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

Love Canal and other Hazards

The most famous abandoned waste site was known as Love Canal. In the 1940s, the Hooker Chemical Company had disposed of more than 20 tons of hazardous waste in a former canal located near Buffalo, New York. Later, the land was sold to the city, and homes and schools were built over the former disposal site. In the 1970s, residents of the area began experiencing severe health problems that were attributed to this past waste disposal. Studies conducted by the New York Department of health confirmed the health dangers posed by the chemicals, and residents attempted to gain compensation for their losses.

At another site in Kentucky, over 4,000 leaking drums were found to be contaminating soil, groundwater, and surface water and impacting the health of nearby residences. This site became known as the Valley of the Drums.

Love Canal and the Valley of the Drums highlighted the problem of abandoned hazardous waste sites, but they were merely indicative of a larger and more pervasive problem. A survey of contaminated sites conducted in 1979 by the Environmental Protection Agency (EPA) identified 250 hazardous waste sites considered to pose “significant threats of damages” to human health. Many of these sites were characterized as orphan sites, meaning that the [Page 336]party responsible for cleaning up the contamination could not be identified.

CERCLA was enacted to identify the worst sites, finance the cleanup of existing contaminated property, and deter generators from improperly disposing of hazardous wastes in the future. It provided for the remediation of soil and groundwater at contaminated sites, and held owners or operators of a property financially responsible for cleanup, regardless of whether the contamination occurred prior to CERCLA's enactment or even whether they contributed to the contamination.

Superfund

Congress charged the EPA with establishing a National Priorities List (NPL) that identified the sites that posed the greatest threat to public health and for establishing the criteria for cleaning up and closing hazardous waste sites. The initial government cleanup was financed through the Superfund, a trust fund established through taxes on petroleum products and chemical feedstocks. The government could then seek reimbursement from “responsible parties” who owned the site or contributed to contamination at the site. Subsequently, CERCLA is often called Superfund.

CERCLA imposed liability for cleanup without regard to fault or negligence. Several parties could be found liable: current owners or operators, past owners or operators, those responsible for transportation or disposal of hazardous substances, and those who arranged for its transportation. Even lenders could be held liable for waste cleanup if it was determined that the lender had the “capacity to influence” the waste management practices of the operators. The liability provisions were intended to provide a strong incentive for generators, transporters, and others to manage waste in a responsible manner. In some cases, a purchaser is allowed to claim that it had no way of knowing that hazardous waste was on the property. In such cases, the purchaser can avoid liability by invoking what has come to be known as the “innocent landowner” defense.

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