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Comprehensive Enviromental Response, Compensation and Liability Act (CERCLA)
The federal Superfund law or CERCLA provides for the clean-up of abandoned disposal sites. Many states have analogous power to that of EPA to order potentially responsible parties (PRPs) to clean up releases, actual or threatened, of hazardous substances at their expense. The federal statute allows the government and private parties to sue PRPs for reimbursement of clean-up costs incurred as a result of such releases, and this liability can be joint and several. Four categories of persons are PRPs under CERCLA: current owners/operators of the facility; owners/operators of the facility at the time of disposal; any person who contracted/arranged for hazardous substances to be taken to, disposed of, or treated at the facility; and any person who selected the facility and transported hazardous waste there for disposal or treatment. A person owning only a security interest in the facility may also be deemed an operator by assuming management responsibilities at the site.
The Supreme Court has recently limited "arranger" or generator liability to those situations where a party takes intentional steps to dispose of a hazardous substance. Burlington Northern & Santa Fe Ry. Co. v. United States, 129 S. Ct. 1870 (2009). The Burlington decision also allows a party to avoid joint and several liability under CERCLA if there is a reasonable basis for apportionment.
Defenses to PRP liability arise where the release was caused solely by an act of war, an act of God, or an act of a third party. This "third party" defense is available only where the third party was not an employee of, or in a contractual relationship with, the PRP.
In addition, owners and operators may avoid liability if they prove they "did not know and had no reason to know" that the facility was contaminated. This lack of knowledge may be established, for example, if the owner/operator undertook "all appropriate inquiry" into prior uses of the facility before purchase or operation (the "innocent purchaser defense"). A qualified contiguous property owner who's facility is affected is also excluded from liability if that owner did not cause the contamination, is not affiliated with a PRP, and cooperates during a cleanup action. "Bona fide prospective purchasers" are also protected if, inter alia, they can establish that they made all appropriate inquiry into the former uses of the property, and if contamination is discovered for which they're not responsible, they exercise appropriate care with respect to the contamination found and cooperate fully during any subsequent cleanup action.