CERCLA (Comprehensive Environmental Response, Compensation, and Liabilities Act )
CERCLA, commonly known as Superfund, provides the federal government with the authority to respond directly to releases of hazardous materials.
Comprehensive Environmental Response, Compensation, and Liabilities Act (CERCLA or Superfund)
CERCLA, commonly known as Superfund, provides the federal government with the authority to respond directly to releases of hazardous materials and to prevent threatened releases that may harm the public health or environment. CERCLA also gives injured parties a mechanism to recover remediation and response costs.
What does CERCLA do?
The reach of CERCLA’s cost recovery mechanism is broad, often allowing damaged parties to recover response costs years after the damage occurred. CERCLA imposes cleanup and reporting requirements by determining locations where hazardous releases have occurred or may occur, and that pose a threat to human health, welfare or the environment; providing a response mechanism for the cleanup and remediation of the site; and providing a cost recovery mechanism for damaged parties. CERCLA authorizes short-term response actions to address releases and threatened releases, and long-term remedial response actions meant to significantly reduce the risk and dangers of a release.
Although CERCLA cleanup liability is often costly, the Small Business Liability Relief and Brownfields Revitalization Act (“2002 Brownfields Amendments”) amended CERCLA to protect three types of landowners. CERCLA now provides liability protections for:
• Bona fide prospective purchasers (BFPPs)
• Contiguous property owners (CPOs); or
• Innocent landowners (ILOs).
A BFPP is protected from liability if they purchase a brownfield after January 11, 2002, meet certain threshold criteria and ongoing obligations, and do not impede a response action or natural resource restoration. BFPPs may not have any relationship with a party that is liable for cleanup costs and must conduct “all appropriate inquiries” prior to purchasing the property.
CPOs are protected from CERCLA liability if the land they own is not the original source of the contamination. Unlike BFPPs, a buyer who knows or has reason to know, prior to purchase, that the property may be contaminated cannot qualify as a CPO.
ILOs are shielded from CERCLA liability if, after conducting all appropriate inquiries, the ILO purchased land without knowing, or having reason to know, of contamination.
Brownfields, contaminated properties, are typically cleaned and revitalized at the state level, through state voluntary cleanup programs (VCPs). Brownfield redevelopment not only removes environmental contamination but positively impacts local communities and their economies.
To promote voluntary cleanups, U.S. EPA is generally barred under the 2002 Brownfields Amendments from seeking remediation or removal actions against businesses or individuals who voluntarily cleanup “eligible response sites” according to state standards. U.S. EPA’s enforcement bar for voluntary cleanups incentivizes the development of suspected, or previously contaminated land by removing the threat of future cleanup costs.
Although the federal tax incentive for brownfield cleanups is currently not available, U.S. EPA offers grants, while state programs may offer both tax incentives and grants.
Superfund Amendments and Reauthorization Act (SARA)
In 1986, the Superfund Amendments and Reauthorization Act (SARA) amended CERCLA and added new enforcement tools, expanded State involvement in the program, and stressed the value of permanent remedies. SARA gave rise to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP or National Contingency Plan), and the Emergency Planning and Community Right-to-Know Act (EPCRA).
The NCP requires that remediation efforts under CERCLA must attain applicable or relevant and appropriate requirements, essentially setting a floor on the outcome of remediation efforts and specifying technical standards for cleanup activities.
EPCRA set emergency planning, reporting, and notification requirements meant to better prepare emergency responders for releases of chemicals and hazardous substances, which in turn provide increased protection for the public. Facilities must report the presence of hazardous chemical substances at their facilities, with additional reporting and recordkeeping required for “extremely hazardous substances.”
What are “all appropriate inquiries?”
All appropriate inquiries evaluate a property’s environmental conditions and assess the likelihood of contamination. EPA’s standards are based on ASTM E1527-13, which is also accepted by EPA.
What is a brownfield?
A brownfield site is land that is either suspected of, or is, contaminated with hazardous substances, pollutants, or contaminants. Brownfields are not Superfund sites.
What is an eligible response site?
Generally, eligible response sites are brownfield sites, although the definition for eligible response sites includes additional sites that are not considered brownfields.
More about SARA and EPCRA