In 1980, the Comprehensive Environmental Response, Compensation, and Liability Act became a law. Commonly known as CERCLA or Superfund, the law made provisions for the “Superfund” program administered by the U.S. Environmental Protection Agency.

The law authorizes the EPA to investigate and cleanup sites that contain hazardous substances, whether the presence of such hazardous substances is due to negligence or by accident. Additionally, the law allows the EPA to seek negligent parties and hold them accountable by imposing liability on them through what is known as Superfund litigation.

The Superfund law

For businesses in an around Indianapolis who have to deal with hazardous substances, Superfund liability is an overhanging threat. Therefore, owners of such businesses need to be aware of certain basic aspects of Superfund liability.

  • Superfund liability is retroactive: The EPA is empowered to hold a business accountable even if hazardous substance were found at the site of a business prior to 1980.
  • Superfund liability can be joint and several: If the harm caused by multiple parties cannot be separated, the EPA can hold any one of those parties as the potentially responsible party, or the PRP.
  • Superfund liability is a strict liability: A PRP can be held liable even if just a small amount of substance found at the site was sent by that PRP.

Once held accountable, the PRP is potentially liable to pay the government for cleanup, damage to the environment and certain health assessments. The PRP may also have to provide injunctive relief by cleaning up a site themselves.

Exemptions from Superfund liability

In addition to outlining grounds for Superfund liability, the CERCLA provides exemptions and protections from liability for certain parties, provided they meet all requirements.

  • Exemptions: Certain residential, small business and non-profit generators of municipal solid waste in the National Priorities List sites are exempted from liability. Similarly, recyclers and service station dealers are also exempted from liability, provided they meet certain conditions.
  • Protections: Through amendments to the law over the years, cleanup contractors, landowners and purchasers, landlords, care renderers or Good Samaritans and state and local governments are some parties that receive protections under the CERCLA.

These exemptions and protections ensure that businesses operating in domains that must deal with hazardous substance are not affected by Superfund liability.

Defenses to Superfund liability

The PRP may be able to raise some defenses to Superfund liability but these defenses apply where the release of the hazardous material into the environment was due to:

  • an act of God;
  • acts of war;
  • a negligent third party with whom the PRP had a contractual relation; or
  • a local or state government.

Dealing with a government agency, especially for environmental issues, is always a major challenge. Therefore, solid legal representation always goes a long way in ensuring that a business owner’s interests are protected.

After all, it takes years of toil to make a business grow and sustain and every business owner would want that years of hard work is not affected by Superfund litigation. So, it is important for them to seek professional guidance and make informed decisions.