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Mar 29, 2020
Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to address hazardous substances releases from industrial operations. Although the statute was meant to provide communities with a means of self-protection, CERCLA actions are often commenced by a government agency against a polluter or a group of potentially responsible parties (PRPs) without substantial input from the community threatened by the hazardous waste. Recent court decisions have broadened the ability of polluters, who are not parties to the original settlement proceedings, to intervene in CERCLA settlement proceedings. However, community groups seeking to have greater input on the remedial process are often barred from the process, either directly by courts or indirectly by procedural requirements.
When directly barring community group intervention, courts often cite to the fact that the government is already representing the community interest, and additional intervention is therefore unnecessary. Separate but related to this, community groups are sometimes barred from intervening based on their failure to adhere to a timeliness requirement—one that may be unrealistic for them to meet.
Generally, courts cite the time parties first receive notice of a CERCLA action as the most appropriate time to file for intervention. Notice provided through CERCLA section 117, which details the process for public participation, is often used as the starting point for determining when such notice occurred. This process, however, only requires constructive notice through a newspaper ad, which publicizes a public meeting about the site and an opportunity for public comment on the proposed plan for remedial actions. Because of this obscure and outdated format, community members may not actually realize there is a serious contamination problem in their community upon this “notice.” In addition, even if community members do see the newspaper ad, the content of that ad may not fully alert communities about the extent of contamination until more details come out in a lawsuit. By the time a lawsuit against the polluter has progressed to the point of actually notifying community members to the extent of damage, it may be well past the point in time where intervention and community participation are permissible. The failure of community groups to meet the timeliness requirement in intervention proceedings is indicative of the need to amend CERCLA section 117’s notice requirement in order to increase public participation.
This In Brief examines existing procedures surrounding CERCLA notice and timeliness requirements, overviews the impact of these requirements on community intervention in CERCLA actions, and proposes changes to CERCLA section 117’s notice requirements to increase community involvement, by requiring that communities near high risk sites receive easily understandable information about the contamination through widely viewed media sources and mailings.