What You Need To Know About CERCLA Superfund

This blog entry provides introductory Q&As about CERCLA Superfund liabilities. Among them:

1. What is CERCLA Superfund?
2. Why was CERCLA Superfund created?
3. How does CERCLA Superfund work?
4. Who is subject to CERCLA Superfund penalties?
5. How does the EPA decide that you’re a CERCLA site?
6. What is the CERCLA Superfund National Priorities List?
7. What is a CERCLA Superfund remedial investigation/feasibility study?
8. How are CERCLA Superfund sites remediated?
9. What initiates CERCLA Superfund liability?
10. What are the potential CERCLA Superfund liabilities?
11. What if the party responsible for the pollution is completely unknown?
12. Can a site be delisted from the CERCLA Superfund National Priorities List?
13. Where can you get advice about CERCLA hazmat liabilities?

What is CERCLA Superfund?

CERCLA (aka, Superfund) is acronymic for the Comprehensive Environmental Response and Liability Act, which empowers the EPA to remediate contaminated sites by forcing the alleged polluter to perform the cleanup—or pay the government to do so.

Why was CERCLA Superfund created?

CERCLA was created by Congress in response to public concern about hazardous waste being left out in the open, dumped, or otherwise improperly handled at processing plants, landfills, factories, and mines. Two fulgurant examples are usually cited as catalysts for the legislation:

• Love Canal. In 1892, somebody named William T. Love proposed a canal to connect parts of the Niagara River in New York state. Never completed, it left a deep ditch. Problems began about 30 years later when the city fathers decided it would make a great dump. Then, in the 1940s, the ditch was purchased by a chemical company that dumped into it about 20,000 tons of detritus from manufacturing dyes, perfumes, solvents, and other stuff you wouldn’t want to drink or swim in. Predictably, nearby residents began evincing untoward amounts of health problems, including elevated white blood‑cell counts and leukemia (see source).
• Valley of the Drums. No. Not the book by Jacqueline Susann. Instead, Kentucky’s so‑called Valley of the Drums lived up to its moniker by being a 23-acre collection point for over 100-thousand leaking, stinking, drums of toxic discarded hazmat. As these drums deteriorated, the leakage spilled into a nearby creek and into the water table. The Valley of the Drums became an ecological cause celebre in 1966 when some of the drums started burning and refused to stop doing so for more than a week (see source).

How does CERCLA Superfund work?

CERCLA gives the EPA power to root out those parties they deem responsible for any release of ground contaminants—and assure their cooperation in the cleanup. (“Cooperation,” of course, is meant in this instance as Vito Corleone might use the word.) Your liability under CERCLA is a three-headed Hydra. Your lawyer(s) will tell you that it’s:

• Retroactive—meaning you can be held liable for pollution that happened before CERCLA was enacted in 1980.
• Joint and Several—meaning you can be held liable for remediation of the entire site if the harm caused by everyone else cannot be separated.
• Strict—meaning you cannot simply say that you were operating according to industry standards or that you weren’t otherwise negligent. If you sent only some of the hazmat to the site in question, you’re liable (see source).

Who is subject to CERCLA Superfund penalties?

You can be subject to CERCLA penalties if the EPA determines that you have uncontrolled hazardous waste on your premises that’s being discharged into the environment—or has the potential to be. Be forewarned if you’re:

• The current owner or operator of such a facility
• The past owner or operator of such a facility at the time the hazmat was disposed of
• A generator or party that arranged for the disposal or transport of the hazmat
• A transporter who chose the site where the hazmat was delivered

How does the EPA decide that you’re a CERCLA site?

The EPA uses a Hazard Ranking System (HRS) that depends upon data collected by states, tribes, various federal operatives, and the EPA itself about sites which the agency has concerns (see source). Using this system, the EPA keeps a catalog of places it believes contains uncontrolled hazardous waste (see source) (see Q.6.).

What is the CERCLA Superfund National Priorities List?

The National Priorities List (NPL) is a government A-list you don’t want to be on. It’s a catalog of U.S. sites that have known or threatened releases of hazardous substances, pollutants, or contaminants. It’s primarily meant to guide the EPA in determining which sites warrant further investigation. After being listed on the NPL, a remedial investigation/feasibility study is performed at your site (see source). You so don’t want this to happen (see Q.7).

What is a CERCLA Superfund remedial investigation/feasibility study?

The eco-cognoscenti call this “site characterization.” It’s a twofold remedial investigation/feasibility study. First is the investigative part, which is conducted to determine the nature of the waste on your site and assess its risk to human health and the ecology. Second is the feasibility part, which aims to assess the cost/benefit ratio for one or another remediation technique (see source).

How are CERCLA Superfund sites remediated?

Remediation is done in one or both of the following ways, apparently in Latin:

• Ex-situ methods involve extracting the contaminated soil and groundwater, and then hauling the stuff to an appropriate treatment facility.
• In-situ methods treat the soil and groundwater without removing it. They involve such technological esoterica as steam-enhanced extraction, chemical oxidation, thermal desorption, and everyone’s favorite: bioremediation‑phytoremediation, wherein tiny little microbes neutralize the contaminants by simply eating them.

What initiates CERCLA Superfund liability?

CERCLA Superfund liability is initiated if:

• Uncontrolled hazardous wastes are present at your site.
• There is a release (or the possibility of a release) of such wastes.
• Response costs have been incurred (or will be).
• It’s determined you’re the liable party (see source).

What are the potential CERCLA Superfund liabilities?

Many & manifold, including but not necessarily limited to:

• Government cleanup costs
• Damages to natural resources
• Costs of certain health assessments
• Injunctive relief

What if the party responsible for the pollution is completely unknown?

When no responsible party can be established for the pollution, CERCLA gives the EPA the money and authorization to remediate the contaminated site.

Can a site be delisted from the CERCLA Superfund National Priorities List?

It can happen if the EPA determines that no further response is necessary to safeguard human health and/or the environment. In such circumstances:

• The particular state and the EPA have together determined that all appropriate response actions have been implemented, including (and especially) those that are CERCLA-funded.
• A remedial investigation/feasibility study demonstrates that the hazmat poses no significant threat to public health or the ecology so that remedial measures are not needed (see source).

Where can you get advice about CERCLA hazmat liabilities?

There are currently 1,335 uncontrolled hazardous waste sites on the CERCLA Superfund National Priorities List as of February 2024, and 41 “proposed” new sites waiting in the wings (see source). If you even think you might have what the EPA deems “uncontrolled hazardous materials” on your premises, you should get expert advice.

Be mindful that one of the oft-forgotten imperatives of the Resource Conservation and Recovery Act (RCRA) is that you’re responsible for any hazardous waste you generate from “cradle-to-grave.” This also includes its transportation, treatment, storage, and disposal.

The upshot: It’s way too easy to make expensive (and possibly criminal) mistakes. If you’re generating, storing, and/or transporting large amounts of any kind of waste, you should seek expert advice about whether it might be considered a hazardous “uncontrolled” substance by the EPA. The legal, financial, and reputational risks of not doing so are formidable.

Contact us today. Or call 888-681-8923. And thank-you for reading our blog!