CERCLA Flashcards
CERCLA
- 1980
- retrospective - focuses on liability rather than regulation (although winds up having prospective effect because the liability terms are so harsh that people want to avoid falling into it)
CERCLA Passage
- passed just after Reagan was elected + Senate turned Republican for the first time in decades -> theoretically, this should’ve been a dead duck senate and they should’ve done nothing, but instead passed w/ bipartisan support
CERCLA - Significance
- imposed a tax on petro-chemical industry (fund the superfund)
- federally-funded cleanup of priority hazardous waste sites in all 50 states
- liability of potentially responsible parties (PRPs) for cleanup costs
CERCLA Liability
- Standard of liability: strict
- scope of liability: potentially joint/several
- limits on judicial review
Superfund Tax
- passed as part of original CERCLA in 1980 but ended in 1995
- Money after this ended from lawsuits and Section 106
BUT recently reinstated:
- Infrastructure Investment and Jobs Act of 2021 reinstated chemical tax through 2032 at a higher rate
- Inflation Reduction Act of 2022 - permanently reinstated crude oil and imported petroleum products tax at a higher rate
CERCLA Section 101
- Definitions
- “hazardous substance” (substance, not waste) -> encompasses hazardous waste from RCRA, toxic pollutants from CWA, hazardous air pollutants from CAA, and a couple other acts then adds its own catchall (although doesn’t include petroleum)
- also defines “release” - doesn’t include normal application of fertilizers, but DOES include leaking (important b/c passive, doesn’t require any activity by operator)
Release Definition
- includes spilling, leaking, pumping, pouring, emitting, emptying, discharging, leaching, dumping, disposing, injecting, escaping, + leaching
CERCLA Section 104
- gives cleanup authority to Pres (political compromise -> delegated to EPA after statute passed)
- can “remove or arrange for the removal of and provide for remedial action” whenever a hazardous substance is released or there’s a substantial threat of release (remedial action = permanent remedy)
CERCLA Section 105
- National Contingency Plan
- National Priorities List - identifies the worst sites around the country
- more likely to get cleaned up if listed, but also concern re property (people sometimes resist listing)
- by statute, there needs to be a certain number of sites in each state
CERCLA Section 106
- enforcement authority
- when there “may be an imminent and substantial endangerment to the public health or welfare or the environment” b/c of “actual or threatened release of a hazardous substance,” EPA can bring lawsuit or issue administrative order to address the threat
- technically doesn’t say WHO you can sue/order though + also missing standard of liability (what do they need to have done? Is it strict or negligence?)
CERCLA Section 107
- Potentially Responsible Parties and Cost Recovery Actions
- technically says who the potentially responsible parties are for only 107, but gets extended to 106 by courts
CERCLA 107 - PRPs
4 categories:
- owner
- past owners and operators
- generators (those who arranged for disposal)
- transporters
Note that generators are most likely to have the $
CERCLA 107 - Liability Standard
- references CWA oil spill standard (political compromise) -> strict liability
CERCLA Cost Recovery Actions
Liable for:
- all costs of removal or remedial action incurred by a sovereign
- any “other necessary costs of response incurred by any other person” (tends to be current owners)
- damages for injury to, destruction of, or loss of natural resources
Section 107 Defenses
Originally very limited - only if release of haz substance + damages caused solely by:
- act of God
- act of war
- act or omission of a third party (can’t be anyone you have a relationship with though, ie. contractor or subcontractor, could be random trespasser)
Cleanup Orders
- under Section 106
- you get fined $25,000 per day for every day you fail to comply with the order
Treble Damages
- if you don’t comply with a 106 cleanup order and the gov turns around and cleans it up then sues you for the cleanup costs, you have to pay three times the damages
Why don’t parties challenge orders?
Automatic rxn WOULD be to challenge the gov’s cleanup order, but Section 113(h) limits judicial review -> you don’t get judicial review UNLESS:
- you’re being sued under 107 for response costs
- there’s an action to enforce the 106 order or collect on your penalties
- action for reimbursement under 106(b)(2)
- action under section 310 (citizen suit) alleging removal/remedial action under 104 in violation of the Act
- action under 106 in which US moved to compel remedial action
Basically, you can’t sue preemptively and if you’re wrong you’d have to pay a TON of money (treble damages under 107 + 106 fines)
Why limited judicial review for CERCLA?
- didn’t want people to be able to sue preemptively b/c national emergency - imminent danger means no time for lawsuits