Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  42 U.S.C. §1906 et seq.

Also known as "Superfund", CERCLA is aimed at cleaning up sites contaminated with hazardous waste, and prevent contamination of future sites by assigning liability to parties involved.  The liability requires the parties to pay for the clean up of the sites.  A part of Environmental Law.

 

Response Actions

  • Removal Actions:  Short-term actions authorized by CERCLA, these may be be taken to address releases or throated releases that require a prompt response.
  • Remedial Actions:  Long-term actions authorized by CERCLA, these permanently and significantly reduce the risk of release of hazardous substances.    These actions may only be taken at places on the National Priorities LIst (NPL).   To be included on the NPL, a proposed site is first subject to a Preliminary Assessment / SIte Inspection (PA / SI) and then to a Remedial investigation / Feasibility Study (RI / FS)

 

Liability

Scope of Liability

CERCLA casts a wide net in bringing in responsible parties.  Through the broad definition of hazardous substance (§101(14) - liability is extended to anything that presents an "imminent and substantial danger"), the loose interpretation of "release" (there is no time constraint on this)  and the wide scope of liability (each party involved may be responsible for the entire clean up) the statute seeks to fund the clean up of these sites.  Although there have been challenges to the apparently retroactive nature of this (because people are being held liable for actions that predate the statute), the courts have held that as the waste is continuing to cause problems, and the statute is not a punishment but rather a reimbursement obligation, the statute is not retroactive, and thus not unconstitutional.  (US v. Monsanto, 858 F. 2d 160 (4th Cir. 1988)).  (Note:  additional challenges under the commerce clause have been rejected as well.  See US v. Olin  (107 F.3d 1506 (11th Cir. 1997)).

Potentially Responsible Parties (PRP)

§107(a) lays out the responsible parties and in doing so establishes expansive liability.

  • Current Owners / Operator.  Although this excludes property acquired through foreclosure or a security interest, this will still include current owners even if they made no contribution to the hazardous release.  In NY v. Shore, Shore, a landowner who had purchased a contaminated site with the intuition of cleaning it up and developing it, was held liable for clean up costs as he was aware of the condition of the land when he purchased it (and that dumping was still on-going at time of purchase).
  • Past Owner / Operator at time the pollution occurred.  Prior owners / operators will be held liable as well for any release of toxic substance that occurred during their possession / control of the land.  Note that even a party who does not / did not own a facility may be liable as an "operator" if they had substantial control over the activities that lead to the release of hazardous substances.  (See US v. Bestfoods (524 U.S. 51, 1998)
  • Arrangers (person who arranged for disposal of a hazardous substance at a site).  Under the "Useful products doctrine"  if you are not arranging for disposal, then you are out of the system.  Thus, a producer of a chemical that is sold for use (not disposed of) is not an arranger.  See Burlington Northern note below.
  • Transporters (person who transported a hazardous substance to the site).  Transporter liability is premised on the transporter playing some role i the selection of the site where the hazardous substances are taken.  (Tippins, Inc v. USX Corp., 37 F.3d 87 (3d. Cir.  1994).  Additionally, even if the transporter moves the substance from one contaminated area of a parcel to another, uncontaminated area, they will still be held liable.  (Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp.  (976 F.2d 1338 (9th Cir. 1992).

Defenses

Although CERCLA imposes Strict Liability as well as Joint and Several Liabilities, creating major liability for involved parties, there are limited defenses available to avoid CERCLA liability.

  • Mere knowledge is not sufficient.  In Burlington Northern (Docket 07-1601, 2009), the Supreme Court found that Shell, who supplied chemical products to Brown & Bryant Inc (a chemical distribution business) was not an arranger and thus not responsible for Brown and Bryant's spills.  The court noted that Shell took numerous steps to reduce the likelihood of spills and that Shell's mere knowledge that spills and leaks contented to occur was insufficient grounds for including Shell as an "arranger" of disposal.
  • 107(b) Defenses.  §107(b) provides potential, but difficult to use defenses:  an act of God, an act of War, and a third-party defense
  • Act of God / Act of War:  Courts have held these defenses do not apply to events that could be anticipated, such as heavy rains, or earthquakes;  rather these defenses would be limited to an exceedingly rare and unforeseen set of circumstances.
  • Third-party defense:  This defense will only apply if (1) the PRP can show they exercised due care and (2) there was no contractual relationship with the egregious third party.  Thus, this defense will not apply if the dumper was an employee, agent, parent company, subsidiary, or anyone in a contract with the PRP.  This defense could apply in the case of a midnight dumper - unbeknownst to you, someone secretly dumps toxic waste on your land, and you had no reason to suspect this might be happening.
  • Innocent Landowners:  In response to criticism, amendments to CERCLA known as SARA include a defense for innocent landowners who "undertook all appropriate inquiries" before purchasing the land, and "had no actual or constructive knowledge" of the hazardous substance.
  • De minims settlements:  Should the EPA determine a PRP contributed only a minimal amount of hazardous waste (as compared to other wastes at the site), and this waste did not contribute significantly to the clean up, they may offer a settlement to that PRP.  This is designed to protect small businesses who were not major contributors to the mess.
  • Separate Harm:  likewise, if a PRP can show their mess was contained and removed (and thus contributed in no way to the hazardous release), they may limit their liability.
  • §107(q) Continguos Properties:  This protects neighbors to polluted lands - a person who take reasonable care and who is unaware of hazardous waste leaking onto their land will not be liable for the clean-up costs.

 

Brownfields

An unintended consequence of CERCLA was that that developers refuse to purchase and attempt to clean brownfields for fear of taking on liability. To overcome this, in §107( r) was added to protect developers and encourage them to clean up brownfields.  This prevents liability being assigned to a bona fide prospective purchaser, so long as they do not impede the performance of a response action or natural resource restoration.

 

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