Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), United States
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), is the main federal law of the United States that addresses the clean up of hazardous substances. The law was amended several times enlarged by the Superfund Amendments and Reauthorization Act. It is known more generally as the Superfund program. CERCLA was enacted as a result of a major environmental disaster that began in the 1920s but only became a significant public issue in the late 1970's named at the community affected, Love Canal.
The community of Love Canal, New York, was site of an aborted canal between the upper and lower Niagra Rivers on the eastern edge Niagara Falls. In the 1920's the ditch that remained was used as a municipal and industrial chemical dumpsite. In 1953, the owner of the site, Hooker Chemicals and Plastics covered the site and its hazardous wastes with earth and sold the land to the city for one dollar. By the late 1950s, the site was transformed into a fairly average new community; about 100 homes and a school were built.
In August of 1978, after a period of heavy rain, numerous chemicals, some of which were suspected carcinogens, began leaching from the ground into the community.
Eckardt C. Beck reported in the EPA Journal:
"I visited the canal area at that time. Corroding waste-disposal drums could be seen breaking up through the grounds of backyards. Trees and gardens were turning black and dying. One entire swimming pool had been had been popped up from its foundation, afloat now on a small sea of chemicals. Puddles of noxious substances were pointed out to me by the residents. Some of these puddles were in their yards, some were in their basements, others yet were on the school grounds. Everywhere the air had a faint, choking smell. Children returned from play with burns on their hands and faces."
Chemicals in alarming concentrations were found in people’s homes, backyards, and playgrounds. Residents suffered immediate effects such as lesions and burns as well as chronic effects such as leukemia and birth defects. After the situation at Love Canal was publicized, action was taken at both the local and national level, including the appropriation of emergency funds to aid the Love Canal residents.
While Congress had passed the Resource Conservation and Recovery Act (RCRA) in 1976 to govern how hazardous wastes were to be treated, stored, and disposed of in order to minimize the present and future threat to human health and the environment, that law did not address prior activities or abandoned contaminated sites. Therefore, federal, state, and local authorities did not have guidelines for addressing or cleaning up properties contaminated by hazardous substances.
On December 11, 1980, US Congress enacted The Comprehensive Environmental Response, Compensation, and Liability Act, commonly referred to as CERCLA or ‘Superfund’. CERCLA was intended to provide the means to identify responsible parties, fund the cleanup of impacted sites under the "polluter pays principle", and diminish the dangers of hazardous waste sites that create significant risk to public health and the environment.
In addition, CERCLA identified the process for identifying liability for contaminated property. The law employs the principles of "strict liability" and "joint and several liability" to identify responsible parties (RPs). Strict liability assigns liability without necessarily finding fault. Under this concept a landowner is deemed responsible for contamination found on his property without regard for any fault; simply being in the chain of title is sufficient basis for being held responsible. Joint and several liability holds that once a party is found to be responsible for even a portion of the contamination they can be held liable for the entire cost of a clean up without regard for the portion of contamination they might have caused. Property owners were provided several defenses against the cleanup liability. The Courts have allowed a "de minimis defense" for RPs found to have contributed only nominally to the contamination but the most common defense is the "innocent landowner defense".
An innocent landowner is a property owner that can demonstrate that before purchasing the property they made an inquiry into the historic use and condition of the property and found no evidence of contamination. This inquiry had to meet a test of being consistent with good and customary commercial practice. The statute, however, did not provide definition of what "good and customary commercial practice" might be. Over the years following the passage of CERCLA, the practice of environmental site assessment for the purposes of meeting this test emerged and became more sophisticated. Eventually the American Society of Testing and Materials (ASTM) developed consensus standards that were found to satisfy this test and were widely used.
Many real estate professionals and policy makers felt an unintended consequence of CERCLA was to make existing industrial and commercial property to risky for investment and resale which was, at least in part, responsible for industrial development moving out of traditional areas. The emergence of brownfields and the actions at the state and local level beginning in the 1990s highlighted many of the problems implementing CERCLA and the effects of the law on local economies. Many states, working with the Environmental Protection Agency (EPA) and the Department of Justice, passed laws to encourage redevelopment of industrial properties called "brownfields" by offering protection from the liabilities assigned under CERCLA. The standards of liability and assessment were modified in federal law in 2001 when the Small Business Liability Relief and Brownfields Revitalization Act was signed into law.
CERCLA established a US$1.6 billion fund over five years compensated by taxes from chemical and petroleum industries. The mandate authorized short-term removals and long-term response actions and plans. One example is the National Priorities List that guides the EPA in determining sites with known or threatened releases of hazardous materials or contaminants.
On October 17, 1986, the Superfund Amendments and Reauthorization Act (SARA) amended CERCLA by making numerous changes and expanding the scope of the Superfund program.
Further Reading
- Beck, Eckardt C. 1979. The Love Canal Tragedy The Love Canal Tragedy. EPA Journal, January 1979, U.S. Environmental Protection Agency.
- U.S. Environmental Protection Agency. CERCLA Overview.
- U.S. Environmental Protection Agency. SARA Overview.
- U.S. Environmental Protection Agency. National Priorities List Sites in the United States.