For Students: A brief Introduction to Superfund enforcement

This post is presented to identify for our students who is responsible for determining the liability and cleanup enforcement under the Comprehensive Environment Response, Compensation and Liability Act (CERCLA), also known as the Superfund Act of 1996. We will also define Potentially responsible parties.

Under the 1976 Toxic Substance Control Act, as well as as the Resource Conservation and Recovery Act, the Environmental Protection Agency (EPA) was charged with regulating potentially hazardous chemicals. The same year the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was passed that created liability for any party involved in creating a toxic waste site as regulated by the EPA.

These laws also created defenses that can be used to defend a land owner against actions. In this piece we will focus on the enforcement under the Act.

Taken in part from the EPA: The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) provides a comprehensive group of authorities focused on one main goal: to address any release, or threatened release, of hazardous substances, pollutants, or contaminants that could endanger human health and/or the environment. CERCLA's response provisions focus on the protection of human health and the environment. The statute also provides authority for assessment and restoration of natural resources that have been injured by a hazardous substance release or response.     

The Oil Pollution Act (OPA) was enacted in reaction to the Exxon Valdez oil spill and provides authority for oil pollution liability and compensation as well as for the Federal government to direct and manage oil spill cleanups. Similar to CERCLA,  OPA contains authorities to allow the assessment and restoration of natural resources that have been contaminated by the discharge, or threatened discharge, of oil.

Under CERCLA and OPA, the EPA shares with the U.S. Coast Guard the general responsibility for investigating and responding to contamination by hazardous substances or oil. The Coast Guard is primarily responsible for contamination involving the coastal zone including all U.S. waters subject to the tide, the Great Lakes, and deepwater ports. The EPA is primarily responsible for contamination on land and inland waters.

CERCLA provides EPA with comprehensive authority to respond to hazardous substance releases by initiating either response activities financed by the Hazardous Substance Superfund (Superfund) or enforcement actions to force responsible parties to pay for cleanups. Under the OPA, the EPA is also the lead agency in resonding to oil spills in inland waters. The EPA is required to initiate a removal action when there is a discharge, or substantial threat of discharge, of oil into inland waters "that may affect natural resources ...".

As defined in the Acts, and as further described in the Superfund And Small Waste Contributers pamphlet, "Potentially responsible parties" (PRPs) are individuals or companies who may be responsible for all of part of the contamination at a site. PRPs may include individuals, business, local, state or fedearl governmental agencies and other types of organizations. PRPs are classified in four ways;

1. a current owner or operator of the site
2. a former owner or operator of the site during the period of disposal
3. a party that arranged for the treatment, disposal, or transportation of hazardous substances to the site
4. a party that transported hazardous substances to a site you selected

If a party fits into any one of these descriptions they may be a PRP even if they were unaware that waste was disposed of at the site, or did not dispose of it themselves.

In other words, anyone involved with a site could be a PRP.

For those who contribute minimally to the waste on the site they may be eligible for a special type of settlement depending on on how much waste they contributed, the hazardous effects of the waste and if the settlement only involves a minor portion of the response costs at the site.

Those interested can learn more on the EPA website by reviewing the information publicly available: Natural Resources Damages: A Primer.

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Comments

[david fauss]

very good reading

[Jean Main]

Good to know information.

[Barry]

Very interesting.

[jacklyn wiese]

good information to know.

[Virginia Reed]

Interesting information. This information must have been introduced for Realtors a few years ago, for We as Realtors in Ohio did not study this in our classes. Do the housing inspectors take some of this information in consideration on the condition of residential or commercial properties?

[Virginia Reed]

I also found the rankings of the different chemicals interesting too!

[VanEd]

The information Inspectors might use information that relates to identifying if a property is located inside an affected area, but we find more often that it is in the title work or the buyers own due diligence where they will locate this information.

Some titles will include 'clouds' that relate back to the easements for cleanup sites. Most won't, so it's up to the licensee to know what is happening in their area.

[tyler]

Good info and good to know that most anyone that has ever been involved with the land could be found responsible.