What is CERCLA? A Comprehensive Guide to Superfund Law and Its Impact

What is CERCLA? A Comprehensive Guide to Superfund Law and Its Impact

What Does CERLA Stand For?

What does CERCLA stand for? It stands for The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and is often at the center of the most complex environmental law matters. So, what is CERCLA and how can it impact you?

CERCLA, also known as Superfund, governs the cleanup of hazardous waste sites throughout the United States. It also identifies certain parties that may be held liable for the cost of responding to releases of hazardous substances, which may include both current and former owners.

What Is CERCLA?

CERCLA was enacted in 1980 to facilitate the cleanup of hazardous substance releases in response to several environmental disasters, including the Love Canal catastrophe in New York and the Valley of the Drums emergency in Kentucky. The law established broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment. It also provided for liability of those responsible for releases of hazardous waste at these sites and created a trust fund to provide for cleanup when no responsible party could be identified.

When a potential release is identified, CERCLA authorizes the U.S. Environmental Protection Agency (EPA) to take several actions, which include:

• Conducting the response itself and seeking to recover its costs from the Potentially Responsible Parties (PRPs) in a subsequent cost-recovery action; 
• Compelling PRPs to perform the cleanup themselves through either administrative or judicial proceedings; or 
• Entering into a settlement with PRPs to perform all or portions of the work.

Liability for Superfund Sites

Remediating contaminated sites pursuant to CERLCA is a multi-phase process that typically takes several years. Before any cleanup can occur, the EPA must perform a remedial investigation/feasibility study, issue a record of decision, and implement a remedial design/remedial action.

Once a remediation plan is in place, the EPA works to identify the likely sources of the pollution and the owners/operators of the sites. As set forth above, CERCLA imposes liability on parties responsible for, in whole or in part, the presence of hazardous substances at a site.

Entities or individuals responsible for contamination will be designated as PRPs and will be asked to contribute to the remediation costs. PRPs may include:

• Current owners and operators of a facility;
• Prior owners and operators of a facility at the time hazardous wastes were disposed of;
• Parties that arranged for the disposal or transport of the hazardous substances; and
• Transporters of hazardous waste that selected the site where the hazardous substances were brought.

CERCLA authorizes the EPA to issue information request letters to any entity who may have information about a site, not just to persons who may be PRPs. Once the PRPs have been identified, the EPA typically sends a Superfund “notice of liability letter,” which notifies the recipient that it has been identified as a PRP at a Superfund sites and may be liable for cleanup costs at the site. The letter also explains the process for negotiating the cleanup with EPA.

When the EPA is ready to negotiate with PRPs to remediate a site, it will send a special notice letter, which sets forth the basis for liability and the EPA’s remediation plans. The letter also requests the recipient to participate in negotiations with EPA to conduct future cleanup work and pay EPA for any site-related costs already incurred.

Under the EPA’s Enforcement First for Remedial Actions at Superfund Sites policy, the polluter always pays first. The agency first requests that PRPs conduct the investigation and perform the cleanup before using Superfund money, with the goal of conserving the resources of the Hazardous Substance Trust Fund for site remediation where viable responsible parties do not exist. Should PRPs refuse to contribute to the cleanup costs, the EPA will often file suit.

CERCLA Contribution Claims

Under CERCLA, the Federal Government may recover its clean-up costs directly from PRPs. CERCLA also authorizes entities who have taken actions to clean up hazardous waste sites to recoup their cleanup costs from other parties who are also responsible for the contamination. 

Pursuant to Section 113(f)(3)(B), a person that has “resolved its liability” for “some or all of a response action or for some or all of the costs of such action” pursuant to a settlement agreement with the government “may seek contribution from any person who is not party to a settlement.” In a contribution action, the court can compel those PRPs to bear an equitable share of the cleanup costs. Contribution actions under Section 113(f) are subject to a three-year statute of limitations, which begins on “the date of judgment in any action under [CERCLA] for recovery of [response] costs” or the “entry of a judicially approved settlement with respect to such costs.”

Separately, CERCLA allows any person to sue a PRP to recover “any other necessary costs of response” that that person has incurred. These lawsuits are known as “cost-recovery” actions. Cost-recovery actions under Section 107(a) are subject to a six-year statute of limitations, which begins upon the initiation of the remedial action.

Liability Protections Under CERCLA

CERCLA provides liability protections for certain landowners and potential property owners who did not cause or contribute to contamination at the property and can demonstrate compliance with specific provisions outlined in the statute.

To qualify as a bona fide prospective purchaser, contiguous property owner, or innocent landowner, a person must perform “all appropriate inquiry” prior to acquiring the property. Bona fide prospective purchasers and contiguous property owners must also demonstrate that they are not potentially liable or “affiliated” with any other person that is potentially liable for response costs as the property.

Performing all appropriate inquiries (AAI) is one of the most important steps of the process. It involves evaluating a property’s environmental conditions and assessing potential liability for any contamination. To maintain their bona fide prospective purchaser, contiguous property owner, or innocent landowner status, property owners must also take “reasonable steps” with respect to hazardous substance releases by stopping continuing releases; preventing threatened future releases; and preventing or limiting human, environmental, or natural resource exposure to earlier released hazardous substance releases.

Consult With Our Superfund Attorneys

The attorneys of Scarinci Hollenbeck’s Environmental Law Group represent clients at every stage of the CERCLA process, from the initial site inspection to property redevelopment. Our attorneys not only advise clients on CERCLA compliance and EPA enforcement matters, but also represent them in CERCLA-related litigation involving complex contribution claims and cost-recovery actions.