End CERCLA Double Jeopardy

The 1980 Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) serves to make those who contribute to the release of hazardous waste financially responsible for the cleanup of said waste. Hazardous sites are divided into two main types in CERCLA: Brownfield sites and Superfund sites. Superfund sites are often “abandoned or uncontrolled” and require government aid in clean-up, whereas brownfield sites generally do not require the government’s involvement. These sites are in every state; in 2015, the EPA reported that “53 million people live within three miles of a Superfund remedial site.”

Credit: Center for International Earth Science Information Network. “2000 US Census Grid Population data for residents within 4-mile buffers of NPL sites based on locations provided by EPA and ATSDR.” 

CERCLA established a clean-up fund for when polluting parties were unidentifiable, had gone out of business, or could not afford the cost of cleanup. The initial clean-up fund of $9B was thought to be huge, but has been found to be puny compared to what is necessary. In an effort to divert most of the financial cost of cleanup away from the government while still being able to clean hazardous sites, CERCLA makes numerous people liable under §107(a). Those liable include current owners/operators, past owners/operators (at time of disposal), and “generators” – those who “arrange for disposal” of the waste. The broadness of this section allows people with little or no hand in releasing the waste to bear the full cost of cleanup 3, which can place unnecessary burdens upon innocent people.

In some Superfund cases, the government will settle for the cleanup costs of hazardous sites. However, § 9622(f)(6)(1) of the 1986 CERCLA amendment enables these settlements to be reopened. The EPA’s ability to reopen a settled case is unjust in combination with CERCLA’s broad liability. Not only are people with little or no contribution to the site’s contamination liable, but they are liable to incur even more costs should the settlement be reopened later.4

The only defenses against Superfund liability are Acts of God, Acts of War, or the Innocent Landowner defense in § 101(35). Acts of God and Acts of War defenses have never been successfully used. The Innocent Landowner defense is tricky because it requires the defendant to make themselves liable before they can even claim to be an Innocent Landowner. Therefore, if they pursue this route and their Innocent Landowner defense is not accepted, they will then be liable for cleanup costs.

It is clearly unfair to keep “liable” people on the hook even after they’ve paid a settlement for the site’s cleanup. While it is understandable that new information and technology makes Superfund sites both easier to find and easier to condemn (as new chemicals are deemed hazardous), reopening cases is unjust, and doesn’t abide by the judicial principle of no double jeopardy established in the Bill of Rights. My recommendation follows that of DeMeo, who suggests an additional clause be added to CERCLA. She stated that “…a clause should be added to ratify judicial interpretation of section 113(f)(2). The revised subsection should read, “A person who has resolved its liability to the United States… in a… settlement shall not be liable for claims for contribution or for recovery of costs regarding matters addressed in the settlement.”5 This ensures that after parties have settled, they cannot be considered liable again for the same pollution issue. CERCLA’s intention to keep taxpayers from paying for the cleanup of Superfund sites is admirable, but the Act is unjust and poorly executed. The EPA can best ameliorate CERCLA by ending its ability to reopen settled cases.

 

Bibliography 

Anderson, B. (2017, September 20). Taxpayer dollars fund most oversight and cleanup costs at Superfund sites. Retrieved from The Washington Post: https://www.washingtonpost.com/national/taxpayer-dollars-fund-most-oversight-and-cleanup-costs-at-superfund-sites/2017/09/20/aedcd426-8209-11e7-902a-2a9f2d808496_story.html?utm_term=.fd755281ea1f

DeMeo, K. L. (2012). Is CERCLA Working? An Analysis of the Setllement and Contribution Provisions. St. John’s Law Review, 34-35.

Environmental Protection Agency. (n.d.). Types of Contaminated Sites. Retrieved from United States Environmental Protection Agency: https://www.epa.gov/enforcement/types-contaminated-sites

EPA. (n.d.). Innocent Landowners. Retrieved from U.S. Environmental Protection Agency: https://www.epa.gov/enforcement/innocent-landowners

Kilbert, K. (2012, September 10). Good-Bye to Joint and Several Liability in Private CERCLA Actions. Retrieved from American Bar Association: http://apps.americanbar.org/litigation/committees/environmental/email/summer2012/summer2012-0912-good-bye-joint-several-liability-private-cercla-actions.html

Marrero, A. (2016, November 28). Georgetown Environmental Law Review. Retrieved from A Costly Dilemma: The Paradox of the Innocent Landowner under CERCLA: https://gelr.org/2016/11/28/a-costly-dilemma-the-paradox-of-the-innocent-landowner-under-cercla/

Martin, J. N. (2017, October 26). Reopened CERCLA Liability: New Causes for Concern? Retrieved from Hunton & Williams: https://www.huntonnickelreportblog.com/2017/10/reopened-cercla-liability-new-causes-for-concern/

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