Environmental Contamination Liability

CERCLA imposes joint and multiple responsibility on four kinds of liable parties for clearing up pollution caused by hazardous chemicals.

The CERCLA’s Liability

CERCLA holds four types of responsible parties jointly and severally liable for clearing up pollution caused by hazardous substances:

A vessel’s or a facility’s present owner or operator;

The owner or operator of a vessel or facility at the time of hazardous material disposal;

The sources of any hazardous compounds found on the premises; and

Any carrier of hazardous chemicals to a location chosen by the transporter. 42 U.S.C. 9607(a)(1)- (4).

Although agreements may be created to divide responsibility among responsible parties, no agreement can protect any responsible party from CERCLA liability. CERCLA also imposed accountability for pollution that existed prior to the act’s enactment in 1980.

CERCLA Defenses to Liability

The CERCLA is a strict liability law. The only permitted defences are acts of God, acts of war, and, in very restricted cases, acts of a third party. 9607 of the United States Code (b). Innocent landowners are protected under the third party defence if they had no cause to know of the presence of dangerous chemicals and conducted all “adequate investigation into the prior owner and usage of the property consistent with good commercial or customary practise.” 9601 of the United States Code (35).

Costs Recoverable Under CERCLA

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 are borne by responsible parties under CERCLA. To recover response expenses under CERCLA, response actions must be carried out in accordance with the NCP. See 42 U.S.C. 9605, 33 U.S.C. 1321(c), and 40 C.F.R. pt. 300. Response expenses may be recouped from third parties or the Superfund. See Section 13.2: Requirements and Authorities for Response and Cleanup.

Authorities Charged with RCRA Cleanup

The EPA has the authority under RCRA to order the owner or operator of any facility that has a hazardous waste discharge to clean up the release and any solid waste management unit on the property, even if the unit was utilised by a previous operator and contains no hazardous wastes. 6924 of the United States Code (u). Also see Section 12.2: Hazardous Waste.

The 1990 Oil Pollution Act

The OPA enacts a comprehensive liability structure comparable to CERCLA, but only for oil wastes. Any owner or operator (or other responsible party) of a vessel or facility from which oil is discharged, or which poses a significant threat of oil discharge, into or upon navigable waters adjoining shorelines or the exclusive economic zone is liable for certain specified removal costs and damages up to a certain limit. 2702 of the United States Code (a). “Removal expenses” include any expenditures paid by the federal, tribal, or state government in accordance with the CWA’s oil spill response requirements, 33 U.S.C. sec. 1321, or state legislation, as well as any costs incurred by any individual in accordance with the NCP. Damages to natural resources, economic losses to real or personal property, loss of subsistence use of natural resources, net loss of taxes, royalties, or fees, loss of profits, and any higher expenses of delivering public services are all examples of “damages.” 2702(b) of the United States Code (2). Any third party determined to be the only source of a discharge may be held accountable. 2702, 33 U.S.C. (d). Depending on the size and type of the vessel or facility, there are certain statutory responsibility limitations. 2704 of the United States Code

Requirements for Financial Responsibility

The liability systems under CERCLA, RCRA, and the OPA all include financial assurance requirements. The EPA requires owners or operators of manufacturing facilities and certain vessels to provide proof of financial responsibility for CERCLA liabilities. 9608(a) of the United States Code (1). Financial responsibility requirements are often accomplished by an insurance guarantee, surety bond, or qualifying as a self-insurer. Owners or operators of facilities that handle, store, or dispose of RCRA hazardous wastes must also show financial responsibility for the expected cleanup costs for their facility. All owners or operators of vessels above 300 gross tonnes, offshore installations, or deepwater ports must produce proof of financial responsibility equivalent to the maximum liability for an oil release. Evidence of financial responsibility may be provided by insurance, a surety bond, a guarantee, a letter of credit, certification as a self-insurer, or other means. Failure to satisfy the financial responsibility criteria might result in a civil penalty of $25,000 per day. 9609(a)(1) of the United States Code (C).

State Cleanup Regulations

The majority of state cleaning legislation hold responsible parties strictly accountable; that is, the states do not need evidence of carelessness or intentional misbehaviour in order to hold a responsible party liable for cleanup expenditures. More than half of the states have strict responsibility as well as joint and several liability. Only a few states impose joint and several responsibility, not strict liability. Except for a few jurisdictions, failing to comply with cleaning rules may result in civil penalties. Under these provisions, fines and penalties often range from $10,000 to $50,000 per day. In over half of the states, punitive damages are allowed, which often double or treble the state’s response expenses. Actions based on annoyance, carelessness, or strict responsibility may also provide the foundation for liability under state common law. See Section 4.2: General Environmental Rights and Responsibilities for further information.