Chapter 6
Comprehensive Environmental
Response Compensation and
Liability Act
“CERCLA”
CERCLA
Slide 6- 1
CERCLA Commonly Called
 Superfund
CERCLA
Slide 6- 2
CERCLA or Superfund
 The
federal remediation statute
Clean Up
CERCLA
Slide 6- 3
Remediation of What ?
 Past
 Spills
or Releases
 Hazardous
 Into
Substances
The Environment
CERCLA
Slide 6- 4
Who Pays For Remediation ?
 Parties
Responsible For the Release
– If they Can Be Found
– Called Potentially Responsible Party (“PRP”)
 Federal
Government
– Using a special fund of money
– Raised by a tax on chemicals & oil
CERCLA
Slide 6- 5
How is CERCLA Different ?
From Other Environmental Laws
 Retrospective
& Retroactive
 Multi-pollutant
 Multi-media
 Regulates
 Creates
Places Not People
Private Right of Action
CERCLA
Slide 6- 6
Retrospective & Retroactive
 Addresses
current environmental
releases from past practices
– CAA, CWA & SDWA regulate pollutants before
they are released to the environment
 Those
practices may have occurred
before the law was enacted (1980)
CERCLA
Slide 6- 7
Multi-Pollutant
 Addresses
pollutants listed in all the
other environmental statutes
– Clean Air Act
– Clean Water Act
– RCRA
CERCLA
Slide 6- 8
Multi -Media
Where the pollutant comes to be located
 Addresses
pollutants regardless of
location in
– Air
– Water
– Land
CERCLA
Slide 6- 9
Private Right of Action
 Private
parties
 May sue in federal court to recover
 Clean-up costs
– But NOT for PERSONAL INJURY
CERCLA
Slide 6- 10
Focus on Places Rather Than
Persons
 CERCLA regulates
the particular
location (site) where a hazardous
substance has been released
 CAA,
CWA typically regulate the
facility operators
CERCLA
Slide 6- 11
Basic Structure of CERCLA
Four Fundamental Program Elements
 Information
Gathering (Reporting)
 Federal
Response & Cleanup of
Releases (Cleanup)
 Pay
For Cleanup (Funding)
 Pursue
Responsible Parties (Liability)
CERCLA
Slide 6- 12
CERCLA in A Nutshell
1. Identifies the site of
2. Release or potential release of
3. Hazardous Substances
CERCLA
Slide 6- 13
CERCLA Nutshell (Continued)
4. Identify parties responsible for those
sites
5. Authorizes cleanup up those sites to
national standards
– By EPA or responsible party
6. Pays or allows payment for the cleanup
– With “Superfund $ (No responsible party)
– By Court action (Against responsible parties)
CERCLA
Slide 6- 14
So How Many Sites Need
Cleanup ?
 EPA has
40,000 reported sites in their
inventory
CERCLA
Slide 6- 15
The Lawyers
More environmental lawyers are probably involved
in Superfund cases than any other single
environmental statute.
CERCLA
Slide 6- 16
The Main Parts of CERCLA
 Site
& Release Reporting
 Cleanup
 Liability
CERCLA
Slide 6- 17
1. Site & Release Reporting
 Old
Site Notification (Section 103(c))
 Spills
(Section 103(a))
CERCLA
Slide 6- 18
Old Site Notification
 WHAT: Any unpermitted facility where
hazardous waste is or has been treated stored or
disposed
 ACTION: Notify EPA of existence, amount &
type of waste
 TIME: By June 9, 1981 and ?
 WHO:
» Present owner
» Prior owner/operator
» Transporter who selected the site
CERCLA
Slide 6- 19
Spill Reporting
 Person
in charge of a vessel or facility
 Release
 Hazardous Substance
 Equal to greater than reportable
quantity
 Into the environment
Immediately Notify the National Response Center
CERCLA
800-424-8802
Slide 6- 20
Failure To Report A Spill
 Criminal:
– 3 years in prison
– Fines
 Civil
– $27,500 per day
CERCLA
Slide 6- 21
Hazardous Substances &
Reportable Quantities
 About
 RQ
1200 named substances
from 1 pound to 5000 pounds
 Listed
in 40 CFR Part 302, Table
302.4
CERCLA
Slide 6- 22
Petroleum Exclusion
 Petroleum,
including crude oil or any
fraction thereof
 Excluded from definition of
“hazardous substance”
 Normal BTX components in gasoline
also excluded
 Reason why UST are RCRA not
CERCLA
CERCLA
Slide 6- 23
2. Cleanup
Triggers For Action

The release or substantial threat of a release of
a “hazardous substance” from a facility into
the environment

The release or substantial threat of a release of
any pollutant or contaminant from a facility
into the environment which may present an
imminent and substantial danger to the public
health or welfare
CERCLA Section 104(a)(1)
CERCLA
Slide 6- 24
Two Types of Cleanups
 Removal
– Short term emergency action
– examples: fencing, alternative water
 Remedial Actions
– Long term
– Permanent solution
– $$$$$$$$$$
CERCLA
Slide 6- 25
Two EPA Cleanup Options
 Conduct
cleanup & seek costs recovery
– from “potentially responsible parties” (PRP’s)
 Compel
PRP’s to perform cleanup
– voluntarily (Judicial Consent Order)
– involuntarily (Section 106 Administrative Order)
CERCLA
Slide 6- 26
Blueprint For CERCLA Cleanups
 National
Contingency Plan (“NCP”)
CERCLA
Slide 6- 27
8 Steps In The Remedial
Process
 Site
Identification
 Preliminary Assessment
 Hazardous
 Remedial
Ranking & NPL Listing
Investigation/Feasibility Study
(RI/FS)
CERCLA
Slide 6- 28
Steps
 Remedy
 Record
Selection
of Decision (ROD)
 Remedial
Design (RD)
 Remedial Action
(RA)
CERCLA
Slide 6- 29
3. CERCLA Liability
 Strict
– fault is not considered
 Joint
and Several
– any one of multiple parties may be liable for all
 Retroactive
– Includes pre-enactment (1980) actions
CERCLA
Slide 6- 30
Liable For What ?
 Response
Costs
 Incurred by
– EPA or Private Party
 Consistent
with the NCP
 In responding to a release or a
threatened release of a
 Hazardous substance
CERCLA
Slide 6- 31
Who Is Liable ?
 Current
owner/operator
 Former
owner/operator
 Person
who “arranged for disposal”
 Transporter
who selected site
CERCLA
Slide 6- 32
Two Private Party Options
 Private
cost recovery action
– § 107 action
 Contribution
action
– § 113 action
CERCLA
Slide 6- 33
Defenses To Liability
 Act
of God
 Act
of War
 Act
or Omission of Third Party
 Innocent
Landowner
CERCLA
Slide 6- 34
Innocent Purchaser Defense
 Current
owner or operator
 Who acquired property post-disposal
 Did not know or have reason to know
about contamination
 Made appropriate inquiry (Due
diligence)
CERCLA
Slide 6- 35
Innocent Banker Defense
 Parties
 But
who have title to property
do not participate in management
 Hold
title only to protect a security
interest
CERCLA
Slide 6- 36