GE Housatonic Superfund project in Massachusetts. Source: CorpsNewEngland/Flickr

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), United States

Published: February 6, 2008, 4:41 pm

Updated: April 14, 2011, 4:03 pm

Author: Alejandra Roman

Topic Editor: Peter Saundry

Topics:

Environmental Law (main)

Environmental Law & Policy (main)

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), is the main federal law of the United States that addresses the clean up of hazardous substances. The law was amended several times enlarged by the Superfund Amendments and Reauthorization Act. It is known more generally as the Superfund program. The Environmental Protection Agency (EPA) administers the program. Subsequent amendments to CERCLA also authorized EPA to administer a separate grant program to support the cleanup of abandoned or idled “brownfields” properties to encourage their redevelopment.

CERCLA provides the process for identifying liability for contaminated property. The law employs the principles of "strict liability" and "joint and several liability" to identify responsible parties (RPs). Strict liability assigns liability without necessarily finding fault. Under this concept a landowner is deemed responsible for contamination found on his property without regard for any fault; simply being in the chain of title is sufficient basis for being held responsible. Joint and several liability holds that once a party is found to be responsible for even a portion of the contamination they can be held liable for the entire cost of a clean up without regard for the portion of contamination they might have caused. Property owners were provided several defenses against the cleanup liability. The Courts have allowed a "de minimis defense" for RPs found to have contributed only nominally to the contamination but the most common defense is the "innocent landowner defense".

An innocent landowner is a property owner that can demonstrate that before purchasing the property they made an inquiry into the historic use and condition of the property and found no evidence of contamination. This inquiry had to meet a test of being consistent with good and customary commercial practice. The statute, however, did not provide definition of what "good and customary commercial practice" might be. Over the years following the passage of CERCLA, the practice of environmental site assessment for the purposes of meeting this test emerged and became more sophisticated. Eventually the American Society of Testing and Materials (ASTM) developed consensus standards that were found to satisfy this test and were widely used.

Many real estate professionals and policy makers felt an unintended consequence of CERCLA was to make existing industrial and commercial property to risky for investment and resale which was, at least in part, responsible for industrial development moving out of traditional areas. The emergence of brownfields and the actions at the state and local level beginning in the 1990s highlighted many of the problems implementing CERCLA and the effects of the law on local economies. Many states, working with the Environmental Protection Agency (EPA) and the Department of Justice, passed laws to encourage redevelopment of industrial properties called "brownfields" by offering protection from the liabilities assigned under CERCLA. The standards of liability and assessment were modified in federal law in 2001 when theSmall Business Liability Relief and Brownfields Revitalization Act was signed into law.

CERCLA established a US$1.6 billion fund over five years compensated by taxes from chemical and petroleum industries. The mandate authorized short-term removals and long-term response actions and plans. One example is the National Priorities List that guides the EPA in determining sites with known or threatened releases of hazardous materials or contaminants.

On October 17, 1986, the Superfund Amendments and Reauthorization Act (SARA) amended CERCLA by making numerous changes and expanding the scope of the Superfund program.

History

By the end of the 1970s, Congress had enacted several environmental laws to regulate sources of pollution in the United States, but had not yet addressed responsibility for contamination resulting from releases of pollutants into the environment. In the late 1970s, the discovery of severely contaminated sites, such as “Love Canal” in New York and Times Beach in Missouri, raised questions as to whether there should be a federal role in cleaning up environmental contamination to protect the public from potential harm. Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, P.L. 96-510) to authorize the federal government to clean up contaminated sites in the United States and to make the “potentially responsible parties” connected to those sites financially liable for the cleanup costs. CERCLA created the Superfund program to carry out these authorities.

Love Canal

Also see History of Love Canal

The community of Love Canal, New York, was site of an aborted canal between the upper and lower Niagra Rivers on the eastern edge Niagara Falls. In the 1920's the ditch that remained was used as a municipal and industrial chemical dumpsite. In 1953, the owner of the site, Hooker Chemicals and Plastics covered the site and its hazardous wastes with earth and sold the land to the city for one dollar. By the late 1950s, the site was transformed into a fairly average new community; about 100 homes and a school were built.

Clean-up at Love Canal, New York. (Source: EPA)

In August of 1978, after a period of heavy rain, numerous chemicals, some of which were suspected carcinogens, began leaching from the ground into the community.

Eckardt C. Beck reported in the EPA Journal:

"I visited the canal area at that time. Corroding waste-disposal drums could be seen breaking up through the grounds of backyards. Trees and gardens were turning black and dying. One entire swimming pool had been had been popped up from its foundation, afloat now on a small sea of chemicals. Puddles of noxious substances were pointed out to me by the residents. Some of these puddles were in their yards, some were in their basements, others yet were on the school grounds. Everywhere the air had a faint, choking smell. Children returned from play with burns on their hands and faces."

Chemicals in alarming concentrations were found in people’s homes, backyards, and playgrounds. Residents suffered immediate effects such as lesions and burns as well as chronic effects such as leukemia and birth defects. After the situation at Love Canal was publicized, action was taken at both the local and national level, including the appropriation of emergency funds to aid the Love Canal residents.

While Congress had passed the Resource Conservation and Recovery Act (RCRA) in 1976 to govern how hazardous wastes were to be treated, stored, and disposed of in order to minimize the present and future threat to human health and the environment, that law did not address prior activities or abandoned contaminated sites. Therefore, federal, state, and local authorities did not have guidelines for addressing or cleaning up properties contaminated by hazardous substances.

On December 11, 1980, US Congress enacted The Comprehensive Environmental Response, Compensation, and Liability Act, commonly referred to as CERCLA or ‘Superfund’. CERCLA was intended to provide the means to identify responsible parties, fund the cleanup of impacted sites under the "polluter pays principle", and diminish the dangers of hazardous waste sites that create significant risk to public health and the environment.

Chronology

Table 1. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Major Amendments
(codified generally at 42 U.S.C. 9601-9675)
Year	Act	Public Law Number
1980	Comprehensive Environmental Response, Compensation, and Liability Act of 1980	P.L. 96-510
1986	Superfund Amendments and Reauthorization Act of 1986	P.L. 99-499
1990	Omnibus Budget Reconciliation Act of 1990	P.L. 101-508, Title VI, § 6301, Title XI, Subtitle B, Part IV, § 11231
1992	Community Environmental Response Facilitation Act	P.L. 102-426
1996	Asset Conservation, Lender Liability, and Deposit Insurance Protection Act	P.L. 104-208, Division A, Title II, Subtitle E
1996	National Defense Authorization Act for Fiscal Year 1997	P.L. 104-201, § 334
1999	Superfund Recycling Equity Act	P.L. 106-113, Appendix I, Title VI
2002	Small Business Liability Relief and Brownfields Revitalization Act	P.L. 107-118

General

CERCLA established a broad liability scheme that holds both past and current owners and operators of contaminated facilities financially responsible for the costs of cleanup. At waste disposal sites, generators of the waste sent to the site for disposal, and transporters of the waste who selected the site for disposal, also are responsible for the cleanup costs. If these potentially responsible parties cannot be found or cannot pay for the cleanup, CERCLA authorizes the federal government to finance the cleanup to ensure the protection of human health and the environment. These costs borne by the federal government are referred to as “orphan shares.” The broad liability scheme of CERCLA is intended to capture all parties that may have had some involvement in the actions that resulted in contamination of the environment, in order to minimize the burden of the costs of cleanup on the general taxpayer who had no involvement.

This approach to liability is based on the principle that polluters should be required to pay for the environmental damage that they cause, often referred to as the “polluter pays principle.”

CERCLA established the Hazardous Substance Superfund Trust Fund to finance cleanup actions taken by the federal government at contaminated sites where the potentially responsible parties cannot pay or cannot be found. A combination of special taxes on industry and revenues from the General Fund of the U.S. Treasury initially financed the Superfund Trust Fund, but the authority to collect the industry taxes expired at the end of 1995. As the remaining revenues were expended over time, Congress increased the contribution of general Treasury revenues in an effort to make up for the shortfall from the expired industry taxes. The availability of Superfund Trust Fund monies to finance the cleanup of contaminated sites is subject to appropriations by Congress.

Considering the liability of the federal government as a potentially responsible party at its own facilities, the cleanup of federal facilities is not funded with Superfund Trust Fund monies under the Superfund program, but with other federal monies appropriated for other programs administered by the agencies responsible for these facilities. The Department of Defense (DOD) and the Department of Energy (DOE) administer the cleanup of most contaminated federal facilities. EPA and the states are responsible for overseeing and enforcing the implementation of CERCLA at federal facilities to ensure that applicable requirements are met.

To prioritize cleanup actions, CERCLA directed EPA to establish and maintain a National Priorities List (NPL) of the most contaminated sites in the United States which present the greatest risks to human health and the environment. The NPL includes both non-federal sites and federal facilities that are deemed to present a sufficient level of risk to warrant listing. EPA may require the potentially responsible parties to directly perform or pay for cleanup actions themselves. Alternatively, EPA may clean up a contaminated site up-front with appropriated Superfund monies and later recover those funds from the potentially responsible parties (with the exception of the cleanup of federal facilities which must be funded up-front by the administering agencies). In the event that the potentially responsible parties cannot pay or cannot be found, appropriated Superfund monies may be used to pay the orphan shares of cleanup costs at a site, under a cost-sharing agreement with the state in which the site is located.

The following sections summarize the major cleanup authorities of CERCLA and other relevant provisions of the act. The topics discussed herein include the overall scope and reach of cleanup actions authorized under the statute, the process under which cleanup actions are selected and carried out at individual sites, the financial liability of potentially responsible parties for the costs of cleanup actions, the Superfund Trust Fund that may pay for cleanup actions when the potentially responsible parties cannot pay or cannot be found, enforcement of cleanup liability against the potentially responsible parties to minimize the need for federal tax revenues to finance the cleanup of contaminated sites, the applicability of CERCLA to federal facilities, and federal assistance for the cleanup of brownfields properties. A more in-depth examination of these statutory authorities is presented in CRS Report R41039, Comprehensive Environmental Response, Compensation, and Liability Act: A Summary of Superfund Cleanup Authorities and Related Provisions of the Act, by David M. Bearden.

It should be emphasized that how and to what degree a specific contaminant at an individual site must be cleaned up under CERCLA are not specified in the law itself. The specific actions that are required to clean up contaminants at individual sites are determined on a site-by-site basis. Although CERCLA established a general process for making cleanup decisions, more specific direction is provided in EPA regulation and agency guidance. Other federal agencies that administer the cleanup of federal facilities under CERCLA have developed additional guidance documents that apply to their own respective facilities. Although the statutory authorities upon which federal agencies have based their cleanup regulations and guidance are discussed in this report, the content of these regulations and guidance is not examined here.

Major Amendments

Congress has amended CERCLA on numerous occasions to clarify the applicability of the cleanup authorities of the statute, and to provide relief from liability for certain categories of parties who may not have been involved in actions that led to contamination, or who may have contributed only certain quantities or types of waste to a site. Congress also has amended the statute to authorize federal assistance for the cleanup of abandoned or idled “brownfields” properties to encourage their redevelopment. Further, certain amendments have addressed unique cleanup challenges at federal facilities, such as the cleanup of unexploded ordnance on decommissioned military training ranges in the United States, and responsibility for the cleanup of contaminated federal property when it is transferred out of federal ownership.

The Superfund Amendments and Reauthorization Act of 1986 (SARA, P.L. 99-499) clarified that federal facilities are subject to the cleanup requirements of CERCLA to the same extent as nonfederal entities, and amended various response, liability, and enforcement provisions of the law. The 1986 amendments also renewed the authorization of appropriations for EPA’s Superfund program through FY1991, and established a separate Defense Environmental Restoration Program within DOD to address contamination at active and decommissioned military facilities in the United States. Sections 311 and 312 of the National Defense Authorization Act for FY2002 (P.L. 107-107) expanded the cleanup authorities of this program explicitly to include military munitions and related contamination on decommissioned military training ranges and munitions disposal sites in the United States.

Title VI of the Omnibus Budget Reconciliation Act of 1990 (P.L. 101-508) extended the authorization of appropriations for EPA’s Superfund program through FY1994, and Title XI of that statute extended the authority to collect the special Superfund taxes on industry through December 31, 1995. Although reauthorizing legislation has been introduced in various Congresses, the taxing authority for the Superfund Trust Fund has not been renewed to date, nor has the authorization of appropriations for EPA’s Superfund program been extended. Instead, Congress has continued to fund the Superfund program primarily with general Treasury revenues through the annual appropriations process. Congress has annually authorized and appropriated funding for the Defense Environmental Restoration Program each year since its establishment. Most of this funding is supported with general Treasury revenues, with the exception of some revenues generated from the sale or lease of closed military bases which help fund their cleanup. In 1992, the Community Environmental Response Facilitation Act (P.L. 102-426) amended the federal facility provisions of CERCLA to facilitate the transfer of uncontaminated parcels of surplus federal property on which hazardous substances or petroleum products were not released. Section 334 of the National Defense Authorization Act for FY1997 (P.L. 104-201) further amended CERCLA to allow the transfer of contaminated surplus federal property before cleanup is complete, if certain assurances are provided to guarantee that the property will be cleaned up to a level that would be suitable for its intended use after transfer.

Other amendments have attempted to address the fairness of the liability scheme of CERCLA, either by limiting or eliminating the liability of certain categories of parties. In 1996, the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act (Subtitle E, Title II, Division A of P.L. 104-208) amended CERCLA to protect certain fiduciaries and financial lenders from liability. In 1999, the Superfund Recycling Equity Act (Title VI, Appendix I of P.L. 106- 113) exempted generators and transporters of recyclable scrap materials from cleanup liability under CERCLA, if the person who received the materials disposed of them instead and the disposal resulted in contamination. There had been some concern that the potential liability of generators and transporters under CERCLA could be a deterrent to recycling.

In 2002, the Small Business Liability Relief and Brownfields Revitalization Act (P.L. 107-118) provided relief from cleanup liability for: (1) persons who contributed very small quantities of waste or only municipal solid (i.e. non-hazardous) waste to a site, (2) owners of property that became contaminated merely as a result of migration from a contiguous property owned by another person, and (3) “bona fide” prospective purchasers who otherwise may be hesitant to acquire a contaminated property because of potential cleanup liability once acquiring ownership. The 2002 act also established more specific criteria for exempting “innocent” owners of contaminated property from cleanup liability, if they purchased the property without knowledge of the existing contamination and they had no involvement in actions that led to contamination. Persons seeking an exemption from liability as a “bona fide” prospective purchaser, contiguous property owner, or “innocent” landowner must have performed “all appropriate inquiry” into the prior uses of the property before acquiring ownership, and must take “reasonable steps” after acquiring ownership to prevent potentially harmful exposure to environmental contamination on their properties. Consequently, such persons still may bear some responsibility, even though they may be exempt from the more extensive liability scheme of CERCLA.

In addition to providing relief from liability for certain categories of parties, P.L. 107-118 authorized federal grants to assist in the cleanup of “brownfields” properties. Brownfields properties typically are abandoned, underutilized, or idled sites where the known or suspected presence of contamination, and the potential for cleanup liability, could be viewed as a deterrent to purchase the property for redevelopment. Brownfields properties tend to be less contaminated than sites listed on the NPL, but may need some cleanup to make them suitable for reuse. EPA originally had established a program in 1993 to provide federal assistance for the cleanup of brownfields properties using the general cleanup authorities of CERCLA as the legal basis for this assistance. P.L. 107-118 provided explicit statutory authority for this purpose, and established a separate Brownfields grant program within EPA, apart from the Superfund program.

Federal Response Authorities

Section 104(a) of CERCLA specifically authorizes the President to respond to a release (or substantial threat of a release) of a hazardous substance into the environment, or of a pollutant or contaminant which may present an “imminent and substantial danger to the public health or welfare.” As authorized by Section 115 of CERCLA, the President delegated the response authorities of CERCLA to EPA and other federal agencies by Executive Order. EPA may respond to releases on the land, and the U.S. Coast Guard may respond to releases into inland river ports and harbors, the Great Lakes, and U.S. coastal waters. If a release were to occur at a federal facility, the agency that administers that facility is authorized to take response actions, subject to oversight and enforcement by EPA and the states in which those facilities are located. Federal funding to carry out response actions under CERCLA is subject to appropriations by Congress.

Response actions taken under CERCLA most often entail cleanup activities involving the containment, removal, or treatment of environmental contamination to prevent potentially harmful exposure, but may include the temporary or permanent relocation of potentially exposed individuals if warranted. Congress has excluded certain types of environmental contamination from the response authorities of CERCLA, which may be addressed under other federal environmental laws. These exclusions are provided within the statutory definitions of key terms upon which the response authorities of CERCLA hinge, including the terms “hazardous substance,” “pollutant or contaminant,” and “release.” In addition to these exclusions, Congress has placed general limitations on the extent to which response actions may be taken under CERCLA to address releases of hazardous substances, pollutants, or contaminants in certain situations. In effect, these exclusions and limitations may restrict the applicability or scope of the response authorities of CERCLA at a particular contaminated site.

Petroleum Exclusion

The response authorities of CERCLA do not extend to releases of petroleum. Section 101(14) of CERCLA generally excludes releases of petroleum, including crude oil and any fraction thereof, from the definition of a “hazardous substance” for the purposes of the statute. Section 101(33) does the same for the definition of “pollutant or contaminant.” Petroleum releases are covered instead by other statutes. The Oil Pollution Act of 1990 (P.L. 101-380) is the primary federal law that addresses releases of petroleum. Other federal laws also provide authorities to respond to petroleum releases in specific situations. For example, Section 311(c) of the Clean Water Act authorizes the federal actions to respond to releases of petroleum into or on the navigable waters of the United States and adjoining shorelines. Section 9003(h) of the Solid Waste Disposal Act provides federal response authorities for petroleum leaked from underground tanks. In practice, CERCLA has been applied to the cleanup of some wastes containing petroleum only if the wastes also contained hazardous substances that were not part of the petroleum product itself.

Other Exclusions

Section 101(22) of CERCLA also excludes certain types of releases from the definition of the term “release,” thereby removing such releases from the statute’s reach. A specific category of nuclear materials is excluded from the definition of release, including “source, byproduct, or special nuclear material” released from a nuclear incident or at certain processing sites. The disposal and cleanup of these materials are subject to the Atomic Energy Act. With the exception of these specific nuclear materials, CERCLA generally applies to the release of radionuclides. In federal regulation, EPA has designated several hundred radionuclides as hazardous substances that are subject to the authorities of CERCLA. Section 101(22) also excludes three other types of releases from the response authorities of CERCLA: (1) a release that would result in exposure solely within the workplace; (2) emissions from engine exhaust of a motor vehicle, train, aircraft, vessel, or power pumping station; and (3) the “normal” application of fertilizer.

Limitations on Response Actions

Section 104(a)(3) limits the extent to which actions may be taken under CERCLA to respond to releases of hazardous substances, pollutants, or contaminants in certain situations. Response actions generally may not be taken in situations involving: (1) releases of naturally occurring substances in their unaltered form; (2) releases from products (such as asbestos) that are part of a residential, business, or community structure or building; or (3) releases into public or private drinking water supplies due to deterioration of supply systems through ordinary use. However, in the event of a public health or environmental emergency declared by the President, CERCLA authorizes response actions to be taken under the statute in any of these three situations, if no other person has the authority and capability to respond in a timely manner.

Prioritization of Response Actions

Section 105(a) of CERCLA requires the President to develop a National Priorities List (NPL) of the most hazardous sites in the United States to prioritize response actions. The President has delegated this task to EPA. The NPL must be updated at least annually. Section 105(c) requires the use of a Hazard Ranking System (HRS) to determine which sites warrant placement on the NPL. The system scores each site based on certain factors, such as the quantity and nature of hazardous substances; the likelihood of the migration of contamination in groundwater, surface water, and air; and the proximity to human populations and sensitive environments. Because of this range of factors, the severity of contamination alone may not necessarily be sufficient cause to list a site on the NPL. For example, a geographically isolated site with substantial contamination still may not score highly enough on the HRS to warrant placement on the NPL, if the distance from human populations prevents the likelihood of exposure.

Section 105(a) of CERCLA also required the President to develop a National Hazardous Substance Response Plan to establish procedures and standards for responding to releases of hazardous substances, pollutants, and contaminants into the environment. The law directed the President to incorporate these procedures and standards into the National Oil and Hazardous Substances Pollution Contingency Plan (referred to as the National Contingency Plan for short, or NCP). As delegated by the President, EPA promulgated the National Hazardous Substance Response Plan in federal regulation as part of the NCP. These regulations govern any response actions taken under CERCLA.

National priorities List Sites as of march 7, 2007. Source: U.S. Environmnetal Protection Agency

Scope of Response Actions

CERCLA authorizes two types of response actions: “removal” and “remedial” actions. These terms are defined in Sections 101(23) and 101(24) of CERCLA respectively. Removal does not necessarily mean the physical removal of contamination from the soil, surface water, or groundwater, and remedial actions do not necessarily involve treatment of contamination. Rather, both actions may involve various methods to prevent exposure to contamination, including the relocation of potentially exposed individuals if warranted. It should be noted that the NCP allows remedial actions to be financed with Superfund monies only at sites listed on the NPL, whereas removal actions may be financed with Superfund monies at non-NPL sites to address emergency situations. This restriction is intended to reserve Superfund monies for costlier remedial actions at NPL sites that are thought to present the greatest risks. This funding restriction in the regulations is based on the statutory requirement of Section 105(a) of CERCLA for EPA to prioritize contaminated sites for the purpose of taking remedial actions.

Removal actions tend to be shorter term actions that address more immediate risks, whereas remedial actions tend to be longer term actions that offer a more permanent solution. As such, remedial actions often entail more extensive and costly measures. Because of the typically greater extent and cost of remedial actions, they are subject to more in-depth review in the form of a Remedial Investigation and Feasibility Study (RI/FS). An RI/FS involves an investigation of the contamination to assess potential risks of exposure and a study of the feasibility of remedial alternatives to address those risks. Remedial actions also are subject to public participation requirements under Section 117 of CERCLA. (See the “Public Participation” section of this report.) Removal actions are not subject to a similar degree of review or public comment because of the perceived need for swifter response to address more immediate risks.

Section 104(c)(1) generally restricts the timing of removal actions funded with Superfund monies to one year and the cost to $2 million, with exceptions provided in certain situations. For example, a remedial action may exceed these limitations if the continuance of the removal action would contribute to the remedial action planned at the site. These general timing and cost limitations on removal actions are intended to ensure that removal actions are not pursued on a broader scale as a way to avoid the more in-depth review required of remedial actions.

However, CERCLA does not impose these limitations on a removal action funded by a responsible party with its own funds, nor by a federal agency at a federal facility with dedicated monies appropriated to that agency for that purpose apart from Superfund. From a practical standpoint, imposing the above timing and cost limitations on removal actions at many federal facilities administered by the Department of Defense and Department of Energy could constrain the needed scope of removal actions, as cleanup challenges are often greater at these federal facilities in comparison to non-federal sites.

Federal-State Cost Sharing

Section 104(c)(3) of CERCLA requires the state in which a non-federal NPL site is located to agree to share the costs of remedial actions at that site, as a condition of obligating federal Superfund monies to finance those actions. States are not responsible for sharing the costs of cleanup at sites where the potentially responsible parties pay for the cleanup, including federal facilities that are funded by the federal agencies that administer them. Rather, the federal government and the states are to share the costs of assuming the responsibility for the orphan shares of the cleanup costs, for which there are no viable parties to pursue.

This cost-sharing requirement in Section 104(c)(3) is intended to reduce the financial burden on the federal taxpayer presented by the often long-term financial commitment involved in carrying out a remedial action. Notably, CERCLA does not require states to agree to share the costs of removal actions, which typically are less costly as a result of their smaller scope. Consequently, federal Superfund monies may be used to finance the entire costs of removal actions.

At a site where the state must agree to share the costs of remedial actions as a condition of the obligation of federal Superfund monies, the state first must provide certain assurances of its financial commitments, specified in a binding contract or cooperative agreement with the federal government. Absent such contract or agreement, federal Superfund monies are not available to finance remedial actions at that site. To allow the obligation of federal Superfund monies to commence the remedial actions, the state must agree to pay 10% of the costs of those actions. If the site was owned or operated by the state, or a political subdivision of the state, at the time of disposal, the state must agree to pay at least 50% of the costs of the remedial actions.

In addition to the above conditions, the state must agree to perform future maintenance of the remedial actions for their expected operational life. The point of maintenance usually occurs after any necessary construction is complete and the remedial action is operating as intended.

CERCLA authorizes a delay in the state’s responsibility for the maintenance of groundwater or surface water remedies. Section 104(c)(6) allows a state to delay its maintenance responsibilities for the first 10 years of the operation of such remedial actions. The statute allows a delay in the state’s maintenance responsibility specifically for these types of actions to reduce the burden of those costs on the state, as the cleanup of groundwater or surface water tends to be more costly than other types of remediation. During the initial 10-year period, federal Superfund monies instead can be used to pay the maintenance costs of groundwater or surface water remedies.

Selection of Response Actions

Section 121(a) of CERCLA generally requires response actions at contaminated sites to achieve acceptable levels of exposure that would be protective of human health and the environment.

Response actions also are to be cost-effective over both the short-term and long-term, including the operation and maintenance of the action. Section 121(b) states a preference for the selection of remedial actions that involve treatment to “permanently and significantly” reduce the “volume, toxicity or mobility” of contamination, as opposed to actions that do not involve such treatment.

Actions not involving treatment often entail the containment of wastes on-site, or the removal and disposal of wastes off-site. The containment of wastes on-site could present lingering health and environmental risks if the containment method were to fail over time. If the remedial action would result in wastes being left on-site, Section 121(c) requires the President to review the performance of the remedial action every five years to determine whether that action continues to be protective of human health and the environment. If the action is not functioning as intended, the President may take additional remedial actions at the site to achieve the cleanup goal.

Although Section 121 includes certain requirements to govern the selection of remedial actions, it does not specify how clean an individual site must be to protect human health and the environment. Section 121 also does not identify the specific nature of the remedial actions that would be required to attain a cleanup goal at an individual site. Instead, these cleanup decisions are made on a site-by-site basis taking many factors into consideration, including the potential for human exposure based on the anticipated land use, and the technical and economic feasibility of cleanup alternatives to prevent exposure.

Cleanup Standards

The level of cleanup that is required can vary widely from site to site depending on the contaminants present, the cleanup standards or criteria that apply to those contaminants, and the response actions selected to attain those standards or criteria. Rather than specify standards or criteria for individual hazardous substances, Section 121(d) of CERCLA broadly requires that cleanup comply with applicable, relevant, and appropriate requirements (ARARs) to protect human health and the environment. ARARs can include a host of federal or state standards, requirements, or other criteria. In this sense, CERCLA functions as an “umbrella” statute under which other statutes or regulations also may be applied to the cleanup of a contaminated site. Section 121(d)(4) authorizes the waiver of a particular standard, if:

the contemplated response action would be part of a larger remedial action that would meet the standard once the larger action is completed;
compliance with the standard would result in a greater risk than the alternatives;
compliance with the standard would be technically impracticable from an engineering perspective;
an equivalent standard of performance would be attained;
in the case of a state standard, the state has not consistently applied that standard elsewhere within its jurisdiction; or
meeting the standard would not provide a balance between the need for protection of public health and welfare and the environment at the site under consideration, and the availability of monies in the Superfund Trust Fund to respond to more immediate risks at other sites.

Although CERCLA generally does not list specific standards that may apply to the cleanup of an individual site, there are two sets of standards cited in Section 121(d) that broadly apply to the selection of remedial actions at any site. First, the law requires remedial actions to achieve a level of cleanup that would attain Maximum Contaminant Levels (MCLs) established for current or potential sources of drinking water under the Safe Drinking Water Act. Second, remedial actions must be consistent with other water quality criteria established under Sections 303 or 304 of the Clean Water Act. However, the applicability of these sets of standards to an individual site remains limited to circumstances in which the standards still are deemed “relevant and appropriate,” consistent with the underlying premise of an ARAR.

State Participation

CERCLA authorizes a broad role for states to participate in the cleanup process. States must agree to share in the costs of remedial actions at non-federal NPL sites as a condition of the obligation of federal Superfund monies. In acknowledgment of their sharing of the costs of cleanup, Section 121(f) of CERCLA requires that states be afforded opportunities for “substantial and meaningful involvement” in initiating, developing, and selecting remedial actions. However, there are certain limitations on the involvement of states in cleanup decisions at federal facilities, as states do not share in the costs of cleanup at these facilities. If a state wishes to challenge a remedial decision of a federal agency at a facility which that agency administers, Section 121(f)(3) requires that the state show that the decision of the agency is not supported by “substantial evidence.”

Public Participation

CERCLA also provides a role for the general public in commenting on the selection of remedial actions at individual sites. This role is similar to that under many other federal laws that require the opportunity for the public to comment on certain types of federal decisions. Section 117 of CERCLA requires EPA, or other federal agency responsible for administering and funding the cleanup of a contaminated site, to provide the public an opportunity to comment on proposals for the selection of remedial actions. Once a final decision is made, public notice of the decision must be provided, with an explanation of any “significant” differences from the proposed action and a response to each “significant” public comment on the proposed action.

The opportunity for public comment required by Section 117 of CERCLA applies only to decisions on remedial actions. Decisions on removal actions are not subject to these requirements because of the presumed need for expedited action to address more immediate risks. In practice, EPA and other federal agencies typically notify the public of the selection of removal actions to inform communities of the nature and timing of such actions. To assist the public in understanding technical information presented in cleanup decision documents, Section 117(e) of CERCLA authorizes technical assistance grants of up to $50,000 for community groups. These grants are available only to affected communities at sites listed on the NPL.

Agency for Toxic Substances and Disease Registry

Section 104(i) of CERCLA established the Agency for Toxic Substances and Disease Registry (ATSDR) primarily to assess potential health risks at NPL sites. The ATSDR assesses individual sites based on the likelihood of human exposure to contamination through the air, soil, surface water, groundwater, and other pathways such as consumption of contaminated food sources. The purpose of these assessments is two-fold: to inform the public of potential health hazards at a contaminated site, and to aid decision-makers in evaluating what cleanup actions may be warranted to prevent potentially harmful exposure. Although the findings of the ATSDR may be used to inform the selection of cleanup actions, the agency does not have any authority to dictate cleanup decisions. In addition to site-specific assessments, Section 104(i) directs the ATSDR to prepare toxicological profiles of hazardous substances commonly found at NPL sites to identify potential health effects that can result from exposure.

Section 104(i) of CERCLA also authorizes the ATSDR to carry out several other functions intended to protect public health. For example, the agency is authorized to provide medical care and testing to individuals in the event of a public health emergency caused by, or believed to be caused by, exposure to toxic substances. CERCLA does not provide any criteria as to what constitutes a public health emergency for this purpose, presumably leaving the declaration of such an emergency to the discretion of the ATSDR. As with other roles, the resources of the agency to fulfill this role are subject to appropriations by Congress. To date, the ATSDR has not used its authority under CERCLA to declare a public health emergency. In practice, the agency’s role has focused on educating the public about known health risks from exposure to hazardous substances, and assessing potential risks at individual sites to aid in informing cleanup decisions.

Financial Liability

Section 107 of CERCLA identifies the categories of potentially responsible parties connected with a contaminated site who are liable for the costs of response actions that EPA deems necessary to protect human health and the environment. Such parties also are liable for damages for injury to, destruction of, or loss of natural resources resulting from a release of a hazardous substance, including the costs of assessing such injury, destruction, or loss; and the costs of public health assessments carried out by the ATSDR under Section 104(i) of CERCLA. The following sections discuss the categories of parties who are liable under Section 107 of CERCLA, the reach of liability, defenses to liability, and limitations on the liability of certain categories of parties.

Categories of Potentially Responsible Parties

Section 107(a) identifies four categories of potentially responsible parties who are liable for the costs of response actions, natural resource damages, and public health assessments associated with the release or threatened release of a hazardous substance:

any person who currently owns or operates a facility or vessel from which a hazardous substance was released;
any person who at the time of disposal of a hazardous substance owned or operated the facility at which such disposal occurred;
any person who arranged for the disposal or treatment of a hazardous substance (often referred to as a generator of waste), and any person who arranged for the transport of a hazardous substance for disposal or treatment; and
any person who accepts or accepted a hazardous substance for transport to a disposal or treatment facility, incineration vessel, or site selected by such person.

With respect to liability, financial responsibility for cleanup costs may extend to actions beyond a facility boundary, if a hazardous substance were to migrate (i.e., move or spread) through the environment. Section 101(8) of CERCLA defines the term “environment” to include not only the land, but also surface water, groundwater, or ambient air. Consequently, cleanup actions may be necessary not only on the facility where the initial release occurred, but anywhere the hazardous substance may migrate through the environment. For example, hazardous substances that migrate into groundwater or surface water can travel some distance, even miles, and can necessitate cleanup actions across a larger area than where the release first occurred.

Reach of Liability

Over time, the courts have interpreted liability under Section 107 of CERCLA to be strict, joint and several, and retroactive. This judicial interpretation is rooted in case law, legislative history, and the definition of liability in Section 101(32) of CERCLA that applies the same standards of liability as in Section 311 of the Clean Water Act.

Strict liability means that a party can be held liable regardless of whether the conduct of that party was negligent.
Joint and several liability means that one or more of the liable parties can be held responsible for the full cost of the cleanup at a site, regardless of the degree of involvement in the contamination. However, Section 113(f)(1) of CERCLA allows a party to seek recovery of some of its cleanup costs from other parties at a site through contribution claims in court. In deciding such claims, a court is to base the allocation of cleanup costs on “equitable factors.” In the event that a party can show that the waste it sent to the site could not have contributed to the contamination, joint and several liability is not to apply to that party.
Retroactive liability means that parties are liable for the cleanup of hazardous substances released prior to the enactment of CERCLA on December 11, 1980.

However, Section 107(f)(1) extends liability for natural resource damages only to releases that occurred on or after the enactment of CERCLA, which resulted in injury to, destruction of, or loss of the natural resources.

It should be emphasized that the above description of the basic liability standards of CERCLA merely offers a brief summary of the broad reach of the statute, as generally interpreted by the courts over time. As such, this description does not examine the complexities of individual court decisions on these matters. Since the enactment of CERCLA in 1980, well over one thousand court decisions have interpreted these basic liability standards under the statute to determine the financial responsibility of potentially responsible parties for the costs of cleanup. How a court may view the cleanup liability of an individual party at any one site would depend on numerous legal issues that are beyond the scope of the summary of CERCLA offered in this report.

Defenses to Liability

Section 107(b) of CERCLA provides defenses to liability under certain circumstances. A party cannot be held liable for the release or threatened release of a hazardous substance, and resulting injury to, destruction of, or loss of natural resources, if that party can provide evidence that the release or threatened release was caused solely by:

an act of God;
an act of war;
an act or omission of a third party with whom the defendant has no contractual relationship, if the defendant exercised due care with respect to the hazardous substance and took precautions against foreseeable acts or omissions of that third party and against the foreseeable consequences of such acts or omissions; or • any combination of these three circumstances.

The third party defense sometimes is characterized as the “innocent” landowner defense, in the sense that it typically pertains to property owners who had no involvement in the actions that led to the contamination. Section 101(35) of CERCLA defines the term contractual relationship for the purpose of the third party defense, and specifies the conditions that a landowner must satisfy to claim the lack of a contractual relationship connecting the owner to the contamination.

Limitations on Liability

To address the fairness of the liability scheme of CERCLA, Congress has amended Section 107 and other related provisions of the statute to limit, or in some cases eliminate, the liability of certain categories of parties who may not have been involved in actions that resulted in contamination, who may have contributed only very small quantities or less toxic wastes to a contaminated site, or whose conduct Congress did not wish to discourage. These categories of parties include:

response action contractors who merely perform the work to clean up a contaminated site, but who did not cause or contribute to the contamination;
persons who only hold a contaminated property in a fiduciary capacity;
financial lenders who acquire financial interests or ownership of a contaminated property through foreclosure;
generators and transporters of scrap materials intended for recycling, but instead may have been disposed of by other persons;
persons who contributed only very small quantities of waste or only municipal solid (i.e. non-hazardous) waste to a site;
“innocent” landowners who purchased a property without knowledge of existing contamination;
other “innocent” owners of property that became contaminated merely through migration from a contiguous property where the initial release occurred; and • “bona fide” prospective purchasers who otherwise may be hesitant to acquire a property on which contamination is known or suspected to be present, because of the potential liability for cleanup upon acquiring ownership.

Hazardous Substance Superfund Trust Fund

CERCLA established the Hazardous Substance Superfund Trust Fund to provide a source of funds for the federal government to finance the cleanup of contaminated sites where the potentially responsible parties cannot pay or cannot be identified. This assumption of financial responsibility for these “orphan shares” of cleanup costs is intended to ensure that the actions necessary to protect human health and the environment are carried out. The availability of Superfund Trust Fund monies to pay for the cleanup of orphaned sites is subject to appropriations by Congress. Once appropriated, the availability of Superfund monies under EPA’s Superfund program to pay for remedial actions is further subject to cost-sharing agreements with the states in which the sites are located, as discussed in the “State Participation” section of this report.

Original Taxing Authority

The special taxing authority to finance the Superfund Trust Fund expired at the end of 1995. Before this authority lapsed, three dedicated taxes on petroleum, chemical feedstocks (and imported chemical derivatives), and corporate income provided most of the revenues for the Superfund Trust Fund. Revenues from the General Fund of the U.S. Treasury also contributed to the trust fund to augment the dedicated taxes, but these general tax revenues were a relatively small portion of the total revenues to the trust fund during the time that the dedicated taxes were collected through the end of 1995.

As originally enacted in 1980, Section 211(a) of CERCLA authorized the Superfund excise taxes on petroleum and chemical feedstocks. Section 515(a) of the Superfund Amendments and Reauthorization Act of 1986 expanded the reach of the chemical feedstocks tax to include imported chemical derivatives. Prior to expiration at the end of 1995, the Superfund excise tax on petroleum was 9.7 cents per barrel. The Superfund excise tax on chemical feedstocks and imported chemical derivatives varied from $0.22 per ton to $4.87 per ton, depending on the substance (with the exception of xylene which was taxed at a higher rate of $10.13 per ton in the initial years of the tax until 1992.) Section 516(a) of the Superfund Amendments and Reauthorization Act of 1986 established the special tax on corporate income to provide an additional revenue stream for the Superfund Trust Fund. Prior to expiration in 1995, the Superfund tax on corporate income (formally referred to as the Corporate Environmental Income Tax) was 0.12% of corporate alternative minimum taxable income in excess of $2 million.

Congress created the Superfund taxes on petroleum and chemical feedstocks, based on the broadly held assumption that much of the environmental contamination in the United States had been caused as a result of industrial activities that involved these substances. The Superfund tax on corporate income was intended to raise additional revenues from a wide range of businesses that may have used or disposed of hazardous substances. However, some questioned the fairness of these taxes. Opponents highlighted that the income tax captured all businesses that met the income threshold, regardless of whether a business used or disposed of hazardous substances. Opponents also noted that not all petroleum and chemical companies were necessarily involved in actions that led to contamination.

The appropriateness of the Superfund tax on petroleum was especially controversial in light of the exclusion of petroleum from the cleanup authorities of CERCLA. Because of this exclusion, monies from the Superfund Trust Fund have paid for the cleanup of petroleum contamination only if the contamination includes hazardous substances that are not part of the petroleum product itself. Congress has established other trust funds to address releases of petroleum. Title V of the Superfund Amendments and Reauthorization of 1986 created the Leaking Underground Storage Tank Trust Fund to pay for actions to respond to petroleum released from underground tanks. Title VIII of the Omnibus Budget Reconciliation Act of 1986 (P.L. 99-509) created the Oil Spill Liability Trust Fund to pay for actions to respond to surface releases of petroleum.

Current Source of Revenues

After the authority to collect the Superfund taxes expired, the remaining revenues from these taxes were expended by the end of FY2003, leaving revenues from the General Fund of the U.S. Treasury as the main source of monies for the Superfund Trust Fund. Although the Superfund taxes have expired, industry has continued to provide some of the funding for the trust fund via corporate income taxes that contribute to the General Fund. (Revenues to the General Fund consist of corporate income taxes, individual income taxes, and miscellaneous federal receipts and collections that are not dedicated to specific federal trust funds.)

In addition to general Treasury revenues, others sources of monies have continued to contribute some revenues to the Superfund Trust Fund. Cleanup costs borne by the federal government that are later recouped from the potentially responsible parties are deposited into the trust fund (referred to as cost recoveries). These recouped funds can be made available for the cleanup of other sites where the potentially responsible parties cannot pay or cannot be found. Fines and penalties assessed against potentially responsible parties for violations of CERCLA are deposited into the trust fund as well. Interest also accrues on the trust fund balance. Collectively, these monies have been relatively small compared to the amount of general Treasury revenues that now support most of the trust fund. However, these other sources of monies do continue to help finance the trust fund, and to some extent reduce the need for general Treasury revenues at sites where the potentially responsible parties cannot be found or cannot pay.

Enforcement Mechanisms

There are three mechanisms through which the federal government can take actions to enforce cleanup liability under CERCLA, if the potentially responsible parties can be identified and have the financial capability to pay. These mechanisms include judicial or administrative orders under Section 106 of the statute requiring potentially responsible parties to perform cleanup actions, cost-recovery actions under Section 107 to recoup expenditures of Superfund monies from the potentially responsible parties for cleanup actions performed by the federal government, and voluntary settlement agreements with the potentially responsible parties under Section 122 to perform or pay for cleanup actions. Like the response authorities of CERCLA, these enforcement authorities are Presidential authorities. As discussed earlier in this report, a 1987 Executive Order delegated the President’s response authorities under CERCLA to EPA and other federal agencies. This order also delegated the enforcement of the statute to EPA at sites on the land, and to the U.S. Coast Guard within inland river ports and harbors, the Great Lakes, and U.S. coastal waters.

These agencies have the discretion to use any of the above mechanisms available under the law to enforce the cleanup liability of potentially responsible parties. In practice, the agencies typically attempt to negotiate voluntary settlement agreements with the potentially responsible parties first, and usually turn to the use of Section 106 orders or Section 107 cost-recovery actions when a negotiated settlement appears unlikely. Under a negotiated settlement, the agencies may take a party’s ability to pay into consideration when determining that party’s share of the cleanup costs. In the negotiation process, the party seeking the reduction must submit financial information to document whether its ability to pay may in fact be limited. The decision of the enforcing agency as to whether a reduced settlement is warranted is not subject to judicial review. However, a party only can pay for the cleanup to the extent it is indeed capable, to the point of bankruptcy.

Reducing a party’s share of the cleanup costs based on its ability to pay is intended to avoid such financial outcomes as a consequence of cleanup liability.

Although EPA and the U.S. Coast Guard are responsible for enforcing cleanup liability, Section 310 of CERCLA authorizes citizens to challenge the adequacy of a cleanup action in court. The timing of a citizen suit for these purposes is limited under other provisions of the statute. Section 113(h)(4) of CERCLA does not permit a citizen suit to be brought for violation of a cleanup requirement until the selected cleanup action at a site is completed. Further, a citizen suit may not be brought with regard to a removal action at a site where a remedial action is planned. These limitations on the timing of citizen suits are intended to allow the complete implementation of cleanup actions planned at a site, prior to subjecting the adequacy of those actions to judicial review to assess their compliance with CERCLA.

Federal Facilities

After CERCLA was enacted in 1980, questions arose as to whether Congress intended federal facilities owned and operated by the United States government to be subject to the cleanup requirements and liability provisions of the statute. As originally enacted, CERCLA was silent on this matter. Section 120 of the Superfund Amendments and Reauthorization Act of 1986 added Section 120 to CERCLA to clarify that federal facilities are subject to the cleanup requirements of the statute to the same extent as other entities, including the liability and enforcement provisions of the law. To comply with CERCLA, the federal agency with administrative jurisdiction over a facility is responsible for administering and paying for the cleanup of contamination out of its own budget, subject to appropriations by Congress.

Section 111(e) of CERCLA explicitly prohibits the use of Superfund Trust Fund monies to clean up federal facilities, as these monies are dedicated to paying for the cleanup of sites where the potentially responsible parties cannot be identified or cannot pay. However, Section 111(e)(3) does allow the use of Superfund Trust Fund monies at an individual federal facility to provide alternative water supplies, if groundwater contamination has migrated beyond the boundary of that facility, and there are other potentially responsible parties connected to that facility in addition to the United States. In all other instances, Superfund Trust Fund monies are not available for the cleanup of federal facilities.

As noted earlier in this report, the vast majority of contaminated federal facilities are administered by DOD and DOE. Congress has established dedicated appropriations accounts for each of these departments that are intended to fulfill the financial liability of the United States for the cleanup of the facilities that they administer. Section 211 of the Superfund Amendments and Reauthorization Act of 1986 specifically authorized a Defense Environmental Restoration Program within DOD to administer the cleanup of active and decommissioned military installations in the United States. Sections 311 and 312 of the National Defense Authorization Act for FY2002 (P.L. 107-107) expanded DOD’s cleanup authorities to include unexploded ordnance, discarded munitions, and munitions constituents (i.e., hazardous substances leached from munitions into the environment) on decommissioned training ranges and munitions disposal sites in the United States. Although Congress has not enacted similarly explicit cleanup program authorities for DOE, the department administratively established an Office of Environmental Management in 1989 to consolidate its cleanup efforts under CERCLA and other related statutory authorities, such as the Atomic Energy Act which governs the disposal of radioactive wastes.

EPA and the states play a role in overseeing and enforcing the implementation of CERCLA at federal facilities administered by DOD and DOE under the above programs, as well as other contaminated federal facilities administered by other agencies. Section 120(e) of CERCLA explicitly requires EPA to take the lead in overseeing the cleanup of federal facilities listed on the NPL, but Section 120(f) of the statute allows states and local governments to participate in cleanup decisions. The states play a more prominent role in overseeing the cleanup of federal facilities not listed on the NPL. While CERCLA authorizes EPA and the states to oversee the cleanup of federal facilities, certain provisions of the law can limit their ability to direct or dictate how the cleanup process may be carried out at a federal facility.

For example, Section 120(e)(4)(A) of CERCLA gives EPA final decision-making authority to select remedial actions at federal facilities listed on the NPL, but does not explicitly authorize EPA to direct the schedule of performing those actions, nor how those actions are to be operated and maintained over the long-term to ensure their performance. These latter elements of the cleanup process at federal facilities would appear to be subject to negotiation among the agencies. Further, EPA’s enforcement of cleanup requirements at federal facilities through court actions is complicated by the limited ability of one federal agency to sue another. With respect to the participation of states and local governments, Section 120(f) of CERCLA requires the opportunity to be involved in cleanup decisions, but does not give states and local governments decisionmaking authority similar to EPA’s authority at federal facilities on the NPL. In practice, these limitations may restrict the extent to which EPA, the states, and local governments may oversee the cleanup of federal facilities, even though Section 120 of CERCLA does require federal facilities to comply with cleanup requirements to the same extent as other entities.

National Security Exemption

Although Section 120 of CERCLA clarified the applicability of the statute to federal facilities, Section 120(j) authorized the President to exempt an individual federal facility from a requirement of CERCLA on a case-by-case basis if the exemption would be necessary to protect national security. This exemption is intended to prevent situations in which a federal facility may become unavailable for purposes essential to protecting national security, if carrying out a specific cleanup action somehow may interfere with those purposes. Section 120(j) specifically authorizes the President to exempt a federal facility administered by DOD or DOE from compliance with an individual requirement of CERCLA, if the President deems such an exemption necessary to protect national security.

The President must notify Congress within 30 days of the issuance of an exemption and explain the reason for it. The time period of an exemption initially is limited to one year, but the President may renew it annually with notification to Congress. Historically, a national security exemption under Section 120(j) of CERCLA has not been invoked at any facility that DOD or DOE administers. Instead, contaminated facilities of both departments generally have been subject to the cleanup requirements of CERCLA. DOD and DOE have been responsible for carrying out these requirements at their respective facilities under the programs discussed above, with appropriations by Congress. However, there have been disagreements at some facilities as to what requirements may be applicable to their cleanup, and how certain requirements that are deemed applicable are to be satisfied to ensure the protection of human health and the environment.

Brownfields Properties

In 1993, EPA established an element within the Superfund program to assist communities with the cleanup of certain lower risk sites that did not warrant placement on the NPL, but at which cleanup was desired to encourage economic redevelopment. The purpose of the program was to provide federal financial assistance for the cleanup of properties referred to as “brownfields.” These properties typically are abandoned, idled, or underutilized, and on which known or suspected contamination is perceived as a deterrent to redevelopment by prospective purchasers who may be hesitant about becoming liable for cleanup once acquiring ownership.

EPA initially used Superfund appropriations to provide “seed monies” to communities in the form of grants and loans to aid them in financing certain types of cleanup actions. Although there was broad support for this effort, some questioned EPA’s authority under CERCLA to use Superfund monies for the cleanup of these lower risk sites that were not listed on the NPL and that did not appear to warrant emergency removal actions under the Superfund program. Still, in the annual appropriations process, Congress set aside funding for brownfields cleanup assistance within the Superfund account for several years without specifically amending CERCLA for this purpose.

In the 107th Congress, Subtitle A and Subtitle C of Title II of the Small Business Liability Relief and Brownfields Revitalization Act of 2002 (P.L. 107-118, hereinafter referred to as the “Brownfields Act”) amended CERCLA to provide explicit statutory authority for EPA to administer a Brownfields program separately from the Superfund program. The Brownfields Act authorized appropriations for this new program apart from appropriations for the Superfund account. There had been some concern about the diversion of Superfund appropriations away from addressing the greater human health and environmental risks at NPL sites. Still, the portion of Superfund appropriations that had been spent on the cleanup of brownfields properties was relatively small compared to the total appropriation.

The program explicitly authorized in the Brownfields Act is similar in scope to the program that EPA had established in 1993, with the exception that the Brownfields Act allowed federal financial assistance for the cleanup of contamination resulting from releases of petroleum. As discussed earlier in the “Federal Response Authorities” section of this report, CERCLA otherwise does not apply to the cleanup of petroleum. The Brownfields Act also created two separate types of grants within the Brownfields program. One provides more direct financial assistance for the assessment and cleanup of individual properties. The other provides financial assistance to states and Indian tribes to aid them in carrying out their own cleanup programs, which in turn may assist in the cleanup of individual properties. In addition to these grant programs, Congress has enacted certain federal tax incentives at various times to encourage the cleanup of brownfields properties, although not through amendments to CERCLA.

Note:Significant potions of this article wereextracted from from the Congressional Research Service Report RL30798, Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency by David M. Bearden, Claudia Copeland, Linda Luther, James E. McCarthy, Linda-Jo Schierow, and Mary Tiemann (October 8, 2010).

Comprehensive Environmental Response, Compensation and Liability Act

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