• Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”)

    Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”)The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) is a statute passed by the United States Congress to give the EPA a way to combat environmental damages. CERCLA does three things: (1) establishes prohibitions and requirements concerning closed and abandoned hazardous waste sites; (2) provides for liability of persons responsible for release of hazardous waste at these sites; and (3) establishes a trust fund to provide for cleanup when no responsible party could be identified.

    Under CERCLA, the EPA is allowed to seek out parties responsible for the release and assure their cooperation for clean up. Often times, the EPA will have “orphan sites.” These sites occurs when the EPA has no indication as to what party is responsible or the party responsible refuses to clean up the environmental damage. In these situations, the EPA will clean up the waste and use CERCLA to force the party responsible to pay for the cost. CERCLA is enforceable in all 50 states and coordinates with each state’s environmental agency.

    CERCLA has two clean up responses: (1) short-term response and (2) long-term response. Short term responses occur where actions may be taken to address releases or threatened releases requiring prompt responses. Long-term responses are to permanently and significantly reduce the dangers associated with releases or threats of releases of hazardous substances that are serious, but not immediately life threatening.

    CERCLA is a strict liability statute; the government is not required to prove any intent or causation. The government only has to prove that there is a contamination and that the defendant is the owner of the property. Once those two facts are proven, the defendant is guilty of violating CERCLA.

    CERCLA was originally intended for government uses only. However, in the past decade, courts have interpreted CERCLA to contain a private cause of action. Once the government attaches liability against a defendant (“Defendant 1”), she is required to pay for all cleanup costs. Assume however, that Defendant 1 was not the contaminator; rather, another party is responsible (defendant 2). Under CERCLA, Defendant 1 may seek indemnity against defendant 2 by proving that
    1. The targeted area is a facility
    2. The defendant is one of the four categories of covered persons
    3. A release or threatened release of a hazardous substance occurred
    4. The release or threatened release cause the plaintiff (defendant 1) to incur response costs, and
    5. The response costs were both necessary and consistent with the National Contingency Plan.
    If defendant 1 can prove all five elements, she can seek indemnity from defendant 2.
  • Ask a Legal Question