Liability Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

Liability Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

March 12, 2021
Liability Under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA)
The Comprehensive Environmental Response,
or who arranged for transport for disposal or treatment
Compensation, and Liability Act (CERCLA) (42 U.S.C.
of hazardous substances; and
§§ 9601 et seq.) establishes a framework to remediate
certain types of contaminated sites and to hold the parties
 any person who transported hazardous substances for
connected to those sites responsible for cleanup costs.
disposal or treatment at facilities, incineration vessels, or
CERCLA authorizes the U.S. Environmental Protection
sites selected by such person.
Agency (EPA) to clean up contaminated sites subject to
annual appropriations, and to compel entities that bear
Scope of Liability
responsibility for all or part of the contamination at a site to
PRPs in the listed categories are liable if there has been (1)
perform or pay for cleanup activities. Additionally, parties
an actual or threatened release (2) of a hazardous substance
that incur cleanup costs may seek to recoup those costs
(not a pollutant or contaminant) that (3) causes the
from other parties or from the Superfund Trust Fund. This
incurrence of response costs. Liability is retroactive (parties
In Focus provides an overview of the legal structures
may be liable for the release of hazardous substances prior
governing CERCLA liability in enforcement actions and
to CERCLA’s enactment in 1980), strict (regardless of a
suits by private parties.
party’s negligence), and joint and several (a party may be
liable for all cleanup costs at a site, even if other parties
Response Actions
also contributed to the contamination).
Section 104(a) of CERCLA authorizes the President to
respond to a release (or substantial threat of a release) of a
PRPs in the listed categories are also liable for injury to
hazardous substance into the environment, or of a pollutant
natural resources, meaning that they must either restore
or contaminant that may present an “imminent and
natural resources that are injured as a result of a release, or
substantial danger to the public health or welfare.” The
pay compensation for restoring or replacing the injured or
President has delegated CERCLA’s response authority to
lost natural resources. Unlike claims for cleanup costs,
EPA and other agencies that administer federal facilities.
claims for natural resource damages may be brought only
The definitions in Section 101 of “release,” “hazardous
by federal, state, or tribal trustees. Finally, PRPs may be
substance,” and “pollutant or contaminant”—and, by
liable for the cost of natural resource damage assessments
extension, EPA’s response authority and the parties’
and federal public health studies at release sites conducted
liability—exclude multiple types of releases and
under Section 104(i).
substances, including petroleum and natural gas.
The scope of liability does not include product liability,
CERCLA response actions fall into two categories for the
liability for personal injury or property damages, or health
purposes of cleanup. Removal actions are generally shorter-
effects or medical costs resulting from a release.
term actions taken to address immediate risks. Remedial
actions are generally longer-term actions to address
Federal Enforcement Mechanisms
contamination more permanently, but may involve long-
CERCLA establishes three mechanisms that EPA may use
term containment of wastes in place.
to enforce liability under the statute. It also authorizes fines
and punitive damages for noncompliance.
Who Is Liable Under CERCLA
Although EPA cleans up some sites itself, it may also
Section 106 Orders
compel “potentially responsible parties” (PRPs) to perform
Section 106(a) authorizes EPA to issue a unilateral
or pay for the cleanup. Private parties and federal, state, and
administrative or judicial order requiring a PRP to take
local governmental entities can be liable as PRPs. Section
actions to address “imminent and substantial endangerment
107 of CERCLA establishes financial liability for four
to the public health or welfare or the environment” resulting
categories of PRPs:
from a release or threatened release of a hazardous
substance. If a party complies with an order and can
 any current owner or operator of a vessel or facility;
establish that it is not liable under CERCLA or that the
required cleanup actions were arbitrary and capricious, it
 any person who owned or operated a facility at the time
may seek reimbursement from the Superfund Trust Fund.
hazardous substances were disposed of there;
(Alternatively, a liable party may seek to recover response
costs from other PRPs, as explained below.)
 any person who arranged for the disposal or treatment of
hazardous substances at a facility or incineration vessel,
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Liability Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
Cost Recovery Actions
Cost recovery and contribution actions are mutually
When the United States, states, or tribes perform cleanup
exclusive. If a party may bring a contribution action, it must
work and incur costs, Section 107(a) authorizes them to
proceed under Section 113(f), and cannot bring a cost
recover those costs from PRPs. EPA typically pursues cost
recovery action under Section 107(a). Taken together, these
recovery after a removal action or one of its phases is
two provisions work in tandem to encourage parties to
completed. Cleanup actions must be “not inconsistent” with
bring all PRPs into an action so that an equitable allocation
the National Oil and Hazardous Substances Pollution
of response costs can be reached.
Contingency Plan (NCP) for the costs to be recoverable by
the United States, states, or tribes. EPA’s policy is to send a
Finally, Section 310 provides a right of action for citizens
written demand letter to a PRP before seeking cost recovery
to challenge the adequacy of a CERCLA cleanup. Section
in court, and negotiations regarding a PRP’s liability may
113(h) limits the filing of a citizen suit until after a cleanup
sometimes result in a settlement agreement.
is completed, and persons may not challenge a removal
action at a site where a remedial action is planned.
Settlement Agreements
Before employing either of these two enforcement
Defenses to and Limitations on Liability
mechanisms, EPA’s policy is to seek to resolve liability
Section 107(b) of CERCLA provides defenses to liability
through voluntary settlement agreements. All settlement
where an otherwise liable party can establish that a release
agreements under CERCLA must be in the public interest
or threat of release and resulting damages were caused
and consistent with the NCP. For short-term removal
solely by (1) an act of God; (2) an act of war; (3) an act or
actions and the planning stages of a remedial action, EPA
omission of a third party with whom the defendant has no
primarily uses administrative settlement agreements and
contractual relationship, where the defendant exercised due
consent orders. For remedial actions and recovery of
care and took precautions against the third party’s
cleanup costs, EPA ordinarily uses consent decrees, which
foreseeable acts or omissions and their consequences; or (4)
must be approved by a federal district court and are subject
any combination of the three circumstances listed above.
to an opportunity for public comment prior to entry.
The statute also provides exemptions and protections for
Under Section 122, voluntary settlement agreements may
other categories of parties who meet certain criteria,
include a covenant not to sue, which limits a PRP’s future
including municipal solid waste generators, recyclers,
liability to the United States related to the release or
service station dealers, cleanup contractors, landowners or
threatened release. Additionally, parties to voluntary
purchasers, lenders and fiduciaries, and parties that are not
settlement agreements receive protection from other types
responsible for contamination but volunteer to help with
of CERCLA lawsuits, as described below. A settlement
cleanup. Additionally, parties that can establish a limited
does not preclude EPA from taking action under Sections
ability to pay or whose contributions to contamination are
106 or 107 with respect to other PRPs.
relatively minimal may face reduced financial liability.
Suits by Private Parties
State and local governments are not liable (absent gross
CERCLA allows private parties to recoup their cleanup
negligence or intentional misconduct) for costs resulting
costs from other PRPs. When a private party incurs costs, it
from an emergency response to a release or threatened
may sue under CERCLA Section 107(a) to recover from
release. Under certain circumstances, they may not be liable
another PRP all costs that are necessary and incurred
for preexisting contamination on properties they have
consistent with the NCP. When a private party is sued
acquired.
under Section 106 or Section 107(a) or has resolved its
liability to the government for some or all of a response
The statute of limitations provides another defense. Cost-
action, it may then assert a claim or counterclaim under
recovery actions under Section 107(a) generally must be
Section 113(f) to require other PRPs to bear an equitable
brought within three years after completion of a short-term
share of the response costs.
removal action, or six years after the initiation of a remedial
action. For contribution actions under Section 113(f), the
Section 113(f) also protects a party that has resolved its
statute of limitations period is three years from the date of
liability to the United States or a state in a settlement. Such
judgment or entry of an administrative order or judicially
a party cannot be held liable for contribution claims by
approved settlement regarding the costs. Additionally, the
other PRPs regarding matters addressed in that settlement,
retroactive liability for natural resource damages extends
but the party may sue other PRPs to obtain an equitable
only to the date of CERCLA’s 1980 enactment.
allocation of costs.
For more information on CERCLA, see CRS Report
An equitable allocation under Section 113(f) is based upon
R41039, Comprehensive Environmental Response,
factors that a court determines are appropriate. The most
Compensation, and Liability Act: A Summary of Superfund
commonly considered factors relate to the degree to which
Cleanup Authorities and Related Provisions of the Act, by
the contamination and cleanup costs are attributable to each
David M. Bearden.
party’s actions, the nature and amount of the hazardous
substance(s) involved, the extent of each party’s culpability,
Kate R. Bowers, Legislative Attorney
and the degree to which each party benefitted from the
disposal.
IF11790
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Liability Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

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