| The federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), also known as Superfund, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), is an environmental liability law that seeks to remediate and clean up polluted and hazardous waste sites. CERCLA generally focuses on past contamination and fixing liability for the clean-up costs. Through CERCLA's authorization, the Environmental Protection Agency can pursue those parties responsible for such costs under a theory of strict liability. That is, the negligence or fault of the responsible party is irrelevant.
CERCLA fixes liability for a contaminated site on those parties who fall into one of the following categories:
- the owner and operator of the facility,
- a person who at the time of disposal of any hazardous substance owned or operated a facility at which such hazardous substances were disposed of,
- a person who by contract, agreement, or otherwise arranged for the disposal or treatment, or arranged with a transporter for transport for the disposal or treatment, of hazardous substances owned or possessed by such person, and
- a person who accepted any hazardous substances for transport or disposal from which there is a release, or a threatened release, of a hazardous substance.
These categories can easily accommodate a contractor who encounters a hazardous substance on a job site and unknowingly transports it to another site, or even to other areas of the same construction site. Neither the fact that the contamination occurred decades earlier nor the fact that the contractor had no knowledge of the existence of the hazardous substance would diminish the contractor's liability. Further, a developer who controls the construction site and the activities therein could be recognized as the "operator" of a facility.
Another key feature of CERCLA is joint and several liability among all the parties. Each party is individually 100% liable for the clean-up costs, even though such party may be attributed a smaller percentage of fault for the contamination. SARA added the ability of responsible parties to seek contribution from other such parties. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |