Liability Under CERCLA.
CERCLA imposes joint and several liability for cleaning up
contamination caused by hazardous substances on four categories of
responsible parties: (1) the current owner or operator of a vessel or a
facility; (2) the owner or operator of a vessel or facility at the time
of disposal of any hazardous substance; (3) the generators of any
hazardous substances located on the site; and (4) any transporter of
hazardous substances to a site the transporter selected. 42 U.S.C. sec.
9607(a)(1)- (4). Although agreements can be made to apportion liability
between responsible parties, no agreement will shield any responsible
party from CERCLA liability. CERCLA also imposed liability retroactively
to contamination predating the act's passage in 1980.
Defenses to Liability Under CERCLA.
CERCLA is a strict liability statute. The only defenses allowed are:
act of god, act of war, or, in some limited circumstances, an act of a
third party. 42 U.S.C. sec. 9607(b). The third party defense includes
protection for innocent landowners, provided they had no reason to know
of the existence of hazardous substances and made all "appropriate
inquiry into the previous owner and uses of the property consistent with
good commercial or customary practice." 42 U.S.C. sec. 9601(35).
Recoverable Costs Under CERCLA.
Responsible parties under CERCLA are liable for: all cleanup costs
incurred by federal, state or tribal governments that are not
inconsistent with the NCP; any other necessary response cost incurred by
any other person consistent with the NCP; natural resource damages; and
the costs of any health assessment or health effects study. To recover
response costs under CERCLA, the response activities must be conducted
consistent with the NCP. See 42 U.S.C. sec. 9605; 33 U.S.C. sec.
1321(c); 40 C.F.R. pt. 300. Response costs may be recovered from other
parties or from the Superfund. See Section 13.2: Response and Cleanup
Requirements and Authorities.
RCRA Cleanup Authorities.
Under RCRA, EPA can require an owner or operator of any facility that
has a release of hazardous wastes to cleanup the release and any solid
waste management unit on the facility, even if the unit was used by a
prior operator and contains no hazardous wastes. 42 U.S.C. sec. 6924(u).
See also Section 12.2: Hazardous Wastes.
The Oil Pollution Act of 1990.
The OPA establishes a comprehensive liability scheme similar to CERCLA
but applicable to discharges of oil. Any owner or operator (or other
responsible party) of a vessel or facility from which oil is discharged,
or which poses the substantial threat of a discharge of oil, into or
upon navigable waters adjoining shorelines or the exclusive economic
zone is liable up to a certain limit for certain specified removal costs
and damages. 33 U.S.C. sec. 2702(a). "Removal costs" mean any costs
incurred by the federal, tribal, or state government under the CWA's oil
spill response provisions, 33 U.S.C. sec. 1321, or under state law; and
any removal costs incurred by any person consistent with the NCP.
"Damages" include: damages to natural resources, economic losses to real
or personal property, loss of subsistence use of natural resources, the
net loss of taxes, royalties or fees, loss of profits, and any increased
costs of providing public services. 33 U.S.C. sec. 2702(b)(2). Any third
party found to be the sole cause of a discharge can be held liable as a
responsible party. 33 U.S.C. 2702(d). There are specific statutory
limits on liability, depending on the size and nature of the vessel or
facility. 33 U.S.C. sec. 2704.
Financial Responsibility Requirements.
Financial assurance requirements are part of the liability systems
under CERCLA, RCRA, and the OPA. EPA requires owners or operators of
production facilities and certain vessels to have evidence of financial
responsibility for covering CERCLA liability. 42 U.S.C. sec. 9608(a)(1).
Typically, the financial responsibility requirements can be met with an
insurance guarantee, surety bond, or qualification as a self-insurer.
Owners or operators of facilities that treat, store, or dispose of RCRA
hazardous wastes must also demonstrate financial responsibility for the
estimated costs of cleanup at their facility. All owners or operators of
vessels over 300 gross tons, offshore facilities, or deepwater ports
must establish evidence of financial responsibility equal to the limits
of liability to which they could be subjected for a discharge of oil.
Financial responsibility may be established by evidence of insurance,
surety bond, guarantee, letter of credit, qualification as a self-
insurer, or other evidence of financial responsibility. Failure to meet
the financial responsibility requirements can result in a $25,000 per
day civil penalty. 42 U.S.C. sec. 9609(a)(1)(C).
State Cleanup Laws.
Most state clean-up statutes hold responsible parties strictly liable;
that is, the states do not require proof of negligence or deliberate
misconduct in holding a responsible party liable for cleanup costs. More
than half of the states impose both strict liability and joint and
several liability. A few impose joint and several liability, but not
strict liability. All but a few states can impose civil penalty
provisions for failure to comply with their cleanup statutes. Fines and
penalties under these statutes generally range from $10,000 to $50,000
per day. Punitive damages, typically double or triple the state's
response costs, are available in approximately half of the states. Under
state common law, actions based on nuisance, negligence or strict
liability could also form the basis for liability.See Section 4.2:
General Environmental Rights or Responsibilities.
From Summary of Enviromental Law in the United States - CEC
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