Hazardous Substance Remediation: CERCLA and the Superfund

CERCLA

CERCLA

Enacted in 1980, focuses on substances, including waste, and covers release into any medium (air, water, soil).

RCRA

Focuses on current hazardous waste and emphasizes tracking and management ("cradle to grave").

Negligence standard

Not applicable under CERCLA, which applies strict liability.

Contract Law

Parties can shift liability to each other, but cannot escape liability to the government.

Mens rea

Criminal intent is expanded under CERCLA.

Facility

Includes structures, land, water, and various objects where a release has occurred.

Release

Refers to leaking, pouring, emitting, dumping, and other actions that result in the release of hazardous substances.

Hazardous substances

Broad category that includes substances regulated under various environmental statutes.

Potentially responsible party (PRP)

Can include current and former owners, operators, arrangers, and transporters.

National Contingency Plan (NCP)

Guides EPA response and cleanup actions, including site investigation, analysis, and compliance with regulations.

Superfund

Hazardous Substance Response Trust Fund that finances federal share of removal, response, and remediation activities.

Strict liability

Applies under CERCLA, where each PRP is 100% liable for cleanup costs.

Joint and several liability

Each PRP is fully responsible for cleanup costs, and they can sue each other for contribution based on "proximate cause."

Citizen suits

Allows citizens to enforce CERCLA through injunctive relief, civil penalties, and private damages.

Superfund Memorandum of Agreement (SMOA)

Ensures state involvement in cleanup, including cost-sharing and taking over remediation.

Federal facilities

Clean-up of federal facilities is managed and paid for by the agency responsible for the facility.

Hazard Ranking System (HRS)

Used by EPA to prioritize sites on the National Priorities List based on toxicity, concentration, etc.

Comprehensive Environmental Response Compensation and Liability Information System (CERCLIS)

Stores information on priority sites and PRPs.

National Response Center

Must be immediately reported to by any person in charge of a facility in case of a release.

National Contingency Plan (NCP) Process

Involves site investigation, compliance with regulations, public comment, and cost-effective response.

Liability

Strict liability applies, and EPA can force parties to clean up or seek restitution for Superfund costs.

Proximate cause

Determines the liability of PRPs based on factors such as generators, arrangers, and intentional disposal actions.

Owners and operators

Refers to individuals or entities responsible for the management and control of a facility where hazardous substances are present.

Officer liability (corporate)

Holds corporate officers personally responsible if they arranged for the disposal of waste.

Transporters

Individuals or companies responsible for transporting hazardous materials or recyclable materials.

Transporter "Scrap Recycling" Exemption

Exempts transporters of recyclable materials such as plastic, glass, textiles, rubber, metal, or spent batteries from liability.

Defenses Against Liability

Various defenses that can be used to mitigate or avoid liability, including innocent landowners, innocent neighboring landowners, and bona-fide prospective purchasers.

Innocent Purchaser

A purchaser who did not know or have reason to know about contamination on the property at the time of purchase.

Contiguous Landowners

Landowners who did not contribute to contamination and were unaware of potential contamination at the time of purchase.

"Bona Fide Prospective Purchaser"

A prospective purchaser who may have knowledge of contamination prior to purchase but did not contribute to it.

"All Appropriate Inquiry"

A requirement for property owners to conduct a site assessment before acquisition to determine potential environmental hazards.

"De Micromis" Exemption

Exempts parties who contributed only small amounts of hazardous substances to a site from cleanup liability.

Other Liability Limitations

Exclusions or limitations on liability for corporate officers, fiduciaries, trustees, and parent companies.

Redevelopment

Brownfields:EPA programs that encourage the reuse and redevelopment of contaminated properties.

Interaction of CERCLA with other law

Explains how CERCLA interacts with state contract law, bankruptcy law, insurance policies, and other legal frameworks.

Resources

Provides references to additional resources such as the BLM CERCLA Manual and EPA guides on finding PRPs and negotiating settlements.