to consult previous supplements, unless one would like to see the amendments up to a certain date.  I did not find anything extremely noteworthy from the amendments, so I won’t list anything here.

 

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Legislative History and Summary

A list of the Legislative History, consisting of House and Senate Documents, Hearing, and Committee Prints, is found in the 1980 CIS Abstracts (1,2,3).  Select portions of the Legislative History can also be found at the end of PL96-510.  The CERCLA statute can be found in the United States Statutes at Large, 1980, Volume 94, Part 3, pages 94 Stat. 2767 to 94 Stat. 2811.  CERCLA is U.S. Public Law 96-510, and was signed into law by President Carter on December 11, 1980.  The statute has been codified in the United States Code, 1994 Edition, as 42 USC 9601.  Amendments have been made since the 1994 USC edition and can be found in the United States Code, 1994 Edition, Supplement V, which is a cumulative listing of amendments from the previous four supplements. 

 

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Code of Federal Regulations, Introduction

            The U.S. Code of Federal Regulations (CFR) is published yearly.  It lists the current regulations for a particular category.  The CFR is similar to the U.S. Code, where it is published yearly, but includes all the current code (legislation).  In the CFR, the “Authority” lists the mandates that apply to that particular rule, and the “Source” shows where the final rule is listed in the Federal Register (FR).  Proposed and final rules can be found in the Federal Register.  The proposed rule includes background information and written comments with regard to the legislation, whereas, the final rule includes background information and the changes to the proposed rule.  The final rule progresses to the codified rule in the CFR.  Codification is the process in which new legislation is placed into the existing statutory framework.  The code can also be considered as the present congressional thinking.  The process from statute to code is as follows: 1) Congress enacts a statute, 2) an Agency is appointed responsibility for the statute, 3) proposed rules are made, 4) individual, corporate, and public comments are heard, 5) final rules are made, and 6) the rule is codified after the proposed rules have been accepted.

 

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Code of Federal Regulations, CERCLA

            CERCLA is referenced to the Code of Federal Regulations in the CFR Index and Finding Aids book.  The CERCLA is indexed in a few places but I decided to look up 40 CFR Part 307, which is the section on the Comprehensive Environmental Response, Compensation, and Liability Act claims procedures.  This pointed to the code of Federal Regulations book, Volume 40, Parts 300 to 399, pages 382 to 402.  Near the beginning of Part 307, the Authority is listed to be 42 USC 9601 (the Code) and 52 FR 2923 (Superfund implementation in the Federal Register).  The source for 40 CFR 307 is listed under the Source as 58 FR 5475, however 58 FR 5460 is noted in the last paragraph of 40 CFR 307 as having a more detailed description for filing claims.  All documents listed above are attached.  40 CFR 307, 52 FR 2923, and 58 FR 5460 are described below.

 

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40 CFR 307, Summary of CERCLA Claims Procedure

            40 CFR 307 documents the procedures for presenting claims authorized by the CERCLA of 1980, and as amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986.  The Superfund is often called the Fund.  The attached copy of the rule is from July 1, 2000.  Below is a selection of key points from the Code.