Cercla contains liability exemptions, affirmative defenses, and protections which may apply to a local government when it. Epa issues guidance on new cercla landowner defenses. Superfund new attorney training, which discusses who is liable under cercla and information on current owners and operators. Also explored are the nature and scope of liability for releases which occur after delivery to a disposal or treatment facility, the issue of whether causation is an element of liability under cercla, thirdparty defenses, and what effect, if any, the transporters selection of the facility has on liability. But strict liability does not apply to a voluntary purchaser of. The superfund liability defense for bona fide prospective purchasers.
Epa issues guidance interpreting scope of new cercla defenses. Acts of god, war, or third parties innocent owners and bona fide prospective purchasers. However, recognizing cercla s remedial policies, as well as the related elements of the new lender liability rule, congress could assist in the creation of a uniform rule of law on indirect operator liability by amending the definition of owner or operator in section 960120a to identify a uniform standard to be applied by all federal courts. For those owners, the best defense is likely a good offense. Review of cercla landowner liability defenses when cercla was enacted in 1980, it contained three affirmative defenses. What it takes to establish divisible harm under cercla.
Defenses to superfund claims is section 107 b the complete list page 2 of 4. Indirect owneroperator liability under cercla findlaw. It was no surprise that the second circuit in in re september 11 litigation recently affirmed the lower courts ruling that contamination caused by the 911 attacks was within cercla s act of war defense. Cerclas defenses and exemptions based on interactions with. However, cercla provides certain defenses and exemptions from this potential liability, including a secured creditor exemption that can protect lenders from both pre and postforeclosure cercla liability with respect.
The act of thirdparty defense has been asserted succesfully only rarely, and the other two defenses not at all. Jan 23, 2019 cercla liability to be determined from traditional and evolving principles of common law. In 2002, president bush signed the small business liability relief and brownfields revitalization act pub. Divisibility is a legal defense to joint and several liability under cercla in which a party makes a causation based argument that the cleanup costs at a single cercla facility should be divided between a defendant and other responsible parties. Cercla s failure to speak to a matter as fundamental as the liability implications of corporate ownership demands application of the rule that, to abrogate a commonlaw principle, a statute must speak directly to the question addressed by the common law. Tenant liability cercla changes under 2018 build act new 2018 build act legislation updates cercla to provide clearer path for tenants to claim bona fide prospective purchaser defense. Environmental protection agency epa in the office of enforcement, superfund division. Cercla liability and local government acquisitions and. Keywords disposal, treatment, potentially liable parties, prps, statutory defenses, generators, individual liability. Section 107b of cercla includes the following defenses to liability if a person can show, by a preponderance of the evidence, that the contamination was solely caused by. To assert the defense, a defendant must satisfy the following four elements or prongs. However, the bona fide prospective purchaser defense may shield a prospective purchaser from cercla liability stemming from preexisting contamination, says nicholas rigano of. The 2002 cercla amendments do not protect a bfpp, innocent purchaser or contiguous property owner from epa actions brought under rcra 7003, citizen suits brought under rcra 7002, and rcra corrective action orders.
Bona fide prospective purchaser defense under cercla. Municipal immunity from cercla liability for property acquired through involuntary state action 102095 memorandum sets forth epa and doj policy regarding the governments enforcement of cercla against lenders and against government entities that acquire property involuntarily. Although cercla is often said to impose strict liability regardless of fault, the second circuits decision indicates that cercla s liability scheme was not intended to reach. However, there are certain steps or common elements that a prospective property owner or operator must establish to achieve and maintain one of the three statutory liability defenses under the 2002 brownfields amendments to cercla i. Comprehensive environmental response, compensation, and. The superfund law officially the comprehensive environmental response, compensation and liability act, cercla imposes liability on parties responsible for, in whole or in part, the presence of hazardous substances at a site superfund liability is. Acts of god, acts of war, acts of third parties and cultural resource damages.
Liability act is difficult under the best of circumstances. The revitalization handbook addressing liability concerns at contaminated properties 121119 2019 edition of the revitalization handbook summarizes the federal statutory provisions and epa policy and guidance documents that address the potential liability concerns of parties involved in the cleanup and revitalization of contaminated sites. This suggests that epa will consider both common law cases and cercla due care cases in evaluating what a nonliable owner must do to qualify for one of the three landowner defenses. One should know what problems may be lurking and be prepared to address them. Cercla contains liability exemptions, affirmative defenses, and protections. Appendix c to part 307 notice of limitations on the payment of claims for response actions, which is to be placed in the federal register.
Arranger and transporter liability under cercla findlaw. The article concludes with some practical considerations for the defense bar. This article examines the troubled history of cercla, the decadelong burlington northern case, and the possible effect the decision may have on environmental cleanups throughout the country. A prp can avoid liability if it can demonstrate that an act of god, act of war, or act of third party was the sole cause of the hazardous substance release. M arrero a bstract the epa s recent efforts to improve the operation of the superfund program amounts to a tacit acknowledgment that the implementation of cerclas goals is deficient and calls for critical reform to better achieve. The defenses that potentially responsible parties prps may raise to superfund liability are available only if the release was caused by. Municipal immunity from cercla liability for property. This is a radical departure from general tort principles which provide that consultants are liable only if their conduct falls below the standard of care. Promoting efficiency and fairness in cercla defenses a ndrew w. Chapter 6 strategic considerations in litigating and settling. Oswald,strict liability of individuals under cercla. Defense the supreme court recognized that congress intended the scope of cercla liability to be determined from traditional and evolving principles of common law. Introduction late in 1980 congress responded to the expensive problem of hazardous waste cleanup by passing the comprehensive environmental response, compensation, and liability act cercla,1 commonly.
Cercla owner without reasonable certainty of a defense. Defenses to and exemptions from superfund liability. Reconciling the cercla useful product and recycling defenses. A prp can avoid liability if it can dem onstrate that an act of god, act of war, or act of third party was the sole cause of the hazardous substance release. Cercla liability is based on a joint and several,24 strict liability system. Cerclas statutory liability defenses how strict is. The most commonly asserted defense is the thirdparty defense. History and overview of trustee liability under cercla a. An act of god, acts of war, actsomissions of a third party with whom a prp has no contractual relationship, commonly referred to as a thirdparty defense, or. Cercla also imposed liability retroactively to contamination predating the acts passage in 1980. However, cercla, known for its poor draftsmanship, vague definitions and inconsistent. M arrero a bstract the epa s recent efforts to improve the operation of the superfund program amounts to a tacit acknowledgment that the implementation of cercla s goals is deficient and calls for critical reform to better achieve. Congress enacted the comprehensive environmental response, compensation, and liability act of 1980 cercla.
Epa issues guidance interpreting scope of new cercla. Acquires contaminated property involuntarily by virtue of its function as a sovereign, cercla 10120d. As just mentioned, section 1a and b limit jurisdiction and, to some extent, venue. Cercla statutory liability and defenses the ucongress enacted cercla to fund and promote. Review of recent cercla third party defense due care. Superfund zcercla is a strict liability statute zliability under cercla is joint and several zunder cercla 107, a current owner of contaminated property can be liable for cleanup costs 6. Postclosing concerns and tenant issues update page 4 operatorliability imposed under this section. On january 11, 2002, thenpresident bush signed into law the small business liability relief and brownfields revitalization act brownfields amendments, which amended the comprehensive environmental response, compensation and liability act cercla by, among other things, adding the bona fide prospective purchaser bfpp defense and the contiguous property owner defense to cercla s. Retroactive parties may be held liable for acts that happened before superfund s enactment in 1980. Liability under cercla zcomprehensive environmental response, compensation and liability act of 1980 42 u. Chapter 6 strategic considerations in litigating and.
The statute explicitly establishes defenses other than those in section 107b. In addition, the defenses do not apply to actions brought under state or common law. The comprehensive environmental response, compensation and liability act, 42u. As originally enacted in 1980, cercla allowed federal or state gov. An alaskan state statute offers a purchasers defense similar to cercla s. The guidance states that as a general matter the response obligations of a nonliable. How to use the bona fide prospective purchaser defense. Smith in 1980 congress adopted its most financially extensive environmental protection measure, the comprehensive environmental response, compensation, and liability act cercla or superfund. Issues for plaintiffs settling private cercla litigation. The superfund recycling equity act srea, section 127 of cercla, 42 u. The purported congressional intent of the comprehensive environmental response, compensation, and liability act cercla, 42 u.
To qualify for this defense, a defendant must establish the. Liability for environmental contamination upcounsel. As discussed later in this paper, this private right of action stands in contrast to other private actions or claims authorized by cercla. Cla defendants may be looking increasingly to the act of. As such, the universal starting point for divisibility of harm analyses in cercla cases is 433a of the restatement second of torts.
Whentwo or more persons acting independently cause a distinct or single harm for which there is a reasonable basis for. Nonetheless, a substantial number of local governments avoid acquiring. Bona fide prospective purchasers superfund liability. Mache14 quadion is the seminal case involving allegations of cercla liability leveled at a trustee. Marshalling the divisibility defense to cercla liability. The divisibility of harm defense to joint and several liability under cercla david montgomery moore. Appendix b to part 307 claim for cercla response action. Cla imposes strict liability on a broad range of potentially responsible parties prps for releases of hazardous substances into the environment. Alaska generally imposes strict liability on landowners for releases of hazardous substances.
However, cercla provides certain defenses and exemptions from this potential liability, including a secured creditor exemption that can protect lenders from both pre and postforeclosure cercla liability with respect to a particular facility. As such, the universal starting point for divisibility of harm analyses in cercla cases is. The first article, cercla s novel and untested defenses. Environmental response, compensation, and liability act of 1980 cercla or superfund.
Tenant liability cercla changes under 2018 build act globest. Qualifies for a third party defense or innocent landowner liability protection, cercla 107b3, 105a. Read the first article in the series, cerclas novel and untested defenses. Agreement with thirdparties to support the cleanup and reuse at sites on the superfund national priorities list 41718 memorandum encourages regions to consider more frequent use of sitespecific agreements with third parties at sites on the superfund national priorities list. Superfund cleanup subject listing enforcement us epa. An alaskan state statute offers a purchasers defense similar to cerclas. Amounts recovered under section 107 of the comprehensive environmental response, compensation, and liability act of 1980 42 u. Landowner liability protections enforcement us epa.
The defenses that prps may raise to cercla liability are available only if the release was caused by. In the five years since the seminal decision in burlington northern and santa fe railway co. The divisibility of harm defense to joint and several. Acts of god, acts of war, acts of third parties and cultural resource damages 45 er 2589, 9514, focused on a few novel and relatively untested defenses. Section 1e expands permissible service, but the legal intelligencer. The 2002 brownfield amendments to the superfund law cercla provide a superfund liability defense for property owners who qualify as bona fide prospective purchasers of known contaminated property, as long as the property transaction was completed after january 11, 2002. Defenses to cercla liability 16 act of god act of war act of third parties with no contractual relationship or any combination of the three what counts if climate change forseable, and climate intervention available. Section 433a contains two steps 1 whether the harm at issue is. The innocent purchaser defense and offense in the lsrp era. The primary goals of the statute are to provide the federal government with the tools necessary to implement a prompt and effective response to problems created. It has been made even more difficult by a slate of recent federal cercla decisions that have made the settlement process even more of a minefield. The primary federal environmental liability law, the comprehensive environmental response, compensation, and liability act cercla, was also amended to include liability defenses and exemptions that may protect local governments that acquire brown.
Beyond conducting all appropriate inquiry conducting environmental due diligence as part of a real property transfer, or an asset or stock purchase, makes good business sense. Since enactment of the 2002 brownfields amendments to cercla, epa has developed guidance documents, model enforcement documents, responses to frequently asked questions, fact sheets, and other documents to clarify the landowner liability protections and support revitalization of contaminated land. Landowner liability under cercla when the comprehensive environmental response, compensation and liability act of 1980, commonly known as cercla or superfund, was enacted 25 years ago, it contained few defenses. Postclosing concerns and tenant issues update page 4 operator liability imposed under this section. Nov 21, 2019 the pdf will open a separate tabwindow.
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