CERCLA and Superfund

Introduction

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) , commonly known as Superfund, was enacted in 1980 to address the cleanup of hazardous waste sites. CERCLA establishes a liability framework that imposes strict, joint and several liability on responsible parties for the costs of remediation and for damages to natural resources. The statute also creates a trust fund (the Superfund) to finance cleanups when responsible parties cannot be identified or are unable to pay.

Strict, Joint and Several Liability

CERCLA § 107(a) imposes liability on four categories of potentially responsible parties (PRPs) : (1) current owners and operators of a facility where hazardous substances were released; (2) owners and operators at the time of disposal; (3) persons who arranged for disposal or treatment of hazardous substances; and (4) transporters who selected the disposal site.

CERCLA liability is strict (no proof of negligence required), joint and several (each responsible party may be held liable for the entire cleanup cost), and retroactive (applies to conduct before CERCLA’s enactment). The Supreme Court in Burlington Northern & Santa Fe Railway Co. v. United States (2009) held that liability may be apportioned if the defendant can provide a reasonable basis for dividing the harm.

Potentially Responsible Parties

PRPs include a broad range of parties. Current owners and operators are liable even if they did not cause the contamination. Past owners and operators are liable only if they owned or operated the facility at the time of disposal. Arrangers are liable if they intended to dispose of a hazardous substance and took title or arranged for its disposal.

The Supreme Court in United States v. Bestfoods (1998) held that a parent corporation may be directly liable as an operator if it actively participated in the subsidiary’s hazardous waste operations. Officers, directors, and employees may be individually liable if they personally participated in conduct giving rise to CERCLA liability.

Response Actions and Cleanup

CERCLA authorizes two types of response actions: removal actions (short-term actions to address immediate threats) and remedial actions (long-term permanent remedies). The EPA may conduct response actions using Superfund funds and then seek cost recovery from PRPs, or it may order PRPs to conduct the response action.

The cleanup process involves: site assessment and listing on the National Priorities List (NPL) , a remedial investigation and feasibility study (RI/FS), selection of a remedy in a Record of Decision (ROD) , and implementation of the remedy. The selected remedy must be cost-effective and protect human health and the environment, and it must comply with applicable or relevant and appropriate requirements (ARARs).

Natural Resource Damages

CERCLA § 107(a)(4)(C) authorizes the recovery of natural resource damages (NRD) for injury to natural resources caused by hazardous substance releases. Natural resources include land, fish, wildlife, biota, air, water, groundwater, and other resources. State and federal trustees assess the damages using the Type A (simplified) or Type B (complex) methodologies.

Cost Recovery and Contribution

Section 107(a) authorizes the United States, states, and certain other parties to recover response costs from PRPs. The plaintiff must prove that the costs were consistent with the National Contingency Plan (NCP). Section 113(f) provides a contribution right for PRPs who have paid more than their share of cleanup costs.

The relationship between § 107 cost recovery and § 113 contribution has been extensively litigated. In Cooper Industries v. Aviall Services, Inc. (2004), the Supreme Court held that a PRP that has not been sued under § 106 or § 107 may not seek contribution under § 113(f). However, such PRPs may still bring a cost recovery action under § 107(a).

Defenses to Liability

CERCLA provides three limited defenses: act of God, act of war, and act or omission of a third party with whom the defendant has no contractual relationship. The third-party defense requires the defendant to show that it exercised due care and took precautions against foreseeable acts of the third party.

The innocent purchaser defense allows a landowner who acquired property without knowledge of contamination to avoid liability, provided they made appropriate inquiry into the property’s history. The bona fide prospective purchaser (BFPP) defense protects purchasers who conduct all appropriate inquiries and take reasonable steps to stop ongoing releases.

Conclusion

CERCLA establishes a strict liability framework for the cleanup of hazardous waste sites. The statute imposes broad liability on PRPs and provides mechanisms for cost recovery and contribution. The Superfund program has cleaned up thousands of sites, but many more remain on the NPL. The liability framework creates powerful incentives for environmentally responsible behavior in the management of hazardous substances.