The “Green” Problem of Superfund (CERCLA)
The “green” problem did not start as a disaster. However, it spiraled into one of the worst environmental disasters in the history of the US (Hatfield, 2012). It all began with the Love Canal in 1880s. Love Canal was excavated by W.T. Love in 1890s and it was part of the hydroelectric power project in Niagara Falls, New York. The project was never implemented and Hooker Chemicals and Plastics Corporation used it as a landfill between 1942 and 1952. The surrounding areas were later developed with construction of an elementary school and residential homes. It was not until 1960s when odors and residues were first reported which increased with time as the water table rose; and in the process bringing contaminated groundwater to the surface. The contaminations spread to the surrounding areas and affected surface runoff, the river, water treatment plant, and sewers. The contaminations were so widespread that the president called for two emergencies in 1978 and 1980 and which finally led to the evacuation of 950 families who were living adjacent to the land fill. This was followed by the call for the establishment of Superfund /CERCLA (Beck, 1979; EPA, 2012).
Superfund, which is also known as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), was enacted by the Congress on 11th December, 1980. The purpose of creating the law was to come up with a tax system targeting both the petroleum and the chemical industries. The law also gave the larger Federal authority more power to address directly concerns about releases or likely releases of substances that were hazardous and which had a potential to not only harm the environment but also the public. In a period of five years, a total tax of $1, 600, 000, 000 had been accumulated. The amount was then deposited in a trust fund and was meant to be used for cleaning sites with uncontrolled hazardous wastes as well as for cleaning abandoned sites. The Superfund came up with three things. The first one involved the establishment of requirements and restrictions regarding both abandoned and closed sites containing hazardous wastes. The second issue was provisions for liability to individuals who were responsible for releasing hazardous wastes to the sites. The third issue was about the establishment of a trust fund to gather for expenses incurred in cleaning up the sites with no known party responsible for releasing hazardous wastes. The law authorized two types of response mechanisms. The first response action involved short-term removals. This was to address cases where releases or likely releases called for prompt action. The second response involved establishment of response actions that were long term in nature. The motive was to minimize or eliminate dangers associated with release or likely release of substances that were hazardous but pose no immediate threat. Furthermore, the Superfund also facilitated the amendment of the National Contingency Plan (NCP) which subsequently led to the provision of guidelines and procedures that were required to address issues of release or likely release of hazardous contaminants, pollutants, and other substances. The National Contingency Plan (NCP) was also responsible for the creation of the National Priorities List (NPL) which included releases or likely releases of hazardous contaminants, pollutants, and other substances throughout the US as well as its territories. On the 17th October, 1986 CERCLA/Superfunds amendments were made in the Superfund Amendments and Reauthorization Act (SARA) (EPA, 2011; Switzer & Bulan, 2002).
As soon as the Superfund was enacted, there were controversies surrounding its interpretation (Hird, 1994). While some arguments were for the enactment others opposed the enactment for reasons which will be discussed in subsequent sections. The Congress, environmentalists and the people were of the opinion that the legislation was necessary to curb the widespread pollution which caused danger to both the people and the environment. However, the land owners, municipalities, corporations, and the courts were some of the parties that argued against the Congress decision. While the courts were more concerned with the interpretation of the law, the land owners and other institutions felt that they could be unfairly compelled to pay for pollution which they never contributed. Some states also pointed out that the legislation was not in line with some legislation of certain states since they already had law to take care of environmental conservation. They were of the opinion that the current legislation might conflict with the laws they already have in place and which addressed the same concerns. Others pointed out they were made to pay for liabilities of others.
This is an indication that voluntary standards were not promulgated. Those who support the legislation believed that the federal government needed to intervene and protect the environment. However, those who opposed believe that the draft punished even those who were not liable for the offence among other faults. For example, three years after enactment of the CERCLA, critics of the law began to point out what they called mistakes. The critics were concerned that the CERCLA was poorly drafted with a lot of ambiguities. There was little stakeholder participation in the process including the land owners, the public, the companies, other statutory organs of the federal government, and states. They blamed the Congress for passing a law without deliberating on the consequences. The courts found the resulting draft was very difficult to interpret since there was neither clarity nor precision in the draft. This rendered the law ineffective. In certain circumstances, CERCLA was found to be very unfair. For example, some parties were compelled to pay huge amount of fines for actions which they did not commit. Politics also came into play in the issue of CERCLA. The congress hurriedly passed the law with the fear that there was an imminent power transfer in the presidency and the senate. Even with the passage of time, there was no tangible solutions that could address the mistakes that occurred due to the congress haste. Even the lower federal courts were divided on the conflicting issues pertaining CERCLA while the Supreme Court did not intervene to offer guidelines regarding the issue. While the SARA of 1986 was anticipated to resolve the disputes, it failed and there was no subsequent successful effort to amend the statute. Furthermore, subsequent administrative reforms failed to correct the anomalies present in the statute itself (Nagle, 1997).
One of the major arguments regarding CERCLA is that it was difficult to implement across all states. Implementation of the CERCLA imply that it was going to affect how land was going to be used. In the past, other waste control regimes had caused recurrent challenges to federalism which had been forwarded even to the Supreme Court. One of the other reason is that unlike other federal statues on environment, CERCLA portrays an indirect property law and state tort in conjunction with the releases of hazardous substances. Despite this, it has been noted that CERCLA had largely escaped challenges the federal government faced in its implementation (Craig, 2012). The difficulty in the implementation suggest there was little cost/argument involved in the draft. The cost only looked at the environmental aspect. Although there was a need to protect the environment from further pollution and clean current and previously contaminated sites, the legislation did not factor individuals, commercial and societal concerns. This means the implementation was going to infringe on the rights of others who were not even party to the pollution problem. The argument that the state was going to facilitate cleaning and later bill the polluter is not the best approach. What if the cost of damage far exceeds the cost of the company? Without supporting legislation, the act might open a gateway for carelessness in environmental pollution; legalizing pollution.
The initial reason for the establishment of the Superfund was based on the theory that the “polluter must pay”. However, during the enactment of SARA, this premise was questioned with an increased recognition of the “societal nature” of the problem of cleanup. The enactment of the SARA did not offer a concrete solution to all the parties involved since Congress did not limit retroactive liability in SARA. At first, CERCLA did not specify the standard of liability that was going to be applicable to people who were potentially responsible. However, in subsequent cases that later came up, the courts argued that the decision was wrong and that CERCLA should have established strict liability clause indicating limits to retroactive liability. The need to limit retroactive liability was well illustrated in the controversial case of United States v. Olin (Kubasek, Williamson, and Vigil, 1997). Eventually, four categories of individuals who were potentially responsible were identified. The first group involved current operators or owners of hazardous waste sites. The second group involved operators or owners of hazardous waste facilities at the period of disposal. Third included individuals who organized the disposal of hazardous wastes. Finally, the last group involved individuals who accepted hazardous wastes for transport (Alvino, 1988).
Despite the fact that CERCLA was meant to regulate individuals, corporations, and municipalities some parties felt subsequent amendments were still insensitive to their concerns. No all the parties were comfortable with the idea of CERCLA/Superfund. For example, municipal governments had been advocating for exemption instead of a comprehensive reforms of the Superfund. The idea behind exemption was the nature of the wastes they handle. Municipal authorities argued that they handled wastes with low levels of toxicity that were way below the threshold set by EPA for them to qualify to be affected by CERCLA liability (Kopel, 1998). For example, in a particular site, several parties might be concerned. Under EPA’s interpretation, all parties contributing to pollution at the site must bear the cost of cleaning the site. This suggest, even if a party was responsible for 1% pollution at the site, it was responsible for 100% the cost of clean-up. The cost of clean was usually very high due to exceptionally stringent conditions set by EPA and especially when considered that it included the costs of hiring consultants and EPA staff.
Evidence suggests that for projects so far completed, there had been worst ratio of costs to benefits implying the Congress did not factor the costs in their draft. It is on this basis that municipal authorities felt the Superfund issue could be addressed in a manner that favored them while ignoring the harm it caused to other parties. But each party felt that the cost of meeting CERCLA was too high to bear and exempting only municipal authorities was unfair. They view the trend as leaning more on environmental politics than the original intention of environmentalism. Even with the best application of waste disposal practices, a party was still subjected to the Superfund liability. The most affected being corporations; suggesting one level of government was giving higher preferential treatment to another. Arguments against Superfund varied in nature. Municipalities argued they generated high-volume low toxicity wastes than industries. Industries on the other hand argued that they spent a lot to reduce toxicity levels in their wastes to the levels found in municipal wastes. Courts argued that a hazard is a hazard and volumes or the source does not matter. As such, the courts have continued to hold the view that municipalities are not to be exempted from CERCLA liability for whatever reason provided they deal in hazardous wastes (Manko & Cozine, 1994). Other arguments included that the municipalities were to be exempt because they felt to be morally superior to corporations, and that they were targeted because they are rich and that not every “polluter” make profit. These arguments have been contested by other parties. In essence many analysts concluded that the Superfund legislation was an example of an environmental failure (Kopel, 1998).
References
Alvino, G. (1988). Landowner Liability Under CERCLA: Is Innocence a Defense? Journal of Civil Rights and Economic Development, 4(1), 149-181.
Beck, E. C. (1979). Love Canal Tragedy. The. EPA J., 5, 17.
Craig, R. K. (2012). Federalism Challenges to CERCLA: An Overview. Southwestern University Law Review, 617-643 Retrieved from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2003112
Environmental Protection Agency (EPA). (2012). Love Canal. Retrieved from: http://www.epa.gov/region2/superfund/npl/lovecanal/
Environmental Protection Agency (EPA). (2011). CERCLA Overview. Retrieved from: http://www.epa.gov/superfund/policy/cercla.htm
Hatfield, J. (2012). The Love Canal. EnviroMentor. Retrieved from: http://www.asse.org/assets/1/7/Jennifer_Hatfield_Article.pdf
Hird, J. A. (1994). Superfund: The political economy of risk. London: John Hopkins University Press.
Kopel, D. B. (1998). Privileged Polluters: The Case against Exempting Municipalities from Superfund. Competitive Enterprise Institute, Environmental Studies Program. Retrieved from: http://cei.org/sites/default/files/David%20Kopel%20-%20Privileged%20Polluters%20The%20Case%20Against%20Exempting%20Municipalities%20From%20Superfund.pdf
Kubasek, N. K., Williamson, C., & Vigil, R. (1997). Retroactive Liability under the Superfund: Time to Settle the Issue. Journal of Land Use & Environmental Law, 197-230. Retrieved from: http://archive.law.fsu.edu/journals/landuse/Vol131/KUBA.HTMl#FNR4
Manko, J. M., & Cozine, M. H. (1994). Battle over Municipal Liability under CERCLA Heats Up: An Analysis of Proposed Congressional Amendments to Superfund. The. Vill. Envtl. LJ, 5(1), 23-30.
Nagle, J.C. (1997). CERCLA's Mistakes. William & Mary Law Review, 38(4), 1405-1463
Switzer, C.S. & Bulan, L.A. (2002). CERCLA: Comprehensive Environmental Response, Compensation, and Liability Act (Superfund). North Clark: ABA Publishing.
