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The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was enacted in 1980 in the wake of growing public concern over the health risks associated with abandoned hazardous waste sites. Years ago, there was less understanding of the potential environmental, health, and safety threats posed by hazardous wastes that had been buried, abandoned, or disposed of in landfills. In the 1970s, the national media brought public attention to the plight of several residential communities impacted by abandoned wastes sites and there were calls for government action to address the problem.
Love Canal and Other Hazards
The most famous abandoned waste site was known as Love Canal. In the 1940s, the Hooker Chemical Company had disposed of more than 20 tons of hazardous waste in a former canal located near Buffalo, New York. Later, the land was sold to the city, and homes and schools were built over the former disposal site. In the 1970s, residents of the area began experiencing severe health problems that were attributed to this past waste disposal. Studies conducted by the New York Department of health confirmed the health dangers posed by the chemicals, and residents attempted to gain compensation for their losses.
At another site in Kentucky, over 4,000 leaking drums were found to be contaminating soil, groundwater, and surface water and impacting the health of nearby residences. This site became known as the Valley of the Drums.
Love Canal and the Valley of the Drums highlighted the problem of abandoned hazardous waste sites, but they were merely indicative of a larger and more pervasive problem. A survey of contaminated sites conducted in 1979 by the Environmental Protection Agency (EPA) identified 250 hazardous waste sites considered to pose “significant threats of damages” to human health. Many of these sites were characterized as orphan sites, meaning that the party responsible for cleaning up the contamination could not be identified.
CERCLA was enacted to identify the worst sites, finance the cleanup of existing contaminated property, and deter generators from improperly disposing of hazardous wastes in the future. It provided for the remediation of soil and groundwater at contaminated sites, and held owners or operators of a property financially responsible for cleanup, regardless of whether the contamination occurred prior to CERCLA’s enactment or even whether they contributed to the contamination.
Congress charged the EPA with establishing a National Priorities List (NPL) that identified the sites that posed the greatest threat to public health and for establishing the criteria for cleaning up and closing hazardous waste sites. The initial government cleanup was financed through the Superfund, a trust fund established through taxes on petroleum products and chemical feedstocks. The government could then seek reimbursement from “responsible parties” who owned the site or contributed to contamination at the site. Subsequently, CERCLA is often called Superfund.
CERCLA imposed liability for cleanup without regard to fault or negligence. Several parties could be found liable: current owners or operators, past owners or operators, those responsible for transportation or disposal of hazardous substances, and those who arranged for its transportation. Even lenders could be held liable for waste cleanup if it was determined that the lender had the “capacity to influence” the waste management practices of the operators. The liability provisions were intended to provide a strong incentive for generators, transporters, and others to manage waste in a responsible manner. In some cases, a purchaser is allowed to claim that it had no way of knowing that hazardous waste was on the property. In such cases, the purchaser can avoid liability by invoking what has come to be known as the “innocent landowner” defense.
Prior to 1980, Congress had attempted to address the problem of improperly disposed hazardous waste through the Resource Conservation and Recovery Act (RCRA) and indeed, many of CERCLA’s opponents argued that no additional legislation was necessary. However, while they are both designed to protect human health and the environment from the dangers of hazardous waste, RCRA is primarily concerned with managing hazardous waste and cleaning up active hazardous waste sites, while CERCLA is primarily concerned with addressing inactive or abandoned sites.
Criticism and Controvery
CERCLA and its Superfund provisions have been controversial since their inception. The Government Accounting Office (GAO), the Rand Institute, and others have criticized Superfund for the slow pace and high cost of cleanups. A 2000 GAO study, for instance, found that it could cost between $25 and $140 million to clean up a single Superfund site, with the average cleanup taking 10 years. Superfund has been assailed by its detractors as being a “Superfailure” and a “hazardous waste of taxpayer money” for spending too much money on attorneys and not enough money on actual site clean-ups.
Advocates for Superfund contend that Superfund must be evaluated within the context of CERCLA’s dual goals of cleaning up contaminated sites and serving as a deterrent to improper waste disposal. Supporters argue that Congress initially underestimated the scope and magnitude of the problem and did not take into account the length of time it would take to implement a cleanup from beginning to end. Furthermore, they argue that avoiding high cleanup costs is an incentive for generators, transporters, and disposal facilities to manage wastes properly.
Despite criticisms of inefficiency, Superfund was reauthorized in 1986 when Congress passed the Superfund Amendments and Reauthorization Act (SARA). SARA increased the Superfund trust fund to $8.5 billion, to be financed through chemical taxes, general revenue, and costs recovered from responsible parties. It also set strict cleanup goals, established provisions for cleaning up leaking underground storage tank sites, and added “right-to-know” provisions requiring industries to provide the public with information on chemicals stored on site and released to the environment.
Another criticism of CERCLA was that its strict liability provisions deterred new businesses from using or developing so-called brownfields sites, which are sites that have had a history of environmental contamination. Often these sites are located in urban areas, and critics argue that fear of being held liable for the cleanup of brownfields sites has caused businesses to seek out greenfields, or previously undeveloped sites, in the suburbs. In response, the EPA introduced its Brownfields program in 1995. The program provides loans and other incentives to the private sector for the purpose of cleaning up and redeveloping contaminated sites.
The Future of CERCLA
The Superfund is now funded primarily through the Treasury Department rather than through taxes on chemicals. In November 2003 a special advisory council recommended that the CERCLA program focus on improving the efficiency and effectiveness of the program while also acknowledging the program’s success in cleaning up 900 NPL sites since its inception. Although CERCLA and Superfund have been characterized by controversy since the legislation was first enacted, it appears that they will remain fixtures of U.S. environmental policy for years to come.
- John Acton, Understanding Superfund: A Progress Report (Rand Corp., Institute for Civil Justice, 1989);
- Eckardt Beck, The Love Canal Tragedy (EPA Journal, 1979);
- Comprehensive Environmental Response, Compensation, and Liability Act of 1980 42 S.C. §§ 9601 et seq. (PL 96-510);
- John Hird, Superfund: The Political Economy of Environmental Risk (Johns Hopkins University Press, 1994);
- Robert Percival, Environmental Regulation: Law, Science, and Policy (Aspen Law and Business, 2000);
- U.S. GAO, Superfund: Current Progress and Issues Needing Further Attention (GAO, 1992).