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Superfund Frequently Asked Questions: Superfund Enforcement
- How does EPA enforce Superfund cleanups?
- What is cost recovery?
- Who can be a potentially responsible party (PRP) at a hazardous waste site?
- Can EPA choose not to pursue certain potentially responsible parties (PRPs)?
- Will EPA give any assurances to prospective purchasers of contaminated property?
- How does EPA assist in the resolution of enforcement-related disputes?
- Who are the participants in Superfund enforcement actions?
- Who are the principal governmental participants in CERCLA response activities?
- Which Federal agencies can issue CERCLA Section 106 Unilateral Orders (UAO)?
- What is the job of the natural resource trustees?
- Who are the Natural Resource Trustees?
- What are the statutes and regulations governing the Superfund program?
- What kind of liability is there for polluters under Superfund?
- What are the main defenses against Superfund liability?
- What is EPA's policy towards owners of residential property at Superfund sites?
- What is EPA's policy on lenders and involuntary acquisitions by government entities?
- How can I find more Frequently Asked Questions about Superfund?
1. How does EPA enforce Superfund cleanups?
Congress provided EPA with enforcement authorities to seek consensual settlement or to compel potentially responsible parties (PRPs) to implement removal or remedial actions at sites at which releases of hazardous substances had occurred. When the agency spends Trust Fund monies to finance removal or remedial actions, Congress gave EPA the authority to seek reimbursement from responsible parties.
EPA's guiding philosophy in implementing the Superfund program is to pursue "enforcement first" throughout the process. In this way, EPA seeks to compel those who are responsible for hazardous waste sites to take the lead in cleanup, thus conserving the resources of the Trust Fund. EPA believes the polluter should pay. In FY 2001 the Superfund Enforcement program secured private party commitments that exceeded $1.7 billion. Of this amount, PRPs committed to conduct over $1.3 billion in future response work and reimburse EPA over $413.5 million for past costs. The cumulative value of private party commitments since the inception of the program is over $20 billion (over $16.5 billion has been in response settlements and more than $3.5 billion in cost recovery settlements).
Enforcement activities include all parts of the process to get PRPs to finance or do the cleanup: conducting PRP searches; issuing unilateral administrative orders (UAOs); reaching settlements; or, taking parties to court to compel them to conduct cleanup activities, etc. PRPs can be compelled to clean up the site or reimburse EPA for the cost of doing so.
2. What is cost recovery?
If a potentially responsible party (PRP) is unwilling to pay for cleanup, the federal government may take action and later seek to recover from the PRP the cost of the response. Also, if financially capable PRPs cannot be identified within a reasonable time to address an imminent and substantial endangerment, the federal government may initiate cleanup activities and later seek to recover the cost of the activities from one or more responsible parties identified later in the process.
Parties responsible for releases of hazardous substances may be held liable for the actual or potential costs of a response action, associated damages to natural resources, health assessment studies, and prejudgment interest. Certain PRPs who refuse to do the cleanup may also be liable for "treble damages," that is, punitive damages in an amount at least equal to, and not more than three times, the amount of any costs incurred by the Trust Fund as a result of the PRP's failure to take proper action.
3. Who can be a potentially responsible party (PRP) at a hazardous waste site?
The Statute describes four classes of potentially responsible parties:
- Current owners or operators,
- Owners or operators at the time of disposal,
- Generators and parties that arrange or arranged for disposal, and
- Transporters that select or selected disposal sites.
Current owners can be liable for a site without having contributed to the release. Current operators are any parties that control current operations at the site. The key factor in establishing the liability of a former owner or operator is that disposal must have occurred while the party owned or operated the site. Such owners or operators need not have contributed to the release.
The term generator has come to be used as the term for anyone who arranged for disposal (the definition differs from that under RCRA). Generators are often the largest group of PRPs, sometimes including thousands of people and companies at any given site.
4. Can EPA choose not to pursue certain potentially responsible parties (PRPs)?
Yes. In an enforcement action, EPA may choose not to pursue certain PRPs. For example, EPA's de minimis , and de micromis policies allow EPA some flexibility in negotiating settlements. Such "enforcement discretion" allows EPA to choose to pursue those PRPs the agency has reason to believe can perform the necessary work.
At a Superfund site, some parties may have contributed only minimal amounts of hazardous substances compared to the amounts contributed by other parties. Under the Comprehensive Environmental Response, Compensation and Liability Act Section 122(g) (CERCLA)
, these contributors of small amounts may enter into a de minimis waste contributor settlement with EPA. Such a settlement may provide the waste contributor with a covenant not to sue and contribution protection from the United States . As a result, the settling party is protected from future legal actions brought by EPA or other parties at the site. In exchange for the settlement, the de minimis party usually agrees to provide funds, based on its share of total waste contribution, toward cleanup, or to undertake some of the actual work.
De micromis contributors are simply a subset of de minimis waste contributors. De micromis settlements may be available to parties who generated or transported a minuscule amount of waste to a Superfund site, an amount less than the minimal amount normally contributed by the de minimis parties. EPA's revised guidance defines eligible de micromis parties with volumetric cut-offs. As a matter of policy, EPA does not pursue de micromis waste contributors for the costs of cleaning up a site. If, however, a de micromis party is threatened with litigation by other parties at the site for the costs of cleanup, EPA will enter into a zero dollar settlement with the de micromis party. De micromis settlements provide both a covenant not to sue from the Agency and contribution protection against other parties at the site. De micromis settlements are not available to owners or operators of Superfund sites.
5. Will EPA give any assurances to prospective purchasers of contaminated property?
The Small Business Liability Relief and Brownfields Legislation ("Brownfields Legislation") generally exempts from liability people that purchase contaminated property if their only basis for liability is as the current owner of a Superfund site. The new Brownfields legislation is intended to provide those who purchase contaminated property after the date of enactment the same sort of protection from liability that was previously afforded by Prospective Purchaser Agreements ("PPAs"). For further details about the new Brownfields legislation see:
- Summary of the Small Business Liability Relief and
Brownfields Revitalization Act - Benefits of Brownfields Legislation
Prior to enactment of the "Brownfields Legislation", EPA often issued Prospective Purchaser Agreements (PPAs): settlement mechanisms used to provide liability relief to a purchaser of Superfund property prior to acquisition, thus allowing the purchaser to avoid becoming a potentially responsible owner under the Superfund liability scheme. EPA first published its policy on PPAs in 1989, with revisions in 1995, plus a Model agreement. In a PPA, the purchaser agrees to provide EPA with substantial benefits, and in return the purchaser receives a covenant not to sue from the United States on behalf of EPA. The most common agreements provide EPA with a cash payment which goes to partially satisfy EPA's response expenditures at the property. Other PPAs may provide some specific response activity such as operation and maintenance or site monitoring, including an agreement for access and cooperation and exercise of due care. EPA has entered into more than 160 CERCLA PPAs.
Another policy tool available for removing liability barriers at brownfield sites is the 1996 "Policy on the Issuance of Comfort/Status Letters." (PDF, 987K, 20 pp, about PDF) Comfort Letters inform parties interested in purchasing and redeveloping brownfield sites of EPA's intentions regarding a Superfund response at the site. Some properties may remain unused or underutilized because potential property owners, developers, and lenders are unsure of the environmental status of these properties. By issuing comfort letters, EPA helps interested parties better understand the likelihood of EPA involvement at a potentially contaminated property.
Additional information on brownfields may be found by visiting EPA's Cleanup Enforcement - Brownfields and Brownfields Economic Redevelopment Initiative web sites.
6. How does EPA assist in the resolution of enforcement-related disputes?
Alternative Dispute Resolution (ADR) is a tool used by EPA which enhances the negotiation process. ADR may assist parties in resolving their disputes quickly and efficiently through mediation or other methods and the use of an objective third party or neutral.
7. Who are the participants in Superfund enforcement actions?
EPA and the U.S. Coast Guard (USCG) are the primary Federal response and enforcement agencies. Other Federal participants in response actions that may seek the recovery of their costs through an enforcement action include the Departments of Agriculture, Commerce, Defense, Energy, Interior, and the Federal Emergency Management Agency. These claims are brought by the Department of Justice in Federal district court. States, local governments, and tribes, may also seek to recover their response costs.
8. Who are the principal governmental participants in Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) response activities?
The EPA and the U.S. Coast Guard are the lead Federal response agencies for cleanup actions that are not on Federal lands. The Departments of Agriculture, Commerce, Energy, Defense and Interior have the authority to respond to releases of hazardous substances on lands under the jurisdiction, custody, or control of the respective departments. CERCLA also provides a role for States and tribes.
9. Which Federal agencies can issue Comprehensive Environmental Response, Compensation and Liability Act CERCLA Section 106 Unilateral Orders (UAO)?
EPA and the U.S. Coast Guard have the authority to independently issue a UAO to a responsible party directing them to clean up a release of hazardous substances. The Departments of Agriculture, Commerce, Energy, Defense and Interior, with the concurrence of EPA or the USCG, have the authority to issue a UAO for a release of hazardous substances on land under the jurisdiction, custody, or control of the respective departments. For example, the Department of Agriculture can request EPA concurrence to issue a UAO to someone that has dumped waste on land under the control of the Department, such as a national forest.
10. What is the job of the natural resource trustees?
The natural resource trustees are government agencies that have been given the authority to assess the injury to natural resources caused by the release of hazardous substances and to seek the restoration, replacement, or acquisition of equivalent natural resources.
11. Who are the Natural Resource Trustees?
The Federal Natural Resource Trustees include the Departments of Agriculture, Commerce, Defense, Energy and Interior. In addition, States and Tribes are Natural Resource Trustees.
12. What are the statutes and regulations governing the Superfund program?
The governing Statute for the Superfund program is the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) , as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA).
By enacting CERCLA, Congress created the Superfund program and provided the federal response authority to address the problem of uncontrolled hazardous waste sites. CERCLA was enacted in response to public concern about dangers posed by abandoned or uncontrolled hazardous waste sites.
The National Oil and Hazardous Substance Pollution Contingency Plan , commonly referred to as the National Contingency Plan (NCP), is the major regulatory framework that guides the Superfund response effort (40 CFR part 300). It outlines how Superfund responses are to be implemented and defines the roles and responsibilities of EPA, other federal agencies, States, Tribes, private parties, and communities in responding to situations in which hazardous substances are released into the environment.
13. What kind of liability is there for polluters under Superfund?
Under CERCLA, a potentially responsible party (PRP) is subject to strict liability. This means that the federal government can hold a PRP liable without proving that the PRP was at fault and without regard for the PRP's motive. A PRP is liable even if:
- The problems caused by the release of the hazardous substance were unforeseeable.
- The PRP acted in good faith.
- State-of-the-art hazardous waste management practices were followed at the time the materials were disposed of.
CERCLA also imposes joint and several liability. Joint liability means that more than one defendant is liable to the plaintiff. Several liability means the plaintiff may choose to sue only one of the defendants and recover the entire amount claimed. Joint and several liability is used only when harm is indivisible. If defendants can persuade the court that harm can be apportioned, each defendant is liable only for the harm it caused.
Though we have this broad authority, EPA has historically tried to implement the statute fairly, especially through administrative reforms to the program like funding orphan share.
14. What are the main defenses against Superfund liability?
The Comprehensive Environmental Response, Compensation and Liability Act Section 107(b) (CERCLA) lists the defenses that may be asserted by potentially responsible parties (PRPs) in a cost recovery action as:
- Act of God,
- Act of war,
- Act of a third party.
The burden of proof for these defenses is upon the PRP. The third-party defense is limited to situations in which the PRP had no contractual or other relationship with the third party, such as employing the third party or using that party as its agent. The PRP also must prove that it:
- Exercised due care with respect to the hazardous substances, and
- Took precautions against foreseeable acts or omissions of the third party.
15. What is EPA's policy towards owners of residential property at Superfund sites?
Owners of residential property located on a Superfund site have raised concerns that they would be responsible for performance of a response action or payment of cleanup costs because they came within the definition of "owner" under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) . Additionally, the owners were concerned that they might be unable to sell their properties given the uncertainty of EPA taking action against them. EPA issued its policy toward residential property owners to clarify when it would not require these owners to perform or pay for cleanup. The policy states that EPA, in the exercise of its enforcement discretion, will not take enforcement actions against an owner of residential property unless his activities lead to a release or threat of release of hazardous substances, resulting in the taking of a response action at the site.
In addition to applying to owners, EPA's policy applies to lessees of residential property whose activities are consistent with the policy. The policy also applies to persons who acquire residential property through purchase, foreclosure, gift, inheritance or other form of acquisition, as long as those persons' activities after acquisition are consistent with the policy.
Other considerations: With respect to EPA's exercise of enforcement discretion under this policy, it is irrelevant whether an owner of residential property has or had knowledge or reason to believe that contamination was present on the site at the time of purchase or sale of the residential property.
An owner of residential property located on a Superfund site is protected if the owner:
- Has not engaged and does not engage in activities that lead to a release or threat of release of hazardous substances, resulting in the taking of a response action at the site;
- Cooperates fully with EPA by providing access and information when requested and does not interfere with the activities either EPA or a state are taking to implement a CERCLA response action;
- Does not improve the property in a manner inconsistent with residential use; and
- Complies with institutional controls (e.g., property use restrictions) that may be placed on the residential property as part of the Agency's response action.
16. What is EPA's policy on lenders and involuntary acquisitions by government entities?
The June 1997 "Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities" (PDF, 37K, 6 pp, about PDF) clarifies the circumstances under which EPA intends to apply as guidance the provisions of the 1992 CERCLA Lender Liability Rule ("Rule") and its preamble in interpreting CERCLA's lender and involuntary acquisition provisions. The Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996 amended these CERCLA provisions and generally followed the approach of the Rule. EPA's subsequent lender policy explains that when interpreting the amended secured creditor exemption, EPA will treat the Rule and its preamble as authoritative guidance. For example, the amendments do not clarify the steps that a lender can take after foreclosure and still remain exempt from owner/operator liability. In making liability determinations, EPA, following its policy, will defer to the Rule.
For example, after foreclosure, a lender who did not "participate in management" prior to foreclosure can generally:
- Maintain business activities;
- Wind up operations; and
- Take actions to preserve, protect, or prepare the property for sale
provided that the lender attempts to sell, re-lease property held pursuant to a lease financing transaction, or otherwise divest itself of the property in a reasonably expeditious manner using commercially reasonable means. This test will generally be met if the lender, within 12 months of foreclosure, lists the property with a broker or advertises it for sale in an appropriate publication.
In addition, CERCLA Sections 101(20)(D) and 101(35)(A) protect federal, state, and local government entities from owner/operator liability if they involuntarily acquire contaminated property while performing their government duties. If a unit of state or local government makes an involuntary acquisition, it is exempt from owner/operator liability under CERCLA. Additionally, a state, local, or federal government entity that makes an involuntary acquisition will have a third-party defense to owner/operator liability under CERCLA if:
- The contamination occurred before the government entity acquired the property;
- The government entity exercised due care with respect to the contamination (e.g., did not cause, contribute to, or exacerbate the contamination); and
- The government entity took precautions against certain acts of the party that caused the contamination and against the consequences of those acts.
17. How can I find more Frequently Asked Questions about Superfund?
These frequently asked questions and more can be found by visiting EPA's Superfund Frequently Asked Questions web site.