MARISA: Welcome to Environmentally Speaking. I am Marisa Desautel an environmental attorney with a few decades of experience.CLARICE: Hi, everybody. I’m Clarice a paralegal here to bring your topics and questions to the table. So today’s topic I’m very excited about is actually a listener request.

MARISA: Our very first one.

CLARICE: I know. A couple weekends ago I was at this amazing outdoor wedding. It was on top of this beautiful mountain, so naturally we started talking about the environment. And I found the most wilderness guy at the party and he said that he had been doing a ton of reading and research into Superfund sites, so this episode is dedicated to Zack the wilderness guy. Let’s talk about Superfund sites today.

MARISA: Yes. I let me just start by saying that it’s Superfund with a D at the end, not super fun like a backyard barbecue might be. So Superfund is, I guess, a colloquial term that the United States Environmental Protection Agency dubbed appropriate for a federal statute. And that federal statute is called the Comprehensive Environmental Response Compensation and Liability Act. The acronym for that is CERCLA. So when you hear someone talking about CERCLA, that’s the long name for that particular federal statute. And then those of us in the industry that actually do work related to the statute call these types of cases generally Superfund because part of the statute required the federal government to set up essentially what is a Superfund. It’s a huge pot of money – we’re talking billions of dollars – that is earmarked to deal with immediate cleanup and emergency response actions for these particular polluted sites that are either burning or exploding or generally require an emergency response act. So that’s the overview.

[0:03:00] CLARICE: So these sites aren’t just your regular – for lack of a better phrase, they’re not like your regular dump sites?

MARISA: No.

CLARICE: These are extreme dumps.

MARISA: Yeah. And they’re generally uncontrolled or they’ve been abandoned and the government has no idea at the time who’s responsible for the contamination.

CLARICE: So who’s putting the billions into the Superfund?

MARISA: The taxpayers. You’re giving me that thousand-yard stare.

CLARICE: It sounded like – you said the taxpayers and I was like, oh, man, that’s a ton of money to clean up this abandoned site. Well, I’ve now assumed they’re all abandoned. Man, that’s a super bummer. So how does an attorney get involved?

MARISA: Your assumption is correct. They are incredibly risky. Like I said, they’re either on fire or exploding or something catastrophic is happening at these sites in order to be qualified for federal emergency cleanup. And when I say that they’re funded by the taxpayer, that’s the case up front. But the entire purpose of Superfund is that the government can go in and address these immediate risks to human health and the environment. But then the government tracks down who is actually responsible for the contamination and conditions at either an uncontrolled or abandoned site. And generally speaking sites like this, Superfund sites, are historically contaminated over years and years. It’s not just one responsible party. The federal government will sometimes go back 50 years to find out who in the chain of title is a potentially responsible party. And then the federal government will go after cost recovery to get their money back. So the taxpayer kind of floats the bill and then the federal government gets reimbursed.

CLARICE: Do environmental attorneys get involved in tracking down who the past owners are, or how do we fit in?

MARISA: Oh, that’s right. You asked that question and then I proceeded to not provide an answer. So, yeah.

CLARICE: [inaudible].

MARISA: Listen, I’m an attorney. If I don’t talk too much, I’m not doing my job right. So, yes. Lawyers sometimes have a role in figure out who potentially responsible parties are depending on where the stage of the cleanup is. And when I’m talking about the federal government coming in and doing an emergency response action, that’s the very first step in these Superfund matters where attorneys on the private side are not involved because it’s an emergency and it’s just the government responding and putting out fires or trying to corral explosions and that kind of thing. So it’s just the government in the first step. The government includes attorneys, but private attorneys also get involved at later stages in these matters.

[0:06:23] CLARICE: What does it look like in later stages?

MARISA: Usually so the EPA, the Environmental Protection Agency, steps in to clean up what they call orphan sites. And that’s just a general phrase used to explain property that’s either uncontrolled or abandoned. And then the EPA will go through their various enforcement tools to get these private parties to come forward and take over the long-term cleanup through court action, administrative orders, consent decrees and other types of settlements. And generally private side attorneys get involved if their client receives one of these orders from the EPA to come in and take over the cleanup.

CLARICE: And I imagine from that point on it’s kind of deciding how much each private party is responsible and what their responsibility is going forward, right?

MARISA: That’s right. CERCLA or the Superfund program is different from other environmental laws and programs in that it carries with it something called strict liability and joint and several liability. Strict liability means it doesn’t matter if the party intended or otherwise could be shown responsible for the contamination. It’s a very low bar for liability to attach in these cases. The federal government and the state government have only to show that a party was an owner or operator at the Superfund site. Essentially if you are in the chain of title somewhere you’re on the hook. Or if you are operating at the site and you were working with a contaminate at the site you are on the hook. So that’s the strict liability component. The joint and several liability component means that each and every responsible party is responsible for 100 percent of the contamination. So let’s say you and I are both responsible. If you fly to coop and the government can’t find you because you’ve moved to Vietnam, then I’m 100 percent responsible for your liability. It’s a tricky statute.

[0:09:01] CLARICE: That’s so intense. And also you should have just come to Vietnam with me.

MARISA: Oh, well, next time we contaminate a site together and you offer for me to go to Vietnam I will say yes.

CLARICE: All right.

MARISA: So then not to put too fine a point on it, but it’s a convoluted statute. And the other area where environmental attorneys get involved is with that joint and several liability. As you can imagine attorneys love to duke out who’s responsible for what percentage of contribution. And it’s that particular joint and several liability that gives rise to the very unique litigation elements that are at play in these Superfund cases.

CLARICE: So after the immediate cleanup done by the government and once the attorneys come in and they started and all the parties are identified, how long does a cleanup usually take after that? Are we talking years, decades?

MARISA: At a minimum, years. More on an average basis, yes, decades. And the issue is that when the contaminates are discharged or released to the earth they move fairly quickly and they make their way into both soil and groundwater. For those non-geologists out there, groundwater flows through various different mechanisms and it travels quickly or it can travel quickly. And it can spread into something called a plume that often migrates onto other properties. So then you’ve got issues with something called down-gradient receptors. Those are properties that had no involvement in the initial discharge necessarily, but they are now contaminated. And the responsible parties have to chase the plume and clean up the groundwater to the standard that the government tells them to. So that can take a really long time. It can take a really long time to do the investigation and then to fashion an appropriate remedy and then to carry out remedy and then to get to a point where the government tells you, okay, you’ve done enough. We don’t think there is any more risk to public health or the environment. So that’s why it takes so long.

CLARICE: Is there ever a chance that that site could be deemed reusable or safe again?

MARISA: Yes.

CLARICE: Or will it always kind of have that taint to it?

MARISA: It will always have some kind of taint related to it. But there are sites known as brownfields that the government will work with private parties to come in and redevelop. Oftentimes you’ve got a very advanced cap system on the property which is not permeable and it allows the responsible party to leave a certain amount of contamination in place and then they just put a cab on it. so long as, generally speaking, schools, like elementary schools, are not built or residential properties are not constructed on top of these contaminated sites, they can be reused. The brownfield site can be reused.

[0:12:21] CLARICE: Sounds like they’re best for parking lots at that point.

MARISA: Yeah. There’s a lot of reuse for parking lot, commercial industrial buildings. A lot of times factories and shopping malls are redeveloped on top of these properties. And then depending on the level of contamination, sometimes you might have housing or other community infrastructure on these properties, but it’s all dependent on where the cleanup is and what the risk to public health and the environment is.

CLARICE: Going back to the attorney’s involvement. I know that you were talking a lot about the joint and several liability aspect and kind of navigating who’s paying what portion for the cleanup and for the restoration. How long on average are
attorneys involved in this?

MARISA: Oh, decades.

CLARICE: Really? Throughout the whole –

MARISA: Yeah.

CLARICE: Almost throughout the whole process?

MARISA: Yeah. When you get to work on a Superfund site sometimes you’re brought in to deal with a certain element of the case. Sometimes you’re contacted immediately because your client has received a response notification. But in my experience regardless of when you’re brought in, you’re with the case for a long time. Things never go as smoothly as the client wants them to or as you want them to. The government always has – and I don’t mean that in a pejorative way – but the government always has additional requirements. You know, their responsibility is to protect the public health and the environment and they make sure that they do that. So it takes a while to get to that point.

CLARICE: So it turns out the Superfund episode wasn’t super fun. There’s lots of garbage. There are orphan sites.

MARISA: Yes.

CLARICE: Possibility of literal explosions.

MARISA: That’s right.

CLARICE: All right. So thanks for the bummer.

MARISA: Yeah. I’m glad that someone, number one, is listening and, number two, had a suggestion about topics because it’s easier for us, I think, to talk about topics that people actually want to hear about. So if you’ve got any topic that you’d like to hear Clarice and I speak on, please reach out.

CLARICE: Yeah. And you can reach out to us at Help@DesautelESQ.com.