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The CERCLA Model: Past, Present and Future
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- By Marta Cenini
- Edited by Barbara Pozzo, Valentina Jacometti
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- Book:
- Environmental Loss and Damage in a Comparative Law Perspective
- Published by:
- Intersentia
- Published online:
- 26 May 2021
- Print publication:
- 13 January 2021, pp 245-262
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Summary
INTRODUCTION: CERCLA AS A POINT OF REFERENCE FOR DIRECTIVE 2004/35
The Comprehensive Environmental Response Compensation and Liability Act (commonly referred to as CERCLA or Superfund) is one of the major environmental federal statutes of the United States of America and was passed by Congress on 11 December 1980. Its origin dates back and is linked to the tragedy that occurred in the State of New York on 2 August 1978 (the so-called Love Canal tragedy), and more generally to the ecological disasters that occurred during that decade. At that time, Congress's primary goal was to clean up inactive and abandoned hazardous waste sites and at the same time to prevent taxpayers from having to bear the related costs; for this reason, CERCLA imposed liability on a long list of “potentially responsible parties” (PRPs).
The list also includes past and current owners and operators of the facility from which the release of hazardous substances occurred, owners and operators of the site or facility where a hazardous substance has come to be located, and even anyone who “arranged for disposal” of the hazardous substance. Until very recently, the liability was considered strict and joint and several; having to deal with historic contamination and abandoned hazardous waste sites, the Act also had retroactive applicability. At the time the Act was issued, any landowners (whether “innocent” or not) who have had a “contractual relationship” with the polluter, as well as any person who exercised any kind of control over the activity or the substance (“operator” or “arranger”), was thus considered responsible for the full costs of clean-up.
The two major legislative reforms that occurred in 1986 and 2002 have not changed the approach; CERCLA's major focus still remains the clean-up of inactive hazardous waste sites and the distribution of clean-up costs among certain parties who had any involvement with the hazardous substances. However, since the very beginning, CERCLA has also contained provisions to protect damages to natural resources; in this case, government claims aim to recover costs associated with the loss of a contaminated area's natural resources (Section 107(a)(4)(C)). As we shall see, considering that the protection of natural resources is granted by the use of trust law principles, this represented and still represents a very innovative approach.
Chapter 6 - Environmental Liability and Waste: Which Responsibilities for Landowners?
- from PART III - SUSTAINABLE MANAGEMENT OF WASTE
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- By Marta Cenini
- Edited by Helle Tegner Anker, Birgitte Egelund Olsen
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- Book:
- Sustainable Management of Natural Resources
- Published by:
- Intersentia
- Published online:
- 31 January 2019
- Print publication:
- 09 October 2018, pp 81-96
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Summary
ABSTRACT
A recent report elaborated by the European Environmental Agency has drawn public attention to the alarming conditions of soils in the European territory. A significant number of lands require urgent remediation measures to halt the loss of biodiversity and health risks as well as to secure soil sustainable use for the future. The European Union has already issued a Thematic Strategy for Soil Protection in 2006 and then tackled the issue in the Seventh Environment Action Programme of 2014, but the question is far from being resolved. From a juridical point of view, it is necessary to clearly establish who is liable/responsible for the clean-up and decontamination of polluted soils and the chapter discusses the liability/responsibility of the owner of a contaminated soil in regard to its remediation. The boundaries of this liability/responsibility are not well defined since soil is not subject to a comprehensive and coherent set of rules at EU level; the relevant provisions must thus be found in the EU directives in force and in particular in the Directive on Environmental Damage (Directive 2004/35/EC) and the Waste Framework Directive (Directive 2008/98/EC).
INTRODUCTION
A recent report by the European Environmental Agency estimates that in 2011 local soil contamination amounted to 2.5 million potentially contaminated sites in the 39 EEA countries, of which about 45 per cent have been identified to date and to 342,000 contaminated sites, of which about 1/3 have been identified. Only about 51,000 of these identified sites have already been remedied and the others are still awaiting the necessary clean-up and preventive measures, increasing health risks and causing irreparable loss of biodiversity. The EU had already considered this issue in 2006 when it adopted a Thematic Strategy for Soil Protection with the objective to protect soils across the EU; in 2014 the EU returned on the topic and elaborated the Seventh Environment Action Programme, which recognized that soil degradation is a serious challenge and laid down a series of objectives to be reached by 2020. The United Nation also considered the restoration of degraded land and soil as well as the halt of the loss of biodiversity as an urgent goal in the 2030 Agenda for sustainable development issued in 2015.
3 - Law and economics: the comparative law and economics of frustration in contracts
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- By Marta Cenini, University of Milan, Barbara Luppi, University of Modena and Reggio Emilia, Francesco Parisi, University of Bologna
- Edited by Ewoud Hondius, Universiteit Utrecht, The Netherlands, Christoph Grigoleit, Ludwig-Maximilians-Universität Munchen
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- Book:
- Unexpected Circumstances in European Contract Law
- Published online:
- 04 April 2011
- Print publication:
- 03 March 2011, pp 33-52
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Summary
Introduction
Frustration of purpose is a defence to the enforcement of a contractual obligation. Legal systems generally provide this defence when an unforeseen event undermines a party's purpose for entering into a contract. In many legal systems frustration of purpose is often treated and discussed jointly with the related doctrine of impossibility, which concerns situations where unforeseen events render impossible (practical impossibility) or far more burdensome (economic impossibility) the performance of the obligations specified in the contract. Although different in their substance, the economic analysis of the doctrines of frustration and impossibility share a common logic. In the following analysis we shall therefore treat these doctrines together.
When unexpected contingencies occur during the performance of a contract, there may be a divergence between what the parties have expressly agreed upon in the contract and what they have implicitly assumed was their contractual obligation in terms of assumption of risk. In other words, when there is a period of time between the conclusion of the contract and the performance of the parties, there may be a fundamental change of circumstances that makes the performance of the contract far more burdensome, or even physically impossible, for one party, or that completely frustrates the purpose of the contract for one party. The event that causes the change is, as said, unexpected or unforeseen and is not explicitly referred to in the parties' agreement. If it were in the parties' agreement, the general rules on breach of contract would apply.