Superfund II

CONTENTS FOR THIS SECTION

Federal Facilities
Settlements
States
Enforcement
Natural Resource Damages
Public Participation
Selected References
Table 3. Major U.S. Code Sections Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and Amendments

Federal Facilities

CERCLA made federal agencies subject to the law in the same way as any nongovernmental entity, and required them to clean up any hazardous waste sites they owned or operated. The Superfund trust fund is not available to them, and the cost of cleanup is to be funded from the agencies' appropriations. The one exception to this rule is that the fund may be used to provide alternative water supplies in cases where there is groundwater contamination outside the boundaries of a federally owned facility, and there are other potentially responsible parties besides the federal agency.

Two provisions of SARA attempted to accelerate the cleanup, and to resolve questions of jurisdiction that have arisen. Section 120 sets out a timetable, and requires participation in the planning and cleanup selection process by state and local officials and the public. Where a federal agency and EPA disagree on the proposed remedy to be undertaken at a site, EPA is to make the selection. Although subsection (g) prohibits the transfer of EPA's authorities under this section to any other agency or person, an executive order signed by President Reagan on January 23, 1987, gives the Office of Management and Budget the final authority in cases where EPA and another federal agency disagree on the remedy selection.

Nevertheless, in May and June 1988 EPA came to terms with the Department of Defense (DOD) and the Department of Energy on model language to be inserted in all federal facility cleanup agreements at Superfund sites owned by the two departments. The model language provides for and recognizes: (1) EPA's authority to assess penalties in the case of noncompliance with the agreement; (2) the departments' commitment to study and perform EPA-approved cleanups at the facilities; (3) EPA's commitment to review and comment on the departments' studies and plans; (4) a mechanism for resolving disputes, with final authority resting with the EPA Administrator when staff of the Agency and the departments cannot reach agreement; and (5) enforceability of the agreements by states and citizens.

Federally owned sites that are not on the National Priorities List are subject to state laws concerning removal, remedial action, and enforcement.

Information on federally owned hazardous waste sites that agencies are required to submit under several different provisions of CERCLA and the Resource Conservation and Recovery Act is required to be centralized in a Federal Agency Hazardous Waste Compliance Docket. EPA established this docket on April 17, 1987, and publishes updates in the Federal Register every 6 months. SARA also places strictures on the sale of federal property to ensure that any hazardous wastes will be cleaned up prior to sale.

The second provision of interest added by SARA is found in section 211, the "Department of Defense Environmental Restoration Program." This section amends title 10 of the U.S. Code rather than CERCLA. In addition to making DOD's pre-existing Installation Restoration Program a matter of statutory law, this provision establishes a research program for military hazardous wastes and the health effects of exposure to them. It also creates a special transfer account to receive appropriations to implement this section, but allows funding to be reprogrammed for the removal of unsafe buildings or debris at former DOD sites. The explanatory statement of the conference committee notes that the restoration program is to be implemented in a manner consistent with SARA, including the provisions relating to public participation (section 117), federal facilities (section 120), and cleanup standards (section 121).⁽⁴⁾

As of September 1998, there were 162 proposed and final federal sites on the NPL.

The 102nd Congress amended CERCLA by enacting the Community Environmental Response Facilitation Act (CERFA, P.L. 102-426). The Act eases military base closures by allowing portions of bases which are not contaminated to be sold or transferred. The numerous base closures and realignments across the nation have had adverse economic effects on some local communities, particularly through the loss of jobs, and under previous law a base could not be sold or transferred for development until environmental cleanup was completed. CERFA permits the non-contaminated portions of bases to be transferred, while cleanup continues at the contaminated portions, and provides for the appropriate identification on deeds and other documents of the activities that have taken place there. It also confirms that the U.S. Government remains responsible for any further cleanup of hazardous substances or petroleum products that might be required.

In section 334 of P.L. 104-201, the Defense Authorization Act of Fiscal Year 1997, the 104th Congress took CERFA a step further by allowing the transfer of federal property even if contamination remained at the site.⁽⁵⁾ EPA and the Governor of the state where the site is located must make a finding that the site is suitable for the use intended by the new owner, the intended use is consistent with protection of public health and the environment, the public has an opportunity to comment, and the deferral of cleanup and the transfer of property will not substantially delay any necessary response action at the property. The deed to the property must contain assurances that provide for any necessary restrictions on the use of the property, and to ensure that response actions will not be disrupted; it must also assure that the cleanup will be completed in accordance with an approved timetable, and that the federal agency will submit an adequate budget request to the Office of Management and Budget to complete all necessary response actions. When cleanup is completed, the agency shall provide to the new owner a warranty to that effect.

Settlements

EPA, at its discretion, is authorized to enter into settlement agreements that are in the public interest and that minimize litigation; such a decision is not subject to judicial review. The Agency can also prepare a nonbinding allocation of cleanup costs among responsible parties when it would aid settlement. "Mixed funding," where responsible parties conduct the cleanup with some assistance from the Superfund, is explicitly permitted. In certain situations EPA may release a party from future liability as part of a settlement agreement. Expedited procedures for settling with minor (de minimis) contributors of waste at a site are provided; such parties are protected from contribution suits by others involved at the site.

States

States are authorized to participate in the cleanup process, from initial site assessment to selecting and carrying out the remedial action, and negotiating with responsible parties.

To encourage states to establish new treatment and disposal facilities, SARA requires, as a condition of having its NPL sites cleaned up, that a state assure that it will have adequate disposal capacity for all hazardous wastes expected to be generated within the state for the next 20 years. This requirement went into effect in November 1989.

The law requires that, in lawsuits for personal injury or property damage due to exposure to hazardous substances, state statutes of limitations will not begin to run until the date when the individual knows, or should have known, that the personal injury was caused by the exposure to the hazardous substance. The purpose of this provision is to overcome situations (e.g., long-latency diseases such as cancer) where a party is barred from bringing a lawsuit because the statute of limitations expired before the injury was discovered.

Enforcement

EPA's principal enforcement tool is the authority to order a potentially responsible party (PRP) to take actions at a site that presents an imminent and substantial danger to the public health or welfare, or the environment from an actual or threatened hazardous substance release. Failure to obey an order may make a PRP liable for triple punitive damages. CERCLA also gives EPA information gathering powers, and authority to enter and inspect facilities, and to obtain samples of suspected hazardous substances. EPA can assess civil penalties of not more than $25,000 per day ($75,000 per day for subsequent violations) for failure to comply with its orders or for violating these and other CERCLA provisions, including: (1) the requirement to notify authorities of a hazardous substance release; (2) destruction of records; (3) financial responsibility requirements; and (4) violating an order or consent decree concerning settlement agreements. A subpoena power can compel the attendance of witnesses and documents at administrative hearings. As noted in the section on liability, EPA may seek to recover its cleanup and enforcement costs from PRPs in order to reimburse the trust fund; the law also gives the United States a lien on the property.

In addition, CERCLA authorizes paying awards of up to $10,000 for information leading to criminal conviction for failure to give notice of a release, and for destroying or concealing records. The law also has provisions protecting employees who provide information to a state or the federal government regarding the administration or enforcement of the Superfund law.

A state may enforce any federal or state regulation to which a remedial action is required to conform. A consent decree (from a court) or a consent order (from EPA) implementing a settlement agreement must contain penalties for violations of the decree or order; it, too, is enforceable by either the state or federal government. Individuals may bring a citizen suit against anyone, including the United States, for violating CERCLA (or any order, agreement, etc., that has become effective pursuant to the Act). A citizen suit may also be brought against EPA or any other federal agency for failure to perform a nondiscretionary duty required by the law.

Natural Resource Damages

In addition to imposing liability for cleanup costs, CERCLA requires PRPs to remedy the environmental harm they caused by restoring or replacing the injured natural resources, and by paying damages for the lost use of publicly owned resources, including the costs of performing the damage assessment. The law and its implementing regulations designate federal, state, and tribal authorities as trustees for the natural resources under their jurisdiction, and they are the only ones who can assert a claim for damages. Losses that were previously identified in an environmental impact statement are excluded, as are injuries to a natural resource that occurred before enactment of CERCLA. A claim must be brought within 3 years of its discovery and connection to the release.

Public Participation

The public is allowed to participate in the selection of a cleanup plan, and EPA is required to respond to public comments. Local groups can receive as much as $50,000 to obtain technical assistance in interpreting information related to a site.

Selected References

Charles de Saillan. Superfund Reauthorization: A More Modest Proposal. Environmental Law Reporter, v. XXVII, May 1997. p. 10201-10227.

U.S. Congress. Senate. Committee on Environment and Public Works. Superfund Cleanup Acceleration Act of 1998; Report of the Committee ... together with Additional, Supplemental, and Minority Views to Accompany S. 8. Senate Report No. 105-192, 105^th Congress, 2^nd Session. Washington, U.S. Government Printing Office, 1998. 434 p.

Table 3. Major U.S. Code Sections Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 and Amendments⁽⁶⁾
(codified generally as 42 U.S.C. 9601-9675)

Footnotes

The NCSE also recommends CRS reports on Solid Waste Management.

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