On December 20, 2021, the EPA announced it will utilize $1 billion from Bipartisan Infrastructure Law funds to begin clearing the backlog of 49 Superfund sites and continue cleanup of other Superfund sites across the United States.
Superfund Defined
In 1980, Congress established the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), more commonly known as Superfund, in response to the discovery of toxic waste dumps such as the Love Canal and the Valley of the Drums. It provides the EPA with the authority to clean up contaminated sites and allows the EPA to force parties responsible for pollution to perform cleanups and/or reimburse the government for cleanup led by the EPA.
The statute is structured to include joint and several liability, which “allows the government to hold a small number of [potentially responsible parties (PRPs)] responsible for cleanup of an entire site, since a right to contribution provides an incentive for the named parties to seek out other PRPs,” according to an article published by St. John’s Law Review.
The Act also provides funding for the EPA to clean up these types of sites when responsible parties cannot be determined.
The goals of the Superfund are to:
- Protect human health and the environment by cleaning up contaminated sites.
- Make responsible parties pay for cleanup work.
- Involve communities in the Superfund process.
- Return Superfund sites to productive use.
The process includes:
- Preliminary site assessment
- National Priorities List (NPL) site-listing process
- Remedial investigation/feasibility study
- Records of decision
- Remedial design/remedial action
- Construction completion
- Post-construction completion
- NPL deletion
- Site reuse/redevelopment
Superfund Liability
“CERCLA regulates a broad category of substances known as hazardous substances, although it is significant to note that petroleum products were exempted from CERCLA’s definition of hazardous substances,” according to Morris, Manning & Martin, LLP. “CERCLA imposes liability for clean-up costs and other response and/or remediation costs upon owners or operators of facilities and sites from which a release of hazardous substances has occurred. … The key factor, in addition to determining whether there has been a release of a ‘hazardous substance,’ is whether you fall within the category of so-called ‘potentially responsible parties’ who are held liable for clean-up costs.
“The central concept to keep in mind in understanding the scope of liability imposed by CERCLA is the concept of strict liability for clean-up costs. Strict liability means that liability is imposed in the absence of fault, knowledge, intent, negligence, breach of contract, or any other direct or indirect wrongdoing by the person held responsible. Liability under CERCLA is totally a function of status, not culpable activity. If a person or entity falls within the categories of potentially responsible parties defined by CERCLA, he will be held strictly liable for all clean-up costs, response costs and other costs associated with a release of hazardous substances.
“Congress elected to impose strict liability in order to insure that there will always be a responsible party to hold liable for clean-up costs. The importance of insuring that there always will be someone to hold responsible for clean-up costs was deemed to outweigh traditional concepts of fairness and justice. This concept of strict liability involves a drastic change from ordinary concepts of liability, nearly all of which are tied to the concept of fault.”
PRPs can include:
- The present owner of a facility from which there has been a release of a hazardous substance;
- The present operator of a facility;
- The owner of the facility at the time of disposal or release;
- The operator of the facility at the time of disposal or release;
- Anyone who arranges for the disposal or treatment of hazardous substances or who arranges with a transporter for disposal of hazardous substances;
- Any transporter of hazardous substances; and
- An owner of a facility with knowledge of a spill or release of hazardous substances who sells or transfers without disclosing.
PRPs are held liable for all costs related to cleaning up the site to return it to productive use.
Once the EPA identifies a PRP, it generally enters into a settlement agreement if the Agency has confidence that the PRP will fulfill the terms of the agreement. In addition to cleanup costs, PRPs are also often assessed penalties, which can include:
- Statutory penalties
- Stipulated penalties
- Treble damages (assessed upon PRPs who did not comply with a unilateral administrative order)
Backlog
“The Trump administration has built up the biggest backlog of unfunded toxic Superfund clean-up projects in at least 15 years, nearly triple the number that were stalled for lack of money in the Obama era, according to 2019 figures quietly released by the [EPA] over the winter holidays,” reported AP News on January 2, 2020.
“The $1 billion investment is the first wave of funding from the $3.5 billion in the Bipartisan Infrastructure Law to help clean up polluted Superfund sites in communities,” states the EPA news release. “The backlog of previously unfunded sites that will now be receiving funding are in 24 states and territories and all 10 EPA regions, including some communities who have been waiting for cleanup for more than four years.”