Background
Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980. Also known as “Superfund,” CERCLA broadly defines hazardous substances and gives Environmental Protection Agency (EPA) authority to respond directly to actual or potential spills of these materials. The law allows the agency to identify those responsible for the releases at a site and initiate court action to force those responsible to pay for cleanup. The EPA, the federal Department of Justice, and often the counterpart state agencies coordinate to settle these claims.
CERCLA also has spill response requirements. See CERCLA — Spills.
Key Regulatory Concepts
Hazardous Substance
All elements, compounds, mixtures, and radionuclides on any CERCLA list (see CERCLA — Spills) are hazardous substances. This term also includes hazardous wastes, water and air pollutants, and toxic substances as other environmental laws define these terms. CERCLA excludes petroleum and petroleum products from the definition of hazardous substances. CERCLA also excludes some releases from operating and permitted hazardous waste facilities.
Superfund
The Superfund is a multimillion-dollar federal fund created by CERCLA. It came from excise taxes levied on chemical feedstock manufacturers and crude oil producers. The tax expired in 1995 and Congress has not yet renewed it. Superfund may cover some costs associated with site cleanups, but generators should not expect a substantial level of expense coverage from Superfund.
Enforcing Agencies
The United States Department of Justice and the EPA enforce CERCLA. State justice and environmental offices may be involved in responses and cleanups. Circumstances of the release and cleanup determine the involvement of these agencies.
Potentially Responsible Party (PRP)
The enforcing agencies can hold persons or entities liable for response and clean-up costs if they ever sent waste to or through the site or if they were responsible for operation on the site. Once the enforcing agencies identify these persons or entities, they become “potentially responsible parties” or PRPs. The enforcing agencies can extend liability under CERCLA to past or present owners, operators, and people who either arranged for or performed transport or disposal.
Joint and Several Liability
The PRPs usually share the clean-up costs between them. This is “joint liability.” However, if some PRPs no longer exist in a legal sense, the remaining PRPs share the total cost of the cleanup. This is “several liability.” CERCLA allows the enforcing agencies to use either or both kinds of liability to settle costs of a response action.
De minimus/de micromis
Some PRPs contribute such a small amount of waste to a site that EPA and the Department of Justice quickly exclude them from pending civil actions, usually without further contribution to clean-up costs. This is a de micromis settlement. Other PRPs that have a low, but not negligible, participation in a site can settle before PRPs with a larger share of the cleanup. The PRPs with low participation usually settle at some modest cost proportional to their contribution. These are de minimus settlements.
Does this apply to my campus?
Yes. Campuses that store, use, or dispose of any hazardous substances, either currently or in the past, can incur CERCLA liability. This liability is permanent. It applies to past storage, handling, use, and disposal methods, even if they were legal and generally accepted when they were used.
Institutions incur legal liability in a waste disposal facility when their waste travels to that facility as a final destination (such as a landfill or incinerator) or through that facility (such as a transfer station). This means that institutions can incur liability in several facilities with one shipment of regulated wastes. Enforcing agencies generally impose liability on as many contributors to a waste site as they can. This leaves PRPs to seek indemnification from the other PRPs at their own cost.
The Superfund tax was rescinded in 1996, leaving Superfund nearly depleted. EPA and the Department of Justice must more aggressively target PRPs to recover the full costs of cleanups.
What do I have to do?
If the EPA, the Department of Justice, or their state counterparts contact your campus regarding liability in a CERCLA or state clean-up action, seek legal advice from an attorney experienced with CERCLA cases.
However, the initial PRP list in a response action may not accurately reflect actual participation. The initial list might identify some facilities as PRPs even if they did not contribute to the site, and the amount of participation of some PRPs may not be accurate. Under these circumstances, PRPs can exclude themselves from a response action, or sharply reduce their participation, after a thorough review of the site records. For this reason, you should maintain accurate and detailed records of all spills, spill cleanups, waste shipments, and product shipments. These records will allow you to document your level of involvement, or noninvolvement, in a CERCLA hazardous substance response action.