Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

CERCLA Overview  CERCLA (also called “Superfund”) enacted in 1980 to provide for cleanup of leaking, inactive or abandoned hazardous waste sites.  CERCLA is a remedial statute—it creates a response, compensation, and liability scheme.

CERCLA Overview  CERCLA authorizes EPA to clean up hazardous waste sites and to compel potentially responsible parties (PRPs) to perform cleanups or reimburse the government for EPA-led cleanups.

CERCLA Overview  The CERCLA cleanup process is complex and long-term.  It involves: assessing sites placement on the National Priorities List (NPL) establishing and implementing cleanup plans.

CERCLA Overview  Over the past 25 plus years, EPA has located and analyzed tens of thousands of hazardous waste sites.  Through 2009: 1,320 NPL sites where actual or potential exposure to hazardous substances now under control. 1,012 NPL sites where contaminated groundwater sites under control. 1,080 NPL sites with cleanup construction completed

CERCLA Overview  In 2009, $965 million directed toward construction and post-construction projects. EPA obligated $247 million for 26 projects $139 million used to conduct 368 emergency response and removal actions  EPA secured $2.4 billion from PRPs in FY2009 to fund cleanup.

CERCLA Order Authority  EPA may order PRP to do the work.  DOJ may bring civil action asking court to order PRP to do the work.  PRP may agree to do the work.

Superfund Response Actions  Two basic types: Removal actions Remedial actions  Two options: EPA does the work Responsible party does the work

CERCLA Order Authority  EPA may issue administrative orders to Obtain information Gain site access  Penalties for noncompliance with orders up to $32,500 per day.

CERCLA liability standard  CERCLA civil liability is: strict joint and several retroactive no causation between a PRP’s actions and the actual cleanup costs need be shown  PRPs may seek contribution from other responsible parties

CERCLA Liability  Under CERCLA, civil liability may be imposed when there is: A release or threatened release of a hazardous substance, pollutant, or contaminant from a facility into the environment that causes response costs to be incurred; and the defendant is in at least one of the classes of liable parties under CERCLA section 107(a).

CERCLA Liable Parties  There are four classes of PRPs designated under CERCLA section 107: Current owners and operators: parties who own or operate a vessel or facility; Past owners and operators: parties who owned or operated the vessel or facility at the time of disposal; Arrangers for disposal (commonly referred to as “generators”): parties who arranged for the disposal or transport of hazardous substances; and Transporters: parties who accepted hazardous substances for transport to disposal sites and selected the site.

Defenses to CERCLA Liability  Act of G-d  Act of War  Third party defense—acts or omissions of a 3d party were the sole cause of a release  There are also certain exclusions from CERCLA coverage

CERCLA Claim for Natural Resource Damages  Federal, State, and Tribal Trustees may bring claim for natural resource damages caused by releases of hazardous substances.  Recoveries to be used to restore, replace, or acquire the equivalent of injured natural resources.

CERCLA contribution actions  PRPs may bring a suit for contribution against other PRPs under Section 113(f) 113(f)(1) allows a party to seek contribution during or following civil action under Section 106 or (f)(2) allows a party to an approved settlement to seek contribution.

One CERCLA Cleanup Scenario  EPA informed of hazardous waste site  EPA issues Administrative Order for Removal Action (UAO or AOC)  EPA Lists Site on National Priorities List, performs RI/FS  DOJ/EPA negotiate RD/RA Consent Decree with PRPs  PRPs sue Other Responsible Parties for Contribution