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Superfund Frequently Asked Questions: Laws, Policy and Guidance
- 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. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.