Friday, September 19, 2014

How the Superfund Came Into Being...

There is a environmental statute known as the Superfund Act that gives a federal agency, the EPA, very broad powers to clean up toxic spills and hazardous substances. 
The Superfund was enacted to answer one of the worst peacetime nightmares citizens can have: to wake up after years in a supposedly safe and peaceful home to learn there is toxic waste in your own backyard.  Love Canal is a neighborhood in Niagara Falls, New York built near the site of a partially dug but abandoned canal.  Prior to 1953, about 21,000 tons of alkalines, acids, and chlorinated hydrocarbons from the processing of dyes, solvents, and resins were buried in barrels by a chemical company in the shallow clay-lined canal.  The discovery during the 1970s of ruptured barrels leaking toxins near homes and schools is an American horror story.
After the chemical dump closed and as Niagara Falls grew in population, the local school board pressured Hooker Chemical Company to sell the land around the dump to the school board.  The company balked because of safety concerns, but under threat of condemnation sold the land to the school board for a dollar and included in the quitclaim deed dated April 28, 1953 a specific assignment of risk that toxic chemicals were buried at the site, that the school board would assume all risks, that the school board would not sue Hooker Chemical Company (later acquired by Occidental Petroleum), and that the lands would remain subject to the terms of the deed if further conveyed.  Despite the discovery of ruptured barrels of chemicals during excavations and construction in the 1950s, two schools were built on the land as well as dozens of residences.  While constructing sewers for residences and excavating fill dirt, the city breached the clay lining of the canal and thereby allowed chemicals to migrate on to lands not part of the original quitclaim deed.  Other developments hindered the flow of ground water towards the Niagara River, and chemicals would come to the surface after heavy rains.  During the late 1970s, seeping chemicals in yards and basements, strange illnesses, foul odors, and dozens of articles by newspaper reporters led to public outcry and national attention.
The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or "Superfund Act") was enacted in 1980 “in response to the serious environmental and health risks posed by industrial pollution.”  United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998).  "CERCLA seeks to promote prompt cleanup of hazardous waste sites and to ensure that responsible parties foot the bill." General Elec. Co. v. Jackson, 610 F.3d 110, 113-115 (C.A.D.C., 2010).  See also Gen. Elec. Co. v. Whitman (GE I), 257 F.Supp.2d 8, 12 (D.D.C. 2003).  Love Canal involved improperly disposed chemicals in a landfill purchased by a government entity, ruptured and spilled into the groundwater by other government entities, and sold for residential use to citizens unfamiliar with the landfill.  And thus, there were many terrible facts and few deep-pocketed parties having inescapable liability. "CERCLA imposes strict liability on several classes of responsible parties, including current and former facility owners and operators, as well as parties that 'arrange for' the transport, treatment, or disposal of hazardous substances. General Elec. Co., 610 F.3d at 113-115 (C.A.D.C., 2010)(citing 42 U.S.C. § 9607).
Strict liability means that the EPA does not have to prove fault.  The burden is on the "potentially responsible party" to clean up the spill and to name other parties which might be pressed into the clean-up as well.  Thus, our public policy has created some of the most coercive powers in any federal agency.  There is plenty to discuss about CERCLA as public policy as well as what a landowner can do when a letter comes from the EPA investigating how toxic chemicals are just below the ground of what the landowner thought was an abandoned commercial property.
"Hard cases make bad law", and so far, the federal courts, following Congress' stated intent to create regulatory power to clean up toxic spills, have refused to strike down major parts of CERCLA, despite the due-process issues raised by the vast power of the EPA's director to order a landowner to spend vast sums to clean up what may be someone else's spill.  See "Is Administrative Law Unlawful?" and "Deference to Administrative Interpretation: The Unasked Questions".

A list of the EPA's Superfund sites is here.