1. UNDERSTAND SUPERFUND LIABILITY
Liability under federal and state hazardous waste cleanup statutes is a special type known as strict liability. Accordingly, all generators, transporters, and disposal arrangers of hazardous waste, past and present, and all owners and operators of land or facilities, from which there has been a release or threat of release, are theoretically liable for the resulting cleanup costs, without regard to fault. Federal liability arises under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, commonly known as “Superfund” or “CERCLA.” Concurrent state liability will usually arise under the state Superfund equivalent, which in Massachusetts is the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, Massachusetts General Laws ch. 21E, §§ 1-18, known as “Chapter 21E.”
As a result of the joint, strict, and several liability, EPA and state agencies with Superfund laws do not need to prove wrongdoing, such as negligence, in order to compel cleanup or recover government response costs.
An “Owner” or “Operator”, under Superfund, is defined under 42 U.S.C. § 9601 (20)(A) as any person owning, operating, or charting by demise, a vessel as well as an onshore or offshore facility. The statute excludes individuals who do not actively participate in the management of a facility, but maintain a security interest in the vessel or the facility. 42 U.S.C. § 9601 (20)(A). The courts have found common carriers liable as owner/operators, but have declined to hold shippers liable for releases of hazardous substances in their custody, when the circumstances surrounding the release are beyond their control. Courts have interpreted owner/operator liability broadly, but require active participation in waste management practices, before liability attaches.
Individuals who arrange for the disposal of hazardous wastes they have created are liable as so-called “generators” under CERCLA 42 U.S.C. § 9607 (a)(3). Courts liberally construe generators to include facility owners that take affirmative steps for hazardous waste disposal. Individuals arranging for hazardous waste disposal must have the actual authority to control the handing and disposal of the hazardous waste for liability to arise. Additionally, transporter liability will arise where a transporter plays a significant role in the site selection..
EPA (and the typical hazardous waste agency) does not need to establish who was responsible for exactly how much waste, and may select from among what are called the Potentially Responsible Parties (PRPs) to compel a "private party cleanup" or to secure reimbursement of government cleanup expenditures. 42 U.S.C. § 9604 (a)(1).
Remember that federal Superfund liability attaches to any real estate contaminated with Superfund-type hazardous substances, regardless whether the site is listed on the National Priority List (NPL)1. That is why Superfund liability reaches almost anyone having anything to do with real estate. Remember that Massachusetts Superfund liability attaches to oil as well as hazardous materials on property. Massachusetts General Laws ch. 21E, §§ 1-18.
Several states have created their own Superfund laws. These state statutes, which Congress has invited to go beyond the federal Superfund, commonly regulate more types of waste, such as petroleum products (as in Massachusetts); impose stricter liability (allowing fewer defenses); foster additional litigation (allowing private suits for damage to real estate); affect real estate title (allowing the state, such as Massachusetts, Connecticut, and New Hampshire, to record a superior lien, known as a “superlien”, to secure reimbursement of cleanup costs); allow liens against the business revenues of liable persons (New Hampshire); or require site assessments prior to transactions involving industrial property (as in New Jersey and Connecticut).