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CERCLA and the DOD Dilemma: Challenges and Opportunities

Monday, February 11, 2019

Matthew Beyer

Research & Publications Intern

In the late 1970s, revelations about the hazardous waste contaminating sites like Love Canal and Valley of the Drums captured the American public’s attention. In response to concerns about the risk these hazardous dumps posed to both public and environmental health, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980. Commonly referred to as Superfund, CERCLA gives EPA the authority and resources to clean up and remediate sites contaminated by hazardous substances and pollutants.

Since its inception, CERCLA has operated under its foundational objectives: protecting human health and the environment, holding responsible parties accountable for the cleanup, involving communities in the cleanup process, and returning contaminated sites to productive use. Over the past three decades, CERCLA has successfully cleaned and restored close to 400 contaminated sites once listed on its national priorities list (NPL), including the infamous Love Canal site. In 2017, then-EPA Administrator Scott Pruitt established the Superfund Task Force. The Task Force was meant to signal a renewed commitment by CERCLA to quick and efficient remediation that ensured accountability of responsible parties for their waste while the general public was protected—both from hazardous pollution and burdensome cleanup costs.

Yet, the complete statistical picture of Superfund’s history paints a more complex image of the law’s success. Despite the handful of remediated projects CERCLA boasts, 1,337 sites still remain on the NPL, many of which are original sites from the list’s creation in 1983. A lack of federal funding combined with the cost of cleanup remains a large factor in CERCLA’s less than rapid progress on cleaning its listed sites. The Superfund is notably underfunded: the program saw its budget nearly cut in half between 1999 and 2013. Since the Superfund tax—which held polluting companies and industries accountable for their waste—expired in 1995, taxpayers have been saddled with the bulk of the cost of CERCLA projects, raising questions about who should bear the responsibility of hazardous waste cleanup. 

Department of Defense

Adding to CERCLA’s challenges are the sites used by the Department of Defense (DOD) that are currently listed for Superfund cleanup, including Base Realignment and Closure sites (BRAC Sites) and Formerly Used Defense Sites (FUD). With around 140 contaminated sites awaiting cleanup, DOD is proportionally the country’s largest polluter. This has placed EPA in a unique position, where another federal agency is the liable polluter held responsible for the cost and management of the CERCLA cleanup.

Given the lack of precedent for EPA suing a fellow member of the executive branch, the Agency has little (or at least unclear) recourse for enforcing CERCLA should DOD choose to shirk its cleanup and remediation responsibility. In 2008, DOD refused EPA orders to clean up Fort Meade and two additional bases that were polluted to the point of Superfund eligibility. The Pentagon’s voluntary cleanup efforts at Fort Meade did not meet EPA’s standards for remediation and occurred in defiance of the Agency’s “final orders” for compliance—an offense that would normally result in a meeting in court and severe fines for private polluters.

Complicating the issue further is the question of liability in cases in which DOD property is leased or operated by a government contractor. Determining where DOD responsibility for hazardous waste ends and the contractor’s responsibility begins is complex and is often legally determined on a case-by-case basis according to the terms of the federal contract in place. The ambiguity of CERCLA litigation is illustrated in United States v. Shell Oil Company, in which the Army filed an action against Shell for the use of hazardous pesticides and chemicals on a DOD site—the same chemical compounds the Army itself used on the same site. While DOD acknowledged its own responsibility under CERCLA, it charged that Shell held full liability on the basis of its contract with the company.

However, the complexities of CERCLA’s mandate should not perhaps be cause for overwhelming pessimism regarding the thousands of polluted Superfund sites in the country. In the past several years, emerging technological advances have helped streamline and expedite the lengthy process of site management and remediation. From the Superfund Accelerated Cleanup Model (SACM) created in 1992 to EPA’s Brownfield initiatives of the 1990s to the Superfund Green Remediation Strategy released in 2010, innovation and technical advancement have been at the helm of the Superfund initiative. Nonetheless, the future of the CERCLA regulatory process is not entirely clear and questions certainly still remain. Without an adequate budget in place, who will bear the cost of CERCLA cleanup? How will EPA navigate the complex web of responsibility and liability presented by DOD Superfund sites? How can citizens and organizations engage with regulatory agencies to ensure Superfund cleanups occur quickly and equitably?

ELI, Greenberg Traurig LLP, and leading experts in the field will be exploring these questions and more in an upcoming webinar hosted on Wednesday, February 13, from 9:30 am to 11:00 am (Central Time).

The participating panelists will be discussing the foundational objectives of CERCLA, how these have evolved over time, the issues surrounding the remediation and cleanup of DOD sites, approaches to working with regulatory agencies, cutting-edge and emerging technologies for damage assessments and remediation activities, and more.

This event is free and open to the public, but please register by February 11. Event details and RSVP information can be found here.