Superfund: A Summary of the Law

Order Code RL31154

Report for Congress

Received through the CRS Web

Superfund: A Summary of the Law

Updated February 24, 2003

Mark Reisch

Analyst in Environmental Policy

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Superfund: A Summary of the Law

Summary

This report summarizes the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA), popularly known as Superfund.

It excerpts, with minor changes the Superfund chapter of CRS Report RL30798,

which summarizes a dozen environmental statutes that form the basis for the

programs of the Environmental Protection Agency.

CERCLA is the principal federal statute addressing the cleanup of hazardous

substances that pose threats to public health, welfare, and the environment. It was

enacted in 1980, and enlarged and reauthorized by the Superfund Amendments and

Reauthorization Act of 1986 (SARA). In addition to providing authority to the

federal government to respond to releases and threatened releases of hazardous

substances, CERCLA established the Superfund Trust Fund to finance the program

and to pay for cleanup activities when a financially viable responsible party cannot

be found. The fund was financed by excise taxes on crude oil and chemicals, and by

a corporate environmental income tax until the taxing authority expired on December

31, 1995. The law directs EPA to assemble a National Priorities List to identify the

most serious sites requiring cleanup.

CERCLA makes waste generators, transporters who select the disposal site, and

disposal facility owners and operators liable for performing or paying for the cost of

cleanup. CERCLA requires cleanups to meet the standards of other environmental

laws, and establishes a preference for permanence and treatment when possible (as

opposed to burying wastes in a landfill, e.g., or leaving them in place untreated).

Federal agencies are subject to the law in the same way as any nongovernmental

entity, and are required to clean up any hazardous waste sites they own or operate.

The law also provides EPA with authority to enter into settlement agreements,

includes states in the cleanup process, provides for public participation, and requires

responsible parties to restore or replace any injured natural resources. It created the

Agency for Toxic Substances and Disease Registry to carry out health-related

activities in the law. Authority to clean up brownfields was added in 2002.

This report describes the Act’s major provisions and provides tables listing all

major amendments, with the year of enactment and Public Law number, and crossreferencing sections of the Act with the major U.S. Code sections of the codified

statute. It will be updated as events warrant.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The Fund and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Responding to Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Liability and Financial Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Health-related Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Cleanup Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Cleanup Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Federal Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Natural Resource Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Public Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Brownfields . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Selected References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

List of Tables

Table 1. Superfund and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table 2. Superfund Revenue, Fiscal Years 1991 to 1995 . . . . . . . . . . . . . . . . . . . 3

Table 3. Superfund Revenue, Fiscal Years 1997 to 2001 . . . . . . . . . . . . . . . . . . . 4

Table 4. Major U.S. Code Sections of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 and Amendments . . . . . . . . . . . . 14

Superfund: A Summary of the Law

Introduction

This report1 presents a brief summary of the law that created the Superfund

program: the Comprehensive Environmental Response, Compensation, and Liability

Act (CERCLA, P.L. 96-510), which was enacted December 11, 1980. The purpose

of the Superfund program is to address threats to human health and the environment

resulting from releases or potential releases of hazardous substances from abandoned

or uncontrolled waste sites. The U.S. Environmental Protection Agency (EPA) has

the primary responsibility for managing activities under the Superfund program.

The report addresses all the main features of the law, but does not cover EPA’s

implementation of CERCLA. However, other CRS products help fill the gaps, and

current legislative developments are tracked in Issue Brief 10114, Brownfields and

Superfund Issues in the 108th Congress. Readers are also referred to EPA’s web site

which contains extensive related information: http://www.epa.gov/superfund

Background

CERCLA gave the federal government, for the first time, authority to take direct

action to respond to emergencies involving uncontrolled releases of hazardous

substances that may endanger public health, welfare or the environment. CERCLA

also enables EPA to take legal action to force parties responsible for causing the

contamination to clean up those sites, or to reimburse the agency for the costs of

cleanup. If those responsible for site contamination cannot be found or are unwilling

or unable to clean up a site, EPA can use monies from the Hazardous Substance

Superfund Trust Fund, which was also created by CERCLA, to move forward with

cleanup.

CERCLA was enlarged and reauthorized by the Superfund Amendments and

Reauthorization Act of 1986 (SARA, P.L. 99-499). It was extended through FY1994

by the Omnibus Budget Reconciliation Act of 1990. The dedicated taxes that feed

the Superfund Trust Fund expired on December 31, 1995, but Congress has

continued to appropriate monies to carry out the law. As the balance in the Trust

Fund has declined, Congress has increased the share of the program’s annual

appropriation that comes from the U.S. Treasury.

Amendments to CERCLA since the 1986 enactment of SARA have been

narrowly focused. In 1992 and 1996 the transfer of military bases with contaminated

1

This report has been excerpted, with minor changes from Environmental Laws: Summaries

of Statutes Administered by the Environmental Protection Agency, CRS Report RL30798.

CRS-2

areas to local entities was made easier (to further the intentions of the Base

Realignment and Closure laws). And in 1996 and 1999 CERCLA’s stringent liability

scheme was eased for financial institutions and for recyclers who met certain

conditions. The 2002 enactment added additional limits to CERCLA liability, and

authorized the brownfields program for cleaning up less seriously contaminated sites.

Table 1 lists the law and amendments to it.

Table 1. Superfund and Amendments

(codified generally as 42 U.S.C. 9601-9675)

Year

1980

1986

1990

1992

1996

1996

1999

2002

Act

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980

Superfund Amendments and Reauthorization

Act of 1986

Superfund extension (Omnibus Reconciliation

Act of 1990)

Community Environmental Response

Facilitation Act

Asset Conservation, Lender Liability and

Deposit Insurance Protection Act

Defense Authorization Act of Fiscal Year 1997

Superfund Recycling Equity Act

Small Business Liability Relief and

Brownfields Revitalization Act

Public Law Number

P.L. 96-510

P.L. 99-499

P.L. 101-508,

§ 6301, §11231

P.L. 102-426

P.L. 104-208, division

A, title II, subtitle E

P.L. 104-201, §334

P.L. 106-113, appendix

I, title VI

P.L. 107-118

Actions under Superfund are triggered by a release (or threat of a release) of a

hazardous substance into the environment. A “hazardous substance” includes all

those identified as hazardous under the Solid Waste Disposal Act, the Clean Water

Act, the Clean Air Act, and the Toxic Substances Control Act. Response is also

authorized for releases of “pollutants or contaminants,” which are broadly defined

to include virtually anything that can threaten the health of “any organism.” Most

nuclear materials and petroleum are excluded, except for those petroleum products

that are specifically designated as hazardous substances under one of the laws

mentioned above. The brownfields law enacted in 2002 authorized the cleanup of

“relatively low risk” petroleum-contaminated brownfield sites.

The fund is not to be used for responding to: (1) releases of naturally occurring

unaltered substances; (2) releases from products which are part of the structure of

residential buildings, businesses, or community structures (such as asbestos); or (3)

releases into drinking water supplies due to ordinary deterioration of the water

system. An exception to these three limitations is made, however, in cases of public

health or environmental emergencies when no other entity has the authority and

capability to respond in a timely manner. CERCLA directs EPA to give priority to

releases that threaten public health or drinking water supplies.

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The Fund and Taxes

The Hazardous Substances Superfund Trust Fund was first established at $1.6

billion for the 1980-1985 period. Revenues were raised primarily by taxes on crude

oil and on 42 chemicals; one-eighth of the total was authorized from the General

Fund of the Treasury. The taxing authority expired on September 30, 1985, and to

keep the program running during 1986 (while SARA was negotiated in the

conference committee), Congress authorized two repayable advances, later repaid,

to the fund: $150 million was loaned in April, and an additional $48 million was

made available in August of 1986.

For the 1987-1991 period, SARA authorized the program at $8.5 billion, or $1.7

billion per year. The Omnibus Reconciliation Act of 1990 (P.L. 101-508) extended

the taxes through 1995. Table 2 summarizes Superfund’s revenue sources for the last

4 full fiscal years the taxes were in effect. (The excise taxes on crude oil and

chemicals, and the corporate environmental income tax ceased on December 31,

1995.) Since the taxing authority expired, the sources of income to the trust fund

have been EPA’s recoveries of cleanup costs from responsible parties (replacing the

agency’s expenditures), fines and penalties, and interest earned from the fund’s

investments in U.S. Treasury instruments.

Table 2. Superfund Revenue, Fiscal Years 1991 to 1995

Revenue

Amount of Revenue

($ million)

Petroleum Tax

Chemical Feedstocks Tax *

Corporate Environmental Tax

Cost Recoveries from

Responsible Parties

Fines and Penalties

Interest on Investments **

Total

Percent of

Total Revenue

2,799.509

1,327.282

3,121.462

30.6

14.5

34.1

900.791

11.232

1,003.382

9,163.658

9.8

0.1

10.9

100.0

Source: Funds Management Division. U.S. Treasury Department. Hazardous Substances Superfund

Trust Fund, 20X8145, Income Statement (monthly reports). Compiled by CRS.

*

**

Includes tax on imported chemical derivatives.

Includes accrued interest on investments.

Since 1995, efforts to reauthorize CERCLA, and to reimpose the taxes have

been unsuccessful. As the balance in the Trust Fund has declined, Congress has

appropriated smaller shares from it, and larger amounts from the general fund of the

Treasury. At the end of fiscal year 2002 there was an unappropriated balance of

approximately $564 million in the Trust Fund. Table 3 shows Superfund’s revenue

sources since the taxes ended.

SARA increased the tax on petroleum from 0.79 cents per barrel to 8.2 cents per

barrel for domestic crude oil, and to 11.7 cents per barrel for imported petroleum

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products. After a challenge by several countries before an investigative panel of the

General Agreement on Tariffs and Trade, this tax was changed to 9.7 cents a barrel,

regardless of source (P.L. 101-221).

With the exception of xylene, the taxes on the 42 organic and inorganic

feedstock chemicals, which range from $0.22 to $4.87 per ton, were reimposed by

SARA at their former rates. Xylene had been the subject of a controversial Treasury

Department ruling having to do with separated isomers of the chemical and the point

of taxation. SARA allowed all those who previously paid the tax on xylene to apply

for a refund, with interest. To compensate for the lost revenues, the tax on xylene

was increased from $4.87 to $10.13 per ton.

Table 3. Superfund Revenue, Fiscal Years 1997 to 2001

Revenue

Amount of Revenue

($ million)

Percent of

Total Revenue

8.906

24.747

163.714

0.3

0.9

5.7

1,385.373

14.456

1,298.208

2,895.404

47.8

0.5

44.8

100.0

Petroleum Tax *

Chemical Feedstocks Tax * †

Corporate Environmental Tax *

Cost Recoveries from

Responsible Parties

Fines and Penalties

Interest on Investments **

Total

Source: Funds Management Division. U.S. Treasury Department. Hazardous Substances Superfund

Trust Fund, 20X8145, Income Statement (monthly reports). Compiled by CRS.

*

The collected amounts relate to prior period tax returns.

Includes accrued interest on investments.

†

Includes tax on imported chemical derivatives.

**

Certain taxable chemicals are exempt from payment of the tax when used for

specified purposes, or when produced in certain ways. Thus, methane and butane are

excused from the tax when used as fuel, as are substances used in the production of

fertilizer. Also exempted are sulfuric acid when produced as a byproduct of air

pollution control, and any chemicals derived from coal.

Two new taxes were imposed by the 1986 law. Imported chemical derivatives

are taxed at a rate equal to the amount which would have been imposed on the

feedstocks used in the manufacture of the derivative if the feedstocks had been sold

in the United States for that purpose. If the importer does not furnish sufficient

information to compute the tax in that manner, the tax is 5% of the customs value of

the import. Fifty chemical derivatives are listed in the law. The Secretary of the

Treasury is to add to this list any derivative made from taxable feedstocks, if the

feedstocks make up more than 50% by weight of the raw materials used to produce

the substance. The Secretary may also add other substances to the list if taxable

feedstocks comprise more than 50% of the value of the raw materials used to make

them. For the same reasons, the Secretary may remove substances from the list as

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well. As of August 1994 there were 113 chemicals on the list, including the 50

designated in the law. This tax went into effect on January 1, 1989, and was

extended through 1995.

The other tax added by SARA in 1986 is the corporate environmental income

tax, which is based on the alternative minimum income tax system of the Tax Reform

Act of 1986. The tax is 0.12% ($12 per $10,000) of taxable income in excess of $2

million, and is imposed on corporations.

In addition to taxes and appropriations from the Treasury, the Trust Fund earns

interest on its balance which is invested in Treasury bills. Because of the time lag

between the obligation of funds to specific projects and the actual expenditure of

those funds, there can be a substantial invested balance which yields a significant

amount of interest. For example, in FY2002 the fund earned $179 million in interest.

It also receives reimbursements from polluters for amounts expended by EPA for

cleanup and other response costs under CERCLA and under section 311 of the Clean

Water Act, plus any penalties and punitive damages assessed under other provisions

of CERCLA. (See CRS Report RL31410, Superfund Taxes or General Revenues:

Future Funding Options for the Superfund Program for additional information.)

Responding to Releases

The procedures to be followed in responding to hazardous substance releases

are detailed in the National Contingency Plan (40 CFR Part 300). The Environmental Protection Agency (EPA) is the lead agency, except for spills in coastal areas

and inland waterways, where the Coast Guard assumes responsibility.

There are two types of governmental response: (1) short-term removals, where

emergency action is required (for example, to avert fire or explosion, or to prevent

the imminent contamination of a water body); and (2) long-term remedial actions

taken at sites on the National Priority List. Removals are limited to a 1-year effort

and the expenditure of not more than $2 million. Remedial actions are of a longer

term, are more expensive, and frequently involve extensive engineering at the sites.

To ensure that the most serious sites are addressed, the law calls for a National

Priorities List (NPL) to be assembled. EPA developed a Hazard Ranking System

(HRS) to construct the NPL, which scores such factors as the quantity and nature of

hazardous wastes present; the likelihood of contamination of ground water, surface

water, and air; and the proximity of the site to population and sensitive natural

environments. As of December 2002, the NPL contained 1,293 proposed and final

sites. The total listed since the beginning of the program is 1,499, of which

construction has been completed at 846 (56%); 267 sites have been removed from

the NPL.

Before remedial action is undertaken at sites where Superfund money is used,

the state must assure (1) that it will provide future maintenance of the site (in cases

of ground or surface water cleanup, the 100% state maintenance requirement is

delayed for 10 years); (2) that off-site disposal capacity is available, if necessary; and

(3) that it will pay 10% of the costs of remedial action, or, if the site was owned

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or operated by the state or a local government at the time of disposal, that it will pay

at least 50% of the costs.

Liability and Financial Responsibility

In general, waste generators, transporters who select the disposal site, and

disposal facility owners and operators are liable for response costs and for damage

to natural resources. CERCLA sets limits to liability as follows: (1) for vessels

(except incineration vessels) carrying hazardous substances as cargo or residue, the

greater of $300 per gross ton or $5 million; (2) for other vessels (except incineration

vessels), the greater of $300 per gross ton or $500,000; (3) for motor vehicles,

aircraft, pipelines, or rolling stock, $50 million or a lesser amount set by regulations,

but in no event less than $5 million; and (4) for incineration vessels and for any other

facility not specified in (3), the total of all costs of response plus as much as $50

million for any damages. Victims of exposure to hazardous substances are not

covered by the liability-imposing provisions of the statute. Generally speaking, such

victims must seek restitution in state courts.

EPA’s enforcement costs are collectible from potentially responsible parties

(PRPs), as well as its cleanup costs. The above limits to liability do not apply if the

hazardous substance release is due to misconduct; negligence; violation of any safety,

construction, or operating standards or regulations; or when cooperation and

assistance requested by a public official in connection with response activities is

denied. Triple punitive damages may be imposed for failure to comply with a

cleanup order without sufficient cause. All federal agencies are subject to the Act.

Owners and operators of vessels and facilities are required to show evidence of

financial responsibility (such as insurance). For vessels exceeding 300 gross tons

(except non-self-propelled barges not carrying hazardous substances as cargo) such

financial responsibility is to be the greater of $300 per gross ton or $5 million. For

facilities, the amount is $1 million per occurrence, with an annual aggregate of $2

million for sudden accidental events. For non-sudden accidents coverage must be at

least $3 million per occurrence, with an annual aggregate of $6 million.

The 1986 law added a provision limiting insurance companies’ liability to the

amount of coverage specified in the policy. Previously, some courts had held them

liable for higher amounts. SARA also authorized companies to form “risk retention

groups” as a means of insuring themselves (Title IV).

Protection from CERCLA’s liability regime has also been extended to several

groups in addition to insurers. The 104th Congress passed the Asset Conservation,

Lender Liability, and Deposit Insurance Protection Act of 1996,2 amending CERCLA

to protect lenders and fiduciaries from liability so long as they do not participate in

the management of a facility contaminated with hazardous substances. Lenders at

times have incurred liability after foreclosing on a contaminated property. This law

details what actions a lender may take, which include activities related to his

2

Public Law 104-208, the Omnibus Appropriation Act of 1996. The language of the Asset

Conservation ... Act is found in division A, title II, subtitle E of P.L. 104-208.

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financial interest, and responding appropriately to the hazardous substance release.

A fiduciary’s liability is limited to the value of the assets held in trust, provided the

fiduciary did not cause or contribute to the hazardous substance release.

Relief from CERCLA liability was also extended to recyclers of paper, plastic,

glass, textiles, rubber, metal, and batteries by the Superfund Recycling Equity Act of

1999.3 This law enacted by the 106th Congress absolves recyclers from liability

unless the person has reason to believe: (1) the material would be burned; (2) the

consuming facility was not in compliance with environmental laws; (3) that

hazardous substances had been added to the material; or (4) the person failed to

exercise care in managing the material. The liability exemption is inapplicable if the

recyclable material contains PCBs in excess of federal standards.

In January 2002, additional limits on CERCLA liability were provided in the

Small Business Liability Relief and Brownfields Revitalization Act.4 Contributors

of “de micromis” amounts of hazardous substances (less than 110 gallons of liquid

or less than 200 pounds of solid material) at an NPL site are exempt from liability if

the wastes were disposed prior to April 1, 2001. Also exempt are residential property

owners, small businesses, and small non-profit organizations that sent only municipal

solid waste (MSW) to NPL sites prior to April 1, 2001. For either category, if a party

(other than a governmental entity) brings a legal action, the burden of proof is on the

suing party to show that the de micromis or MSW contributor does not qualify for the

exemption. Further, in the case of an MSW (but not a de micromis) contributor, if

the non-governmental party bringing an action does not show that the MSW

contributor does not qualify for the liability exemption, it must pay the legal costs of

the defendant.

The 2002 enactment added two other new liability exemptions and clarified a

third. The new exemptions are for property owners whose land abuts a Superfund

site and for prospective purchasers of property known to be contaminated. The

clarifying exception provides details for what constitutes “all appropriate inquiry,”

for a person who unknowingly bought contaminated land. (For additional details, see

CRS Report RS20869, The Liability Exemptions in the Senate Brownfields Bill (S.

350).)

Health-related Authorities

CERCLA created the Agency for Toxic Substances and Disease Registry

(ATSDR) in the Public Health Service to carry out the health-related authorities in

the Act. ATSDR is to maintain a registry of persons exposed to toxic substances;

maintain an inventory of literature, research, and studies on the health effects of toxic

substance contamination; provide medical care and testing in cases of public health

3

Public Law 106-113, appendix I, title VI.

4

Public Law 107-118.

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emergencies; and periodically conduct surveys and screening programs to determine

the relationship between exposure to toxic substances and illness.5

The Superfund amendments of 1986 created new duties for ATSDR. The

Agency and EPA were directed to prepare a list of at least 275 of the hazardous

substances most commonly found at NPL sites, and ATSDR was to prepare

toxicological profiles of them at a rate of at least 25 per year. As of November 2002

it had published or developed as “final” or “draft for public comment” 261 of them.

Where there is insufficient information on a substance, ATSDR is to conduct

research, the costs of which are to be borne by the manufacturers and processors of

the hazardous substances in question; in practice, this payment has often been carried

out in the context and as part of the cost recovery activities of EPA and the

Department of Justice.

CERCLA also directs ATSDR to perform a health assessment at each facility

within 1 year of its proposal for listing on the NPL. The health assessments assist in

determining whether or not to take additional steps to reduce human exposure to

hazardous substances, and whether to gather additional information through, for

example, epidemiological studies or health surveillance programs. Citizens may

petition ATSDR for a health assessment if they have been exposed to a hazardous

substance. ATSDR provides consultations to EPA, and to state and local officials as

requested, on health issues related to hazardous substances. The interested reader

should visit ATSDR’s web site: http://www.atsdr.cdc.gov .

Cleanup Schedules

Because of slow cleanup progress, SARA set deadlines for commencing

specified numbers of site inspections, rankings for the National Priorities List,

remedial investigations and feasibility studies (RI/FSs), and physical on-site work

through November 1990. Those targets were all surpassed.

Cleanup Standards

In general, cleanups must assure protection of health and the environment,

and be cost-effective in both the long-term and the short-term. SARA requires that

cleanups meet the standards of federal and state environmental laws, but EPA may

waive a requirement when:

! the action is part of a larger remedial action that will meet the standards;

! compliance would result in a greater risk than alternative options;

! compliance is impractical from an engineering perspective;

! an equivalent standard of performance is attained;

5

CERCLA’s directive that facilities of the Public Health Service (PHS) be made available

to exposed persons in cases of public health emergencies is now obsolete, since PHS

hospitals were closed in the mid-1980's.

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! in the case of a state standard, the state has not consistently applied the

standard elsewhere; or,

! meeting the standard does not provide a balance between the need for

protection of health and the environment at the facility, and the availability of

amounts in the fund to respond to other sites that also present a threat.

The law specifically requires cleanups to meet the Safe Drinking Water Act’s

recommended maximum contaminant levels (RMCLs), and the Clean Water Act’s

water quality criteria. The Agency is directed to choose permanent remedies when

possible, as opposed to burying wastes in landfills or leaving them in place untreated.

If a nonpermanent treatment is employed, EPA must review the site every 5 years to

see if the remedy continues to protect human health and the environment; if not,

appropriate steps must be taken to ensure protection. States are given the opportunity

for an active role in choosing the cleanup method.

Federal Facilities

CERCLA made federal agencies subject to the law in the same way as any

nongovernmental entity, and required them to clean up any hazardous waste sites

they owned or operated. The Superfund trust fund is not available to them, and the

cost of cleanup is to be funded from the agencies’ appropriations. The one exception

to this rule is that the fund may be used to provide alternative water supplies in cases

where there is groundwater contamination outside the boundaries of a federally

owned facility, and there are other potentially responsible parties besides the federal

agency.

Two provisions of SARA attempted to accelerate the cleanup, and to resolve

questions of jurisdiction that have arisen. Section 120 sets out a timetable, and

requires participation in the planning and cleanup selection process by state and local

officials and the public. Where a federal agency and EPA disagree on the proposed

remedy to be undertaken at a site, EPA is to make the selection. Although subsection

(g) prohibits the transfer of EPA’s authorities under this section to any other agency

or person, an executive order signed by President Reagan on January 23, 1987, gives

the Office of Management and Budget the final authority in cases where EPA and

another federal agency disagree on the remedy selection.

Nevertheless, in May and June 1988 EPA came to terms with the Department

of Defense (DOD) and the Department of Energy on model language to be inserted

in all federal facility cleanup agreements at Superfund sites owned by the two

departments. The model language provides for and recognizes: (1) EPA’s authority

to assess penalties in the case of noncompliance with the agreement; (2) the

departments’ commitment to study and perform EPA-approved cleanups at the

facilities; (3) EPA’s commitment to review and comment on the departments’ studies

and plans; (4) a mechanism for resolving disputes, with final authority resting with

the EPA Administrator when staff of the Agency and the departments cannot reach

agreement; and (5) enforceability of the agreements by states and citizens.

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Federally owned sites that are not on the National Priorities List are subject to

state laws concerning removal, remedial action, and enforcement.

Information on federally owned hazardous waste sites that agencies are required

to submit under several different provisions of CERCLA and the Resource

Conservation and Recovery Act is required to be centralized in a Federal Agency

Hazardous Waste Compliance Docket. EPA established this docket on April 17,

1987, and publishes updates in the Federal Register every 6 months. SARA also

places strictures on the sale of federal property to ensure that any hazardous wastes

will be cleaned up prior to sale.

The second provision of interest added by SARA is found in section 211, the

“Department of Defense Environmental Restoration Program.” This section amends

title 10 of the U.S. Code rather than CERCLA. In addition to making DOD’s preexisting Installation Restoration Program a matter of statutory law, this provision

establishes a research program for military hazardous wastes and the health effects

of exposure to them. It also creates a special transfer account to receive appropriations to implement this section, but allows funding to be reprogrammed for the

removal of unsafe buildings or debris at former DOD sites. The explanatory

statement of the conference committee notes that the restoration program is to be

implemented in a manner consistent with SARA, including the provisions relating

to public participation (section 117), federal facilities (section 120), and cleanup

standards (section 121).6

As of December 2002, there were 164 proposed and final federal sites on the

NPL, and 13 others had been deleted.

The 102nd Congress amended CERCLA by enacting the Community

Environmental Response Facilitation Act (CERFA, P.L. 102-426). The Act eases

military base closures by allowing portions of bases which are not contaminated to

be sold or transferred. The numerous base closures and realignments across the

nation have had adverse economic effects on some local communities, particularly

through the loss of jobs, and under previous law a base could not be sold or

transferred for development until environmental cleanup was completed. CERFA

permits the non-contaminated portions of bases to be transferred, while cleanup

continues at the contaminated portions, and provides for the appropriate

identification on deeds and other documents of the activities that have taken place

there. It also confirms that the U.S. Government remains responsible for any further

cleanup of hazardous substances or petroleum products that might be required.

In section 334 of P.L. 104-201, the Defense Authorization Act of Fiscal Year

1997, the 104th Congress took CERFA a step further by allowing the transfer of

6

U.S. Congress. Senate. Committee on Environment and Public Works. A Legislative

History of the Superfund Amendments and Reauthorization Act of 1986 (Public Law 99499) together with a Section-by-Section Index Prepared by the Environment and Natural

Resources Policy Division of the Congressional Research Service of the Library of

Congress. Committee Print, 101st Congress, 2d Sess. Washington, U.S. Govt. Print. Off.,

1990. v. 6, p. 5095.

CRS-11

federal property even if contamination remained at the site.7 EPA and the Governor

of the state where the site is located must make a finding that the site is suitable for

the use intended by the new owner, the intended use is consistent with protection of

public health and the environment, the public has an opportunity to comment, and the

deferral of cleanup and the transfer of property will not substantially delay any

necessary response action at the property. The deed to the property must contain

assurances that provide for any necessary restrictions on the use of the property, and

to ensure that response actions will not be disrupted; it must also assure that the

cleanup will be completed in accordance with an approved timetable, and that the

federal agency will submit an adequate budget request to the Office of Management

and Budget to complete all necessary response actions. When cleanup is completed,

the agency provides the new owner a warranty to that effect.

Settlements

EPA, at its discretion, is authorized to enter into settlement agreements that are

in the public interest and that minimize litigation; such a decision is not subject to

judicial review. The Agency can also prepare a nonbinding allocation of cleanup

costs among responsible parties when it would aid settlement. “Mixed funding,”

where responsible parties conduct the cleanup with some assistance from the

Superfund, is explicitly permitted. In certain situations EPA may release a party from

future liability as part of a settlement agreement. Expedited procedures for settling

with minor (de minimis) contributors of waste at a site are provided; such parties are

protected from contribution suits by others involved at the site. The agency may also

reduce the settlement amount for a person who demonstrates an inability or limited

ability to pay response costs.

States

States are authorized to participate in the cleanup process, from initial site

assessment to selecting and carrying out the remedial action, and negotiating with

responsible parties.

To encourage states to establish new treatment and disposal facilities, SARA

requires, as a condition of having its NPL sites cleaned up, that a state assure that it

will have adequate disposal capacity for all hazardous wastes expected to be

generated within the state for the next 20 years. A provision of P.L. 107-118 directed

EPA to generally defer listing a site on the NPL at the request of a state, if the state

or another party is cleaning up the site under a state program, or if the state is

pursuing a cleanup agreement with the party. If, after 1 year, the state is not making

reasonable progress toward cleanup, or an agreement has not been reached, the site

may be listed.

The law requires that, in lawsuits for personal injury or property damage due to

exposure to hazardous substances, state statutes of limitations will not begin to run

until the date when the individual knows, or should have known, that the personal

7

This amendment appears at section 334 of the Defense Authorization Act of Fiscal Year

1997, P.L. 104-201. It amends CERCLA section 102(h)(3).

CRS-12

injury was caused by the exposure to the hazardous substance. The purpose of this

provision is to overcome situations (e.g., long-latency diseases such as cancer) where

a party is barred from bringing a lawsuit because the statute of limitations expired

before the injury was discovered.

Enforcement

EPA’s principal enforcement tool is the authority to order a potentially

responsible party (PRP) to take actions at a site that presents an imminent and

substantial danger to the public health or welfare, or the environment from an actual

or threatened hazardous substance release. Failure to obey an order may make a PRP

liable for triple punitive damages. CERCLA also gives EPA information-gathering

powers, and authority to enter and inspect facilities, and to obtain samples of

suspected hazardous substances. EPA can assess civil penalties of not more than

$25,000 per day ($75,000 per day for subsequent violations) for failure to comply

with its orders or for violating these and other CERCLA provisions, including: (1)

the requirement to notify authorities of a hazardous substance release; (2) destruction

of records; (3) financial responsibility requirements; and (4) violating an order or

consent decree concerning settlement agreements. A subpoena power can compel the

attendance of witnesses and documents at administrative hearings. As noted in the

section on liability, EPA may seek to recover its cleanup and enforcement costs from

PRPs in order to reimburse the trust fund; the law also gives the United States a lien

on the property.

In addition, CERCLA authorizes paying awards of up to $10,000 for

information leading to criminal conviction for failure to give notice of a release, and

for destroying or concealing records. The law also has “whistle-blower” provisions

protecting employees who provide information to a state or the federal government

regarding the administration or enforcement of the Superfund law.

A state may enforce any federal or state regulation to which a remedial action

is required to conform. A consent decree (from a court) or a consent order (from

EPA) implementing a settlement agreement must contain penalties for violations of

the decree or order; it, too, is enforceable by either the state or federal government.

Individuals may bring a citizen suit against anyone, including the United States, for

violating CERCLA (or any order, agreement, etc., that has become effective pursuant

to the Act). A citizen suit may also be brought against EPA or any other federal

agency for failure to perform a nondiscretionary duty required by the law.

Natural Resource Damages

In addition to imposing liability for cleanup costs, CERCLA requires PRPs to

remedy the environmental harm they caused by restoring or replacing the injured

natural resources, and by paying damages for the lost use of publicly owned

resources, including the costs of performing the damage assessment. The law and its

implementing regulations designate federal, state, and tribal authorities as trustees for

the natural resources under their jurisdiction, and they are the only ones who can

assert a claim for damages. Losses that were previously identified in an

environmental impact statement are excluded, as are injuries to a natural resource

CRS-13

that occurred before enactment of CERCLA. A claim must be brought within 3 years

of its discovery and connection to the release.

Public Participation

The public is allowed to participate in the selection of a cleanup plan, and EPA

is required to respond to public comments. Local groups can receive as much as

$50,000 to obtain technical assistance in interpreting information related to a site.

Brownfields

EPA’s brownfields program for addressing less seriously contaminated

industrial and commercial hazardous waste sites was granted statutory authority in

the Brownfields Revitalization and Environmental Restoration Act of 2001.8 The

agency initiated the program administratively in 1993 under the general authority of

CERCLA, and Congress recognized it in earmarked funding within the Superfund

appropriation since FY1997.9 The 2001 enactment directs EPA to establish: (1) a

program to provide grants to characterize, assess, and conduct planning at brownfield

sites, and to perform targeted site assessments; and (2) a program to provide grants

to capitalize revolving loan funds, or to be used directly to remediate one or more

sites. The new law also authorizes grants to assist states in establishing or enhancing

their voluntary cleanup programs.

Additionally, the Taxpayer Relief Act of 1997 (P.L. 105-34) allowed developers

to deduct from their income the costs of environmental cleanup at certain brownfields

in the same year that the expenditures are incurred. Previous Internal Revenue

Service rules required cleanup costs to be spread over a number of years. Originally

usable until December 31, 2000, the tax break was continued for 1 year by the Tax

Relief Extension Act of 1999 (P.L. 106-170), and was extended through 2003 by the

Consolidated Appropriations Act, 2001 (P.L. 106-554).

Selected References

Klee, Ann R. and Ernie Rosenberg. "The Moribund State of CERCLA

Reauthorization," Natural Resources & Environment, Winter 1999. p. 451 ff.

Resources for the Future (Katherine N. Probst and David M. Konisky). Superfund's

Future: What Will It Cost? Washington, 2001. 294 p.

CRS Report RL30972. The Brownfields Program Authorization: Cleanup of

Contaminated Sites. 15 p.

8

Title II of P.L. 107-118, the Small Business Liability Relief and Brownfields Revitalization

Act.

9

P.L. 104-204; for FY1998: P.L. 105-65; for FY1999: P.L. 105-276; for FY2000: P.L. 10674; for FY2001: P.L. 106-377.

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CRS Report RL31410. Superfund Taxes or General Revenues: Future Funding

Options for the Superfund Program. 10 p.

CRS Report RS20869. The Liability Exemptions in the Senate Brownfields Bill (S.

350). 6p.

CRS Report RL30242. Natural Resources: Assessing Nonmarket Values through

Contingent Valuation. 21 p.

CRS Report RS20772. Superfund and Natural Resource Damages. 6 p.

Table 4. Major U.S. Code Sections of the Comprehensive

Environmental Response, Compensation, and Liability Act

of 1980 and Amendments10

42 U.S.C.

Subchapter I 9601

9602

9603

9604

9605

9606

9607

9608

9609

9610

9611

9612

9613

9614

9615

9616

9617

10

(codified generally as 42 U.S.C. 9601-9675)

Comprehensive

Environmental

Response,

Compensation,

and Liability Act

Section Title

(as amended)

Hazardous Substances Releases, Liability, Compensation

Definitions

Designations of additional hazardous

substances/reportable quantities

Notification requirements respecting

released substances

Response authorities

National contingency plan

Abatement actions

Liability

Financial responsibility

Civil penalties

Employee protection

Uses of fund

Claims procedure

Civil proceedings

Relationship to other law

Presidential delegation/assignment

Schedules

Public participation

sec. 101

sec. 102

sec. 103

sec. 104

sec. 105

sec. 106

sec. 107

sec. 108

sec. 109

sec. 110

sec. 111

sec. 112

sec. 113

sec. 114

sec. 115

sec. 116

sec. 117

NOTE: This table shows only the major U.S. Code sections. For more detail and to

determine when a section was added, the reader should consult the official printed version

of the U.S. Code.

CRS-15

42 U.S.C.

Section Title

9618

9619

9620

9621

9622

9623

9624

9625

9626

9627

9628

High priority for drinking water supplies

Response Action Coordinators

Federal facilities

Cleanup standards

Settlements

Reimbursement to local governments

Methane recovery

sec. 6921 (b)(3)(A)(i) waste

Indian tribes

Recycling transactions

State response programs

Subchapter II Part A 9631

Hazardous Substance Response Trust Fund

Hazardous Substance Response Trust Fund

Repealed (Establishment of Hazardous

Response Trust Fund)

Repealed (Liability of United States limited

to the amount in trust fund)

Repealed (Administrative procedures)

9632

9633

Part B 9641

Post-Closure Liability Trust Fund

Repealed (Post Closure Liability Trust

Fund)

Subchapter III 9651

9652

9653

Miscellaneous Provisions

Reports and studies

Effective dates; savings provision

(Repealed) Termination of authority to

collect taxes

Applicability of Federal water pollution

control funding

Legislative veto of rule or regulation

Transportation of hazardous substances;

listing as hazardous material; liability for

damage

Separability of provisions

Actions under state law for damages from

exposure to hazardous substances cases

Citizen suits

Research, development, and demonstration

9654

9655

9656

9657

9658

9659

9660

Comprehensive

Environmental

Response,

Compensation,

and Liability Act

(as amended)

sec. 118

sec. 119

sec. 120

sec. 121

sec. 122

sec. 123

sec. 124

sec. 125

sec. 126

sec. 127

sec. 128

sec. 221

sec. 222

sec. 223

sec. 232

sec. 301

sec. 302

sec. 303

sec. 304

sec. 305

sec. 306a

sec. 308

sec. 309

sec. 310

sec. 311

CRS-16

42 U.S.C.

Section Title

9660a

9661

9662

Grant program

Love Canal property acquisition

Limitation on contract and borrowing

authority

Subchapter IV 9671

9672

9673

9674

9675

Pollution Insurance

Definitions

State laws; scope of chapter

Risk retention groups

Purchasing groups

Applicability of securities laws

Comprehensive

Environmental

Response,

Compensation,

and Liability Act

(as amended)

sec. 312

sec. 312

(sec. 3 of SARA)

sec. 401

sec. 402

sec. 403

sec. 404

sec. 405