Superfund

Superfund in the United States

The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 USC 9601 et. seq.) is known as the Superfund Law or “CERCLA.” It makes all past and present owners of a polluted plot of land liable for the clean-up costs.

Legal Materials

The EPA has a Superfund Information Line that provides information and publications on all things related to the Superfund program (800-424-9346).

The Superfund section of the EPA web site includes superfund-related publications and lets you look up hazardous waste sites, both classified and proposed. For more about hazardous waste sites, see the National Priority List section. To get information about a particular site, see the Record of Decisions, discussed below.

The Enforcement section of the EPA web site provides information about liability, negotiations, and settlements under CERCLA (Superfund), RCRA Corrective Action, OPA, and UST. More RCRA materials are available from RCRA Online.

Agreements: The main EPA guidance on Prospective Purchaser Agreements (as of 8/28/97) is published at 60 Fed. Reg. 34792. To get other/more recent guidance, check the Web, search the Federal Register or call the Superfund hotline.

PRPs: You can order a CD-ROM with the “responsible parties at Superfund sites that have received Special or General Notice letters from EPA,” but in the past some researchers have used Westlaw (EDR-NPLPRP) to get lists of Potentially Responsible Parties (PRPs). NOTE 1: The lists can be long, so you might want to print out just the first few pages describing the site and the page with the PRP you care about. NOTE 2: Lexis has a PRP database (ENVIRON;PRP), but it covered only 1998-2001 the last time I checked. NOTE 3: The Westlaw lists may not be comprehensive; I found the pre-2001 lists on Lexis sometimes have more PRPs than the lists on Westlaw. As for finding PRPs, the EPA’s PRP Search Manual “provides guidance on how to search for potentially responsible parties (PRPs) that may be liable for cleanup at a Superfund site.” This Contacts page lists contact information for the regional offices responsible for managing EPA’s enforcement and compliance programs.

Records of Decisions (RODs): A Record of Decisions is the official public record of the EPA’s approved remedy for each Superfund site. An ROD “provides the justification for the remedial action (treatment) chosen at a Superfund site. It also contains site history, site description, site characteristics, community participation, enforcement activities, past and present activities, contaminated media, the contaminants present, scope and role of response action and the remedy selected for cleanup” (from the RODs website).

The EPA’s Record of Decision System (RODS) contains full-text Records of Decision (RODs), ROD Abstracts, ROD Amendments (AMDs) and Explanations of Significant Differences (ESDs). The database starts in 1982. The dabase is not quite current — in September 2012 it had decisions issued up to November 2011.

You can also search RODs on Lexis (ENVIRN;RODS). The Lexis database also starts June 1982 and is also not quite current. As of September 2012, the Lexis database had decisions up to September 27, 2011.

Watch out: The Westlaw ROD database (EDR-ROD) covers only 1982 to 1995 and is not being updated. For RODs since 2006, search the FENV-EPA and, if you wish, add “and PR(superfund)” to limit the results to superfund documents, including RODs.

Superfund Amendments and Reauthorization Act (SARA) in Environmental Law

The 1986 amendments to the Comprehensive Environmental Response, Compensation, and Liability Act.

SARA addresses many of the problems discovered when the Environmental Protection Agency (EPA) tried to administer the 1980 law. Reference to the Comprehensive Environmental Response, Compensation, and Liability Act includes the amendments, and that entry thoroughly discusses the statutory scheme. This entry will focus on how SARA changed the law.

Throughout SARA, Congress adopted the EPA’s positions in the National Contingency Plan, the regulations that describe how the law must be implemented. For example, the revisions required using applicable or relevant and appropriate regulations to establish the cleanup levels. They also required health assessments, emphasized a preference for permanent solutions, and limited judicial review of the EPA’s decisions until an enforcement action was taken.

A major shift, made to speed up the cleanups and preserve Superfund dollars, was to get potentially responsible parties into the process early and offer incentives for voluntary settlements. A grace period for negotiations prior to enforcement was specified. Early settlements with those who had contributed small amounts of hazardous waste [see de minimis/de micromis parties] were encouraged, reducing the number of people fighting over who should pay what. And for the first time, it was clear the Superfund could be used to help pay for the cleanup.

State and public involvement was also strengthened. The community could request up to $50,000 for technical assistance grants to help them understand and become knowledgeable about the site.

The innocent purchaser defense was clarified to some extent, so that a person who performed a reasonable investigation of the property and then acquired it without knowing that hazardous substances were present could escape liability. The other element of this defense is innocence of wrongdoing. The owner cannot have participated in disposal, storage, or release of hazardous substances after purchasing the property.

SARA stressed treatment rather than containment at Superfund sites, and onsite remediation was favored over shipping the waste elsewhere. Members of Congress were concerned that a cleanup could simply move the problem to a future Superfund site or that a solution would only be a stopgap measure until it lost its effectiveness.

Overall, the amount of time required to get through the Superfund process was increased. That result was not desired but occurred because of additional public and state involvement and the hiatus on enforcement while negotiations were going on. Prior to SARA, the estimated time to complete a cleanup was about 58 months; that has now been lengthened to approximately 67 months.

Resources

Notes

See Also

Environmental Law
Federal Register
United States Environmental Protection Agency
Water

Superfund: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Superfund. This part provides references, in relation to Superfund, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Superfund by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Superfund and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Superfund or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Superfund and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Superfund. Finding these decisions can be challenging. In many cases, researchers about Superfund should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Superfund when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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