# CERCLA Liability Framework Reference Guide

## Overview

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was enacted in 1980 and substantially amended by SARA in 1986. CERCLA establishes a comprehensive liability regime for hazardous substance contamination.

**Primary Citations**:
- 42 USC §§ 9601-9675
- 40 CFR Parts 300-373

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## Statutory Framework

### Purpose
CERCLA addresses the release or threatened release of hazardous substances by:
1. Establishing cleanup procedures (NCP)
2. Creating a trust fund (Superfund) for cleanup
3. Imposing liability on responsible parties
4. Providing enforcement mechanisms

### Key Definitions (42 USC § 9601)

**Hazardous Substance**: Any substance designated under various environmental statutes, including:
- CERCLA § 102(a) designated substances
- RCRA hazardous wastes
- Clean Water Act toxic pollutants
- Clean Air Act hazardous air pollutants
- TSCA-regulated substances
- **Excludes**: Petroleum, natural gas, synthetic gas

**Release**: Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.

**Facility**: Any building, structure, installation, equipment, pipe, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, vehicle, or any site where a hazardous substance has been deposited.

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## Potentially Responsible Parties (PRPs)

### Four Categories of PRPs (42 USC § 9607(a))

#### 1. Current Owners and Operators
- Present owner of the facility
- Present operator of the facility
- Liability attaches regardless of fault or involvement in contamination
- Ownership at time of cleanup action triggers liability

**Case Law**: *United States v. Bestfoods*, 524 U.S. 51 (1998) - Parent corporations may be liable as operators if they actively participate in facility operations

#### 2. Past Owners and Operators
- Owned or operated facility at time of disposal
- "Disposal" includes active placement of waste
- Passive migration may not constitute "disposal" - *Carson Harbor Village v. Unocal Corp.*, 270 F.3d 863 (9th Cir. 2001)

#### 3. Arrangers (Generators)
Persons who:
- Arranged for disposal or treatment of hazardous substances
- Arranged for transport for disposal or treatment
- Arranged with transporter for disposal or treatment

**Arranger Liability Standard**: *Burlington Northern v. United States*, 556 U.S. 599 (2009)
- Mere sale of useful product insufficient
- Requires intent to dispose (not merely sell)
- Must "take intentional steps to dispose of" hazardous substance

#### 4. Transporters
Persons who:
- Accepted hazardous substances for transport
- Selected the disposal site

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## Standard of Liability

### Strict Liability
CERCLA imposes strict liability - no showing of fault, negligence, or intent required.

**Three Elements**:
1. Site is a "facility"
2. "Release" or "threatened release" of "hazardous substance"
3. Response costs incurred are "necessary" and "consistent with the NCP"

### Joint and Several Liability
Courts generally apply joint and several liability when harm is indivisible.

**Divisibility Defense**: *Burlington Northern*, 556 U.S. 599 (2009)
- Burden on defendant to prove divisibility
- Must prove reasonable basis for apportioning harm
- Relevant factors: volumetric contributions, toxicity, area of contamination

### Retroactive Liability
CERCLA applies retroactively to contamination that occurred before its enactment.
- *United States v. Olin Corp.*, 107 F.3d 1506 (11th Cir. 1997) - upheld retroactive application

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## Liability Defenses

### Statutory Defenses (42 USC § 9607(b))

#### 1. Act of God
- Caused solely by act of God
- Unanticipated natural disaster
- No concurrent human error

#### 2. Act of War
- Release caused solely by act of war

#### 3. Third Party Defense
Release caused solely by act or omission of third party, other than:
- Employee or agent of defendant
- One whose act occurs in connection with contractual relationship with defendant

**Requirements** (defendant must prove):
- Due care with respect to hazardous substance
- Precautions against foreseeable acts of third parties

### Innocent Landowner Defense (42 USC § 9601(35)(A))

#### Requirements
1. Acquired property after disposal occurred
2. At time of acquisition, did not know and had no reason to know contamination existed
3. Conducted "all appropriate inquiries" (AAI) before acquisition
4. Exercised due care after discovery
5. Took reasonable precautions

#### All Appropriate Inquiries (AAI)
**40 CFR Part 312** - Federal AAI standard requires:
- Environmental site assessment
- Review of historical sources
- Visual inspections
- Interviews with current/past owners
- Review of government records

**ASTM E1527-21** compliance satisfies AAI (discussed in due-diligence.md)

### Bona Fide Prospective Purchaser (BFPP) Defense (42 USC § 9607(r))

**Requirements**:
1. All disposal occurred before acquisition
2. Made AAI
3. Provides full cooperation and access
4. Complies with land use restrictions
5. Takes reasonable steps regarding contamination
6. Provides legally required notices
7. Exercises appropriate care
8. Complies with information requests

**Note**: Does not protect against windfall liens (42 USC § 9607(r)(2))

### Contiguous Property Owner Defense (42 USC § 9607(q))

**Requirements**:
1. Contamination migrated from adjacent property
2. Did not cause, contribute to, or consent to release
3. Not otherwise a PRP
4. Not affiliated with any PRP
5. Made AAI
6. Takes reasonable steps
7. Cooperates with response actions
8. Complies with institutional controls

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## Response Actions

### Types of Response Actions

#### Removal Actions (42 USC § 9604)
- Short-term, immediate actions
- Address imminent threats
- Typically limited to $2 million or 12 months
- Examples: Emergency stabilization, fencing, temporary containment

#### Remedial Actions
- Long-term, permanent cleanup
- Follow RI/FS process
- Selected through ROD
- Must meet ARARs

### National Contingency Plan (NCP)
**40 CFR Part 300**

Remedial Investigation/Feasibility Study (RI/FS) process:
1. Preliminary Assessment (PA)
2. Site Inspection (SI)
3. NPL listing (if warranted)
4. Remedial Investigation (RI)
5. Feasibility Study (FS)
6. Record of Decision (ROD)
7. Remedial Design (RD)
8. Remedial Action (RA)
9. Operation and Maintenance (O&M)

### Applicable or Relevant and Appropriate Requirements (ARARs)
Remedial actions must attain:
- **Applicable requirements**: Legally applicable cleanup standards
- **Relevant and appropriate requirements**: May not be legally applicable but address similar circumstances

Categories:
- Chemical-specific (MCLs, ambient standards)
- Location-specific (floodplains, wetlands, historic sites)
- Action-specific (RCRA closure requirements, treatment standards)

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## Cost Recovery and Contribution

### Government Cost Recovery (42 USC § 9607(a))
Government may recover:
- All response costs consistent with NCP
- Attorney fees (in some circuits)
- Prejudgment interest

**Statute of Limitations** (42 USC § 9613(g)(2)):
- Removal actions: 3 years from completion
- Remedial actions: 6 years from initiation of physical on-site construction

### Private Cost Recovery (42 USC § 9607(a)(4)(B))
Private parties may recover:
- Any other necessary costs of response
- Must be consistent with NCP
- "Substantially consistent" standard for private parties

### Contribution (42 USC § 9613(f))

#### Contribution During or After § 106/107 Actions
- Available to parties who have resolved liability via settlement
- "Equitable factors" allocation
- No joint and several liability in contribution

#### Contribution Protection
PRPs who settle with government receive contribution protection (42 USC § 9613(f)(2))

#### Allocation Factors (Gore Factors)
Courts consider equitable factors including:
1. Ability to demonstrate contribution
2. Degree of toxicity
3. Amount of hazardous substances involved
4. Degree of involvement in disposal
5. Degree of care exercised
6. Cooperation with government

### UCATA vs. UCFA

**Uniform Contribution Among Tortfeasors Act (UCATA)**:
- Settling parties jointly and severally liable
- Non-settlers receive credit for settlement amount

**Uniform Comparative Fault Act (UCFA)**:
- Non-settlers receive credit for settler's proportionate share
- Majority federal approach

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## Settlements

### Types of Settlements

#### Administrative Settlement (42 USC § 9622)
- Consent order approach
- De minimis settlements (42 USC § 9622(g))
- Ability to pay settlements

#### Judicial Consent Decree
- Court-approved settlement
- Enforceable via contempt powers
- Requires public comment period

### Settlement Considerations

#### Contribution Protection (42 USC § 9613(f)(2))
Settling party not liable for contribution regarding matters addressed in settlement.

#### Covenant Not to Sue (42 USC § 9622(f))
EPA may provide covenant not to sue upon demonstration that:
- Remedy is in place
- Settlement is consistent with national interest
- Requirements of § 9622(f)(2) met

#### Reopeners
EPA retains authority to reopen for:
- Unknown conditions
- New information on health/environmental risks
- Failure to achieve cleanup standards

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## Liens and Superliens

### Federal Superfund Lien (42 USC § 9607(l))
- Arises upon unrecovered response costs
- Attaches to real property
- Subject to or subordinate to:
  - Recorded liens
  - Purchase money security interests

### Windfall Lien (42 USC § 9607(r))
- Applies to BFPPs
- Limited to increase in FMV from cleanup
- Prevents windfall from government-funded cleanup

### State Superliens
Some states have enacted "superlien" provisions with priority over prior recorded interests.

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## Natural Resource Damages (NRD)

### Trustees (42 USC § 9607(f))
- Federal trustees (DOI, NOAA, DOE, DoD)
- State trustees
- Tribal trustees

### Damages Recoverable
- Cost of restoring, rehabilitating, or replacing injured natural resources
- Diminution in value pending restoration
- Reasonable assessment costs

### Assessment Regulations
- DOI regulations: 43 CFR Part 11
- NOAA regulations: 15 CFR Part 990

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## Key Enforcement Provisions

### Administrative Orders (42 USC § 9606)
- Imminent hazard authority
- Unilateral administrative orders (UAOs)
- Treble damages for failure to comply without sufficient cause

### Judicial Actions (42 USC § 9606-9607)
- Cost recovery actions
- Injunctive relief
- Civil penalties (up to $59,017/day per violation)

### Criminal Penalties (42 USC § 9603, 9606)
- Failure to report release: Up to 3 years (5 years for subsequent)
- Knowing violation of UAO: Up to $50,000/day and 3 years

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## Recent Developments

### PFAS Liability
- EPA designated PFOA and PFOS as hazardous substances (2024)
- Significant expansion of CERCLA liability
- Enforcement discretion policy for water utilities, farms

### Brownfields Amendments
- Enhanced protections for BFPPs
- State voluntary cleanup program recognition
- Comfort letters and no further action letters

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## Key Citations

- **Statute**: 42 USC §§ 9601-9675
- **NCP Regulations**: 40 CFR Part 300
- **AAI Rule**: 40 CFR Part 312
- **Settlement Procedures**: 40 CFR Part 304
- **NRD Assessment**: 43 CFR Part 11

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*Last Updated: March 2026*
*This reference is for informational purposes only and does not constitute legal advice.*