The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was enacted by Congress 30 years ago on December 11, 1980. This law created a tax on the chemical and petroleum industries and provided broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment.

The passage of CERCLA marked the beginning of three decades of concerted efforts to identify, investigate and remediate previously non-regulated contaminated sites. Five Taft partners, Thomas A. Barnard, Kim K. Burke, Robert R. Clark, Frank J. Deveau and Thomas T. Terp, have been practicing environmental law since the law was enacted and recently reflected on its impact.

How has the passing of CERCLA impacted the environmental legal industry?

Barnard: CERCLA created an entire area of environmental practice because business owners across the U.S. were being called upon to contribute to, or perform, clean up at thousands of contaminated sites. The liability provisions within CERCLA are so broad that thousands of companies were pulled into the “CERCLA net” and each company required legal representation.

Burke: The legal industry was initially stunned by the power and breadth of the law: retroactivity, joint and several liability, strict liability, limited defenses, unilateral orders with onerous penalties, and significant funding of a new division of USEPA.

Deveau: Prior to CERCLA there was not an effective tool for either the government or private parties to compel the cleanup of hazardous waste, abandoned sites and the like.  With CERCLA, EPA had a broad net that captured a wide group of parties, and that was novel.  That was completely different.

Also, CERCLA is not fault-based.  In fact, the parties that primarily ended up paying for the cleanup of most of the Superfund sites were the customers of the people running these facilities. 

Clark: The passage of this act created more litigation and work for lawyers than any other state or federal statute.

Terp: CERCLA was the source of volume work for environmental attorneys and consultants in the 1980’s and mid-90’s. The impact continues today but at a slower volume. At its peak, Taft had 15-20 lawyers dedicated to clean-up and insurance work in CERCLA matters.
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What was the environmental landscape like prior to CERCLA passing? Was it seen as a positive thing?

Burke: CERCLA's effect cannot be separated by the implementation of the Resource Conservation Recovery Act (RCRA), hazardous waste regulations one month before CERCLA became law.  Prior to 1980, there was little regulation of hazardous waste management and recycling.  Although EPA gave lip service under RCRA and CERCLA to the importance of recycling wastes, in fact EPA made it very difficult to reuse materials for other processes.   EPA's answer to most creative solutions was "no."

Barnard: The landscape prior to CERCLA was largely unpredictable.  In most states, generators of hazardous substances were not liable for wastes properly transported to a licensed landfill under common law.  CERCLA greatly expanded liability and was viewed almost immediately as a sweeping change in the law.  When the federal courts began interpreting CERCLA in a broad fashion, CERCLA attorneys began to warn their clients about the new potential for liability where none had been anticipated.

How has it personally affected your practice?

Terp:  For a long time, CERCLA dominated my practice and it still does somewhat. It was a great opportunity for me to meet and get exposure to new clients and lawyers and do work all over the country. 

Deveau: I graduated from law school in 1980 – the same year CERCLA became law.  The first Superfund case I worked on involved the Seymour Recycling site – a huge mess.  That case brought me into contact with a number of lawyers throughout the country who were also doing Superfund work.  That, in turn, led to referrals and more work at other sites throughout the country.

More importantly, it led to great relationships with a great group of lawyers, including Tom Terp.  Tom was involved in Seymour and was one of the few guys  who had experience with CERCLA, having tried the Chem-Dyne case in Ohio.  He was a great source of information and knowledge.

Burke: I cut my teeth as a new attorney in 1980 on CERCLA.  I was immersed in the controversy of the new law, the legal battles over its constitutionality and the newfound powers of EPA.  I was retained by clients to challenge what seemed at the time to be an un-American law. 
 
Clark: For years it was a big part of my practice. If you were an environmental lawyer in the 80’s and 90’s, you did Superfund work.

Barnard: I have represented numerous companies over the years whose waste was sent to landfills and reclamation sites. These companies have ranged from the very large, national companies and manufacturers to state agencies, whose mostly innocuous waste was delivered to a rural landfill and mixed with industrial waste by the landfill operators.

In your view, what was the biggest impact of CERCLA?

Burke: Adopting the legal concept that imposing liability for contamination spreading today from proper disposal occurring decades ago was a permissible, constitutional, retroactive law.

Clark:  In addition, it cleaned up many contaminated sites around the country. It was not done very efficiently, but it did get them cleaned up.

Terp: Although CERCLA has been widely criticized--and justifiably so--for the harsh and sometimes arbitrary results it has produced, it has been largely successful in achieving at least one of its primary objectives:  It has impacted economic incentives and disincentives in a generally positive manner, which has benefited the environment.  There are many fewer Chem-Dyne and Seymour Recycling sites today than there would have been without RCRA and CERCLA. 

Barnard: In my opinion, the biggest impacts of CERCLA have been to raise millions of dollars for site cleanups and also to make companies more aware of potential liability for off-site waste.

Deveau: I think there were 2 big impacts of CERCLA. The first impact was that  abandoned waste disposal sites throughout the country were addressed.  The other significant impact  was the creation of the Environmental Bar.  Prior to CERCLA and RCRA there really weren’t any lawyers who specialized in Environmental Law.

What changes have you seen over the past 30 years in this area of law?

Burke: In the 1980's and 1990's, engineers and attorneys with no background in environmental matters decided to cash in on the surge of work caused by CERCLA and RCRA by claiming they were "environmental experts."  After the CERCLA and RCRA work subsided in the 1990's, only the qualified environmental engineers and attorneys survived...as it should be.

Clark: Many of the big cases – with thousands of potentially responsible parties (PRP’s) – are now resolved.

Terp: Over the past 30 years, there has been a slow, gradual answering of the questions that existed with the law was passed. CERCLA was not a model of clarity when it was first enacted.

Barnard: I have seen that most (but not all) of the legal interpretation issues have been determined by the courts, and that most sophisticated companies now understand the potential liability for hazardous substance cleanups, whether on-site or off-site.  Also, the federal government has been much less active in recent years in bringing new Superfund actions, because the most notorious sites have been addressed.

Is there a specific matter that you were involved with that is memorable?

Burke: On several occasions after the passage of CERCLA, I had to brief CEO's of substantial companies that their once lawful and prudent disposal practices would require them now to pay many times over again for cleanups caused by greedy disposal companies.  I was pleased that the offices of these CEO's did not have windows that opened...because this messenger was not well-received.

Clark: I remember the first meeting of PRP’s (and their lawyers) on my first Superfund case. I recall walking into the room and seeing over 100 lawyers and saying to myself, “I have to learn how to do this.”

Terp: I was involved in two of the very early big Superfund multi-party cases, Chem-Dyne and Seymour Recycling. Taft and Sommer Barnard were both involved and I met Bill Barnard and Frank Deveau. This case gave me the opportunity to build a long standing relationship with Bill and Frank and the Sommer Barnard firm. My relationship with Sommer Barnard and Frank in particular played an important role in our firms’ merger in 2008. 

Deveau: One incident that sticks out in my mind occurred during  the Seymour Recycling litigation in 1984.  Tom Terp and Bill Barnard achieved a wonderful result.  EPA had accumulated roughly  $6 million in settlements.   We thought $6 million might be enough to pay for the entire cleanup of the site (years later we learned we had underestimated the cost by a factor of 5).   Tom and Bill convinced Judge Steckler to bifurcate the case so that an initial trial on damages would occur before the liability trial.  The decision was cited in Superfund cases across the country until the SARA Amendments of 1986 were enacted.  SARA made it clear that EPA was to make all remedy decisions on an administrative record without the opportunity of a trial.  As a result, our order was reversed. Nevertheless, for several years, we were Superfund heroes.

In your view, what would environmental law be like today if CERCLA was not passed?

Burke: Not that different. Abandoned hazardous waste sites would probably have been addressed through a more robust brownfields redevelopment program (which continues to operate in fits and sputters due to lack of a coordinated approach by EPA).  CERCLA was simply a taxing law: companies would pay, even if they were not at fault.  The silliness of some of the cleanup standards under CERCLA drained our country's financial resources in a wasteful fashion.

Deveau:  Without CERCLA, there would still be a number of contaminated sites and an abundance of unresolved litigation.