Hazardous Waste and Clean-up Costs

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Environmental Law – Midterm

Discuss CERCLA’s liability scheme and clean-up process. How do they work? Have they improved since SARA? Consider at least three major criticisms that have been leveled against CERCLA. Do you think these criticisms are accurate or not? Could CERCLA be improved? How?

The Comprehensive Environmental Response Cleanup and Liability Act (CERCLA), also known to the general public as the Superfund program, was passed by Congress on December 11, 1980. CERCLA was enacted, along with its sister law RCRA which came before it, to deal with the environmental damage that was being caused by improper waste disposal. CERCLA’s goals are to clean up old dump sites and discourage future illegal dumping. CERCLA imposes few direct regulatory obligations and is designed to force cleanups and allocate the cost of cleaning up via its liability and cleanup provisions. The basic principle is that the potentially responsible parties such as waste generators, transporters, and/or owners & operators of facilities that are responsible for hazardous waste pollution should pay for its cleanup. Through CERCLA’s strict liability scheme any company that illegally spills or dumps hazardous substances is liable for the clean-up whether or not the action was negligent. Also, through joint and several liability, each party that contributed waste to a site is responsible for its cleanup. So if Joe Blow is found liable for the clean-up of a site and happens to find any evidence that another company may have contributed as well, Joe Blow can legally pursue them to pay their “fair share” of the clean-up costs. A perfect example of this was the Girl Scout story told in our environmental law class where a Girl Scout cookie box was found in a site by a company that was fingered for clean-up. The company then tried to accuse the Girl Scouts organization of having to pay the cost of clean-up as well. Furthermore, through retroactive liability, all responsible parties...
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