Superfund or Superwaste??????

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was as an answer to questions raised by Love Canal, Times Beach, and the Valley of the Drums. While one would think CERCLA would be a very useful tool for water providers dealing with contamination in their wells, its usage of late has turned against water providers. They have become targets of lawsuits, just as though they were the industry that caused the various contaminants and pollutants to impact the environment. They have also become the target of defendants who are brought into court by the water providers themselves. Cases filed by water providers result in counterclaims based mostly on the theory of “moving the plume.” That is, the well is pumped to serve water, but that pumping moves the contamination and this is actionable under CERCLA. And this outcome is technically correct, but in practicality it means that if a water provider finds a manmade chemical in its wells, it must stop pumping the well and never use it again. That way it won't have liability.

The only way to fix this problem is to have CERCLA amended to exclude from its scope of liability water providers who are pumping wells (and most likely removing the contaminants as a matter of public health and legal requirements). It sounds simple, but it isn’t.

To understand the dilemma facing water providers in this new world of responsibility for doing the right thing, will be discussed.