Superfund: A Summary of the Law

Report for Congress
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 cross-
referencing sections of the Act with the major U.S. Code sections of the codified
statute. It will be updated as events warrant.

Contents
In troduction ..................................................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 108^th 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

¹This report has been excerpted, with minor changes from Environmental Laws: Summaries
of Statutes Administered by the Environmental Protection Agency, CRS Report RL30798.

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)
YearActPublic Law Number

1980Comprehensive Environmental Response,

Compensation, and Liability Act of 1980P.L. 96-510
1986Superfund Amendments and Reauthorization
Act of 1986P.L. 99-499

1990Superfund extension (Omnibus ReconciliationP.L. 101-508,

Act of 1990)§ 6301, §11231
1992Community Environmental Response
Facilitation ActP.L. 102-426
1996Asset Conservation, Lender Liability andP.L. 104-208, division
Deposit Insurance Protection ActA, title II, subtitle E
1996Defense Authorization Act of Fiscal Year 1997P.L. 104-201, §334
1999Superfund Recycling Equity ActP.L. 106-113, appendix
I, title VI
2002Small Business Liability Relief and
Brownfields Revitalization ActP.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.

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 $1.7
billion per year. The Omnibus Reconciliation Act of 1990 (P.L. 101-508) extended
the taxes through 1995. Table 2 summarizes Superfund’s revenue sources for the last
4 full fiscal years the taxes were in effect. (The excise taxes on crude oil and
chemicals, and the corporate environmental income tax ceased on December 31,
1995.) Since the taxing authority expired, the sources of income to the trust fund
have been EPA’s recoveries of cleanup costs from responsible parties (replacing the
agency’s expenditures), fines and penalties, and interest earned from the fund’s
investments in U.S. Treasury instruments.
Table 2. Superfund Revenue, Fiscal Years 1991 to 1995
Amount of RevenuePercent of
Revenue($ million)Total Revenue
Petroleum Tax^*2,799.50930.6
Chemical Feedstocks Tax 1,327.28214.5
Corporate Environmental Tax3,121.46234.1
Cost Recoveries from
Responsible Parties900.7919.8
Fines and Penalties11.2320.1
Interest on Investments ^**1,003.38210.9
Total 9,163.658 100.0
^Source:^Fund^s^M^a^na^ge^m^e^nt^Dⁱ^vi^si^oⁿ^.^U^.^S.^T^r^e^a^s^ur^y^D^e^p^a^r^t^m^e^nt^.^H^a^z^a^r^dous^Subs^t^ances^Super^f^und
^T^r^us^t^{Fund, 20X8145, Incom}^e^St^at^em^ent⁽^m^oⁿ^th^ly^r^e^p^o^r^ts)^.^Co^m^p^iled^b^y^CRS.
^*^In^clu^d^es^tax^on^im^{ported ch}^em^{ical deriv}^a^tiv^es^.
^**^In^clu^d^es^accru^e^{d in}^teres^t^onⁱⁿ^v^e^s^t^m^eⁿ^t^s^.
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

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 $10.13 per ton.
Table 3. Superfund Revenue, Fiscal Years 1997 to 2001
Amount of RevenuePercent of
Revenue($ million)Total Revenue
Petroleum Tax ^*8.9060.3
Chemical Feedstocks Tax ^{* †}24.7470.9
Corporate Environmental Tax ^*163.7145.7
Cost Recoveries from
Responsible Parties1,385.37347.8
Fines and Penalties14.4560.5
Interest on Investments ^**1,298.20844.8
Total 2,895.404 100.0
^Source:^Fund^s^M^a^na^ge^m^e^nt^Dⁱ^vi^si^oⁿ^.^U^.^S.^T^r^e^a^s^ur^y^D^e^p^a^r^t^m^e^nt^.^H^a^z^a^r^dous^Subs^t^ances^Super^f^und
^T^r^us^t^{Fund, 20X8145, Incom}^e^St^at^em^ent⁽^m^oⁿ^th^ly^r^e^p^o^r^ts)^.^Co^m^p^iled^b^y^CRS.
^*^T^h^{e co}^llected^am^o^uⁿ^t^{s r}^e^{late to}^p^r^io^r^p^e^rⁱ^o^d^tax^r^e^tu^rⁿ^s.
^**^In^clu^d^es^accru^e^{d in}^teres^t^onⁱⁿ^v^e^s^t^m^eⁿ^t^s^.
^†^In^clu^d^es^tax^on^im^{ported ch}^em^{ical deriv}^a^tiv^es^.
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

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 Environ-
mental 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

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

²Public 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.

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 106^th 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

³Public Law 106-113, appendix I, title VI.
⁴Public Law 107-118.

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.

!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.

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 pre-
existing 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 appropria-
tions 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

⁶U.S. Congress. Senate. Committee on Environment and Public Works. A Legislative
History of the Superfund Amendments and Reauthorization Act of 1986 (Public Law 99-
499) 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.

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

⁷This 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).

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

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 in⁸
the Brownfields Revitalization and Environmental Restoration Act of 2001. 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.

⁸Title II of P.L. 107-118, the Small Business Liability Relief and Brownfields Revitalization
Act.
⁹P.L. 104-204; for FY1998: P.L. 105-65; for FY1999: P.L. 105-276; for FY2000: P.L. 106-

74; for FY2001: P.L. 106-377.

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
(codified generally as 42 U.S.C. 9601-9675)
Comprehensive
Environmental
Response,
Compensation,
and Liability Act

42 U.S.C.Section Title(as amended)

Subchapter I -Hazardous Substances Releases, Liability, Compensation
9601Definitionssec. 101
9602Designations of additional hazardoussec. 102
substances/reportable quantities
9603Notification requirements respectingsec. 103
released substances
9604Response authoritiessec. 104
9605National contingency plansec. 105
9606Abatement actionssec. 106
9607Liabilitysec. 107
9608Financial responsibilitysec. 108
9609Civil penaltiessec. 109
9610Employee protectionsec. 110
9611Uses of fundsec. 111
9612Claims proceduresec. 112
9613Civil proceedingssec. 113
9614Relationship to other lawsec. 114
9615Presidential delegation/assignmentsec. 115
9616Schedulessec. 116

9617Public participationsec. 117

¹⁰NOTE: 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.

Comprehensive
Environmental
Response,
Compensation,
and Liability Act

42 U.S.C.Section Title(as amended)

9618High priority for drinking water suppliessec. 118
9619Response Action Coordinatorssec. 119
9620Federal facilitiessec. 120
9621Cleanup standardssec. 121
9622Settlementssec. 122
9623Reimbursement to local governmentssec. 123
9624Methane recoverysec. 124
9625sec. 6921 (b)(3)(A)(i) wastesec. 125
9626Indian tribessec. 126
9627Recycling transactionssec. 127
9628State response programssec. 128
Subchapter II -Hazardous Substance Response Trust Fund
Part A -Hazardous Substance Response Trust Fund
9631Repealed (Establishment of Hazardoussec. 221
Response Trust Fund)
9632Repealed (Liability of United States limitedsec. 222
to the amount in trust fund)
9633Repealed (Administrative procedures)sec. 223
Part B -Post-Closure Liability Trust Fund
9641Repealed (Post Closure Liability Trustsec. 232
Fund)
Subchapter III -Miscellaneous Provisions
9651Reports and studiessec. 301
9652Effective dates; savings provisionsec. 302
9653(Repealed) Termination of authority tosec. 303
collect taxes
9654Applicability of Federal water pollutionsec. 304
control funding
9655Legislative veto of rule or regulationsec. 305
9656Transportation of hazardous substances;sec. 306a
listing as hazardous material; liability for
damage
9657Separability of provisionssec. 308
9658Actions under state law for damages fromsec. 309
exposure to hazardous substances cases
9659Citizen suitssec. 310

9660Research, development, and demonstrationsec. 311

Comprehensive
Environmental
Response,
Compensation,
and Liability Act

42 U.S.C.Section Title(as amended)

9660aGrant programsec. 312
9661Love Canal property acquisitionsec. 312

9662Limitation on contract and borrowing(sec. 3 of SARA)

authority
Subchapter IV -Pollution Insurance
9671Definitionssec. 401
9672State laws; scope of chaptersec. 402
9673Risk retention groupssec. 403
9674Purchasing groupssec. 404

9675Applicability of securities lawssec. 405