CERCLA and the Superfund Task Force: The more things change, the more they stay the same?

The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. § 9601, known as CERCLA or the Superfund law, was enacted in 1980 during the final days of the Carter administration. It was intended to provide the Environmental Protection Agency with funds and enforcement tools to address past industrial practices that resulted in releases or threatened releases of hazardous substances into the environment.

New York’s Love Canal, Kentucky’s Valley of the Drums, and California’s Stringfellow Acid Pits prompted widespread and bipartisan support for the initial Superfund law.

However, the statute’s liability scheme — which provides for strict and retroactive liability along with potential joint and several liability among the various broad classes of potentially responsible parties — often resulted in protracted litigation and substantial transaction costs. Consequently, Superfund sites moved slowly, if at all, through the cleanup process and redevelopment rarely occurred.

During the almost 40 years since CERCLA’s enactment, various efforts have been made to address some of the problems associated with the original law. Congress has passed several amendments, including the Brownfields Utilization, Investment and Local Development Act of 2018, known as the BUILD Act.1

The EPA has issued numerous guidance documents and rules to make navigating the law easier. One notable example is the “all appropriate inquiry” rule, which gives potential purchasers of impacted property a blueprint for avoiding Superfund liability.

In addition, courts have resolved a number of Superfund liability cases. For example, the U.S. Supreme Court’s decision in Burlington Northern & Santa Fe Railway v. United States, 556 U.S. 599 (2009), clarified that joint and several liability does not necessarily apply where there is a “reasonable basis” to apportion liability.

Notwithstanding these efforts, as of Oct. 1 there were over 1,300 sites listed on the National Priorities List2 and 53 proposed NPL sites. There are also more than 50 sites being addressed under the Superfund Alternative Approach, which uses the same investigation and cleanup process and standards as NPL sites.

The Trump administration’s EPA has taken a renewed interest in the Superfund program, starting with the creation of the Superfund Task Force in 2017.

Republished with permission. The complete article, "CERCLA and the Superfund Task Force: The more things change, the more they stay the same?" first appeared on Westlaw’s Practitioner Insights: Energy & Environment web page on November 7, 2018.